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USCA1 Opinion

July 28, 1992

____________________

No. 92-1008
JAVIER A. MARTINEZ,
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.
______________
____________________

Roberto Gonzalez and Rappoport, Audette, Bazar & Farley, on br


________________
___________________________________
for petitioner.
Stuart M. Gerson, Assistant Attorney General, Robert Kenda
__________________
_____________

Jr., Assistant Director, and Donald E. Keener, Office of Immigrat


___
_________________
Litigation, Civil Division, United States Department of Justice,
brief for respondent.
____________________
____________________

SELYA, Circuit Judge.


_____________
a

decision

denying an
212(c)
U.S.C.
I.

of

the

Board of

Immigration

application for a

of the

This is a petition to review

Immigration and

Appeals

(Board)

waiver of deportation

under

Naturalization Act

(Act), 8

1182(c).

BACKGROUND
__________
Petitioner

citizen of
United

the

States on

is

a twenty-seven-year-old

Dominican Republic.
a

two-year

tourist

He

first entered
visa

in

remained

here unlawfully after the visa expired.

obtained

lawful

permanent

resident

native and

status.

1974,

the
but

In 1983 he
In

1990,

petitioner was
of

heroin,

convicted for possession of cocaine, delivery

and

driving

to

endanger.

convictions, the government brought


At

a preliminary

been convicted
was,

therefore,

He

was

deportable as an aggravated felon.


an
for

immigration judge
a

212(c)

discretionary
of

the

(IJ) granted
waiver of

Act.

The

because

petitioner

criminal activity

. . .

and . .

substance laws
also

found

to

and
be

petitioner's application

deportation

Immigration

"has

he had

After a hearing, however,

Service appealed the IJ's decision.


appeal

conceded that

violating controlled
deportable.

these

deportation proceedings.

hearing, petitioner

of

Following

and

under

section

Naturalization

The Board sustained


a

significant history

. has engaged

the
of

in criminal

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activities for the entire time he has been a lawful permanent


resident."
II.

Petitioner now seeks appellate review.

DISCUSSION
__________
The

Board's

decision whether

to

grant a

waiver

under

section

212(c)

discretionary
whether the
of

decision

discretionary.

of

the

Board,

In
we

reviewing

determine

decision was arbitrary, capricious,

discretion.

1991).

is

Hazzard v. INS, 951


_______
___

Accordingly, we

only

or an abuse

F.2d 435, 438 (1st Cir.

will uphold a decision of

the Board

denying a section 212(c) waiver "unless it was made without a


rational explanation, inexplicably departed
policies, or rested on an
INS, 773 F.2d 8,
___
review

the

impermissible basis."

9 (1st Cir. 1985).

Board's

substantial evidence

factfinding,
standard.

we

do

so

Blackwood v. INS,
_________
___

That is, if the

the Board

"such

supported by

Williams v.
________

To the extent that

1165, 1168 (11th Cir. 1986).


are

from established

under

we
the

803 F.2d

facts found by

relevant evidence

as

reasonable mind might accept to support [such] a conclusion,"


they will be upheld upon review.

Consolo v. Federal Maritime


_______
________________

Commission, 383 U.S. 607, 619-20 (1966).


__________
In
arguments.

this

proceeding,

petitioner

makes

several

We deal with these in turn.


1.

Deferral to the Immigration Judge's Findings


____________________________________________

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.


Board may review

It is well

established that the

the administrative record de novo


__ ____

and make

its own findings of fact and law, including findings relating


to a

petitioner's credibility.

F.2d 1244,

Cordoba-Chaves v.
______________

1249 (7th Cir. 1991);

929 F.2d 181, 184-85

INS, 946
___

Castillo-Rodriguez v. INS,
__________________
___

(5th Cir. 1991); Goon Wing Wah


_____________

v. INS,
___

386 F.2d 292, 293-94 (1st Cir. 1967).


2.

Failure to Admit Additional Evidence or to


___________________________________________
Remand to Immigration Judge
___________________________

Upon

appeal

to

the

additional evidence to support


Board to remand
uphold the

decision.

The

the

Accordingly,

respondent's
any

new

petitioner

submitted

the IJ's decision, asking the

the case for further

hearing if it did

Board declined

additional evidence, noting that


since

Board

not

to consider

the

"only 5 months have elapsed

release

evidence of

from

prison.

rehabilitation,

even if

considered, would not be conclusive."


We do

not agree

with petitioner that

the Board's

failure to consider
remand

petitioner's additional

the

case

for

further

discretion.

To

the

extent

hearing
that

the

was

evidence or
an

abuse

evidence

to
of

repeated

testimony given at the hearing, it was cumulative, hence, not


material.

See Cobourne v. INS, 779 F.2d 1564, 1566-67 (11th


___ ________
___

Cir. 1986); Young


_____

v. Department of Justice,
______________________

759 F.2d

456-57 (5th Cir.), cert. denied, 474 U.S. 996 (1985).


____________

450,
And as

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
such

drugs, the

short

Board's determination that

duration would

rehabilitation was

not

reasonable.

evidence of

conclusively establish
See Blackwood, 803
___ _________

his

F.2d at

1167.
3.

Factual and Legal Errors


________________________

Petitioner

claims

that

the

Board

made numerous

factual and

legal errors.

assignments of

To the extent

error concern inferences the

conflicting evidence or

at 620;

Board drew from

the way in which the

different factors, they are without


U.S.

that petitioner's

Joseph v.
______

INS, 909
___

merit.
F.2d

Board weighted
See Consolo, 383
___ _______

605, 607

(1st Cir.

1990); Osuchukwu v. INS, 744 F.2d 1136, 1141 (5th Cir. 1984).
_________
___
We discuss only the remaining asseverations.
First, petitioner claims that the Board
discretion by
history

failing to find

was a favorable factor.

abused its

that petitioner's
In its

employment

decision the Board

noted that "a history of employment" is a favorable factor to


be

considered in

212(c)

waiver,

determining whether
but

it

failed

petitioner's own employment

to

history.

to grant
make

any

the section
mention

Assuming the

of

Board's

failure to consider a relevant favorable factor may sometimes


constitute
INS,
___

804

an abuse of discretion, see, e.g., Jen Hung Ng v.


___ ____ ___________
F.2d

534,

540

(9th

-5-

Cir.

1986),

the

evidence

submitted
history

in

this case

shows that

petitioner's employment

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

was

or

unknown.

imprisoned, petitioner
five

months.

From

1986

was engaged

During the

to

1990,

when he

in lawful work

same time frame,

for only

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.

oral

Moreover, counsel did

testimony on this point at

the Board

not solicit petitioner's

the hearing.

that his prior employment was

petitioner

stated simply,

In arguing to

a favorable factor,

and incorrectly,

that he

"has a

record of steady employment going back to 1983."

He

attempt

discuss the

to elaborate

on his

allegation or

to

specifics of the documentary evidence he submitted.


who

made no

A party

suggests a point to the Board fleetingly and without any

developed argumentation
Board disregards
INS, 956 F.2d 223,
___

is not

the passing

entitled to complain
reference.

225 n.4 (10th Cir. 1992);

909 F.2d 589, 592 (1st Cir. 1990).


failure
error.

See
___

to consider petitioner's

if the

Nunez-Pena v.
__________
Khalaf v. INS,
______
___

Consequently, the Board's


employment history was not

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Second, petitioner argues


failing to consider certain
presented

in

the

aspects

proceedings

properly before

of

No more was exigible.


reasoned

each

Where, as

will not

to the

We

have

carefully

The Board discussed all


claims

(b) supported by

consideration

findings, we

below.

petitioner's

it and

by

specific claims made or evidence

examined the alleged omissions.


salient

that the Board erred

which

were

(a)

specific evidence.

here, the Board has


petition, and

require that it

the

given

made adequate

address specifically

claim the petitioner made or each piece of evidence the

petitioner presented.

See
___

682, 685 (7th Cir. 1992);


327, 329-30 (9th Cir.

Vergara-Molina v. INS,
______________
___

956 F.2d

Villanueva-Franco v. INS, 802 F.2d


_________________
___

1986); Yahkpua v. INS, 770


_______
___

F.2d 1317,

1321 (5th Cir. 1985); cf. Sanchez v. INS, 755 F.2d 1158, 1160
___ _______
___
(5th Cir. 1985) ("Thus, our review is limited to ascertaining

whether

any consideration has been


___

limited

range of factors, nor

discretion of

the Board by

smaller subfactors

given by the

are we free

Board to a

to undermine the

parsing these factors

and requiring

the Board to

into ever

consider the

pieces.") (emphasis in original; footnote omitted).


Finally,
alleged

errors

together

they

reversal

of

petitioner's

petitioner
are

insignificant

represent
the

argues

Board's

that,
standing

"significant

if

alone,

errors"

decision.

individual assignments

even

the
taken

requiring

Here,

however,

of error are

devoid of

-7-

merit and the Board's


which forms the
[waiver]."

basis for [its] denial of

Crespo-Gomez v. Richard,
____________
_______

Cir. 1986).
case

decision "sets out clearly

That being so,

the ground

the discretionary

780 F.2d 932, 935 (11th

and because the

facts of

this

fall well within the factual profiles of other cases in

which aliens with controlled


denied section

substance convictions have been

212(c) waivers, see, e.g.,


___ ____

Hazzard, 951 F.2d


_______

435;

Blackwood, 803
_________

F.2d 1165;

Matter of Edwards, Interim


__________________

Dec. No. 3134 (BIA 1990); Matter of Buscemi, 19 I. & N. Dec.


__________________
628 (BIA 1988), petitioner's argument is unpersuasive.
4.

Failure
to
Articulate
Guidelines for
___________________________________________
When an Applicant's Equities Meet the
_____________________________________
Standard
________

Determining
____________
Board's
________

Petitioner

claims

that

arbitrarily

when it found that

outstanding

equities

"guideline[s]"

v.

by this

acted

shown unusual or

failed

to articulate

that standard means and

in section 212(c)

court, see,
___

cases has

e.g., Hazzard,
____ _______

951

at 438-39, and by other courts, see, e.g., Ayala-Chavez


___ ____ ____________
INS, 944 F.2d 638,
___

F.2d at

225.

641 (9th Cir.

Petitioner has presented

for us to revisit this issue.


III.

has

also

application of the "unusual or

equities" standard

been accepted both


F.2d

because it

The Board's

Board

he had not

for determining what

how to apply it.


outstanding

the

CONCLUSION
__________

-8-

1991); Nunez-Pena, 956


__________
no compelling reason

We need go no
presents no

substantial

decision of the Board.

further.

Inasmuch as

question, we

this petition

summarily affirm

See 1st Cir. Rule 27.1.


___

The petition for review is denied and dismissed.


_______________________________________________

the

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