USCA1 Opinion

[NOT FOR PUBLICATION]

___________________
No. 91-2236

FRANCISCO MARIA DE FREITAS NOIA,

Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
__________________
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
___________________
Before
Breyer, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
___________________
Robert D. Watt, Jr., on brief for petitioner.
__________________
Stuart M. Gerson, Assistant Attorney General,

David

J.

_________________
_________
Kline, Assistant Director, and William J. Howard, Attorney,
_____
__________________
Office of Immigration Litigation, on brief for respondent.

__________________
August 25, 1992
__________________

Per Curiam.
___________
Noia,

seeks

Petitioner,

review

of

Francisco

final

order

Immigration Appeals ("BIA") reversing

of petitioner's

application for

from

deportation under

212(c)

("Act"), 8

U.S.C.

of

the

Freitas
Board

of

an immigration judge's

grant

Nationality Act

Maria De

of

discretionary relief
the

Immigration

1182(c).

We

and

deny the

petition.
Petitioner
Portugal

on July

lawfully

entered

17, 1976 at

the

United

the age

of 17.

States

from

Twenty-nine

months later he was arrested and indicted in Rhode Island for

assaulting a woman with a

hatchet with intent to murder her,

robbing her, and

stealing her car.

three charges on

a plea of nolo contendere

____ __________

twenty-one

years incarceration

years of probation.

He

was convicted of all

followed

He served

and sentenced to
by another

approximately nine years

the Adult Correctional Institute at Cranston.

he

was

released on

Immigration
previously

and

parole

and

into

with an

("INS"),

Order to

in

In July, 1987,

the custody

Naturalization Service

served him

twenty

of

the

which had

Show Cause

why he

should not be deported.

At

his

deportation

facts establishing that

of the Act, 8 U.S.C.
crime involving

hearing,

petitioner conceded

he was deportable under

the

241(a)(4)

1251(a)(4), as an alien convicted of a

moral turpitude.

However,

he requested

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waiver

of

1182(c).1
application.

his

deportation

The

under

immigration
On

appeal

the

judge
BIA

212(c),
("IJ")
reversed,

U.S.C.

granted
finding

his
no

demonstration of the "unusual or outstanding equities" needed

to establish eligibility

for a discretionary waiver

under

212(c).
Petitioner asks this court to
of the

evidence, replacing our

argues should be the

Even if we were

facts

however, the

discretion

(1st Cir. 1991).

discretion."

We

to

waive

(which he
that of the

exclusion

under the Act has

to the BIA, not to this court.

it was

review

persuaded by petitioner's view of

otherwise deportable alien

determine if

view of the facts

same as the IJ's view) for

BIA.

438

conduct a de novo
_______

an

been delegated

Hazzard v. INS, 951 F.2d 435,

_______
___

review the

BIA's action

"arbitrary, capricious

McLean
______

of

the

v. INS,
___

901 F.2d

its

discretion by

only to

or an abuse

204, 205

of

(1st Cir.

1990).
The

BIA exercises

adverse factors

evidencing an

permanent resident

alien's

"balanc[ing] the

undesirability as

with the social and humane considerations

____________________
1. Although
212(c) of the Act expressly applies to aliens
who are returning "to a lawful unrelinquished domicile of
seven consecutive years," it has been interpreted to permit
discretionary waiver of deportability of aliens who have not
left the country although they have met the seven year
requirement. See Joseph v. INS, 909 F.2d 605, 606 n. 1 (1st
___ ______
___
Cir. 1990); Lozado v. INS, 857 F.2d 10, 11, n. 1 (1st Cir.
______
___
1988).
-3-

presented in

his behalf."

Matter of Marin,
_______________

16 I. & N. Dec.

581, 584 (B.I.A. 1978); Joseph v. INS, 909 F.2d 605 (1st Cir.
______
___
1990) (BIA's

interpretation

entitled

court's

to

conclusive

if

of its

respect).

supported

by

Its

statutory authority
factual

"reasonable,

probative evidence on

the record considered

U.S.C.

1105a(4).2

On

action

"unless it was

review, we

made without a

is

findings are

substantial
as a whole."

will uphold

and
8

the BIA's

rational explanation,

inexplicably departed from established policies, or rested on

an

impermissible basis."

McLean, 901 F.2d

______

at 205 (quoting

Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985)).

________
___

____________________
2. Respondent argues that this court should not review the
record to determine if it contains substantial evidence, but
should instead confine its review to the logic and language
of the BIA's opinion.
The BIA exercises its discretion by
balancing
various
"factors,"
which are
composed
of
conclusions on certain subjects drawn from the evidence.
Respondent says that judicial review for substantial evidence
intrudes on this discretionary exercise.
Since we here
uphold the BIA's decision we need not reach this argument.
We note, however, that the cases respondent cites do not

support the limited review it

urges.

Cordoba-Chaves v. INS,
______________
___
946 F.2d 1245, 1246 (7th Cir. 1991); Blackwood v. INS, 803
_________
___
F.2d 1165 (11th Cir. 1986); Vergara-Molina v. INS, 956 F.2d
______________
___
682 (7th Cir. 1992). These cases hold, as has this court,
that the relative weight of the various factors balanced is
committed to the BIA's discretion, and will only be reviewed
for an abuse. Joseph, 909 F.2d at 607. However, the cases
______
cited also recognize that on an appropriate challenge,
judicial review must necessarily extend to the record as a
whole to ascertain if the BIA's decision is supported by
substantial evidence, Cordoba-Chaves, 946 F.2d at 1249;
______________
Blackwood, 803 F.2d at 1168; or properly considered all
_________
important factors, Vergara-Molina, 956 F.2d at 685. A fourth
______________
case cited by respondent, INS v. Jong Ha Wang, 450 U.S. 139
___
____________
(1981) (upholding BIA's interpretation of statutory term), is
inapposite.
-4-

We read petitioner's arguments

exercise of discretion
that

the

BIA

policies when it

as challenging the BIA's

on three grounds.

improperly

(1)

departed

Petitioner claims
from

weighed the factors involved,

established
(2) exceeded

its authority by conducting a de novo review and substituting

__ ____
its own view of the

facts for that of the IJ,

and (3) based

its factual conclusions on less than "substantial" evidence.

(1) Departure from established policies
________________________________________
Petitioner

argues that the BIA abused its discretion by

applying to his

case a standard of eligibility

imposed.

The

requirement

equities"

to

offset

articulated
1978),

"unusual

serious

argues,

was

outstanding

factors,

first

& N. Dec. 581 (B.I.A.

applicable

drug-related crimes when

July, 1987.

and

negative

in Matter of Marin, 16 I.
_______________

petitioner

involving

of

never before

only

in

his hearing was

cases
held in

We disagree.

Although Marin involved an alien who had been convicted

_____
of drug-related crimes,
212(c) waiver

cases.

the BIA's opinion

The

opinion

applied to all

clearly warned

that

proportionately greater showing of

equities was required

balance out more egregious crimes.

Marin, 16 I. & N. Dec. at

_____

583.

The BIA

emphasized

inflexible test for

be granted.

that

it

determining when

has never
212(c)

adopted

that an applicant for section 212(c)

bring
forward to establish
that
-5-

an

relief should

Instead,

The equities
relief must

to

favorable discretionary action is warranted will

depend in each case on the nature and circumstances
of the ground of exclusion sought waived and on the
presence of any additional adverse matters. As the
negative factors grow more serious it becomes
incumbent
upon
the
applicant
to
introduce
additional offsetting favorable evidence, which in
some cases
may have
to involve
unusual or
outstanding equities. Such a showing at times may
be required solely by virtue of the circumstances
and nature of the exclusion ground sought waived.
Marin, 16 I. & N. Dec. at 585.
_____
In a footnote the BIA added that the disfavor attending
serious

drug offenses would

"unusual and

outstanding

generally require a

equities" to

Marin, 16 I. & N. Dec. at

_____

586 n.4.

showing of

offset such

crimes.

But neither the footnote

nor the body of the opinion said that a weaker showing

be sufficient to

overcome otherwise heinous crimes

not involve drugs.

(7th

Cir. 1991)

issue,

BIA's

See
___

of

discussion of

discretionary

waiver

"outstanding equities" shown in 1986 hearing

by

that did

Cordoba-Chaves v. INS, 946 F.2d 1244

______________
___

(affirming, without
denial

would

alien's conviction for

instant
because

were outweighed

murder, aggravated battery

and a

lesser drug-related crime).

In Matter of Buscemi, 19 I. &
__________________
1988), a
related

discretionary waiver
crimes,

the

BIA

N. Dec. 628, 633 (B.I.A.

case involving

commented,

"The

serious drugnecessity

of

demonstrating

unusual

or

outstanding

exclusively triggered by serious

substances....[A]s we

equities

is

not

crimes involving controlled

indicated in Marin,
_____

one must

examine

-6-

the

gravity of

representing
predictable

the offense."
a

equities

in

the

clarification.

realistically
decision,

shift

We do

claim

to

where,

as

BIA's

been

warned of

here, there

were

Buscemi as
_______

standards,

Petitioner

have

which obviously

not read

here

misled
the

by

but

cannot

the

need for

Marin
_____
greater

especially egregious

disqualifying factors.
(2) BIA's Standard of Review
_____________________________
Petitioner argues that the BIA exceeded its authority by
conducting a de novo review of
__ ____
BIA erroneously refused

the evidence.

to accept the IJ's

He claims

the

factual findings

as conclusive.
First,

we

do

not

agree

with

petitioner's

characterization of

the BIA's procedure.

The

find new

reweigh those which

the IJ

found.

facts nor
Instead,

the BIA held that the IJ

an inappropriate balancing standard.

the facts to

had reasoned that

shown "outstanding

since petitioner had family

Rather the IJ
in the United

prison, and was truly contrite, he

should be given "the opportunity to remain."

abuse its

had already

erred by applying

as required by Marin.
_____

States, a clean record in

not

The IJ had not assessed

determine if petitioner had

and unusual equities",

BIA did

discretion in holding

The BIA did not

the IJ's decision to

be an

error under Marin.

_____

-7-

Second, the BIA searched the record for additional facts

that might demonstrate the "unusual and outstanding" equities
required by Marin, and found
_____

none.

This second step in

the

BIA's review arguably might be characterized as de novo.

__ ____

But

it was not

error.

decision de
__

novo,
____

The BIA has discretion to review the IJ's

and

the "full

factual issues before it."

n.4 (quoting

1 C. Gordon

at 1249 (rejecting

required

to

determine

Hazzard v. INS, 951 F.2d

_______
____

all

at 440

& S. Mailman, Immigration Law and

____________________

Procedure, Sect. 3.05[5][b]

_________
F.2d

power

at p.3-57); Cordoba-Chaves,
______________

petitioner's argument that

946

BIA was

to defer to IJ's factual and credibility findings).

Nor did the BIA abuse its discretion by not remanding to

IJ.

Petitioner

offers no

reason for

compelling a

the

remand

beyond his belief that the IJ is a better fact-finder.

3.

Substantial Evidence
____________________

Petitioner's
IJ concluded

that petitioner was

BIA's contrary
choose

between

decision is
relevant

entitled to a

decision must be wrong.

the

two

waiver, the

On review, we do not

interpretations.

If

the

BIA's

supported by substantial evidence, meaning "such

evidence as

support [such]
affirm.

main argument appears to be that since the

reasonable

a conclusion," we

Blackwood, 803 F.2d

_________

mind

might

accept

must defer to the

at 1168; Martinez v.
________

to

BIA and
INS, No.
___

92-1008, 1992 U.S. App. LEXIS 17123, at *3 (1st Cir. July 28,
1992).

-8-

There was certainly substantial evidence to support the

BIA's decision.

Petitioner conceded commission of

crime less than three years

a brutal

after entering this country.

bore the burden of showing

He

that despite this fact there were

countervailing equities entitling him to discretionary relief

from deportation.
The

Hazzard, 951 F.2d at 438.

_______

BIA accepted the

"candid and

IJ's assessment of

worthy of belief," possessed of a genuine desire

"to walk the straight and

of

petitioner as

his ways."

narrow" and having seen "the error

But the BIA

other evidence probative

found the record

of the factors listed

devoid of any
in Marin and
_____

other cases, which might demonstrate "unusual and outstanding

equities."
The record showed that most of petitioner's stay
United States
history,

was spent behind

no community service,

bars.

and, the BIA

shown no evidence of rehabilitation.

a

number of

nothing in

family members
the

record "to

in

He had

no employment
concluded, had

Although respondent had

this country,

suggest

in the

that [he]

the BIA
maintains

particularly close, supportive relationship with them."

saw
a

Petitioner
there

was "no"

example,

argues that the BIA erred in concluding that

evidence on

he points

prison as

to proof

evidence of

rehabilitation

was

each

of these

that he

subjects.

was assigned

an employment history.

demonstrated

by

such

He

evidence

For

work in
says his
as the

-9-

absence

of a prison disciplinary record and his parole after

less than nine

proved

close

years' incarceration.
family ties

by

And he

his expressed

argues that he
desire

not to

the evidence

aside,

return to Portugal because his family was here.

These abstruse
our

interpretations of

reading of the record leads

did not overlook any cogent

us to conclude that the BIA

evidence that might have

"outstanding equities" in petitioner's favor.

required

to

presented,

address

each

item

The BIA is not

of

evidence

so long as it has given reasoned consideration to

the record as
17123.

specifically

proved

a whole.

Martinez, 1992
________

Cf. Vergara-Molina
___ ______________

v. INS, 956
___

U.S. App. LEXIS

F.2d 682,

at

685 (7th

Cir. 1992) (where evidence

showed BIA adequately

considered

rehabilitation factor, BIA need not discuss specifically each

fact which petitioner presented);
802

F.2d

327,

generally of

329-30 (9th

Cir.

Villaneueva-Franco v. INS,
__________________
___
1986)

favorable facts without

(BIA's recognition

referring specifically

to each fact was not an abuse of discretion).

In conclusion,
abused

its

there is

discretion

deportation under

no showing here

in denying

petitioner

212(c) of the Act.

The decision of the BIA is affirmed.

________

-10-

that the
a

BIA

waiver of