DocketNumber： 96-1456
Filed Date： 10/25/1996
Status： Precedential
Modified Date： 9/21/2015
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
[Not for Publication]
____________________
No. 96-1456
CARLOS ALBERTO TARANAS DE MEDEIROS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Boudin, Stahl and Lynch
Circuit Judges ______________
____________________
Gary A. Pappas was on brief for petitioner. ______________
Frank W. Hunger, Assistant Attorney General, with whom David M. ________________ ________
McConnell, Assistant Director, Office of Immigration Litigation, were _________
on brief for respondent.
____________________
October 25, 1996
____________________
PER CURIAM. Carlos Alberto Taranas de Medeiros, a PER CURIAM.
citizen of Portugal and a lawful permanent resident of the
United States since 1970, challenges the Board of Immigration
Appeals' denial of his request for relief from deportation
under Immigration and Nationality Act 212(c), 8 U.S.C.
1182(c). He does not appeal the Board's decision that he is
deportable under INA 241(a)(4),1 8 U.S.C. 1251(a)(4). We
affirm.2
____________________
1. The statute codified at 241(a)(4) at the time of these
proceedings is presently codified at 241(a)(2)(A)(ii), 8
U.S.C. 1251(a)(2)(A)(ii).
2. The recently enacted Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), P.L. 104-132, 110 Stat. 1214
(Apr. 24, 1996) does not affect this appeal. Section 440(a)
of AEDPA on its face deprives the federal appeals courts of
jurisdiction to review deportation orders entered against
aliens who are deportable for, inter alia, having committed _____ ____
two crimes involving moral turpitude, but this bar to
judicial review does not apply unless both crimes were
committed within five years after the alien's entry into the
United States.
Section 440(a) of AEDPA states: "Any final order
of deportation against an alien by reason of having committed
a criminal offense . . . covered by section 241(a)(2)(A)(ii)
for which both predicate offenses are covered by section
241(a)(2)(A)(i), shall not be subject to review by any
court." In essence, then, the AEDPA jurisdictional provision
applies to cases in which aliens found deportable under
241(a)(2)(A)(ii) (two crimes of moral turpitude any time
after entry not arising out of same scheme of criminal
misconduct) also meet the standards of 241(a)(2)(A)(i) (one
crime of moral turpitude within 5 years after entry, for
which a sentence of one year or more may be imposed). In
Medeiros's case, both of the two crimes supporting the
finding of his deportability were committed in 1984, 14 years
after his entry into the country. Thus, although Medeiros
was found to be deportable based upon his convictions for two
crimes involving moral turpitude, neither of the predicate
offenses are covered by 241(a)(2)(A)(i), and thus this
court has jurisdiction to review the case.
-2- 2
Our review in 212(c) cases is solely for abuse of
discretion. Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996); ____ ___
Gouveia v. INS, 980 F.2d 814, 817 (1st Cir. 1992). We have _______ ___
said that there are three ways in which the Board can commit
an abuse of discretion: "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." Henry v. _____
INS, 74 F.3d 1, 4 (1st Cir. 1996). Medeiros makes no claim ___
that the Board ignored a relevant factor or considered an
irrelevant one. His sole contention is that the Board
improperly weighed the factors.
Where "the record reflects a plausible basis for
the Board's determination," however, "we are constrained to
find that the Board acted well within its broad discretionary
powers in refusing to grant the waiver." Chen, 87 F.3d at 9. ____
The record before the Board, with its ample references to
____________________
It is similarly clear that AEDPA does not render
Medeiros ineligible to seek 212(c) relief. AEDPA 440(d)
amended INA 212(c) in much the same way that 440(a)
amended the INA's appellate review section. Section 212(c),
as amended by AEDPA, bars from seeking relief aliens found
deportable "by reason of having committed any criminal
offense covered in section 241(a)(2)(A)(ii) for which both
predicate offenses are covered by section 241(a)(2)(A)(i)."
As discussed above, Medeiros' offenses, committed 14 years
after his entry into the country, are not covered by
241(a)(2)(A)(i).
-3- 3
Medeiros's considerable criminal activity,3 clearly reflects
a plausible basis for the denial of the waiver. This case is
on all fours with our decision in Gouveia, where we upheld _______
the Board's discretionary denial of 212(c) relief to a
deportable alien. In Gouveia, as here, the Board adequately _______
"took into account petitioner's familial equities, . . .
lengthy period of residency, and numerous positive character
references." Gouveia, 980 F.2d at 818-19. And in that case, _______
as here, "[t]he Board's decision makes manifest that it
appropriately considered the entire panoply of positive and
negative factors in declining to grant a waiver." Id. ___
Finally, in Gouveia, as here, the Board decided in the end _______
"that petitioner's equities did not sufficiently tip the
scales." Id. ___
Because we look only for an abuse of discretion, it
is not our place to substitute our judgment for the judgment
of the Board. See Henry, 74 F.3d at 7 ("A reviewing court ___ _____
____________________
3. Medeiros's criminal record includes, in addition to the
two assault and battery convictions (which formed the basis
of the finding of deportability): threatening, breaking, and
entering in the nighttime with intent to commit larceny;
receiving stolen property; possession of a Class C controlled
substance with intent to dispense; unlawful carrying of a
dangerous weapon; loitering; unlawful possession of a
dangerous weapon; unlawful possession of a Class D controlled
substance; disorderly conduct; disturbing the peace; open and
gross lewdness; armed assault in a dwelling; intimidation of
a witness; malicious destruction of property valued at less
than $100; non-support of a minor child; and numerous motor
vehicle licensing and registration infractions. One of these
criminal convictions -- for disorderly conduct -- came after
the INS instituted the deportation proceedings against him.
-4- 4
may not reweigh the equities afresh."); Gouveia, 980 F.2d at _______
819 ("We refuse to second-guess the Board on the manner in
which it weights different factors when arriving at its
ultimate decision."). The Board's decision was "a judgment
call, pure and simple," id. at 819, and there is no reason to ___
call it into question.4
Petitioner's argument boils down to the contention
that 212(c) relief should have been granted as a matter of
law after he met the burden, imposed on him by Matter of _________
Buscemi, 19 I. & N. Dec. 628 (1988),5 of demonstrating his _______
unusual and outstanding equities. This is an untenable
notion. The petitioner's demonstration of equities in this
type of case is the beginning of the story, not the end of
it. See Gouveia, 980 F.2d at 816 ("[E]ven the presence of ___ _______
preponderant equities or equities that in the abstract could
qualify as 'unusual' or 'outstanding' does not compel the
Board to grant [ 212(c)] relief."); Henry, 74 F.3d at 7 _____
____________________
4. Contrary to Medeiros's suggestion, there is nothing amiss
with the BIA's "adopt[ion] [of] the contents of the
Immigration Judge's decision." As this court pointed out
earlier this year, "if the Board's view is that the IJ 'got
it right,' the law does not demand that the Board go through
the idle motions of dressing the IJ's findings in its own
prose." Chen, 87 F.3d at 7-8. ____
5. Under Buscemi, an alien facing deportation who has _______
exhibited, inter alia, a pattern of serious criminal _____ ____
misconduct must meet this higher burden to justify the grant
of 212(c) relief. Id. at 633-34; see also Hazzard v. INS, ___ ___ ____ _______ ___
951 F.2d 435, 438 (1st Cir. 1991). Medeiros does not
challenge the applicability of Buscemi to his case. _______
-5- 5
("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."); cf. Hazzard, ___ _______
951 F.2d at 438 ("Neither the BIA nor this court has ever
held that a finding of 'outstanding equities' compels
allowance of a waiver of excludability." (citations
omitted)). The Board is charged with balancing the alien's
adverse factors against his equities in reaching its decision
about the availability of 212(c) relief. Matter of Marin, _______________
16 I. & N. Dec. 581, 584 (BIA 1978). This is exactly what
the Board did in this case. Affirmed.
-6- 6
Ronald Hazzard v. Immigration and Naturalization Service , 951 F.2d 435 ( 1991 )
Jose Gouveia v. Immigration and Naturalization Service , 980 F.2d 814 ( 1992 )
Bing Feng Chen v. Immigration & Naturalization Service , 87 F.3d 5 ( 1996 )
Henry v. Immigration & Naturalization Service , 74 F.3d 1 ( 1996 )