USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 95-2309
BING FENG CHEN,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
_________________________
Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
_________________________
Carlos Magaletta, with whom Magaletta & Associates, P.C. was ________________ ____________________________
on brief, for petitioner.
Joseph F. Ciolino, Office of Immigration Litigation, United _________________
States Dep't of Justice, with whom Frank W. Hunger, Assistant ________________
Attorney General, and David M. McConnell, Acting Assistant ____________________
Director, Office of Immigration Litigation, were on brief, for
respondent.
_________________________
June 20, 1996
_________________________
SELYA, Circuit Judge. Petitioner, Bing Feng Chen, a SELYA, Circuit Judge. ______________
native and citizen of the People's Republic of China, seeks
judicial review of an order of the Board of Immigration Appeals
(the Board) directing his deportation and, concomitantly, denying
his request for a waiver of excludability. Discerning no
cognizable error in the administrative proceedings, we leave the
Board's order intact.
I I
Petitioner, then twenty-three years old, entered the
United States as a lawful permanent resident in 1984 along with
his parents and his brother. The family settled in Boston. In
1987, California authorities charged petitioner with robbery in
the second degree and false imprisonment. The record reveals
that petitioner and two accomplices undertook to rob a jewelry
store. Petitioner brandished a firearm (a fully loaded .38
calibre handgun) during the robbery, holding the store's
employees and a half-dozen customers at bay. The value of the
property taken exceeded $25,000. Petitioner pled guilty to the
charges and the court sentenced him to five years' imprisonment.
He served more than half the sentence (including credit for time
spent in pretrial detention) before obtaining a parole.
On May 27, 1992, the Immigration and Naturalization
Service (INS) took steps to deport petitioner because he had (a)
committed a crime involving moral turpitude within five years of
his lawful entry into the United States, (b) been convicted
thereof by a court of competent jurisdiction, and (c) been
2
incarcerated on account of that conviction for a period in excess
of one year. See 8 U.S.C. 1251(a)(2)(A)(i). At a subsequent ___
hearing on a show-cause order, an Immigration Judge (IJ) found
petitioner subject to deportation and, inter alia, denied his _____ ____
application for a waiver of excludability under section 212(c) of
the Immigration and Nationality Act, 8 U.S.C. 1182(c).
Petitioner prosecuted an administrative appeal. In a terse
opinion dated November 13, 1995, the Board denied relief. Though
conceding deportability, petitioner now seeks judicial review of
the denial of the waiver.
II II
A A
In his own words, petitioner's first argument is that
the Board deprived him of due process by "fail[ing] to state the
standard of review it used in reviewing the decision of the IJ."
Whatever constitutional force this standard-of-review argument
once may have generated, events have passed it by.
The genesis of the argument can be traced to an opinion
of the Court of Appeals for the Seventh Circuit, Ortiz-Salas v. ___________
INS, 992 F.2d 105 (7th Cir. 1993), in which Judge Posner, writing ___
for the panel, noted the Board's habitual silence concerning the
standard that it used when reviewing a discretionary decision of
an IJ (such as a decision to grant or deny a waiver under section
212(c)). See id. at 108. In response to the Board's claim that ___ ___
it had a right to inscrutability and need not advertise its
standard of review, Judge Posner wrote:
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That won't do. It is an undue hardship to
require the alien to guess at the standard of
review that will be applied to his appeal . .
. . [a]nd it is irresponsible for the Board
to fail to define its relationship to the
immigration judges.
Id. at 107. ___
If Ortiz-Salas marked the end of the line, this case ___________
might present difficulties. But the occurrence of an intervening
event removes the issue from the case. On September 13, 1994,
the Board decided Matter of Burbano, Interim Decision 3229 (BIA __________________
1994), in which it heeded the message of the Ortiz-Salas court ___________
and made clear that whenever "the Board engages in a review of a
discretionary determination by an immigration judge," the Board
relies upon its "own independent judgment in deciding the
ultimate disposition of the case." Id., slip op. at 2. To ___
eliminate all doubt, the Board added that it "do[es] not employ
an abuse of discretion standard when reviewing discretionary
determinations of immigration judges." Id. at 3. Burbano thus ___ _______
fills the gap that troubled the Ortiz-Salas court. ___________
The opinion in Burbano antedated the Board's opinion in _______
this case by well over a year. The Board's express invocation of
Burbano (via citation to it) in the text of the opinion below _______
makes manifest the untenability of the petitioner's claim under
the circumstances now extant. Petitioner, to his credit,
acknowledges as much in his reply brief. Consequently, the
argument is by the boards.
B B
Petitioner's next asseveration relates to the adequacy
4
of the Board's findings. It is true, as petitioner points out,
that for the most part the Board did not write its own analysis
of the positive and negative factors undergirding its
determination to deny the requested waiver. It did, however,
make clear that it had reviewed the record, the IJ's decision,
and petitioner's contentions on appeal, and it concluded that,
with one exception,1 the IJ "gave proper consideration to the
discretionary factors concerning [petitioner's] request for
section 212(c) relief." The Board also indicated its agreement
that petitioner had not demonstrated equities sufficient to
overbalance the significant adverse factors associated with his
involvement in the armed robbery, and it opted to affirm the
denial of the waiver "for the reasons specified in [the IJ's]
decision."
Petitioner complains that the Board's opinion is flawed
because it is conclusory in nature. He says in effect that the
Board, when exercising independent review, must find the facts
afresh, and that it neglected to do so here. We think that
petitioner overstates the Board's obligation.
As a general proposition, if a reviewing tribunal
decides that the facts and evaluative judgments prescinding from
them have been adequately confronted and correctly resolved by a
____________________
1The Board disclaimed any reliance on hypothetical scenarios
set forth by the IJ in his decision. The Board explained that,
though it agreed with the IJ that the petitioner's criminal
activity, namely, his robbery of a store with a loaded weapon,
was "particularly disturbing," nonetheless, "the reprehensible
nature of this crime speaks for itself, without any need to
speculate as to the feelings of the victims involved."
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trial judge or hearing officer, then the tribunal is free simply
to adopt those findings as long as its opinion or order clearly
indicates that it gave individualized attention to the case and,
upon reflection, elected to adopt the trier's words rather then
to write anew. See Alaelua v. INS, 45 F.3d 1379, 1381 (9th Cir. ___ _______ ___
1995); Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir. ________________ ___
1993); cf. In re San Juan Dupont Plaza Hotel Fire Litig., 989 ___ ________________________________________________
F.2d 36, 38 (1st Cir. 1993) ("Where, as here, a trial court has
produced a first-rate work product, a reviewing tribunal should
hesitate to wax longiloquent simply to hear its own words
resonate.").
These principles hold true in an administrative appeal
of this genre. To be sure, the Board is obliged to weigh all the
pertinent factors (both favorable and unfavorable), to exhibit
due consideration for the universe of weighted factors when
tallying the equities, to exercise independent judgment, and to
state plainly its reasons for granting or denying relief. See ___
Alaelua, 45 F.3d at 1382; Martinez v. INS, 970 F.2d 973, 974 (1st _______ ________ ___
Cir. 1992). And, moreover, the Board's opinion must reflect that
it has carried out these obligations but the Board need not
write a long essay merely to prove its mettle. Cf., e.g., ___ ____
Martinez, 970 F.2d at 976 (concluding that the Board need not ________
"address specifically each claim the petitioner made or each
piece of evidence the petitioner presented"). To use the
vernacular, if the Board's view is that the IJ "got it right,"
the law does not demand that the Board go through the idle
6
motions of dressing the IJ's findings in its own prose.2 In
short, de novo review and what the Board chooses to call
"independent review" is neither more nor less than de novo review
does not require the Board to reinvent the wheel.
On this basis, we join eight of our sister circuits in
ruling that the Board need not write at length merely to repeat
the IJ's findings of fact and his reasons for denying the
requested relief, but, rather, having given individualized
consideration to a particular case, may simply state that it
affirms the IJ's decision for the reasons set forth in that
decision.3 See Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th ___ ______________ ___
Cir. 1996); Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 1995); ___________ ___
Urukov v. INS, 55 F.3d 222, 227-28 (7th Cir. 1995); Alaelua, 45 ______ ___ _______
____________________
2In his reply brief, petitioner cites two precedents that he
claims repudiate this view. His reliance is mislaid. One case,
Perez v. INS, 643 F.2d 640 (9th Cir.) (per curiam), op. am., 665 _____ ___ ___ ___
F.2d 269 (9th Cir. 1981), cert. dismissed, 459 U.S. 983 (1982), _____ _________
was not a case in which the Board adopted the findings of an IJ,
but, rather, a case in which the Board, in violation of its own ________________________
regulations, neglected to indicate on the record "the factors it ___________
considered in concluding that [the alien] failed to establish a
prima facie case of extreme hardship [under 8 U.S.C. _____ _____
1254(a)(1)]," thereby frustrating judicial review. Id. at 641. ___
In the second case, Anderson v. McElroy, 953 F.2d 803 (2d Cir. ________ _______
1992), the Court found an abuse of discretion in the Board's
summary refusal to stay deportation pending the disposition of an
alien's motion to reopen, notwithstanding the INS' acknowledgment
of a significant change in circumstances and its request that the
Board vacate the deportation decision and remand for further
proceedings. See id. at 805-06. Neither case has any bearing on ___ ___
the issue at hand.
3Where, as here, the Board adopts the findings and
conclusions of the IJ, the IJ's rescript serves de facto as the
Board's articulation of its ratio decidendi. For that reason, we _____ _________
henceforth refer to the findings and conclusions of the IJ,
adopted by the Board, as if the Board had authored them in the
first instance.
7
F.3d at 1382-83; Maashio v. INS, 45 F.3d 1235, 1238 (8th Cir. _______ ___
1995); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th ____________________ ___
Cir.), cert. denied, 116 S. Ct. 49 (1995); Panrit v. INS, 19 F.3d _____ ______ ______ ___
544, 546 (10th Cir. 1994); Arango-Aradondo v. INS, 13 F.3d 610, _______________ ___
613 (2d Cir. 1994); see also De Leon v. INS, 547 F.2d 142, 149 ___ ____ _______ ___
(1st Cir. 1976) (applying this principle sub silentio), cert. ___ ________ _____
denied, 434 U.S. 841 (1977). ______
Here, the Board's individualized attention to the case
is apparent. See, e.g., supra note 1. We hold, therefore, that ___ ____ _____
the Board acted within its proper purview when it adjudicated
petitioner's case and resolved the appeal by adopting the IJ's
findings and conclusions.
C C
As our journey winds down, we reach the bedrock issue:
the supportability of the Board's denial of section 212(c)
relief. The fact that the Board's findings and conclusions are
adopted rather than original does not affect our standard of
review. As in any other section 212(c) case, we need determine
only whether the decision is arbitrary, capricious, or an abuse
of discretion. See generally Gouveia v. INS, 980 F.2d 814, 817 ___ _________ _______ ___
(1st Cir. 1992) (elucidating standard of review).
Waivers of deportation are not profligately to be
granted. In deciding whether to exercise its discretionary
authority, the Board "must balance the `social and humane'
factors supporting the application against adverse factors
favoring deportation." Id. at 816. When the ground for ___
8
deportability is the alien's commission of a serious crime, a
high hurdle blocks the path to section 212(c) relief. In such
circumstances "it is incumbent upon a petitioner not only to
demonstrate that favorable factors preponderate but also to
present `unusual or outstanding equities'" in order to justify a
waiver. Id.; accord Martinez, 970 F.2d at 976; Hazzard v. INS, ___ ______ ________ _______ ___
951 F.2d 435, 438 (1st Cir. 1991). The armed robbery of which
petitioner stands convicted indubitably qualifies as a serious
crime within this rubric.
In this instance, the Board examined all the relevant
factors, applied the appropriate standard, decided that
petitioner's proffer lacked persuasive force, and concluded that
petitioner had failed to make out a sufficiently convincing case
for an affirmative exercise of discretion. On this record, we
have no warrant to second-guess the Board's conclusion. See ___
Martinez, 970 F.2d at 974 (explaining that rejection of a section ________
212(c) waiver request will be upheld "unless it was made without
a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis") (citation
omitted).
Of course, the credit side of the ledger is not empty.
Petitioner had a decade of lawful permanent residence, family
ties in this country, part-ownership in a house, some involvement
with community service, and a chiaroscuro record of gainful
employment. At bottom, however, these are garden-variety
equities; they simply do not rise to a level that would warrant
9
the appellation "unusual" or "outstanding." See, e.g., Henry v. ___ ____ _____
INS, 74 F.3d 1, 7 (1st Cir. 1996) (finding no unusual or ___
outstanding equities on comparable showing in adjustment-of-
status case).
Petitioner also made a modest showing of hardship to
family members should he be deported, but the hardships he
envisions are not severe. Petitioner's relatives in this county
are in good health and not dependent upon him for support. His
plans to start a business with his brother are embryonic.
Finally, we attach little weight to the hardships that petitioner
personally may experience upon his repatriation to China because
they are of the sort that would be common to almost any alien
returning to a less prosperous land after living in the United
States. See Ramirez-Durazo v. INS, 794 F.2d 491, 498 (9th Cir. ___ ______________ ___
1986).
The short of it is that, as the Board determined after
mulling all the relevant factors, petitioner's equities
(including his litany of potential hardships) do not outweigh the
serious adverse factors that are present in his case.4 Because
the record reflects a plausible basis for the Board's
determination, we are constrained to find that the Board acted
well within its broad discretionary powers in refusing to grant
the waiver. See Gouveia, 980 F.2d at 818; Hazzard, 951 F.2d at ___ _______ _______
____________________
4The armed robbery itself stands as the most serious adverse
factor. In addition, the Board supportably found that petitioner
showed no remorse for his actions and that he had made no real
progress toward rehabilitation.
10
438. As we recently wrote in an analogous case, "[t]his was a
judgment call, pure and simple," and, consequently, a reviewing
court must defer to the Board's notion of where to strike the
proper balance. Gouveia, 980 F.2d at 819; see also Henry, 74 _______ ___ ____ _____
F.3d at 7 (counselling that, in such purlieus, "[a] reviewing
court may not reweigh the equities afresh").
III III
We need go no further.5 Waiver of deportation is a
discretionary remedy. In the absence of either a mistake of law
or a palpable abuse of discretion neither of which sully the
pages of this record the Board's judgment must prevail.
The petition for review is denied and dismissed. The petition for review is denied and dismissed. _______________________________________________
____________________
5Petitioner's argument that the Board applied a per se rule
in effect holding that the crime was so heinous that no
combination of positive factors could have outweighed it is
belied by the record and does not require further comment.
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