USCA1 Opinion
November 17, 1993 NOT FOR PUBLICATION
NOT FOR PUBLICATION
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UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-1329
RADCLIFFE WESLEY NICHOLSON,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Breyer, Chief Judge,
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Torruella and Boudin, Circuit Judges.
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Richard L. Iandoli and Iandoli & Associates on brief for
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petitioner.
Alison R. Drucker, Department of Justice, Civil Division, Office
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of Immigration Litigation, Frank W. Hunger, Assistant Attorney
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General, and Richard M. Evans, Assistant Director, on brief for
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respondent.
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Per Curiam. Petitioner Radcliffe Nicholson is a native
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and citizen of Jamaica who entered the United States in 1983
at the age of 20 as a lawful permanent resident. Beginning
in 1985, Nicholson became involved in a series of incidents
involving illegal drugs, entailing five arrests, two
possession convictions, and ultimately his conviction in 1989
of possession with intent to distribute cocaine. This charge
made him deportable under both the aggravated felony
provision and the drug offense provision of the law. See 8
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U.S.C. 1251(a)(4)(B); (a)(11).
On January 4, 1990, the INS issued an order to show
cause why he should not be deported. The petitioner conceded
that he was deportable, but asked for a section 212(c) waiver
of inadmissibility. 8 U.S.C. 1182(c). The immigration
judge denied his application, and the Board of Immigration
Appeals affirmed this order. Petitioner now asks that we
overturn the BIA's decision or remand for reconsideration.
We are indebted to government counsel for a helpful brief
elucidating INS precedent.
Nicholson meets the statutory requirements for a section
212(c) waiver, that is, he is a permanent resident and has
lived here continuously for at least seven years. Joseph v.
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INS, 909 F.2d 605, 606 n.1 (1st Cir. 1990); Gando-Coello v.
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INS, 888 F.2d 197, 198 (1st Cir. 1989). Under In re Marin,
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16 I&N Dec. 581 (BIA 1978), a balancing test is employed,
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measuring the adverse factors against the social and humane
considerations to decide, finally, if it is in the best
interests of the country for the individual to remain. In re
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Edwards, Int. Dec. 3134 (BIA 1990). The number and nature of
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the humane considerations necessary to tip the scales in the
individual's favor will vary depending on the severity of the
adverse factors involved. A serious narcotics offense is a
particularly onerous factor to overcome, requiring a showing
of unusual or outstanding equities. Marin, 16 I&N Dec. at
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586 n.4. Even a showing of outstanding equities, however,
merely means the individual meets a threshold, not that he is
guaranteed the waiver. In re Buscemi, 19 I&N Dec. 628, 634
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(BIA 1988). The petitioner carries the burden of showing
that he merits the relief. Hazzard v. INS, 951 F.2d 435,
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437-38 (1st Cir. 1991); Marin, 16 I&N Dec. at 583.
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Nicholson's claimed equities were his relationship with
his U.S. citizen son, born out of wedlock in 1989; his strong
emotional ties with his family, including his mother,
stepfather, brother, and two sisters who all live in the
Bronx; the length of his residence in the United States; and
evidence of his rehabilitation, including the job he has held
since his release from prison. Nicholson further pointed out
the dismal economic conditions in Jamaica, claiming he would
be unable to find work or to provide any money toward
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supporting his two children (he also has a daughter born in
1983 residing in Jamaica).
After weighing these factors against Nicholson's three-
year involvement with drugs and the number and nature of his
prior convictions, the immigration judge denied Nicholson's
application for a 212(c) waiver. In particular, the judge
noted that while Nicholson had been told to provide affidavit
testimony from the mother of his son confirming financial
support, her affidavit made no mention of any financial
assistance provided by Nicholson. Only Nicholson's own
testimony--and his mother's testimony that Nicholson had told
her he gave his children money--indicated that he contributed
anything to their support. Both of his children live with
their mothers, and his own claims about his daughter in
Jamaica were very vague, indicating he sent money and gifts
only sporadically.
The judge characterized his work history as not
significant, noting that petitioner had not filed tax returns
for a number of years during which he supported himself by
dealing drugs and by taking occasional jobs "off the books."
His income, as reflected in tax records, for the second half
of 1991 was less than $5,000. The judge thus concluded that
no one relied on Nicholson for meaningful financial support.
The BIA affirmed this decision, finding that the
immigration judge had taken all relevant factors into
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account. Nicholson argues that the immigration judge erred
in concluding that he provided little support for his son
based on his partial earnings for 1991. Nicholson claims
that by working full-time, with commissions and a raise, his
current yearly salary is approximately $16,000. Nicholson
bears the burden of establishing his equities, Marin, 16 I&N
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Dec. at 583, and he did not provide meaningful evidence of
support. Nicholson lived apart from his children, and the
BIA is not required to assume that the petitioner is
financially supporting his children. Indeed, Nicholson's own
testimony makes vague references to cash, gifts, and clothes-
-not a systematic, consistent source of support.
Even if petitioner's gifts to his son were to be
classified as meaningful support, and if his work record were
taken to indicate a greater degree of rehabilitation such
that his equities met the threshold of outstanding equities,
the BIA still has the discretion to refuse to grant such a
waiver, see Joseph v. INS, 909 F.2d 605, 607 (1st Cir. 1990),
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and we can overturn the decision only if we find it to be
"arbitrary, capricious, or an abuse of discretion." Hazzard,
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951 F.2d at 438 (quoting McLean v. INS, 901 F.2d 204, 205
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(1st Cir. 1990)). Indeed, we do not require that the BIA
"address specifically each claim the petitioner made or each
piece of evidence the petitioner presented" so long as the
BIA gives "reasoned consideration to the petition." Martinez
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v. INS, 970 F.2d 973, 974 (1st Cir. 1992). The BIA gave the
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petition such reasoned consideration in affirming the
immigration judge's findings and specifically commented on
petitioner's history of drug convictions.
Petitioner also asks us to remand because of new
evidence first made available to the BIA. On July 23, 1992,
petitioner filed his appeal to the BIA. On August 4, 1992,
another American citizen son was born to Nicholson. The BIA
gave petitioner several extensions to file his brief, the
final deadline being January 11, 1993. On January 19,
petitioner married the mother of his son, and on January 27
he filed his brief with the BIA with two exhibits: the New
York birth certificate of his son and his marriage
certificate. The brief contained a request to remand the
case in light of this new evidence. On February 26 the BIA
affirmed the immigration judge's denial of the 212(c) waiver
without mentioning Nicholson's recent marriage and new son.
The government urges us to cast a suspicious eye over
evidence rapidly assembled after an initial hearing has not
gone well. In any event, 8 C.F.R. 3.2 presents the
requirements for a motion to reopen immigration hearings, and
the regulations require that the evidence be unavailable and
not discoverable at the former hearing; here, the child was
born five months before the brief was due for the BIA review,
but three months after the original hearing. The new
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evidence offered must also be material, that is likely to
change the result if the case were reopened. In re Coelho,
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Int. Dec. 3172 at 13 (BIA 1992).
Admittedly, an additional child and a wife do evidence
stronger emotional ties and possible hardship to petitioner's
family. But while Nicholson married the mother of this
child, they apparently do not live together and once again
Nicholson presents no evidence that he supports the child
financially. This new factor does not materially change
Nicholson's status. The immigration judge thoroughly weighed
the hardship to Nicholson and to his family, noting, however,
that Nicholson has family, including a daughter, in Jamaica.
The judge did not weigh lightly separating petitioner
from his family. However, he also did not weigh lightly
petitioner's history of drug convictions and drug use. When
a petitioner has been involved in drug distribution, the BIA
has not hesitated to uphold a denial of a 212(c) waiver, even
when U.S. citizen children have been born in the interim.
See, e.g., Hazzard, 951 F.2d at 436. We see no basis for
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believing that the new circumstances presented by Nicholson
would alter the result reached by the immigration judge and
we do not consider the BIA's refusal to remand to be an abuse
of discretion.
The petition for review is denied.
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