USCA1 Opinion
July 28, 1992 ____________________
No. 92-1008
JAVIER A. MARTINEZ,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Roberto Gonzalez and Rappoport, Audette, Bazar & Farley, on brief
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for petitioner.
Stuart M. Gerson, Assistant Attorney General, Robert Kendall,
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Jr., Assistant Director, and Donald E. Keener, Office of Immigration
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Litigation, Civil Division, United States Department of Justice, on
brief for respondent.
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SELYA, Circuit Judge. This is a petition to review
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a decision of the Board of Immigration Appeals (Board)
denying an application for a waiver of deportation under
212(c) of the Immigration and Naturalization Act (Act), 8
U.S.C. 1182(c).
I. BACKGROUND
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Petitioner is a twenty-seven-year-old native and
citizen of the Dominican Republic. He first entered the
United States on a two-year tourist visa in 1974, but
remained here unlawfully after the visa expired. In 1983 he
obtained lawful permanent resident status. In 1990,
petitioner was convicted for possession of cocaine, delivery
of heroin, and driving to endanger. Following these
convictions, the government brought deportation proceedings.
At a preliminary hearing, petitioner conceded that he had
been convicted of violating controlled substance laws and
was, therefore, deportable. He was also found to be
deportable as an aggravated felon. After a hearing, however,
an immigration judge (IJ) granted petitioner's application
for a discretionary waiver of deportation under section
212(c) of the Act. The Immigration and Naturalization
Service appealed the IJ's decision. The Board sustained the
appeal because petitioner "has a significant history of
criminal activity . . . and . . . has engaged in criminal
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activities for the entire time he has been a lawful permanent
resident." Petitioner now seeks appellate review.
II. DISCUSSION
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The Board's decision whether to grant a waiver
under section 212(c) is discretionary. In reviewing a
discretionary decision of the Board, we determine only
whether the decision was arbitrary, capricious, or an abuse
of discretion. Hazzard v. INS, 951 F.2d 435, 438 (1st Cir.
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1991). Accordingly, we will uphold a decision of the Board
denying a section 212(c) waiver "unless it was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Williams v.
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INS, 773 F.2d 8, 9 (1st Cir. 1985). To the extent that we
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review the Board's factfinding, we do so under the
substantial evidence standard. Blackwood v. INS, 803 F.2d
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1165, 1168 (11th Cir. 1986). That is, if the facts found by
the Board are supported by "such relevant evidence as a
reasonable mind might accept to support [such] a conclusion,"
they will be upheld upon review. Consolo v. Federal Maritime
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Commission, 383 U.S. 607, 619-20 (1966).
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In this proceeding, petitioner makes several
arguments. We deal with these in turn.
1. Deferral to the Immigration Judge's Findings
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Petitioner argues that the Board was required to
defer to the IJ's findings on credibility and rehabilitation.
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This argument has no merit. It is well established that the
Board may review the administrative record de novo and make
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its own findings of fact and law, including findings relating
to a petitioner's credibility. Cordoba-Chaves v. INS, 946
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F.2d 1244, 1249 (7th Cir. 1991); Castillo-Rodriguez v. INS,
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929 F.2d 181, 184-85 (5th Cir. 1991); Goon Wing Wah v. INS,
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386 F.2d 292, 293-94 (1st Cir. 1967).
2. Failure to Admit Additional Evidence or to
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Remand to Immigration Judge
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Upon appeal to the Board petitioner submitted
additional evidence to support the IJ's decision, asking the
Board to remand the case for further hearing if it did not
uphold the decision. The Board declined to consider the
additional evidence, noting that "only 5 months have elapsed
since the respondent's release from prison. . . .
Accordingly, any new evidence of rehabilitation, even if
considered, would not be conclusive."
We do not agree with petitioner that the Board's
failure to consider petitioner's additional evidence or to
remand the case for further hearing was an abuse of
discretion. To the extent that the evidence repeated
testimony given at the hearing, it was cumulative, hence, not
material. See Cobourne v. INS, 779 F.2d 1564, 1566-67 (11th
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Cir. 1986); Young v. Department of Justice, 759 F.2d 450,
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456-57 (5th Cir.), cert. denied, 474 U.S. 996 (1985). And as
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the Board noted, the additional evidence covered a very brief
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period of time. Since petitioner had once before completed a
drug treatment program, but had subsequently continued to use
and sell drugs, the Board's determination that evidence of
such short duration would not conclusively establish his
rehabilitation was reasonable. See Blackwood, 803 F.2d at
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1167.
3. Factual and Legal Errors
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Petitioner claims that the Board made numerous
factual and legal errors. To the extent that petitioner's
assignments of error concern inferences the Board drew from
conflicting evidence or the way in which the Board weighted
different factors, they are without merit. See Consolo, 383
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U.S. at 620; Joseph v. INS, 909 F.2d 605, 607 (1st Cir.
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1990); Osuchukwu v. INS, 744 F.2d 1136, 1141 (5th Cir. 1984).
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We discuss only the remaining asseverations.
First, petitioner claims that the Board abused its
discretion by failing to find that petitioner's employment
history was a favorable factor. In its decision the Board
noted that "a history of employment" is a favorable factor to
be considered in determining whether to grant the section
212(c) waiver, but it failed to make any mention of
petitioner's own employment history. Assuming the Board's
failure to consider a relevant favorable factor may sometimes
constitute an abuse of discretion, see, e.g., Jen Hung Ng v.
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INS, 804 F.2d 534, 540 (9th Cir. 1986), the evidence
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submitted in this case shows that petitioner's employment
history would not be a significant favorable factor for him.
With the exception of his employment in 1982-83, his precise
dates of employment before 1986 are either unverified by his
employers or unknown. From 1986 to 1990, when he was
imprisoned, petitioner was engaged in lawful work for only
five months. During the same time frame, he spent several
years engaged in the illicit selling of drugs.
We also note that petitioner's attorney failed to
present petitioner's employment history as a favorable factor
to the IJ. Moreover, counsel did not solicit petitioner's
oral testimony on this point at the hearing. In arguing to
the Board that his prior employment was a favorable factor,
petitioner stated simply, and incorrectly, that he "has a
record of steady employment going back to 1983." He made no
attempt to elaborate on his allegation or to discuss the
specifics of the documentary evidence he submitted. A party
who suggests a point to the Board fleetingly and without any
developed argumentation is not entitled to complain if the
Board disregards the passing reference. See Nunez-Pena v.
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INS, 956 F.2d 223, 225 n.4 (10th Cir. 1992); Khalaf v. INS,
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909 F.2d 589, 592 (1st Cir. 1990). Consequently, the Board's
failure to consider petitioner's employment history was not
error.
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Second, petitioner argues that the Board erred by
failing to consider certain specific claims made or evidence
presented in the proceedings below. We have carefully
examined the alleged omissions. The Board discussed all the
salient aspects of petitioner's claims which were (a)
properly before it and (b) supported by specific evidence.
No more was exigible. Where, as here, the Board has given
reasoned consideration to the petition, and made adequate
findings, we will not require that it address specifically
each claim the petitioner made or each piece of evidence the
petitioner presented. See Vergara-Molina v. INS, 956 F.2d
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682, 685 (7th Cir. 1992); Villanueva-Franco v. INS, 802 F.2d
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327, 329-30 (9th Cir. 1986); Yahkpua v. INS, 770 F.2d 1317,
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1321 (5th Cir. 1985); cf. Sanchez v. INS, 755 F.2d 1158, 1160
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(5th Cir. 1985) ("Thus, our review is limited to ascertaining
whether any consideration has been given by the Board to a
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limited range of factors, nor are we free to undermine the
discretion of the Board by parsing these factors into ever
smaller subfactors and requiring the Board to consider the
pieces.") (emphasis in original; footnote omitted).
Finally, petitioner argues that, even if the
alleged errors are insignificant standing alone, taken
together they represent "significant errors" requiring
reversal of the Board's decision. Here, however,
petitioner's individual assignments of error are devoid of
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merit and the Board's decision "sets out clearly the ground
which forms the basis for [its] denial of the discretionary
[waiver]." Crespo-Gomez v. Richard, 780 F.2d 932, 935 (11th
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Cir. 1986). That being so, and because the facts of this
case fall well within the factual profiles of other cases in
which aliens with controlled substance convictions have been
denied section 212(c) waivers, see, e.g., Hazzard, 951 F.2d
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435; Blackwood, 803 F.2d 1165; Matter of Edwards, Interim
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Dec. No. 3134 (BIA 1990); Matter of Buscemi, 19 I. & N. Dec.
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628 (BIA 1988), petitioner's argument is unpersuasive.
4. Failure to Articulate Guidelines for
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Determining When an Applicant's Equities Meet the
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Board's Standard
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Petitioner claims that the Board also acted
arbitrarily when it found that he had not shown unusual or
outstanding equities because it has failed to articulate
"guideline[s]" for determining what that standard means and
how to apply it. The Board's application of the "unusual or
outstanding equities" standard in section 212(c) cases has
been accepted both by this court, see, e.g., Hazzard, 951
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F.2d at 438-39, and by other courts, see, e.g., Ayala-Chavez
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v. INS, 944 F.2d 638, 641 (9th Cir. 1991); Nunez-Pena, 956
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F.2d at 225. Petitioner has presented no compelling reason
for us to revisit this issue.
III. CONCLUSION
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We need go no further. Inasmuch as this petition
presents no substantial question, we summarily affirm the
decision of the Board. See 1st Cir. Rule 27.1.
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The petition for review is denied and dismissed.
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