USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1043
No. 93-1348
BEATRICE WHITE,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITIONS FOR REVIEW OF ORDERS OF
THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Breyer, Chief Judge,
___________
Aldrich, Senior Circuit Judge,
____________________
and McAuliffe,* District Judge.
______________
____________________
Gerald D. Wall with whom Victoria Lewis and Greater Boston Legal
______________ ______________ _____________________
Services were on brief for petitioner.
________
Alison R. Drucker, Attorney, Office of Immigration Litigation,
__________________
Civil Division, Department of Justice, with whom Frank W. Hunger,
________________
Assistant Attorney General, and Lisa Dornell, Acting Assistant
_____________
Director, Office of Immigration Litigation, Civil Division, Department
of Justice, were on brief for respondent.
____________________
March 3, 1994
____________________
_____________________
*Of the District of New Hampshire, sitting by designation.
McAULIFFE, District Judge. The Board of
McAULIFFE, District Judge.
_______________
Immigration Appeals ("BIA") ordered Beatrice White deported
and denied her application for discretionary relief from
deportation. White concedes the deportation order's
validity, but petitions this court to set aside the BIA's
denial of discretionary relief. 8 U.S.C. 1105a(a). See
___
Foti v. INS, 375 U.S. 217 (1963); Joseph v. INS, 909 F.2d
___________ _____________
605, 606 (1st Cir. 1990). Although we find that the BIA
erred, we conclude that the error was harmless and affirm.
I. Background
I. Background
White, a citizen of the Dominican Republic, has
lived as a permanent resident in this country since 1970.
In 1982 she was arrested and charged with five separate drug
and three separate firearm offenses.1 She was tried,
convicted, and sentenced in the Massachusetts Superior Court
on four of the charged drug offenses. The remaining drug
charge and the three firearm charges were placed "on file"
____________________
1 White was charged with committing three crimes on October
29, 1982 (possession of cocaine with intent to distribute,
possession of heroin, and unlawful possession of a handgun),
and five crimes on December 16, 1982 (two counts of
possession of cocaine with intent to distribute, possession
of heroin with intent to distribute, and two counts of
unlawful possession of a handgun).
-2-
2
by that court.2 No penalties were imposed on any of the
"filed" charges.
Citing one of the 1983 drug convictions
(possession of cocaine with the intent to distribute), the
Immigration and Naturalization Service (INS) ordered White
to show cause why she should not be deported. Following an
administrative hearing, White was found to be deportable
under 241(a) of the Immigration and Nationality Act ("INA"
or "the Act") (recodified at 8 U.S.C. 1251(a)(2)(B)(i)).
The immigration judge denied her application for
discretionary waiver of deportation under INA 212(c)
(recodified at 8 U.S.C. 1182(c)).3
White appealed to the Board of Immigration Appeals
("BIA"). The BIA found that while the immigration judge
erred in intimating (if not ruling) that discretionary
____________________
2 White pleaded guilty to the remaining drug offense before
it was "filed." A jury returned a guilty verdict on one of
the firearm charges, but the court placed that charge on
file and did not enter judgment. The other two firearm
charges were also "filed," without entry of a guilty plea or
determination of guilt. See our discussion of the
Massachusetts "filing" procedure, infra.
_____
3 Congress amended INA 212(c) in 1990 to eliminate the
availability of discretionary relief for any alien convicted
of an aggravated felony who has served five years or more in
prison. The amendment applies to applications for
discretionary relief filed after November 20, 1991. See De
___ __
Osorio v. INS, 10 F.3d 1034 (4th Cir. 1993). White applied
_____________
for a waiver of deportation in 1986.
-3-
3
relief under 212(c) was unavailable to White because she
had been found guilty of serious drug offenses, any
prejudice resulting from that error could be remedied by
applying the correct legal standard on appeal.
Acknowledging White's eligibility for discretionary relief
___________
despite her serious drug offenses, the BIA reassessed all
equitable factors relevant to her application and
independently determined that discretionary relief was not
warranted.
The BIA observed that "while [the equities
favoring White] may be unusual or outstanding, [they] are
not sufficient to counterbalance her ser[i]ous criminal
misconduct." BIA Decision at 5. That serious criminal
misconduct was described as follows:
[She] was convicted of
_________
multiple counts of possession
of cocaine or heroin with
intent to distribute, and
___
possession of firearms, and
________________________
one count of possession of
heroin. She committed crimes
________________
involving drug trafficking and
___
firearms on two separate
________
occasions . . . .
[P]ossession and trafficking
in drugs is a very serious
adverse factor in determining
whether discretionary relief
is warranted under section
212(c). We find this
_________________
particularly true where
______________________________
-4-
4
firearms are involved, given
______________________
the potential for violence and
homicide they represent, as is
not uncommon where drug
trafficking exists, and which
together tear at the very
________
fabric of our society.
BIA Decision at 5 (emphasis added).
II. The Issues
II. The Issues
White challenges the denial of a discretionary
waiver of deportability, arguing that the BIA erred as a
matter of law when it weighed her "filed" charges as if they
had been final "convictions." White also complains that the
BIA gave too much weight to certain adverse factors and too
little weight to favorable factors in denying relief. Only
the first point requires discussion.4
____________________
4 In concluding that White's positive equities were
insufficient to offset negative factors, the BIA considered
the evidence before it. To the extent White's complaints
are directed to the relative weight given favorable and
unfavorable factors, they are without merit. Gouveia v.
___________
INS, 980 F.2d 814, 819 (1st Cir. 1992).
___
-5-
5
III. Discussion
III. Discussion
Because the decision to grant or deny relief from
deportation under 212(c) is a matter committed to the
BIA's discretion, we consider only whether the BIA acted
arbitrarily or capriciously, or abused its discretion.
Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991); McLean v.
______________ _________
INS, 901 F.2d 204, 205 (1st Cir. 1990). The decision must
___
be upheld "unless it was made without a rational
explanation, inexplicably departed from established
policies, or rested on an impermissible basis." McLean, 901
______
F.2d at 205 (quoting Williams v. INS, 773 F.2d 8, 9 (1st
________________
Cir. 1985)).
In this case we need consider only whether the
BIA's decision "rested on an impermissible basis" that
is, whether White's "filed" charges, particularly those
related to firearms, were improperly considered as
convictions, and, if so, whether that error was prejudicial.
___________
Section 241(a)(11) of the INA declares deportable
any alien who "at any time has been convicted of a violation
of . . . any law or regulation of a State . . . relating to
a controlled substance." 8 U.S.C. 1251(a)(11). But an
alien so convicted, like petitioner, may nevertheless apply
for a waiver of deportation under 212(c) of the Act if he
-6-
6
or she has been a lawful permanent resident of the United
States for at least seven years. 8 U.S.C. 1182(c); see
___
Joseph, 909 F.2d at 606 n.1; Gando-Coello v. INS, 888 F.2d
______ ____________________
197, 198 (1st Cir. 1989). Once statutory eligibility is
established, a waiver may be granted or denied at the
discretion of the Attorney General. The Attorney General
has delegated exercise of her discretion to the BIA. See,
___
e.g., Katsis v. INS, 997 F.2d 1067, 1076 (3rd Cir. 1993),
____ ______________
cert. denied, 127 L. Ed. 2d 93 (1994); Akrap v. INS, 966
_____ ______ ____________
F.2d 267, 271 (7th Cir. 1992).
A. Convictions for Immigration Purposes
____________________________________
As we have held before, federal law defines the
term "conviction" as it is used in the immigration context.
Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992) ("[T]he need
_____________
for national uniformity in the application of federal law
and the history of [the] word [conviction] as applied by the
INS . . . and the courts, suggest that the federal word,
while reflecting basic state usage, need not provide its
__________
precise mirror image."); Pino v. Nicolls, 215 F.2d 237, 243
_______ ________________
(1st Cir. 1954), rev'd on other grounds, Pino v. Landon, 349
______________________ ______________
U.S. 901 (1955) (per curiam).
-7-
7
As a general rule, even where there has been no
formal adjudication of guilt, an alien will still be
considered to have been "convicted" for immigration purposes
if:
(1) a judge or jury has found
the alien guilty or he [or
she] has entered a plea of
guilty or nolo contendere or
has admitted sufficient facts
to warrant a finding of
guilty;
(2) the judge has ordered some
form of punishment, penalty,
or restraint on the person's
liberty to be imposed . . . ;
and
(3) a judgment of adjudication
of guilt may be entered if the
person violates the terms of
his [or her] probation or
fails to comply with the
requirements of the court's
order, without availability of
further proceedings regarding
the person's guilt or
innocence of the original
charge.
Matter of Ozkok, Int. Dec. 3044 at 13 (BIA 1988)5; see also
_______________ ___ ____
Molina, 981 F.2d at 18 (applying the Ozkok test).
______ _____
____________________
5 We defer to the BIA's interpretation of the INA unless
that interpretation is manifestly contrary to the statute.
See Mosquera-Perez v. INS, 3 F.3d 553, 555 (1st Cir. 1993)
___ ______________________
(citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)).
____________________________
-8-
8
Superimposed on the BIA's three-part test is an additional
requirement: the "conviction" must have attained a
sufficient degree of finality. Matter of Ozkok, Int. Dec.
________________
3044 at 13 n.6 (BIA 1988) (citing Pino v. Landon, 349 U.S.
______________
901 (1955) (per curiam) (conviction placed "on file" by the
Massachusetts Superior Court was insufficiently final for
deportation purposes)). This finality requirement is
satisfied if direct appellate review of the conviction has
either been exhausted or waived. Id.; Martinez-Montoya v.
__ ___________________
INS, 904 F.2d 1018 (5th Cir. 1990); see also Morales-
___ ___ ____ ________
Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981).
_______________
It is apparent, and the INS seems willing to
concede,6 that White's "filed" criminal charges, including
the three charges related to unlawful firearm possession,
simply do not qualify as "convictions" for immigration
purposes. Under Massachusetts law the "filing" of a charge
at any stage completely suspends the adjudicative process,
including the defendant's right to appeal, until such time
as the court reactivates or makes some further disposition
of the case. See Commonwealth v. Delgado, 367 Mass. 432,
___ _______________________
438, 326 N.E.2d 716, 722 (Mass. 1975). In White's case, no
punishment or penalty or restraint on liberty has been
____________________
6 See Respondent's Brief at 27-28.
___
-9-
9
imposed on any of the filed charges, nor has she exhausted
or waived her right to direct appellate review.
Accordingly, the BIA should not have considered the filed
charges as "convictions" in deciding whether to grant White
discretionary relief from deportation. Having done so, the
BIA erred.
B. Prejudicial Error
_________________
We turn now to a more troublesome question. Was
White prejudiced by the error? Improper consideration of
favorable or unfavorable factors by the BIA may sometimes
constitute abuse of discretion, and remand is generally
required if the mistake could have affected the balance of
equities upon which the decision rests. See Martinez v.
___ ____________
INS, 970 F.2d 973, 975 (1st Cir. 1992) (citing Jen Hung Ng
___ ___________
v. INS, 804 F.2d 534, 540 (9th Cir. 1986)); See, e.g.,
_______ ___ ____
Yepes-Prado v. INS, No. 91-70114, 1993 U.S. App. LEXIS 29444
__________________
at *4 (9th Cir. Oct. 8, 1993) (as modified); Shahandeh-Pey
_____________
v. INS, 831 F.2d 1384, 1389 (7th Cir. 1987). However, we
______
also recognize that the BIA's decision need not be disturbed
on appeal if the error is "marginal." See, e.g., Akrap, 966
___ ____ _____
F.2d at 272 n.9 (declining to reverse denial of
discretionary relief where BIA mistakenly assumed petitioner
-10-
10
had six drug convictions when in fact he had five); Spencer
_______
Livestock Comm'n v. Dep't of Agriculture, 841 F.2d 1451,
__________________________________________
1458 (9th Cir. 1988) (affirming administrative judgment even
though two consent orders were improperly considered as
evidence of trade violations, where other evidence of
violations existed).
White is undeniably deportable, and the BIA's
mischaracterization of her filed charges did not preclude
consideration for discretionary relief.7 She concedes that
in reviewing an application for discretionary relief the BIA
may consider any evidence of bad character or undesirability
as a permanent resident. See Matter of Edwards, Int. Dec.
___ __________________
3134 at 8 (BIA 1990) (listing adverse factors relevant to
discretionary determinations). Here, the BIA certainly
could have considered her filed charges as some evidence
____
weighing against discretionary relief. See, e.g., Bustos-
___ ____ _______
Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990) (evidence
_____________
admissible if probative and fundamentally fair). After all,
White pleaded guilty to the filed drug charge and was found
guilty by a jury on one of the filed firearm charges. Given
____________________
7 Cf. Marino v. INS, 537 F.2d 686 (2d Cir. 1976)
__ _______________
(conviction precludes eligibility for adjustment of status);
Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir. 1990)
_________________________
(conviction precludes eligibility for legalization).
-11-
11
that evidence and the number, seriousness, and recency of
White's unquestionably final drug convictions, as well as
the other adverse factors found, it is difficult to perceive
how the BIA's mistake could have affected the balance of
equities on which the denial rested.
The BIA found White's convictions for drug
possession and drug trafficking to be "a very serious
adverse factor" which could be offset only by a
demonstration of "unusual or outstanding equities." BIA
Decision at 4. That these drug convictions should weigh so
heavily against petitioner's favorable equities, the BIA
concluded, was "particularly true where firearms are
involved." Id. at 5 (emphasis added). The record contains
________ __
ample reliable evidence of White's simultaneous involvement
with drugs and firearms. The BIA's conclusion that the
severity of petitioner's drug convictions was enhanced by
her association with firearms is a finding justified by the
record and well within the boundaries of its discretion. To
be sure, the filed charges were erroneously referred to as
"convictions," but the BIA did not rely on the fact of
firearm "convictions" per se in denying relief; it relied on
White's conduct involving drugs and guns.
_______
-12-
12
IV. Conclusion
IV. Conclusion
The distinction between proof of guilt by final
conviction and by some less reliable means is an important
one to maintain. But here, that distinction played no
discernible role in the outcome. The BIA's error was
marginal and harmless under these facts. See Liwanag v.
___ ___________
INS, 872 F.2d 685, 687 n.2 (5th Cir. 1989) (no need to
___
remand a case where there is little likelihood that the
agency would have reached a different conclusion but for the
error); Akrap, supra.
_____ _____
The denial of discretionary relief is affirmed.
________
-13-
13
