Henry v. INS ( 1996 )


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    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

    _________________________



    No. 95-1679



    WARREN HENRY,

    Petitioner,

    v.

    IMMIGRATION AND NATURALIZATION SERVICE,

    Respondent.

    __________________________

    PETITION FOR REVIEW OF AN ORDER OF

    THE BOARD OF IMMIGRATION APPEALS

    __________________________

    Before

    Torruella, Chief Judge, ___________

    Aldrich, Senior Circuit Judge, ____________________

    and Selya, Circuit Judge. _____________

    _________________________

    Stanley H. Wallenstein for petitioner. ______________________
    Kristen A. Giuffreda, Office of Immigration Litigation, ______________________
    United States Department of Justice, with whom Frank W. Hunger, ________________
    Assistant Attorney General, and Ellen Sue Shapiro, Senior ___________________
    Litigation Counsel, were on brief, for respondent.

    _________________________

    January 16, 1996

    _________________________
















    SELYA, Circuit Judge. Invoking 8 U.S.C. 1105a(a) SELYA, Circuit Judge. _____________

    (1994), petitioner Warren Henry seeks judicial review of an order

    of the Board of Immigration Appeals (the Board) denying his

    request for adjustment of status and directing his deportation.

    We dismiss the petition.

    I I

    Petitioner, a 24-year-old Jamaican national, has

    resided in the United States since late 1984. His parents and

    four siblings live here.1 Petitioner completed high school and

    one year of college. He wed a United States citizen, but the

    marriage did not last. He has a son by another woman. His son

    lives in the United States, but not with petitioner and

    petitioner does not support the boy on a regular basis.

    Petitioner's overall work record is spotty. He currently

    operates a hair-styling salon in Springfield, Massachusetts.

    Petitioner is no stranger to the legal system. In May

    of 1991, New York authorities charged him with assault with

    intent to cause serious harm, criminal possession of a weapon,

    and menacing. About three weeks thereafter, the police arrested

    him for jumping the turnstiles on the New York City subway

    system. Initially, he failed to respond to these charges. When

    he appeared two years later doubtless prompted by his desire to

    avoid looming deportation the court reduced the charges arising

    out of the first incident to a single count of simple assault.
    ____________________

    1His parents, a brother, and a sister are United States
    citizens. His other two siblings have permanent resident status.
    Some relatives still live in Jamaica.

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    Petitioner pled guilty both to this reduced charge and to the

    turnstile-jumping charge. The court imposed a one-year

    conditional discharge in respect to the former and a fine in

    respect to the latter.

    Another brush with the law proved to be a catalyst for

    deportation proceedings. On October 13, 1991, Springfield police

    officers found petitioner (who was carrying false identification

    papers) in possession of an unlicensed handgun. He pled guilty

    to a weapons-possession charge on January 13, 1992, using his

    pseudonym ("Richard Dave Gordon"), and spent several months in

    jail. On February 4, 1992, the Immigration and Naturalization

    Service (INS) instituted deportation proceedings.

    During the pendency of the proceedings, petitioner had

    another close encounter with the law. On December 2, 1992,

    Springfield authorities charged him with assaulting a police

    officer. The facts surrounding that incident are less than

    pellucid. The police officer's arrest report states that he

    restrained petitioner after petitioner made a threatening gesture

    in response to an inquiry, and that petitioner then hit him.

    Petitioner categorically denies this account, and says that he

    neither threatened nor struck the officer. On the date of

    petitioner's deportation hearing, the assault charge was still

    pending, and the record reveals no definitive disposition

    (although, at oral argument before us, petitioner's counsel

    represented that the charge is now by the boards).

    II II


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    At this juncture, we temporarily shift our focus to the

    statutory scheme. Petitioner's conviction on the firearms charge

    rendered him deportable under section 241 of the Immigration and

    Nationality Act (INA), 8 U.S.C. 1251.2 Confronted by this

    statute, petitioner attempted to confess and avoid: he conceded

    deportability, but sought an adjustment of status under INA

    245(a), 8 U.S.C. 1255(a).3 This course was theoretically open

    because, under the immigration laws, the grounds for deportation

    are not congruent with those for exclusion of aliens. Thus,

    petitioner's firearms conviction rendered him deportable, but not

    per se excludable. Compare 8 U.S.C. 1251(a)(2)(C) with id. _______ ____ ___

    1182(a) (listing grounds for exclusion).

    Generally speaking, resident aliens who are subject to

    ____________________

    2The statute provides in pertinent part:

    Any alien who at any time after entry is
    convicted under any law of purchasing,
    selling, offering for sale, exchanging,
    using, owning, possessing, or carrying . . .
    any weapon, part, or accessory which is a
    firearm or destructive device . . . in
    violation of any law is deportable.

    8 U.S.C. 1251(a)(2)(C) (1994).

    3The statute provides in pertinent part:

    The status of an alien who was inspected
    and admitted or paroled into the United
    States may be adjusted by the Attorney
    General, in his discretion and under such
    regulations as he may prescribe, to that of
    an alien lawfully admitted for permanent
    residence [subject to certain enumerated
    conditions not relevant here].

    8 U.S.C. 1255(a) (1994).

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    exclusion upon leaving and attempting to reenter the country may

    apply for waivers of inadmissibility under INA 212(c), 8 U.S.C.

    1182(c).4 Section 212(c) waivers are equally available to

    aliens in deportation proceedings as long as the ground for

    deportation is also a stated ground for exclusion. See Campos v. ___ ______

    INS, 961 F.2d 309, 313 (1st Cir. 1992). But such waivers are not ___

    available to aliens in deportation proceedings when the ground

    for deportation is not also a stated ground for exclusion. See ___

    id. at 316. ___

    III III

    Petitioner's case falls between these stools. Lacking

    the foundational prerequisite for seeking a section 212(c)

    waiver, he opted to use an application for adjustment of status

    under section 245(a) as an alternate vehicle. See Matter of ___ _________

    Rainford, Interim Dec. No. 3191, at 6 (BIA 1992) (authorizing ________

    status-adjustment applications in such circumstances). The INS

    acknowledges that he is eligible to be considered for adjustment

    of status under section 245(a). Whether he deserves the relief

    is a different story. On that score, an immigration judge (IJ)
    ____________________

    4The statute provides in pertinent part:

    Aliens lawfully admitted for permanent
    residence who temporarily proceeded abroad
    voluntarily and not under an order of
    deportation, and who are returning to a
    lawful unrelinquished domicile of seven
    consecutive years, may be admitted in the
    discretion of the Attorney General without
    regard to [many of the grounds for
    exclusion].

    8 U.S.C. 1182(c) (1994).

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    initially considered and denied petitioner's application for

    adjustment of status. He explained that a section 245(a)

    adjustment is a discretionary remedy; that to receive such a

    benefice an otherwise deportable alien must show unusual or

    outstanding equities sufficient to overbalance the negative

    factor(s) on which the finding of deportability rests; and that,

    in petitioner's case, the equities did not adequately

    preponderate in his favor.

    Petitioner appealed. See 8 C.F.R. 3.1(b)(2) (1995) ___

    (providing for administrative appeals of such orders). The

    Board, exercising de novo review, see Gouveia v. INS, 980 F.2d ___ _______ ___

    814, 817 (1st Cir. 1992), denied relief. In its view,

    petitioner's strong points, e.g., his family ties to the United

    States, his protracted residence here, and his belated efforts at

    rehabilitation, did not overcome the discredit inherent in his

    criminal record.

    IV IV

    We do not print on a pristine page. The IJ made

    extensive findings in this matter, and the Board issued a

    comprehensive decision adopting many of those findings. After

    careful perscrutation of the record, we discern no fatal flaw in

    the Board's rationale. Thus, we uphold the denial of

    petitioner's request for adjustment of status for essentially the

    reasons stated by the Board, adding relatively few comments.

    A. A. __

    The decision to grant or deny an application for


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    adjustment of status is one that rests within the informed

    discretion of the Attorney General, see 8 U.S.C. 1255(a), and, ___

    by delegation, within the informed discretion of the Board. As a

    result, the ambit of judicial review is tightly circumscribed.

    Courts are entitled to probe the Board's discretionary decisions

    only to the extent necessary to ascertain whether the Board

    misread the law or otherwise misused its discretion. See ___

    Martinez v. INS, 970 F.2d 973, 974 (1st Cir. 1992). ________ ___

    To be sure, adjudicatory tribunals can exceed grants of

    discretion even ringing grants of broad, essentially

    standardless discretion in various ways. We have pointed out

    that courts can abuse discretion in any of three aspects, namely,

    by neglecting to consider a significant factor that appropriately

    bears on the discretionary decision, by attaching weight to a

    factor that does not appropriately bear on the decision, or by

    assaying all the proper factors and no improper ones, but

    nonetheless making a clear judgmental error in weighing them.

    See, e.g., United States v. Roberts, 978 F.2d 17, 21 (1st Cir. ___ ____ _____________ _______

    1992); Independent Oil & Chem. Workers of Quincy, Inc. v. Procter _______________________________________________ _______

    & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988). Like a __________________

    court, so, too, an administrative adjudicative body charged with

    making a discretionary decision can stray beyond the pale in any

    of these three ways.

    B. B. __

    Petitioner asserts that the Board abused its discretion

    in all the respects that we have mentioned. We deal briefly with


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    each facet of this trifurcated assertion.

    1. 1. __

    First and foremost, petitioner asseverates that the

    Board improperly failed to consider all the factors favorable to

    him. In particular, citing Matter of Marin, 16 I & N Dec. 581, _______________

    584-85 (BIA 1978), a section 212(c) waiver case, he maintains

    that the Board unnecessarily limited the data it considered in

    assessing the equities underpinning his request for adjustment of

    status.

    In the section 212(c) milieu, the Board and reviewing

    courts habitually refer to a stock list of factors that

    potentially inform the equities attendant to a waiver.5

    Petitioner asks us to transplant this list wholesale and mandate

    its use in connection with status-adjustment applications under

    section 245(a). This importuning reaches too far: fairly viewed,

    it solicits the overruling, sub silentio, of this court's ___ ________

    decision in Campos. There, we held that the Attorney General ______

    could rationally decide not to make section 212(c) waiver relief
    ____________________

    5These factors include:

    (1) family ties within the United
    States; (2) residence of long duration in the
    United States; (3) evidence of hardship to
    petitioner or petitioner's family if
    deportation occurs; (4) service in the United
    States Armed Forces; (5) a steady employment
    history; (6) the existence of property or
    business ties in this country; (7) community
    service; (8) rehabilitation; and (9) any
    other evidence fairly indicating petitioner's
    good character.

    Gouveia, 980 F.2d at 816 (citing Marin, 16 I & N Dec. at 584-85). _______ _____

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    available to aliens convicted of firearms offenses that rendered

    them deportable but not automatically excludable. See Campos, ___ ______

    961 F.2d at 316. In so holding, we made it crystal clear that

    the section 212(c) waiver provision, 8 U.S.C. 1182(c), "could

    not be utilized to waive all grounds of deportability, but only ___ ___

    those grounds of deportability having a corresponding ground of

    excludability . . . ." Id. at 313 (emphasis in original). ___

    Petitioner today tries to bring in through the back

    door the same iteration that the Campos court barred at the front ______

    door. His core argument is that the Board abused its discretion

    by not applying the section 212(c) waiver criteria to an

    adjustment of status case. Were we to accept this construct, we

    would effectively require INS to afford deportable but not

    necessarily excludable aliens (like petitioner) relief exactly

    equivalent to that available under 8 U.S.C. 1182(c). But we

    expressly declined to dictate such a result when we concluded in

    Campos that the law did not make waiver of inadmissibility ______

    available to all deportable aliens.

    We see no reason to revisit the matter. When all is

    said and done, waiver of inadmissibility is an extraordinary

    discretionary remedy that Congress, in enacting section 212(c),

    made available primarily to assist excludable aliens who had been

    long-term residents of this country. See Campos, 961 F.2d at ___ ______

    316. Congress painstakingly set the limits within which the

    waiver proviso is to operate. The courts have no roving writ

    that enables them to refashion the legislature's handiwork and


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    stretch the statute to cover all cases in which a person might

    suffer deportation as a result of his own crimes.6

    In any event, the argument that petitioner advances is

    largely academic in the circumstances at hand. Even in section

    212(c) waiver cases, the Marin factors are only illustrative. _____

    They do not comprise an invariable checklist. See Hazime v. INS, ___ ______ ___

    17 F.3d 136, 140 (6th Cir.) (explaining that the Board need not

    address all the Marin criteria in reaching its decision), cert. _____ _____

    denied, 115 S. Ct. 331 (1994). So long as the Board gives ______

    adequate consideration to the equities supporting a favorable

    exercise of discretion, it discharges its duty under section

    212(c). See id.; see also Marin, 16 I & N Dec. at 585. ___ ___ ___ ____ _____

    In this instance, the administrative record makes it

    plain that the Board paid satisfactory heed to the relevant

    factors. It explicitly noted petitioner's length of residence,

    his family ties, his tentative steps toward rehabilitation, and

    the conceivable hardships (including the likely loss of his

    proprietary interest in a start-up business). Petitioner offered

    no evidence regarding military service or community activities.

    Thus, the Board in effect considered all the pertinent Marin _____

    factors despite the absence of any obligation to do so.
    ____________________

    6We note, too, that petitioner's construct not only would
    overrun the limits applicable to section 212(c) waivers, but also
    would serve to create two different adjustment of status
    standards: one for criminals ineligible for waiver of
    inadmissibility, and another for students, temporary employees,
    and the myriad of non-resident immigrants eligible for adjustment
    of status. We think the Board's decision to preserve the unity
    of its status-adjustment standard is eminently reasonable, and we
    discern no abuse of discretion here.

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    Petitioner has no valid ground for his Marin-based complaint. _____

    2. 2. __

    Next, petitioner posits that the Board pondered a

    factor that should have been excluded from the decisional

    calculus: his 1992 arrest for allegedly assaulting a police

    officer. He pegs this claim on Matter of Arreguin, Interim Dec. ___________________

    No. 3247 (BIA 1995), a case decided four days before the Board

    decided Henry's appeal, and asserts that Arreguin stands for a ________

    black-letter rule proscribing consideration of arrest reports.

    We begin with basics. The law recognizes that in an

    agency as large as the INS different officials may not act

    identically in every case. This lack of complete uniformity is

    unavoidable after all, administrators are not automatons and

    does not, in an of itself, invalidate agency action.

    Nonetheless, agencies do not have carte blanche. While a certain

    amount of asymmetry is lawful, see Davila-Bardales v. INS, 27 ___ _______________ ___

    F.3d 1, 5 (1st Cir. 1994); Puerto Rican Cement Co. v. EPA, 889 _______________________ ___

    F.2d 292, 299 (1st Cir. 1989), an agency may not "adopt[]

    significantly inconsistent policies that result in the creation

    of conflicting lines of precedent governing the identical

    situation." Davila-Bardales, 27 F.3d at 5 (citation and internal _______________

    quotation marks omitted).

    Let us be perfectly clear: the precept counselling

    avoidance of inconsistent administrative policies does not freeze

    an agency's jurisprudence for all time. See, e.g., Congreso de ___ ____ ___________

    Uniones Industriales de P.R. v. NLRB, 966 F.2d 36, 39 (1st Cir. ____________________________ ____


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    1992); Shaw's Supermarkets, Inc. v. NLRB, 884 F.2d 34, 37 (1st _________________________ ____

    Cir. 1989). The precept demands, however, that if the

    "administrative agency decides to depart significantly from its

    own precedent, it must confront the issue squarely and explain

    why the departure is reasonable." Davila-Bardales, 27 F.3d at 4. _______________

    In other words, administrative agencies must apply the same basic

    rules to all similarly situated supplicants. An agency cannot

    merely flit serendipitously from case to case, like a bee buzzing

    from flower to flower, making up the rules as it goes along.

    It is against this chiseled backdrop that we turn to

    Arreguin. There, the Board reversed an IJ's refusal to grant a ________

    section 212(c) waiver to an alien convicted of playing a minor

    role in a marijuana importing scheme. In denying relief, the IJ

    considered a twelve-year-old arrest record on charges (later

    dropped) of smuggling aliens into the United States. See ___

    Arreguin, supra, at 8. While the Board sanctioned the ________ _____

    admissibility of the arrest record into evidence, it explained

    that, under the circumstances, it would give the record scant

    weight. See id. Petitioner maintains that Arreguin establishes ___ ___ ________

    a black-letter rule gainsaying reliance on arrest records, and,

    thus, that consistency of precedent requires reversal of the

    instant order. We demur: the Board's decision in Arreguin did ________

    not require it ipso facto to disregard altogether the report of ____ _____

    petitioner's 1992 arrest.

    The principal problem presented by petitioner's

    prohibitory proposition is Arreguin itself. The case simply does ________


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    not announce the rigid rule that petitioner ascribes to it.

    There, the Board approved the IJ's admission of a particularly

    vulnerable arrest record into evidence, and agreed that it had

    some probative value. See id. The difficulty was that, under ___ ___ _____

    the circumstances of the particular case, the IJ gave the record _________________________________________

    more weight than it deserved, and, concomitantly, neglected to

    give full effect to many positive elements buttressing the

    petitioner's case. Properly read, Arreguin implicates matters of ________

    degree, explaining the relative weight that should be given to

    arrest records. Nothing in the opinion suggests that, when

    facing a closer balance of equities, the Board might not properly

    decide that a record of arrest tips the scales against the

    bestowal of discretionary relief.

    Nor does Arreguin represent an alteration of prior ________

    precedent. The traditional rules of evidence do not apply in

    immigration hearings, see, e.g., Espinoza v. INS, 45 F.3d 308, ___ ____ ________ ___

    310 (9th Cir. 1995), and arrest reports historically have been

    admissible in such proceedings, see Paredes-Urrestarazu v. INS, ___ ___________________ ___

    36 F.3d 801, 813 (9th Cir. 1994) (holding that the Board may

    entertain arrest records as evidence). Moreover, while an

    arrest, without more, is simply an unproven charge, the fact of

    the arrest, and its attendant circumstances, often have probative

    value in immigration proceedings. See, e.g., id. at 810 ("The ___ ____ ___

    fact of arrest, insofar as it bears upon whether an alien might

    have engaged in underlying conduct and insofar as facts probative

    of an alien's ``bad character or undesirability as a permanent


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    resident' arise from the arrest itself, plainly can have

    relevance" in discretionary relief). Arreguin does not purport ________

    to command any deviation from these venerable practices or to

    prohibit the type of recourse that the Board historically has

    made to arrest records.

    In fine, the lesson of Arreguin is that, when the Board ________

    appraises the considerations on both sides of the discretionary

    balance to determine whether they are in equipoise, it will

    accord virtually no weight to an arrest record remote in time and

    unsupported by corroborating evidence. See Arreguin, supra, at ___ ________ _____

    8. Here, the Board adumbrated that rather unremarkable lesson.

    It considered the 1992 arrest report in a limited way, without

    giving excessive weight to it. It was entitled to do so,

    Arreguin notwithstanding.7 ________

    3. 3. __

    In his most broad-gauged foray, petitioner maintains

    that the Board drew the wrong conclusions from the factors it

    considered. In this context, petitioner complains that he

    demonstrated strong familial ties to the United States, long-term

    ____________________

    7Petitioner's reliance on Arreguin is misplaced for other ________
    reasons as well. For one thing, Arreguin is a section 212(c) ________
    waiver case, and there is no requirement that the Board treat
    section 245(a) status adjustment cases like waiver cases. For
    another thing, Henry himself offered the arrest record as
    evidence before the IJ, apparently as part of an attempt to
    explain away the incident in question. It ill behooves him to
    complain on appeal that the Board should not have paid heed to
    evidence that he proffered. See Johnson v. INS, 971 F.2d 340, ___ _______ ___
    343 (9th Cir. 1992) (recognizing that the doctrine of invited
    error precludes a petitioner from challenging the admissibility
    of evidence she proffered at her deportation hearing).

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    residency here, and hardship in the event of deportation. These,

    he continues, are the very factors the Board has required a

    petitioner to demonstrate in order to make the showing of

    outstanding equities necessary to overcome strong negative

    factors. See Matter of Arai, 13 I & N Dec. 494, 496 (BIA 1970). ___ ______________

    Petitioner's argument misapprehends both the nature of

    status adjustment and the role of judicial review. Adjustment of

    status is not an entitlement, but, rather, an extraordinary

    remedy. The Board need not make the anodyne available to all who

    theoretically qualify. Indeed, the Attorney General has

    cautioned that the Board's regimen in Arai "does not establish ____

    rigid rules which deny to immigration judges the flexibility

    necessary to carry out their duty to analyze sensitively the

    competing factors in each particular case." Matter of Blas, 15 I ______________

    & N Dec. 626, 641 (Atty. Gen. 1976), aff'd, 556 F.2d 586 (9th _____

    Cir. 1977). Thus, status adjustment is quintessentially a matter

    "of administrative discretion." Arai, 13 I & N Dec. at 496. ____

    Moreover, when a matter is committed by law to the

    Board's sound discretion, a reviewing court plays a very

    restricted role in overseeing the administrative exercise of that

    discretion. So long as the Board follows its own settled

    principles and provides a reasoned explanation for its decision,

    judicial review is at an end. See Gouveia, 980 F.2d at 818; ___ _______

    Martinez, 970 F.2d at 974. ________

    Of course, discretion is not to be confused with

    imperiousness. When the Board rejects a request for adjustment


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    of status, it must articulate its reasons for taking that action,

    and those reasons must be plausible. Nonetheless, the existence

    of favorable information under each of the three Arai headings ____

    does not require the Board to grant adjustment of status. See ___

    Blas, 15 I & N Dec. at 641. As we have written in an analogous ____

    setting, "even the presence of preponderant equities or equities

    that in the abstract could qualify as ``unusual' or ``outstanding'

    does not compel the Board to grant relief." Gouveia, 980 F.2d at _______

    816.

    Here, the Board offered an adequate explanation of why

    it believed that petitioner's favorable factors were not

    sufficiently compelling to justify adjustment of status. The

    Board's decision focused on the seriousness of the firearms

    conviction. It observed that both petitioner and his companion

    were armed at the time of the arrest, and that petitioner had

    maintained a deception by utilizing a pseudonym throughout the

    criminal proceedings. The Board also looked to petitioner's

    history of altercations with the law, particularly his tardiness

    in acknowledging his crimes in New York. It took due note of the

    favorable factors advanced by petitioner but determined, on

    balance, that these points were not sufficiently robust to yield

    the kind of unusual and outstanding equitable case that would

    warrant an adjustment of status. In short, the Board

    persuasively explained the premises on which it declined to

    exercise its discretion. That ends the matter. A reviewing

    court may not reweigh the equities afresh. See Gouveia, 980 F.2d ___ _______


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    at 819.

    V V

    We need go no further. Adjustment of status is a

    discretionary remedy. Although the Board could have afforded

    petitioner this remedy, it chose not to do so. That is both the

    Board's prerogative and its duty. In the absence of either a

    mistake of law or a palpable abuse of discretion, we cannot

    substitute our judgment for that of the Board.



    The petition for review is denied and dismissed. The The petition for review is denied and dismissed. The _________________________________________________ ___

    Board's decision and order are affirmed. Board's decision and order are affirmed. _______________________________________






































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