Bing Feng Chen v. Immigration & Naturalization Service

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

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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."

5

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

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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

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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.

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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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