USCA1 Opinion
August 16, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2393
MARCO ANTONIO DE OLIVEIRA MOURA,
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
Cyr, Boudin and Stahl,
Circuit Judges.
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John H. Ruginski, Jr. on brief for petitioner.
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Frank W. Hunger, Assistant Attorney General, Lisa Dornell, Acting
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Assistant Director, Office of Immigration Litigation, and Alice M.
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King, Attorney, Office of Immigration Litigation, Civil Division, U.S.
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Department of Justice, on brief for respondent.
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Per Curiam. Petitioner Marco Moura (Moura) seeks
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judicial review of a decision by the Board of Immigration
Appeals (BIA) that effectively denied Moura discretionary
relief from deportation under 8 U.S.C. 1182(c).1 We affirm
pursuant to Loc. R. 27.1.
I.
Moura is a 26-year old native of Portugal who
entered the United States as a lawful permanent resident on
June 14, 1980, when he was 12 years old. He returned to
Portugal to visit his father on two occasions between 1980
and 1984. Moura last entered the United States on July 5,
1984 and has maintained lawful residence since that date.
On October 22, 1987, Moura was convicted in Rhode
Island superior court of two counts of breaking and entering
a dwelling without the consent of the owner and one count of
entering a building with the intent to commit larceny. He
received concurrent 36-month sentences on each count. Moura
was only required to serve the first 6 months in prison. The
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1. 8 U.S.C. 1182(c) grants the Attorney General discretion
to admit certain aliens who may otherwise be excluded from
admission into the United States where the aliens are
returning to a lawful unrelinquished domicile of seven
consecutive years. The BIA has determined that, "a lawful
permanent resident is prima facie eligible for relief from
deportation under ... [8 U.S.C. 1182(c)], even though he has
not proceeded abroad subsequent to the acts which rendered
him deportable." Matter of Edwards, Int. Dec. 3134 (BIA
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1990). Thus, aliens who maintain lawful permanent residence
in the United States for seven consecutive years may seek
relief from deportation orders under 8 U.S.C. 1182(c).
Lozada v. I.N.S., 857 F.2d 10, 11 n.1 (1st Cir. 1988).
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remaining terms were suspended and Moura was placed on
probation for 30 months.2
On February 24, 1988 Moura was charged with
attempted breaking and entering, conspiracy, and possession
of marijuana. All of these offenses were committed on
September 18, 1987, i.e., while the charges that resulted in
his October 22, 1987 convictions were still pending. Moura
was convicted of these additional charges on April 21,
1988.3 One month later, the Immigration and Naturalization
Service (INS) commenced deportation proceedings by filing an
order to show cause (OSC) why Moura should not be deported as
an alien convicted of two crimes of moral turpitude not
arising out of a single scheme of criminal conduct. The OSC
was based on two of Moura's October 22, 1987 convictions.
On August 1, 1988, a deportation hearing was held
at which the INS amended its OSC to charge that Moura was
deportable as an alien who had committed a crime of moral
turpitude within five years of entry and had received a
sentence of at least one year and had also violated the law
relating to the illegal possession of marijuana. The charges
were based on Moura's October 22, 1987 conviction for
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2. Moura testified that he was first incarcerated from
roughly October 1987 to March 1988.
3. Moura received suspended sentences and probation terms on
each of these counts that were to run concurrent with the 36-
month sentences that had been previously imposed.
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breaking and entering with the intent to commit larceny and
his April 21, 1988 conviction for possession of marijuana.
See 8 U.S.C. 1251(a)(4), 1251(a)(11)(1988).4 Moura, who
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was represented by counsel, conceded deportability and
expressed his intent to file an application for discretionary
relief under 8 U.S.C. 1182(c). The Immigration Judge
ordered Moura to file his application by September 1, 1988
and scheduled a waiver hearing for October 5, 1988.
On August 9, 1988, eight days after Moura's
deportation hearing, Moura was arrested for his second
possession of marijuana offense. (R. 247-48). He married
one April Akstin, a United States citizen, on August 29,
1988. (R. 278). Shortly thereafter Moura filed his
application for discretionary relief from deportation.
On October 31, 1988, Moura was arrested for
breaking and entering with the intent to commit larceny. (R.
137, 233, 239). He failed to appear at his arraignment and a
bench warrant issued for his arrest. (R. 235). Moura was
arrested on December 20, 1988 at the Immigration Court in
Boston when he appeared for another hearing in his
deportation proceedings. The Immigration Judge
administratively closed the proceedings, noting that the case
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4. 8 U.S.C. 1251(a)(4) was recodified by the Immigration
Act of 1990 as 8 U.S.C. 1251(a)(2)(A)(i). Similarly, 8
U.S.C. 1251(a)(11) was recodified as 8 U.S.C.
1251(a)(2)(B)(i). See Pub.L.No. 101-649 (1990).
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could be recalendared after Moura was released. (R. 50-53).
On January 9, 1989, Moura was convicted of his second
possession of marijuana offense and the October 31, 1988
breaking and entering charge. He was sentenced to 8 years'
imprisonment, of which the first 2 and 1/2 years were to be
served in prison. The remaining term was suspended and Moura
was placed on probation for 5 and 1/2 years. Moura was
incarcerated from approximately December 23, 1988 through
December, 1990.5
Shortly after Moura's release from prison,
deportation proceedings were reopened.6 Moura filed an
updated application for relief from deportation. Three
separate hearings were held between March 1992 and December
28, 1992, at which Moura, his mother, and his girlfriend,
testified.7 On December 28, 1992, the Immigration Judge
issued a decision which found that Moura's deportability had
been established by clear and convincing evidence (i.e.,
Moura's concessions) and denied Moura's application for
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5. Moura's first son was born while Moura was in prison.
The mother divorced Moura on May 30, 1990. (R. 277).
6. A deportation hearing was convened on January 9, 1991,
which resulted in a continuance. Moura was subsequently
directed to file an updated application for a discretionary
waiver. He failed to do so and his application was deemed
abandoned. Moura was ordered deported on April 19, 1991. His
attorney filed a motion to reopen the deportation proceeding,
which was allowed on October 16, 1991.
7. Moura's girlfriend gave birth to his second son on
October 30, 1992. (R. 221).
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discretionary relief. Moura appealed through his counsel,
who specifically indicated in the notice of appeal that she
intended to file a brief. On November 5, 1993, the BIA
issued a per curiam decision that affirmed the Immigration
Judge. Although the BIA noted that Moura's counsel had
failed to file a brief, it reviewed the record in its
entirety and found that the Immigration Judge had properly
weighed all relevant factors in denying Moura's application.
In view of this finding and the fact that Moura did not show
any meritorious reasons for his appeal, the BIA adopted the
Immigration Judge's decision as its own. Moura then filed
this timely petition for judicial review.
II.
In determining whether a resident alien merits a
waiver of deportation under 8 U.S.C. 1182(c), immigration
officials "must balance the 'social and humane' factors
supporting the application against adverse factors favoring
deportation." Gouveia v. I.N.S., 980 F.2d 814, 816 (1st Cir.
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1992). Factors which may support a waiver include:
(1) family ties within the United States;
(2) residence of long duration, particularly
when begun at an early age;
(3) evidence of hardship to family members
should deportation occur;
(4) military service;
(5) a steady employment history;
(6) the existence of property or business
ties;
(7) community service;
(8) proof of genuine rehabilitation if the
alien has a criminal record;
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(9) any other evidence tending to show the
petitioner's good character.
Gouveia, 980 F.2d at 816; Matter of Edwards, Int. Dec. 3134
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(BIA 1990); Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA
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1978). Adverse factors include:
(1) the nature and underlying circumstances of
the ground(s) for exclusion;
(2) the presence of additional significant
violations of United States immigration
laws;
(3) the existence of a criminal record and its
nature, recency and seriousness; and
(4) any other evidence indicative of the
alien's bad character or undesirability as
a permanent resident.
Matter of Marin, id. at 584. Each case must be judged on its
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own merits and the alien seeking the discretionary waiver
bears the burden of proof. Id.; Hazzard v. I.N.S., 951 F.2d
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435, 438 (1st Cir. 1991).
The record discloses that Moura has continuously
resided in this country for the past 10 years and that his
lawful permanent residence status began at a relatively early
age (12). His mother and two children are United States
citizens, but there was no evidence that Moura's deportation
would result in any particular hardship to them. Moura's
mother is married and does not rely on her son for economic
support. At the time of the deportation hearings Moura was
not paying child support for his first son, although he
repeatedly indicated that court proceedings might result in a
support order. And while Moura resided with his girlfriend
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and contributed to support her and their child, they were not
married at the time of the deportation hearings nor holding
themselves out as husband and wife.8
Moura concedes that his employment history of
working for others is sporadic. Between his release from
prison in 1990 and the March 3, 1992 deportation hearing, he
had not held a steady job. Between 1985 and 1987, prior to
his first incarceration, he held brief jobs as a floor boy
and laborer, earning a maximum of a few hundred dollars. At
his March 3, 1992 deportation hearing, Moura testified that
he was working under the table. (R. 158). He later started a
painting and roofing business with a friend. By the time of
his final hearing he had several contracts for work. He had
never filed tax returns. (R. 153, 223). Moura enrolled in
an auto body technician training program in March 1992 and
expected to graduate in October 1993. (R. 196, 219-220).
Against these factors stood Moura's criminal
history, which began as a juvenile. As a result of a plea
agreement, several juvenile offenses were dropped so that
Moura could go to live with his father in Portugal and have
his father "straighten ... [him] out." (R. 96-97). Moura
began using marijuana when he was fifteen and graduated to
cocaine by the time he was seventeen. He developed an
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8. Moura's girlfriend testified that they expected to marry
but had not set a date because they were awaiting the outcome
of the deportation hearings. (R. 210-11).
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addiction and supported his habit by breaking into houses and
trading stolen goods for cocaine. R. (155-57). After his
first conviction on October 22, 1987, Moura served six months
in prison, where he incurred 3 or 4 disciplinary reports for
fighting and smoking. (R. 102-03, 117). He committed the
offenses which culminated in his April 21, 1988 conviction
while the initial breaking and entering charges were still
pending. Moura was arrested for his second possession of
marijuana offense and his final breaking and entering charge
while he was on probation. During his last incarceration
Moura received additional disciplinary reports for fighting
and using marijuana. And while Moura has not been arrested
for a felony since his last conviction, he was fined for two
misdemeanors (disorderly conduct and driving with a suspended
license) in April, 1991 and January, 1992. (R. 229-30).
The Immigration Judge fully considered all of the
aforementioned factors and ruled that, in view of the fact
that Moura had been convicted of several serious crimes
resulting from an addiction to cocaine, Moura was required to
show unusual or outstanding equities in order to merit
discretionary relief.9 He then concluded that Moura had
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9. A showing of unusual or outstanding equities may be
required where the alien has been convicted of a succession
of criminal acts which establish a pattern of serious
criminal misconduct, whether or not those crimes involved
controlled substances. However, such a showing does not
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established outstanding equities, but as the adverse factors
far outweighed the social and humane considerations, Moura
did not deserve a waiver of deportation. The BIA adopted
this decision.
Moura argues that the decisions of the Immigration
Judge and the BIA constitute error and an abuse of
discretion. He maintains that the factors which favored
granting him discretionary relief clearly outweigh the
adverse factors, stressing that all of his felonies were
committed during a 3-year period and that he has not been
arrested for a felony since 1989.
We review waiver decisions only to determine
whether the BIA "acted arbitrarily or capriciously, or abused
its discretion." White v. I.N.S., 17 F.3d 475, 478 (1st Cir.
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1994). We must uphold the BIA unless its decision "'was made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'"
Id. (citation omitted). Moura does not contend that the
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BIA's decision departed from established policies or rested
on an impermissible basis. He says that the Immigration
Judge committed a clear error in concluding that the adverse
factors outweighed the favorable ones. We have repeatedly
rejected similar arguments. See, e.g., White v. I.N.S., 17
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require the INS to grant a waiver of deportation. See Matter
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of Edwards, supra.
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F.3d 475, 478 n.4 (1st Cir. 1984)(complaints directed to
relative weight given favorable and unfavorable factors held
without merit); Martinez v. I.N.S., 970 F.2d 973, 975 (1st
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Cir. 1992)(same). We see no reason to disturb the BIA's
decision on this record. Moura has a significant criminal
record, marked by repeated thefts and drug use. Neither his
employment record nor his family ties appear particularly
strong.10 We thus agree that Moura failed to demonstrate
that he merits discretionary relief.
Moura also contends that his former counsel
rendered him ineffective assistance by failing to file a
brief with the BIA. While there is no constitutional right
to counsel in deportation proceedings, aliens are entitled to
due process. Lozada v. I.N.S., 857 F.2d 10, 13 (1st Cir.
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1988). "Ineffective assistance of counsel in a deportation
proceeding is a denial of due process only 'if the proceeding
was so fundamentally unfair that the alien was prevented from
reasonably presenting his case.'" Ramirez-Durazo v. I.N.S.,
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794 F.2d 491, 499-500 (9th Cir. 1986)(citation omitted). "In
due process challenges, there must always be a showing of
prejudice." Colindres-Aguilar v. I.N.S., 819 F.2d 259, 261
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(9th Cir. 1987). See also Mohsseni Behbahani v. I.N.S., 796
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10. To be sure, Moura appears to have made a genuine effort
to remain self-employed and out of jail since his last
incarceration. But Moura's attempt at rehabilitation has
been short-lived compared to his criminal history.
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F.2d 249, 251 (9th Cir. 1986) (rejecting ineffective
assistance claim where no prejudice shown); Figeroa v. U.S.
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I.N.S., 886 F.2d 76, 78-81 (4th Cir. 1989); Mantell v. U.S.
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Department of Justice, 798 F.2d 124, 128 (5th Cir.
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1986)(same).
Where "the BIA [has] considered the merits of the
case and fully reviewed the record...[and] [t]here is no
indication that anything in a brief could have affected the
final result[,]" the failure to file a brief with the BIA
does not constitute a violation of due process. Ramirez-
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Durazo, 794 F.2d at 501. We think that this language applies
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fully in the present case. The Immigration Judge in his own
decision adequately set forth the pertinent circumstances in
a decision that is nineteen pages in length and deals
extensively with the underlying facts and the reasoning of
the Immigration Judge. Given the rather straightforward
standards to be applied, a review by the BIA on this record
is a straightforward task and there is no reason to think
that the failure to restate the facts or argue about them in
a brief to the BIA affected the outcome. Accordingly, the
petition for review is denied and dismissed and the BIA's
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order is affirmed.
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