IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-40108
_____________________
JOSE LUIS RODRIGUEZ-GUTIERREZ,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_______________________________________________________
Petition For Review of an Order of the
Immigration and Naturalization Service
(A35 473 985)
_______________________________________________________
(February 1, 1995)
Before REAVLEY, DUHÉ and PARKER, Circuit Judges.
REAVLEY, Circuit Judge:*
Jose Luis Rodriguez-Gutierrez was charged with deportability
under 8 U.S.C. §1251 (a)(1)(B) (Supp. 1994). The Immigration
Judge ("IJ") determined that Rodriguez was deportable. The IJ
denied Rodriguez's applications for suspension of deportation and
adjustment of status, but granted voluntary departure. Rodriguez
appealed the denial of suspension of deportation to the Board of
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
Immigration Appeals (the "BIA"). He also moved to reopen
deportation proceedings with respect to the adjustment of status
application. The BIA dismissed the appeal and denied the motion
to reopen. Rodriguez appeals. We reverse and remand for
proceedings consistent with this opinion.
BACKGROUND
Rodriguez was caught with undocumented aliens in his car
near the border in 1982. At the time he had legal immigration
status in the United States. He gave the INS agent a false name
and birthdate, because he did not want them to know his true
identity or immigration status. He also allegedly told him that
he had recently entered the country by swimming across the river.
At his deportation hearing, Rodriguez testified that he had lied
to the Immigration officers because he was afraid. He testified
that he did not swim across the river, but instead entered
legally. The Immigration Judge found that this testimony lacked
credibility and that he entered the country illegally. The IJ
determined that he was deportable.1
Rodriguez applied for suspension of deportation under 8
U.S.C. §1254(a)(1)(1970). The IJ found that Rodriguez was not
eligible for suspension of deportation because he interrupted his
seven years of continuous residency in the U.S. (a prerequisite
for suspension of deportation) by leaving the U.S. on several
1
Rodriguez was also convicted by a federal court of
illegally transporting undocumented aliens, but the conviction
was later set aside because of his youth at the time of the
offense and his subsequent good behavior.
2
occasions while his deportation proceedings were pending. On
appeal, the Board of Immigration Appeals (the "BIA") upheld the
denial of application for suspension, but on different grounds.
The BIA called into doubt the IJ's finding regarding continuous
residency in light of a Fifth Circuit case, which overruled a BIA
case relied on by the IJ in his findings regarding continuous
residency. The BIA upheld the IJ's determination, however,
because it concluded that the immigrant was not a person of good
moral character (another prerequisite for suspension of
deportation), because he gave "false testimony" at his
deportation hearing.
Rodriguez also applied for an adjustment of status, but the
IJ found that he lacked one of the prerequisites for adjustment
of status -- a current visa application. He moved to reopen the
case for adjustment of status at the time of his appeal to the
BIA, because his wife had applied for a visa for him before that
appeal was addressed. The BIA did not address whether Rodriguez
met the requirements for adjustment of status, but instead
refused to exercise its discretion to reopen the case to address
his request for an adjustment of status.
Rodriguez appeals both the suspension of deportation
determination and the BIA's refusal to reopen his case for
adjustment of status.
DISCUSSION
A. Suspension of Deportation
3
The Attorney General may, in her discretion, suspend
deportation and adjust the status to that of an alien lawfully
admitted for permanent residence in the case of an alien who has
been found to be deportable and 1) has been physically present in
the U.S. for a continuous period of not less than seven years
immediately preceding the date of the application for relief; 2)
establishes the he is a person of good moral character during
that period of time; and 3) is a person whose deportation would,
in the opinion of the Attorney General, result in extreme
hardship to the alien or to the alien's spouse, parent, or child,
who is a citizen of the U.S. or an alien lawfully admitted for
permanent residence. 8 U.S.C.§1254(a)(1).
1. Continuous Presence
If an immigrant's absence from the U.S. was brief, casual
and innocent, it may not interrupt an immigrant's continuous
physical presence in this country. 8 U.S.C. 1254(b)(2)(Supp.
1994). If the departure involved criminal intent, continuous
residency is interrupted. Laredo-Miranda v. INS, 555 F.2d 1242,
1245-46 (5th Cir. 1977). The IJ found that Rodriguez's departure
in 1982 did not break his continuous presence because, even
though he was found deportable for having entered without
inspection and convicted of transporting aliens, he was not
convicted for aiding and abetting an entry, and therefore, lacked
the necessary criminal intent to constitute a meaningful
interruptive entry. He concluded, however, that subsequent trips
to Mexico did constitute interruption, because under Matter of
4
Becerrra-Miranda, 12 I & N Dec. 358 (BIA 1967), an alien who
departed during the pendency of deportation proceedings had
interrupted his permanent residence in the U.S.
The BIA noted that this conclusion was incorrect in light of
subsequent Fifth Circuit case law. We agree. The Fifth Circuit
rejected Matter of Becerra-Miranda and held that a more
subjective inquiry must be made before an alien's departure can
be held to have interrupted his status. Molina v. Sewell, 983
F.2d 676, 679-80 (5th Cir. 1993). According to Molina, the IJ
must look to the 1) length of time the alien is absent; 2) the
purpose of the visit; and 3) whether travel documents were
required. Id. at 680. The IJ concluded that, if Matter of
Becerra-Miranda's objective test did not bar a finding of
continuous presence, Rodriguez's departures would be considered
brief, casual and innocent under the subjective test. Indeed,
the record shows that each departure was for a very short period
of time, one or two days, and travel documents were not required.
The purpose of the first visit was a brief visit with family
friends; the purpose of the second was to assist a family member
in distress; and the purpose of the third was to find witnesses
for his deportation hearing.
2. Good Moral Character
The BIA did not disturb the IJ's refusal to suspend
deportation in this case, because it held that even if Rodriguez
met the continuous presence requirement, he did not meet the good
moral character requirement for suspension of deportation. Title
5
8 provides that no person shall be found to be a person of good
moral character who, during the time for which good moral
character is required to be established is or was "one who has
given false testimony for the purpose of obtaining any benefits
under this chapter." 8 U.S.C.§1101(f)(6).
The IJ found that Rodriguez was deportable, because he
entered the country illegally. In doing so, the IJ decided that
Rodriguez's testimony at his deportation hearing lacked
credibility. The BIA concluded that the IJ's determination that
Rodriguez's testimony lacked credibility was tantamount to a
finding that Rodriguez was not a person of good moral character
because he gave false testimony at the hearing.
A finding that testimony lacked credibility does not alone
justify the conclusion that false testimony has been given.
False testimony means knowingly giving false information with an
intent to deceive. A lack of credibility does not necessarily
stem from a conclusion that the speaker intends to deceive. As a
California district court stated, to assume that "a witness whose
testimony is not accepted by the trier of fact is a perjurer and
not a person of good moral character . . . is not only legally
invalid, but is contrary to the basic sense of fairness upon
which our legal system is founded." Acosta v. Landon, 125
F.Supp. 434, 441 (S.D. Cal. 1954).
The BIA incorrectly concluded that Rodriguez was not a
person of good moral character, because it erroneously held that
a finding that testimony lacks credibility is the equivalent to a
6
finding that the witnesses has given false testimony. The IJ
discussed the effect of Rodriguez's conviction for transporting
aliens on a finding of good moral character and, in doing so,
found that Rodriguez did have good moral character. In addition,
in granting voluntary departure, the IJ made an implicit finding
of good moral character. See 8 U.S.C. §1254(e)(providing that
good moral character is a prerequisite for a grant of voluntary
departure). This record supports this conclusion.
B. Denial of Motion to Reopen To Apply for Adjustment of Status
The status of an alien may be adjusted by the Attorney
General, in her discretion, if certain conditions are met.
Rodriguez applied for adjustment of status at his deportation
hearing. The IJ found that Rodriguez could not be granted an
adjustment of status, because he did not meet the requirement
that "an immigrant visa [be] immediately available to him at the
time the application is filed." After the hearing and before his
appeal was decided, Rodriguez filed a motion to reopen with the
BIA because his wife had successfully filed a visa petition
during that time period. The Board did not find that Rodriguez
was not eligible for an adjustment of status, but instead
concluded that he did not warrant a favorable exercise of
discretion.2
2
As the BIA noted in its opinion, "[w]hen the Board
determines that reopening is not warranted in the exercise of
discretion, the question of statutory eligibility for the
requested relief need not be considered." BIA Opinion at 6
(citing INS v. Bagamasbad, 97 S.Ct. 200, 201 (1976)).
7
The BIA found that Rodriguez: 1) entered into the U.S.
without inspection in 1982 despite the fact that he was a lawful
permanent resident; 2) admitted that he gave a false name and
birth date to border patrol agents at the time of his arrest; 3)
lied to the immigration officials about his name because he was
caught transporting aliens in his car; 4) attempted to cover-up
his behavior by giving false testimony at his hearing; and 5)
failed to give testimony in support of "false statements" in his
affidavit that border patrol agents coerced his statement by use
of a gun and physical intimidation. All of which "show[ed] a
blatant disrespect for the immigration laws of this country."
The Board's denial of a motion to reopen is reviewed for
abuse of discretion. INS v. Doherty, 112 S.Ct. 719, 724 (1992).
An abuse of discretion has occurred if the Board improperly
characterizes the misconduct of the alien and gives little weight
to the favorable factors for the purpose of discretionary
reopening. See Diaz-Resendez v. INS., 960 F.2d 493, 495 (5th
Cir. 1992)(holding that a decision by the Board may be found
arbitrary if the Board fails to address meaningfully all material
factors); Ng v. INS, 804 F.2d 534, 538 (9th Cir. 1986)(holding
that BIA is required to "show proper consideration of all factors
when weighing equities and denying . . . relief.").
All of the factors pointed to by the BIA as those supporting
a denial of relief in this case stem from Rodriguez's actions
taken in response to his arrest in 1983 for transporting illegal
aliens. Rodriguez was 26 years old at the time of this incident.
8
Since that time a federal court has set aside the criminal
conviction for this offense because of a recognition that the
defendant's age at the time of the incident and his subsequent
admirable record indicated that Rodriguez deserved clemency. The
BIA also again focused on Rodriguez's "false statements" at his
hearing. The trier of fact at his hearing, the IJ, weighed the
evidence before him and concluded that Rodriguez entered the
country illegally. In doing so, he did not brand Rodriguez a
liar. Indeed, the IJ went on to find, despite his credibility
assessment, that Rodriguez was a person of good moral character.
The BIA gave only cursory acknowledgment to the positive
factors supporting a grant of relief in this case. Rodriguez has
lived in this country for sixteen years (since he was 19 years
old). He has been married to a United States citizen for
fourteen years and is a father to six children (fathered five),
all of whom are fully dependent on him, live at home, and are
United States citizens. His mother-in-law, a widow who lives
with a disabled daughter, relies on Rodriguez for assistance.
One of his son's is an "at risk" patient, requiring specialized
medical care. "Generally, favorable factors such as family ties,
hardship, length of residence in the United States, etc., will be
considered as countervailing factors meriting favorable exercise
of administrative discretion." Matter of Arai, 13 I. & N. Dec.
494, 496 (BIA 1970). The immigrant's status as an immediate
relative is a "special and weighty equity." Matter of Ibrahim,
18 I. & N. Dec. 55, 57-58 (BIA 1981).
9
Rodriguez has a stable employment record and pays a mortgage
on his home. He is an active member of his church and
participates in community activities in a positive way. He was
terminated early from probation because of his "excellent
adjustment to supervision" and the "probation officer's prognosis
that Mr. Rodriguez would remain violation free." This
determination entitled him to a dismissal of his conviction. He
has indeed remained violation free. He has also expressed
remorse for lying to patrol agents and transporting the aliens.
The record contains numerous affidavits and letters in support of
his petition.
Rodriguez has no family in Mexico. His mother, brothers,
stepbrother, sister, and stepsister, all of whom are U.S.
citizens or lawful permanent residents, live in the United
States. Deportation would clearly cause great hardship to his
wife and family due to separation. It would also cause great
economic hardship to his family. It is unlikely that he could
find employment in Mexico which would allow him to pay his
mortgage or support his family. As a result, his family, all
American citizens, would probably become dependant on the
American Government for financial assistance as welfare
recipients. Therefore, deportation in this case would also cause
hardship on the Government.
The BIA abused its discretion by not meaningfully addressing
the positive equities in this case and by improperly
characterizing the negative equities in this case.
10
11
CONCLUSION
The record demonstrates that Rodriguez meets the
requirements for a suspension of deportation. Subsequent case
law has shown that the IJ's determination with respect to the
continuous presence requirement was legally incorrect. The IJ
stated in his opinion that absent considerations regarding the
pending deportation proceedings, Rodriguez's absences from the
country were brief, casual and innocent and would not disrupt a
continuous presence finding. The IJ also found that Rodriguez
was a man of good moral character. The BIA's basis for finding
to the contrary was not legally valid. The IJ also concluded
that deportation would result in extreme hardship to Rodriguez's
wife and family. The record supports this conclusion. We
reverse the BIA's dismissal of Rodriguez's appeal concerning his
application for a suspension of deportation and remand for
proceedings consistent with this opinion.
We also reverse the BIA's denial of Rodriguez's motion to
reopen.3 Our determination that the BIA abused its discretion in
3
The Government argues that on remand the BIA must still
refuse to grant an adjustment of status because Rodriguez is
excludable under 8 U.S.C. §1182(a)(6)(E). This issue is not
relevant to this appeal, since the BIA did not address
Rodriguez's statutory eligibility for adjustment of status, but
instead made a purely discretionary decision to deny the request
to reopen the case. We note, however, that the Government
misapplies section 1182. This provision states that an alien who
has knowingly encouraged, induced, assisted, abetted, or aided
any other alien to enter or try to enter the United States in
violation of law is excludable. As the IJ in this case noted,
Rodriguez was convicted for transporting illegal aliens rather
than for aiding and abetting an entry. Therefore, he is not
excludable under section 1182(a)(6)(E). The Government has also
previously argued that Rodriguez is not eligible for an
12
improperly weighing the equities in addressing Rodriguez's
request to reopen for an adjustment of status does not mean that
Rodriguez should, as a matter of law, receive an adjustment of
status. We hold merely that, in exercising its discretion to
grant or deny the motion to reopen for an adjustment of status,
the BIA must balance all of the equities in a meaningful way. We
trust that on remand they will do so and their determination of
the issue will be an equitable one.
REVERSED AND REMANDED.
adjustment of status because he entered the country without
inspection. The provision for adjustment of status has recently
been amended, however, to allow those with an entry without
inspection to apply for an adjustment of status while still in
the United States. See 8 U.S.C. §1255(i), added by Pub. L. No.
103-317, §506(c) (1994).
13