Title Tipu v. I.N.S.
Date 1994
By
Subject Other\Dissenting
Contents
Page 1
43 of 64 DOCUMENTS
MOHAMMAD ZAFAR TIPU, Petitioner v. IMMIGRATION & NATURALIZATION SERVICE, Respondent
No. 92-3657
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
20 F.3d 580; 1994 U.S. App. LEXIS 6410
June 24, 1993, Argued
April 5, 1994, Filed
PRIOR HISTORY: **1 On Petition for Review of a Decision and Order of the Board of Immigration Appeals BIA No. A20-149--011.
CASE SUMMARY:
PROCEDURAL POSTURE: Petitioner sought review of a decision and order of the Board of Immigration Appeals that denied petitioner special equitable relief from deportation under § 212(c) of the Immigration and Naturalization Act, 8 U.S.C.S. § 1182(c).
OVERVIEW: Petitioner convicted of drug charges ap- pealed the denial of relief from deportation under § 212(c) of the Immigration and Naturalization Act, 8 U.S.C.S. §
1182(c), by the Board of Immigration Appeals (BIA), challenging the BIA's decision as an abuse of discretion. On review, the court concluded that the BIA failed to properly consider factors in petitioner's favor, namely, significant evidence of the hardship petitioner's deporta- tion would impose on his dialysis dependent brother and family, credible evidence that petitioner's role in the drug conspiracy was minor, substantial evidence of petitioner's complete rehabilitation, and disregard of the fact that pe- titioner was an owner/operator of a taxicab. The court reversed the BIA's determination that petitioner was in- eligible for § 212(c) relief, remanded the case for a re- consideration of all the relevant factors, and held that petitioner was entitled on remand to pursue a motion to reopen the case under 8 U.S.C.S. § 1254(a)(2).
OUTCOME: The court vacated the decision of the Board of Immigration Appeals (BIA) denying petitioner's relief from deportation because the BIA failed to properly con- sider evidence in petitioner's favor, remanded the case to the BIA for reconsideration, and held petitioner was entitled to pursue a motion to reopen.
LexisNexis(R) Headnotes
Immigration Law > Deportation & Removal > Administrative Proceedings > Jurisdiction
Immigration Law > Deportation & Removal > Administrative Appeals > U.S. Board of Immigration Appeals
Immigration Law > Judicial Review > Scope of Review
HN1 A court has jurisdiction to review a final depor- tation order by the Board of Immigration Appeals (BIA) pursuant to the Immigration and Naturalization Act, 8
U.S.C.S. § 1105(a)(1). The BIA's denial of a petition for a stay of deportation is reviewed under an abuse of dis- cretion standard. Discretionary decisions of the BIA will not be disturbed unless they are found to be arbitrary, irrational or contrary to law.
Immigration Law > Deportation & Removal > Relief > Waivers
HN2 Section 212(c) of the Immigration and Naturalization Act, 8 U.S.C.S. § 1182(c) requires the U.S. Attorney General or her designate as a matter of discre- tion to determine whether to grant a waiver of deportation once statutory eligibility is established.
Immigration Law > Deportation & Removal > Relief > Waivers
HN3 See 8 U.S.C.S. § 1182(c).
Immigration Law > Deportation & Removal > Relief > Waivers
Immigration Law > Deportation & Removal > Administrative Proceedings > Evidence > General Overview
HN4 In determining whether to grant a waiver of deportation under §212(c) of the Immigration and Naturalization Act, 8 U.S.C.S. § 1182(c), the Board of Immigration Appeals balances favorable factors, includ- ing family ties within the United States, residence of long duration in this country especially when the inception of residence occurred at a young age, evidence of hard- ship to the respondent and her family if deportation oc- curs, service in this country's armed forces, a history of
20 F.3d 580, *; 1994 U.S. App. LEXIS 6410, **1
Page 2
employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character. Immigration Law > Deportation & Removal > Relief > Waivers
Immigration Law > Deportation & Removal > Administrative Proceedings > Evidence > Burdens of Proof > General Overview
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > General Overview
HN5 The applicant bears the burden of demonstrating that he merits relief from deportation under § 212(c) of the Immigration and Naturalization Act, 8 U.S.C.S. § 1182(c). Just one adverse consideration may be determinative of whether § 212(c) relief is granted and that an alien who has been convicted of a serious drug offense will usually be required to make a showing of unusual or outstand- ing equities in their favor in order to be considered for §
212(c) relief.
Immigration Law > Deportation & Removal > Relief > Waivers
Immigration Law > Judicial Review > Scope of Review Immigration Law > Deportation & Removal > Administrative Proceedings > Evidence > General Overview
HN6 A decision of the Board of Immigration Appeals may be remanded if it fails adequately to consider the evidence in the record which favors an applicant. Immigration Law > Judicial Review > Scope of Review Immigration Law > Deportation & Removal > Administrative Proceedings > Evidence > General Overview
HN7 A decision of the Board of Immigration Appeals will not be affirmed by a court unless the reasons for such a finding are made clear.
Immigration Law > Deportation & Removal > Relief > General Overview
Immigration Law > Deportation & Removal > Administrative Proceedings > Evidence > General Overview
HN8 A proper determination as to whether an alien has demonstrated unusual or outstanding equities can only be made after a complete review of the favorable factors in his case.
Immigration Law > Deportation & Removal > Relief > Suspension of Deportation
Immigration Law > Deportation & Removal > Grounds
> Criminal Activity > Controlled Substance Offenses Immigration Law > Deportation & Removal > Administrative Proceedings > Evidence > General
Overview
HN9 Under the Immigration and Naturalization Act, 8
U.S.C.S. § 1254(a)(2), the U.S. Attorney General may suspend deportation of an alien who became deportable due to a drug-related crime but who has remained in the U.S. for ten years following the crime and who during all of such period has been and is a person of good moral character; and is a person whose deportation will, in the opinion of the U.S. Attorney General, result in excep- tional and extremely unusual hardship to the alien or to his spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted or permanent resi- dence.
Immigration Law > Deportation & Removal > Relief > General Overview
Immigration Law > Deportation & Removal > Administrative Appeals > Motions
Immigration Law > Deportation & Removal > Administrative Proceedings > Evidence > General Overview
HN10 The Board of Immigration Appeals may deny as a matter of law an alien's motion to reopen deporta- tion proceedings to seek discretionary relief if the alien in question is subject to an administratively final deportation order.
Immigration Law > Deportation & Removal > Relief > Waivers
Immigration Law > Judicial Review > General Overview Immigration Law > Deportation & Removal > Administrative Proceedings > Judicial Decisions
HN11 Aliens whose appeals for relief under § 212(c)
of the Immigration and Naturalization Act, 8 U.S.C.S. §
1182(c) are denied by an immigration judge and who ei- ther do not appeal or whose appeals are denied by the Board of Immigration Appeals are no longer lawfully ad- mitted for permanent residence in this country and thus are not statutorily eligible for discretionary relief. Immigration Law > Deportation & Removal > Relief > Waivers
Immigration Law > Deportation & Removal > Administrative Appeals > Motions
Immigration Law > Judicial Review > Scope of Review
HN12 If error is found in a Board of Immigration Appeals determination that an alien is deportable and un- deserving of relief under § 212 (c) of the Immigration and Naturalization Act, 8 U.S.C.S. § 1182(c), reversal nulli- fies the finality of the deportation order and revocation of permanent resident status. Given that the deportation or- der cannot stand where such an error has been made, there is no reason to allow the deportation order to preclude a motion for reconsideration.
20 F.3d 580, *; 1994 U.S. App. LEXIS 6410, **1
Page 3
COUNSEL: Ann A. Ruben, Esquire, Richard D. Steel, Esquire (Argued), Steel & Rudnick, 936 Public Ledger Building, Philadelphia, PA 19106, Attorneys for Petitioner.
Stuart M. Gerson, Assistant Attorney General, David
J. Kline, Assistant Director, David V. Bernal, Esquire
(Argued), Carl H. McIntyre, Jr. Esquire, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, P. O. Box 878, Washington, D.C.
20044, Attorneys for Respondent.
JUDGES: Before: BECKER, ALITO and ROTH, Circuit
Judges.
OPINIONBY: ROTH
OPINION: *581 OPINION OF THE COURT
ROTH, Circuit Judge:
In 1982 Mohammad Tipu was convicted on narcotics charges. As a result, the Immigration and Naturalization Service ("INS") is now seeking to deport him. At his de- portation hearing, Tipu introduced evidence in his favor of his rehabilitation and of his seriously ill brother's de-
pendence upon him. Nevertheless, an immigration judge denied Tipu special equitable relief from deportation un- der § 212(c) of the Immigration and Naturalization Act
("INA"), 8 U.S.C. § 1182(c). The Board of Immigration Appeals **2 ("BIA") affirmed the immigration judge's decision and ordered Tipu's deportation to Pakistan. Tipu appeals, challenging the BIA's decision as an abuse of discretion. As we conclude that the BIA failed to prop- erly consider important factors in Tipu's favor, we will vacate the decision of the BIA and remand this case for further proceedings consistent with this opinion.
I.
Mohammed Zafar Tipu is a native and citizen of Pakistan. On February 25, 1971, at age 22, he entered the United States on a student visa. He became a law- ful permanent resident alien on August 8, 1972. He has resided here continuously for twenty-three years and has been steadily employed, as an auto mechanic, a partner in a restaurant venture, the operator of a magazine stand, and a taxi driver. He has been the owner/operator of a taxi cab in Virginia since 1983. Tax forms submitted to the court show that Tipu has paid taxes on his wages. App. at
29-36.
20 F.3d 580, *582; 1994 U.S. App. LEXIS 6410, **2
Page 4
*582 Since 1973, Tipu has lived with his brother, Mohammad Arshad. In 1977, Arshad suffered complete kidney failure. Two attempted kidney transplants failed, and Arshad has to undergo dialysis treatment three times weekly. As Arshad's condition has become increasingly serious, **3 he has come to rely upon Tipu for trans- portation to his dialysis sessions and for emotional and financial support. Although Arshad receives government disability benefits, Tipu apparently provides substantial support for Arshad, his wife and their two children.
On January 22, 1982, Tipu pled guilty to a charge of conspiracy to distribute heroin. He was sentenced to one year imprisonment, of which he served ten months. Tipu alleges that his role in the conspiracy was very minor, consisting solely of attending a dinner meeting at which the conspiracy was discussed by his older brothers, who were the conspirators. Tipu received the lightest sentence of the conspirators. No evidence was introduced to show that Tipu was ever involved in the use or sale of drugs prior to or after this conviction.
As a result of Tipu's conviction, the INS began de- portation proceedings against him pursuant to 8 U.S.C. §
1251(a)(11). In a June 4, 1986, hearing, Tipu conceded that he was deportable and applied for relief from depor- tation under the waiver of inadmissibility provision of §
212(c) of the INA. At his hearing, Tipu submitted positive letters of support from his **4 minister, from his pro- bation officer, and from several personal acquaintances. The letter from Tipu's probation officer attested to Tipu's trustworthiness and to his crucial role in supporting his brother. The probation officer stated that "the conspiracy offense was in point of fact an aberration for this man." App. at 38.
Following the deportation hearing, the immigration judge denied Tipu's application for a § 212(c) waiver and found Tipu deportable under 8 U.S.C. § 1251(a)(11) be- cause of his conviction. Tipu appealed to the BIA on June 9, 1986. Six years later, on August 3, 1992, the BIA affirmed the immigration judge's denial of a § 212(c) waiver and dismissed Tipu's appeal. Tipu filed a timely petition for review and motion for stay of deportation with this Court. After a jurisdictional challenge to Tipu's ap- peal was resolved in his favor, a stay of deportation was granted on December 18, 1992, by a panel of this Court. This appeal followed.
II.
HN1 This Court has jurisdiction to review a final deportation order by the BIA pursuant to 8 U.S.C. §
1105(a)(1). The BIA's denial of a petition for a stay of deportation **5 is reviewed under an abuse of discre- tion standard. Foti v. INS, 375 U.S. 217, 228 n.15 (1963). Discretionary decisions of the BIA will not be disturbed unless they are found to be "arbitrary, irrational or con- trary to law." So Chun Chung v. INS, 602 F.2d 608, 612 (3d Cir. 1979); Marroquin-Manriquez v. INS, 699 F.2d 129,
133 (3d Cir. 1983), cert. denied, 467 U.S. 1259 (1984).
III.
HN2 Section 212(c) requires the Attorney General or her designate as a matter of discretion to determine whether to grant a waiver once statutory eligibility is es- tablished. Tipu's statutory eligibility for a § 212(c) waiver is not disputed. n1
n1 HN3 Section 212(c) of the INA provides:
Aliens lawfully admitted for perma- nent residence who temporarily pro- ceeded abroad voluntarily and are not under an order of deportation and who are returning to a lawful unrelin- quished domicile of seven consecutive years, may be admitted in the discre- tion of the Attorney General without regard to various grounds for exclud- ability found in 8 U.S.C. § 1182(a), including narcotics offenses .
8 U.S.C. § 1182(c). This section has been held to be applicable also to lawfully admitted resident aliens facing deportation who did not depart the United States prior to committing the acts that rendered them deportable. Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA
1976).
**6
Neither the language of the statute nor the relevant regulations establish criteria by which to weigh appli- cations for discretionary relief from deportation. See 8
U.S.C.
20 F.3d 580, *583; 1994 U.S. App. LEXIS 6410, **6
Page 5
*583 1182(c); 8 C.F.R. § 213.3 (1990). However, the BIA has adopted a test that has been applied in such cases in order to "balance the adverse factors evidenc- ing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." Matter of Marin, 16 I&N Dec. 581, 584 (BIA
1978). HN4 The balancing test enunciated in Marin and applied by the BIA in this case is as follows:
Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (especially when the inception of residence occurred at a young age), evidence of hardship to the respondent and her family if deportation occurs, service in this country's armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabil- itation if a criminal record exists, and other evidence attesting **7 to a respondent's good character.
Among the factors deemed adverse to an alien are the nature of underlying circum- stances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the exis- tence of a criminal record, and, if so, its na- ture, recency, and seriousness, and the pres- ence of other evidence indicative of a respon- dent's bad character or undesirability as a per- manent resident of this country.
Matter of Marin, 16 I&N Dec. 581, 582-873 (BIA 1978).
See also Matter of Roberts, Int. Dec. 314B (BIA May 1,
1991) Matter of Edwards, Int. Dec. 3134 (BIA May 2,
1990); Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988).
HN5 The applicant bears the burden of demonstrating that he merits § 212(c) relief from deportation. Matter of Marin, 16 I&N Dec. 581, 582-83 (BIA 1978). BIA case law has also established that just one of the adverse considerations may be determinative of whether § 212(c) relief is granted and that an alien who has been convicted of a serious drug offense will usually be required to make
a showing of unusual **8 or outstanding equities in their favor in order to be considered for § 212(c) relief. Matter of Buscemi, 19 I&N Dec. 628, 633 (BIA 1988).
In this Circuit, we have not dealt directly with the proper standard for determining whether the BIA has committed an abuse of discretion in denying a § 212(c) waiver. However, in a similar context, involving applica- tions for a discretionary stay of deportation, this Court has concluded that HN6 a decision of the BIA may be remanded if it fails adequately to consider the evidence in the record which favors an applicant. In Sotto v. INS,
748 F.2d 832 (3d Cir. 1984), Sotto applied for a stay of deportation based on his fears of political persecution; the BIA affirmed the denial of his application, holding that Sotto did not substantiate his claims. The BIA's opinion failed, however, to discuss certain evidence in Sotto's fa- vor, an affidavit by a former general stating that Sotto was on a wanted list in the Philippines as a result of his anti- Marcos political activities. This Court stated:
Although our review of the Board's findings is limited, and we may overturn the Board's determination **9 of Sotto's claims only for abuse of discretion, we are not fore- closed from determining whether the Board followed proper procedures and considered and appraised the material evidence before it. If the administrative record fails to reveal that such evidence has been fairly consid- ered, the proper course is to remand the case to the INS so that the Service may evalu- ate such evidence and consider its effect on the application as a whole . . . . To deter- mine whether the administrative action was arbitrary, the courts must be apprised why evidence, relevant and persuasive on its face, was discredited.
Id. at 837 (citations omitted).
We have also vacated a decision of the BIA which gave "insufficient consideration" to an important factor in favor of an application seeking a stay of deportation for reasons of family hardship. Bastidas v. INS, 609 F.2d 101,
105 (1979); see also Tovar v. INS, 612 F.2d 794
20 F.3d 580, *584; 1994 U.S. App. LEXIS 6410, **9
Page 6
*584 (3d Cir. 1980). n2 In Bastidas, we concluded that the BIA's decision did not reasonably reflect the evidence in the record of Bastidas's close ties with his family; we held that HN7 the decision **10 of the BIA "will not be affirmed by this court unless the reasons for such a finding are made clear." 609 F.2d at 105.
n2 Neither Tover nor Bastidas involved applica- tions for § 212(c) waivers of deportation for drug- related activity. Both involved review of the BIA's denial of petitions for a discretionary stay of depor- tation where the BIA held that the applicants failed to show "extreme hardship" sufficient to meet the statutory requirements for a stay.
Other circuits, which have reviewed denials of §
212(c) waiver by the BIA, have applied a similar abuse of discretion standard. See, e.g., Diaz-Resendez v. INS,
960 F.2d 493, 495 (5th Cir. 1992). In Diaz-Resendez, the Fifth Circuit reversed the Board's denial of § 212(c) relief because "the record herein does not reflect that the Board actually considered or meaningfully addressed Diaz-Resendez's assertions of hardship," and because the Board "inappropriately evaluated" the evidence of Diaz- Resendez's **11 rehabilitation. Id. at 497.
Given the balancing test established in Marin and the standards for finding an abuse of discretion by the BIA discussed above, along with the fact that the BIA did find that Tipu's twenty consecutive years of uninterrupted res- idence in the United States constituted an unusual and outstanding equity in his favor, App. at 7, four aspects of the BIA's opinion are sufficiently questionable or depart from BIA precedent significantly enough as to provide a cumulative basis for vacating the Board's decision.
First, the Board inexplicably discounted significant evidence of the hardship that Tipu's deportation would im- pose on his brother and his family given their financial de- pendency upon Tipu and the brother's ill health. Tipu sub- mitted letters from his brother Arshad and Arshad's physi- cian attesting to the life-threatening nature of Arshad's illness and to Tipu's crucial role in providing transporta- tion for Arshad to and from dialysis. App. at 26, 27. The BIA's opinion recognized that Arshad's "physical welfare
depends on his brother's ability to transport him to neces- sary medical care" and that Arshad's family "is financially
**12 dependent on Tipu ." App. at 7. Nevertheless, the BIA failed to find that Arshad's ill health is an outstanding equity in Tipu's favor, observing without elaboration that
"the family survived while Tipu was incarcerated." Id. Evidence in the record suggests that Arshad's condition has substantially worsened in the decade since Tipu was incarcerated for ten months in 1982; a 1986 letter from Arshad's doctor states that "given his deteriorating situa- tion I feel that Mr. Tipu is essential for Mr. Arshad's care and safety." App. at 27. Thus, while the BIA opinion does conclude that the hardship to Tipu's brother and his family members are favorable factors in Tipu's behalf, the BIA's discussion of these factors suggests a failure to properly weigh Arshad's deteriorating condition and his family's increasing dependency on Tipu.
Second, Tipu introduced credible evidence that his role in the heroin conspiracy was a minor one. Tipu's pro- bation officer wrote letters to the taxi licensing authority in Washington, D.C. in 1982 and to the INS in 1983 on Tipu's behalf. App. at 25, 38. In these letters, Tipu's probation officer stated Tipu was "remotely involved in a drug conspiracy case" **13 and that Tipu's "role in the conspiracy can only be described as a very minor one." Tipu testified at his 1986 deportation hearing that his role in the conspiracy was limited to attending a din- ner where the conspiracy was discussed. App. at 56-60. One of the factors listed in the Marin test to be weighed in consideration of an application for a § 212(c) waiver is the "nature, recency, and seriousness" of any crimes committed by the applicant. Nevertheless, the opinion of the BIA placed great emphasis on Tipu's conviction, em- phasis that ascribes a seriousness to Tipu's crime that is out of proportion to the nature and recency of the offense. The BIA's opinion states:
The respondent's conviction for conspiracy to import a highly addictive and often lethal drug is "weighty evidence of respondent's un- desirability as a permanent resident. The per- nicious effects of drugs on American society are well documented."
20 F.3d 580, *585; 1994 U.S. App. LEXIS 6410, **13
Page 7
*585 Hazzard v. INS, 951 F.2d 435, 437
(lst Cir. 1991) . . . . The seriousness of his criminal action clearly demonstrates a disre- gard for the welfare of society as a whole. See Hazzard v. INS, supra; Matter **14 of Edwards, supra.
It is instructive that both Hazzard and Edwards involved convictions of individuals who repeatedly engaged in seri- ous drug-related crimes. Hazzard was convicted of three state drug charges and one federal cocaine distribution charge all over a six year period. Edwards was convicted of six burglary-related charges and of seven drug pos- session or distribution-related charges between 1977 and
1987. Neither Hazzard nor Edwards demonstrated that he was rehabilitated and neither was granted a § 212(c) waiver by the BIA. The assertion of the BIA that Tipu's passive involvement in one preliminary meeting showed a serious disregard for the welfare of our society is dis- proportionate to Tipu's involvement, particularly when compared with the actions of others denied § 212(c) re- lief. Thus, the BIA's opinion failed to properly consider the "nature, recency and seriousness" of Tipu's one con- viction.
Third, the BIA failed to give proper weight to sub- stantial evidence of Tipu's complete rehabilitation. Tipu pled guilty to the conspiracy charge against him and made productive use of his time in prison by earning a G.E.D. diploma. App. at 64. At his 1986 deportation **15 hear- ing, Tipu repeatedly expressed his remorse for his actions. App. at 56-60. Tipu had no further criminal convictions or any personal involvement with drugs either before or after his conviction.
Tipu received strong positive letters from his minister, from a hospital where he performed community service and from two other character witnesses. Letters by Tipu's probation officer, which the BIA characterized as being
"favorable," were in fact strikingly positive, stating that Tipu is "a trustworthy person" whose participation in the conspiracy was "an aberration." App. at 7, 38. Thus, the facts of Tipu's case provide strong evidence that he is fully rehabilitated, a factor which the BIA in the past has emphasized as a potentially crucial equity in favor of a §
212(c) applicant. Matter of Edwards, Int. Dec. 3134 (BIA May 2, 1990); Matter of Buscemi, 19 I&N Dec. 628 (BIA
1988).
The BIA has emphasized the importance of a thorough review of the possible factors in favor of an application for § 212(c) relief: HN8 " A proper determination as to whether an alien has demonstrated unusual or outstanding equities can only be made after a complete review of the
**16 favorable factors in his case." Matter of Edwards, Int. Dec. 3134 at 7 n.3 (BIA May 2, 1990). However, the BIA's discussion of Tipu's rehabilitation is hardly a
"complete" review.
The BIA's opinion did briefly discuss the evidence of Tipu's rehabilitation. However, it failed to find that Tipu was rehabilitated, or to hold that his rehabilitation was a substantial equity in his favor, citing instead Tipu's know- ing participation in the conspiracy as if that precluded his later rehabilitation. App. at 7.
Two other federal circuits have considered cases rais- ing nearly identical issues. In both Diaz-Resendez v. INS,
960 F.2d 493 (5th Cir. 1992) and Vergara-Molina v. INS,
956 F.2d 682 (7th Cir. 1992), applications for § 212(c) relief from deportation were denied by the BIA and the applicants appealed, based on the BIA's failure to con- sider evidence of their rehabilitation. In Vergara-Molina, the court held that the BIA "abuses its discretion when it fails to weigh important factors and to state its reasons for denying relief." Id. at 685. The court denied relief, however, finding that the **17 "BIA's opinion in Mr. Vergara's case, when assessed as a whole, demonstrates adequately, ableit imperfectly, that the Board heard and thought about the relevant factors." Id.
In Diaz-Resendez, the BIA's opinion discussed reha- bilitation but focused largely on whether Diaz-Resendez expressed remorse for his actions and failed to consider other positive evidence of his rehabilitation. The Court stated it was "unpersuaded that the Board 'actually con- sidered' and 'meaningfully addressed' all of the factors concerning rehabilitation." Id. at 498 (citing Zamora- Garcia v. INS, 737 F.2d 488, 490-91 (5th Cir. 1984)). The court held that the BIA's
20 F.3d 580, *586; 1994 U.S. App. LEXIS 6410, **17
Page 8
*586 cursory treatment of the issue of rehabilita- tion amounted to an abuse of discretion and reversed. Similarly, we are concerned here that the BIA's cursory treatment of Tipu's rehabilitation demonstrates a refusal, following any conviction for a drug offense, to acknowl- edge that rehabilitation is feasible. See Gonzalez v. INS,
996 F.2d 804, 810-11 (6th Cir. 1993) (INS at oral argu- ment could provide only one example in over 3,000 BIA decisions where the BIA exercised its discretion **18 in favor of an alien convicted of a drug offense; a BIA policy of not granting a § 212 (c) waiver in a case where an alien has been convicted of a serious drug offense might well in and of itself be an abuse of discretion).
Fourth, the Board's decision includes a factual error in its weighing of the equities, in that it states Tipu has no property in this country. App. at 4, 7. The record shows that Tipu is an owner/operator of the taxicab which he drives. n3 The "existence of property or business ties" is explicitly laid out in the Marin balancing test as one of the nine factors to be weighed in an applicant's favor. While the BIA has not specifically defined "property or business ties" for purposes of the Marin test, ownership of a taxicab which is operated as a business and on which taxes have been regularly paid is clear evidence of "prop- erty or business ties" between Tipu and the United States. Thus, the Board failed to consider one of the factors in Tipu's favor, a practice which in Sotto v. INS resulted in a remand for reconsideration and which other courts have relied upon as grounds for reversal.
n3 App. at 30, 32 (IRS forms showing depre- ciation of Tipu's business property, Barwood Taxi
#100, purchased for $1,700 in 1984); App. at 37
(letter from Eastern Cab Co. describing Tipu as "a taxicab owner-operator"); App. at 103 (transcript of 1986 deporation hearing recording an exchange with immigration judge concerning Tipu's owner- ship of the cab he drives).
**19
IV.
At oral argument and in his brief before this Court, Tipu indicated his intention to file a Motion to Reopen with the Board based both on Tipu's eligibility for relief under 8 U.S.C. § 1254(a)(2) n4 and in order to present evi- dence of changes in the equities of his case over the seven years since his case was first heard by an immigration judge. This Court has recently spoken on the question of when an immigrant facing deportation may make a
motion to reopen in order to present further evidence.
n4 HN9 Under 8 U.S.C. § 1254(a)(2), the Attorney General may suspend deportation of an alien who became deportable due to a drug-related crime but who has remained in the U.S. for ten years following the crime and who "during all of such period has been and is a person of good moral character; and is a person whose deportation will, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted or permanent residence."
Tipu was convicted on January 22, 1982, and was released from prison more than ten years ago.
**20
In Katsis v. INS, 997 F.2d 1067 (3d Cir. 1993), we upheld a determination by HN10 the BIA that it may deny as a matter of law an alien's motion to reopen depor- tation proceedings to seek discretionary relief if the alien in question is subject to an administratively final deporta- tion order. We held that HN11 aliens whose appeals for
§ 212(c) relief are denied by an immigration judge and who either do not appeal or whose appeals are denied by the BIA are no longer lawfully admitted for permanent residence in this country and thus are not statutorily eli- gible for discretionary relief. Thus, under this holding, on August 3, 1992, when the BIA denied his appeal, Tipu became subject to an administratively final deportation order and lost his status as an alien lawfully admitted for permanent residence. However, as this Court held in Katsis:
HN12 If error is found in a Board determi- nation that an alien is deportable and unde- serving of section 212 (c) relief, reversal nul- lifies the finality of the deportation order and the consequent status change as well. Given that the deportation order cannot stand where such an error has been made, there is no rea- son to allow the **21 deportation order to preclude a motion for reconsideration.
Id. at 1075. Thus, our reversal of the Board's determina- tion that Tipu is ineligible
20 F.3d 580, *587; 1994 U.S. App. LEXIS 6410, **21
Page 9
*587 for § 212(c) relief also entitles Tipu on remand to pursue a motion to reopen.
At oral argument, we pressed appellees for an expla- nation as to why it took the Board six years to render a decision in Tipu's case, without receiving a compelling answer. Given the high probability that the equities in this case have altered in the eight years since the record was developed before an immigration judge, we would antic- ipate that the Board will seriously consider a motion to reopen. We have no idea, of course, as to how any addi- tional evidence will "cut," and we certainly intimate no view as to how the Board should resolve the case on re- mand, though we do require that BIA reweigh the relevant factors, something that only it can do.
V.
As discussed above, the BIA's opinion denying Tipu's application for § 212(c) relief failed adequately to explain its discrediting of three factors in Tipu's favor -- the hard- ship Tipu's deportation would impose on his brother and his brother's family, Tipu's minor role in a single **22 crime ten years previous to the BIA opinion, and Tipu's rehabilitation. In addition, the BIA did not consider Tipu's property and business ties to this country in the form of his ownership of a taxicab and his operation of a taxi since
1983. In combination, these four defects in the BIA's opinion provide grounds for vacating it. Thus, for all the reasons discussed above, we will grant the petition for review, we will vacate the decision of the BIA and we will remand this case to the BIA for further proceedings consistent with this opinion.
Tipu v. INS, No. 92-3657
DISSENTBY: ALITO
DISSENT: ALITO, Circuit Judge, dissenting:
The majority has wandered well beyond the limited scope of appellate review that we are permitted to exer- cise in a case like this. Because I believe that the decision of the Board of Immigration Appeals ("BIA") cannot be disturbed under the correct standard of review, I dissent. The petitioner in this case applied for a waiver of de- portation under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). Decisions under this provision are expressly committed to the Attorney
General's "discretion." Exercising authority delegated
**23 by the Attorney General, n5 the BIA considered the petitioner's request and weighed the factors bearing on whether a waiver should be granted.
n5 See 8 C.F.R. §§ 3.0, 3.1(a)(1) & (d)(1).
The BIA found one weighty factor against the peti- tioner -- his conviction for conspiracy to import approxi- mately one pound of heroin into this country. While rec- ognizing that this offense occurred ten years earlier, the BIA nevertheless viewed it as "a serious adverse factor" that "demonstrated a disregard for the welfare for society as a whole."
The BIA found that there were countervailing factors in the petitioner's favor. Among other things, the BIA noted that the petitioner's brother, Mohammed Arshad, and his brother's
family were dependent upon him. Mohammed Arshad suffers from renal failure and looks to the petitioner for financial support and for transportation to and from the facility where he receives kidney dialysis. The BIA took this factor into account, noting that "the hardship to pe- titioner's lawful permanent **24 resident brother and his United States citizen family members are favorable factors in the petitioner's behalf." The BIA also noted the facts indicating that petitioner had been rehabilitated, stating:
As to his rehabilitation, there is no evidence of additional criminal behavior other than the serious conviction for conspiracy. In his fa- vor we consider the petitioner's return to his employment as a taxi driver after his incarcer- ation. He also engaged in volunteer activities in the local area and has favorable charac- ter references. He received a favorable report from his probation officer.
In the end, however, after considering all of the factors, the BIA determined, as a matter of discretion, not to grant a waiver. Our standard of review in a case such as this is narrow. We "do not have the authority to determine the weight to afford to each factor." Cordoba-Chaves v. INS,
946 F.2d 1244, 1246 (7th Cir. 1991); accord Gouveia
20 F.3d 580, *588; 1994 U.S. App. LEXIS 6410, **24
Page 10
*588 v. INS, 980 F.2d 814, 819 (1st Cir. 1992); Nunez- Pena v. INS, 956 F.2d 223, 226 (10th Cir. 1992); Sanchez v. INS, 755 F.2d 1158, 1160 (5th Cir. 1985). **25 Rather, as the majority notes, a discretionary decision of the BIA may not be disturbed unless it is "arbitrary, irrational or contrary to law." So Chun Chung v. INS, 602 F.2d 608,
612 (3d Cir. 1979); accord Marroquin-Manriquez v. INS,
699 F.2d 129, 133 (3d Cir. 1983), cert. denied, 467 U.S.
1259 (1984). Under this standard, it is clear that the BIA's decision here should be sustained, for whatever else one may think about that decision, it was not arbitrary, irra- tional, or contrary to law. As the First Circuit aptly wrote in a similar case, the BIA's decision "was a judgment call, pure and simple," and we should "refuse to second-guess the Board on the manner in which it weighs different fac- tors when arriving at its ultimate decision." Gouveia, 980
F.2d at 819.
My colleagues in the majority, however, vacate the BIA's decision essentially because they do not like the way the BIA weighed the various factors. The majority finds that BIA put too much "emphasis" on the petitioner's conviction, stating that the BIA "ascribed a seriousness to Tipu's crime that is out **26 of proportion to the nature and recency of the offense." Majority Opinion, Typescript at 10. In a similar vein, the majority faults the BIA for failing to place enough emphasis on the hardship that the petitioner's deportation would have on his brother and his brother's family. Although the BIA considered and gave weight to this factor, the majority finds that the BIA erred in "failing to find that Arshad's ill health is an outstanding equity in Tipu's favor," as opposed to merely a "favorable factor ." Majority Opinion, Typescript at 9, 10 (empha- sis added). Furthermore, the majority criticizes the BIA's evaluation of evidence of the petitioner's rehabilitation. While the BIA counted this evidence in the petitioner's favor, the majority finds that "the BIA failed to give proper weight" to this evidence. Majority Opinion, Typescript at
11 (emphasis added).
Merely stating what the majority finds -- that the BIA
put too much "emphasis" on one factor, failed to evaluate another factor as "outstanding" rather than merely "favor- able," and did not give "proper weight" to a third factor -- seems to me to demonstrate that the majority, in deed if not in word, has applied the wrong **27 standard of review. n6 Instead of determining whether the BIA acted arbitrarily, irrationally, or contrary to law, the majority has usurped the BIA's place and weighed the relevant fac- tors for itself -- apparently in accordance with its own views of drug and immigration policy. I cannot endorse this approach.
n6 In addition to these three criticisms of the BIA's decision, the majority states that the
"Board's decision includes a factual error." Majority Opinion, Typescript at 14. Whereas the BIA's opin- ion stated that the petitioner owned no property in this country, the majority finds that the record es- tablishes that as of 1986 the petitioner owned a taxicab that he had purchased two years earlier for
$1700. Majority Opinion, Typescript at 14 & n.3. The notion that the BIA might have reached a dif- ferent result in this case had it only known that the petitioner owned this vehicle strikes me as fanciful. Nevertheless, if the majority merely wished to re- mand this case so that the BIA could consider this fact, I would not object. The majority, however, uses this apparent makeweight to support its much broader holding.
**28
"In this government of separated powers, it is not for the judiciary to usurp Congress' grant of authority to the Attorney General by applying what approximates de novo appellate review." INS v. Rios-Pineda, 471 U.S. 444, 452,
85 L. Ed. 2d 452, 105 S. Ct. 2098 (1985). Applying the limited standard of review that we may properly exercise in reviewing a BIA decision such as the one before us, I see no basis for overturning that decision, and I would therefore deny the petition for review.
Contents
Prev
Next
Last
