Carter v. Immigration & Naturalization Service

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-1840

ZAKIA CARTER,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Selya and Boudin, Circuit Judges,

and McAuliffe,* District Judge.

Joseph S. Callahan on brief for petitioner.

Frank W. Hunger, Assistant Attorney General, Civil Division,

and Philemina McNeill Jones, Assistant Director, Office of

Immigration Litigation, United States Department of Justice, on
brief for respondent.

July 30, 1996

*Of the District of New Hampshire, sitting by designation.

SELYA, Circuit Judge. Invoking the newly enacted
SELYA, Circuit Judge.

"battered spouse" provision of the Immigration and Nationality

Act (I&N Act), 8 U.S.C. 1154(a)(1)(A)(iii) (1994), petitioner

Zakia Carter seeks judicial review of an order of the Board of

Immigration Appeals (the Board) denying her motion to reopen

deportation proceedings. Discerning no cognizable error, we

decline to grant the petition.

I
I

Carter, a native and citizen of Morocco, was convicted

of assault and battery on March 8, 1981. After the victim died,

Carter pled guilty to a charge of manslaughter. The state court

sentenced her to serve 12-20 years in prison. She was not

released from the penitentiary until March 20, 1993.

The Immigration and Naturalization Service (INS)

instituted deportation proceedings against petitioner on October

28, 1988 (while she was still incarcerated). In its order to

show cause, the INS charged her inter alia with committing a

crime involving moral turpitude (for which she was convicted and

sentenced to a prison term of more than one year) within five

years of her lawful entry into the United States, in violation of

section 241(a)(2) of the I&N Act, 8 U.S.C. 1251(a)(2).1

1The statute reads in pertinent part:

Any alien who (I) is convicted of a crime
involving moral turpitude committed within
five years . . . after the date of entry, and
(II) either is sentenced to confinement or is
confined therefor . . . for one year or
longer, is deportable.

2

Petitioner disputed this charge, denying that the crime she had

committed involved moral turpitude.

On March 19, 1990, an immigration judge (IJ) found

petitioner deportable. While her appeal to the Board was

pending, petitioner, though still incarcerated, married Dale

Carter (a native and citizen of the United States). Following

her release, she gave birth to a child, Jamila Carter, on August

22, 1994. Six weeks thereafter, the Board affirmed the IJ's

decision and entered a deportation order. See Matter of Carter,

Interim Dec. No. 23-200-544 (BIA 1995).

Petitioner subsequently sought a divorce. She then

filed a motion to reopen the deportation proceedings. Although

the Board previously found petitioner deportable due to her

manslaughter conviction, her motion asserts an entitlement to a

waiver of excludability premised on her status as a battered

spouse.2 The Board denied her motion on July 12, 1995.

8 U.S.C. 1251(a)(2)(A)(i). Since the charge under this
provision is the only charge that INS pressed, it is the only
charge that we discuss.

2The applicable statute reads in pertinent part:

An alien who is the spouse of a citizen of
the United States, who is a person of good
moral character, who is eligible to be
classified as an immediate relative . . .,
and who has resided in the United States with
the alien's spouse may file a petition . . .
[for relief if]:

(I) the alien is residing in the
United States, the marriage between
the alien and the spouse was
entered into in good faith by the
alien, and during the marriage the

3

Petitioner now seeks judicial review. At the present time, her

divorce case is pending, as are certain domestic violence

proceedings against her husband.

II
II

We pause to emphasize the circumscribed nature of our

review. The Board originally found Carter to be inadmissible

(and, therefore, deportable) because she had committed a crime of

moral turpitude (and served more than twelve months in prison)

within five years of entering the United States. It denied her

motion to reopen for a variety of reasons (most of which related

to the absence of a prima facie showing of entitlement to

relief).

We inquire only into the Board's denial of the motion

to reopen, not its earlier adjudication of the merits of

petitioner's excludability. See Gando-Coello v. INS, 888 F.2d

197, 198 (1st Cir. 1989). Though the denial of a motion to

reopen deportation proceedings usually possesses the requisite

finality and thus triggers the judicial review provisions of the

I&N Act, see, e.g., Baez v. INS, 41 F.3d 19, 21 (1st Cir. 1994);

Goncalves v. INS, 6 F.3d 830, 831-32 (1st Cir. 1993); Athehortua-

alien . . . has been battered by or
has been the subject of extreme
cruelty perpetrated by the alien's
spouse; and

(II) the alien is a person whose
deportation would result in extreme
hardship to the alien or a child of
the alien.

8 U.S.C. 1154(a)(1)(A)(iii) (1994).

4

Vanegas v. INS, 876 F.2d 238, 240 (1st Cir. 1989), we probe that

denial solely to determine whether the Board misread the law or

otherwise abused its discretion by acting in an arbitrary or

capricious fashion. See INS v. Doherty, 502 U.S. 314, 323

(1992); INS v. Abudu, 485 U.S. 94, 105 (1988); Henry v. INS, 74

F.3d 1, 4 (1st Cir. 1996).

The Board's discretion is sprawling, but it does not go

untethered. "[A]djudicatory tribunals can exceed grants of

discretion even ringing grants of broad, essentially

standardless discretion in various ways." Henry, 74 F.3d at 4.

In exercising discretionary authority, 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."

Bing Feng Chen v. INS, F.3d , (1st Cir. 1996) [No. 95-

2309, slip op. at 6]. Once the Board satisfies these

obligations, however, it has discretion not only to deny a motion

to reopen but also to deny a hearing thereon. See Moore v. INS,

715 F.2d 13, 16 n.2 (1st Cir. 1983).

III
III

It is settled that the Board can deny a motion to

reopen if (1) the alien fails to limn a prima facie case

warranting relief, or (2) the alien fails to introduce material

evidence that was not previously available, discoverable, or

considered at the original hearing, or (3) the Board reasonably

5

determines that the equities do not justify the application of a

discretionary balm. See 8 C.F.R. 3.2 (1996); see also Abudu,

485 U.S. at 104-05 (applying this paradigm to the Board's denial

of a motion to reopen); Gando-Coello, 888 F.2d at 198 (same).

Here, the Board had ample justification to deny the petitioner's

motion.

1. INS Approval. INS authorization of a petition for
1. INS Approval.

a status adjustment under 8 U.S.C. 1154 must occur before the

Board can grant such relief. See 8 U.S.C. 1154(b) (1994)

(placing upon the Attorney General or her designee the

responsibility to determine in the first instance "that the facts

stated in the petition are true and that the [petitioner] is an

immediate relative"). In this case, petitioner failed to present

her petition for adjusted status as a battered spouse to the INS,

and thus did not secure the requisite agency approval.

Approval by the INS is not an empty exercise, but,

rather, ensures that the agency has a meaningful opportunity to

verify a petitioner's claim that she has been subjected to

physical abuse and otherwise satisfies the statutory criteria.

Since the INS's imprimatur is a condition precedent to obtaining

relief under 8 U.S.C. 1154(a)(1)(A)(iii), petitioner's failure

to comply with this requirement means that she is unable to state

a prima facie case. Consequently, the Board's refusal to reopen

the proceedings is unimpugnable.3

3Highlighting this same deficiency, the INS challenges our
jurisdiction on the basis that petitioner failed to exhaust all
available administrative remedies in that she neglected to have

6

2. Good Moral Character; Extreme Hardship. Petitioner
2. Good Moral Character; Extreme Hardship.

also failed to establish a prima facie case under the battered

spouse provision because she did not submit adequate evidence of

either "good moral character" or "extreme hardship." We explain

briefly.

As to character, the only evidence that petitioner

proffered consists of a copy of her prison records, detailing her

good behavior and involvement in training programs while she was

incarcerated. The Board declined to accept these records as

sufficient to show good moral character, and we are not persuaded

that the Board's position is arbitrary or capricious.

We note that even appropriate extrinsic evidence of

good moral character might well be futile here due to

petitioner's conviction. In the deportation case proper, the

Board found petitioner's manslaughter offense to be a crime of

moral turpitude. The Board's judgments in such matters are not

easily dismissed, see Franklin v. INS, 72 F.3d 571, 573 (8th Cir.

1996) (explaining that since moral turpitude is a "nebulous"

concept, courts will only overturn the Board's determination that

a crime fits within that rubric if the determination is

unreasonable); and, in all events, we think that manslaughter

her petition verified by the INS.. "It is a familiar tenet that
when an appeal presents a jurisdictional quandary, yet the merits
of the underlying issue, if reached, will in any event be
resolved in favor of the party challenging the court's
jurisdiction, then the court may forsake the jurisdictional
riddle and simply dispose of the appeal on the merits." United

States v. Stoller, 78 F.3d 710, 715 (1st Cir. 1996) (collecting

cases). This is such a case. Hence, we take no view of the
government's jurisdictional argument.

7

stemming from assault and battery is properly classified as a

crime of moral turpitude. Compare, e.g., Asencio v. INS, 37 F.3d

614, 615 (11th Cir. 1994) (holding that attempted murder is a

crime of moral turpitude); Rodriguez-Padron v. INS, 13 F.3d 1455,

1458 (11th Cir. 1994) (holding that second-degree murder is a

crime of moral turpitude); Gouveia v. INS, 980 F.2d 814, 815-16

(1st Cir. 1992) (holding that rape is a crime of moral

turpitude); Thomas v. INS, 976 F.2d 786, 787-88 (1st Cir. 1992)

(holding assault and battery with a baseball bat to be crimes

involving moral turpitude). Accordingly, petitioner's conviction

for manslaughter not only would constitute a violation of 8

U.S.C. 1251(a)(2)(A)(i) but also would preclude her from

establishing the "good moral character" necessary to qualify

under the battered spouse provision. See Flores v. INS, 66 F.3d

1069, 1073 (9th Cir. 1995) (holding that petitioner's conviction

for welfare fraud precluded her from establishing the "good moral

character" required to apply for a suspension of deportation

under 8 U.S.C. 1254(a)(1)).

Relatedly, petitioner neglected to proffer any evidence

as to how deportation would work an extreme hardship to either

herself or her child. This omission, in and of itself, prevented

the establishment of a prima facie case. This is especially true

in light of the Board's wide discretion in determining what does

and does not rise to the level of "extreme hardship." See Luna

v. INS, 709 F.2d 126, 127 (1st Cir. 1983).

IV
IV

8

We need go no further. Given the absence of a prima

facie case, the Board acted well within its discretion in

summarily denying petitioner's motion to reopen.

The petition for review is denied and dismissed. See
The petition for review is denied and dismissed.

1st Cir. R. 27.1.

9