Gregorio Tejeda-febles, Plaintiff-appellant, v. Immigration and Naturalization Service, Defendant-appellee, 70 F.3d 1280 (9th Cir. 1995)

MEMORANDUM^* 

The Immigration Examiner's lengthy report conspicuously fails to consider evidence of petitioner's rehabilitation, particularly his efforts to better himself while in prison and since. The district court also failed to consider the rehabilitation evidence in the record in its determination. Given the statutory focus on petitioner's current moral character, see 8 U.S.C. §§ 1427(a), 1440(b) (2), this evidence is highly probative. We VACATE the district court's order and REMAND for reconsideration in light of this evidence.

FARRIS, Circuit Judge, dissenting.

I respectfully dissent.

The alien has the burden of proving good moral character; the immigration director is not required to prove the contrary. See Berenyi v. Immigration Director, 385 U.S. 630, 637 (1967). The record reflects that Tejeda-Febles was convicted in 1985 for possession with intent to distribute 35,000 pounds of marijuana. He entered the United States as an adult in 1962 and had the following convictions prior to his incarceration in 1985: (1) breaking and entering with intent to commit a petit larceny; (2) illegal possession of a firearm; and (3) reckless operation of a vehicle and abandoning the scene after causing property damage. Tejeda-Febles argues that his conduct while in prison for his most recent offenses evidences his rehabilitation. The district court reviewed Tejeda-Febles's record over the past few years and rejected his argument. It did not abuse its discretion in doing so.

I would affirm.