USCA1 Opinion

UNITED STATES COURT OF APPEALS

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

_________________________

No. 95-2309

BING FENG CHEN,

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.
______________

_________________________

Carlos Magaletta, with whom Magaletta & Associates, P.C. was

________________
____________________________
on brief, for petitioner.
Joseph F. Ciolino, Office of
_________________
States Dep't
Attorney

of Justice, with

General,

Director, Office

and

Immigration Litigation, United

whom Frank W. Hunger,

________________

David M. McConnell,
____________________

of Immigration

Acting

Litigation, were on

Assistant

Assistant

brief, for

respondent.

_________________________

June 20, 1996

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

Petitioner, Bing Feng

Chen, a

native

and citizen

of

judicial review of an

the People's

Republic

order of the Board of

of China,

seeks

Immigration Appeals

(the Board) directing his deportation and, concomitantly, denying

his

request

for

waiver

cognizable error in the

of

excludability.

Discerning

no

administrative proceedings, we leave the

Board's order intact.

I
I

Petitioner,

United States as a

then twenty-three

the second

that

entered the

lawful permanent resident in 1984

his parents and his brother.

1987, California

years old,

The family settled in Boston.

authorities charged petitioner

degree and

petitioner and two

along with

false imprisonment.

with robbery in

The record

accomplices undertook to

In

reveals

rob a jewelry

store.

Petitioner

calibre

handgun)

employees and

brandished

during

a firearm

the

robbery,

a half-dozen customers

property taken exceeded

fully loaded

holding

at bay.

The

the

.38

store's

value of the

Petitioner pled

guilty to the

charges and the court sentenced him to five years'

imprisonment.

He

$25,000.

(a

served more than half the sentence (including credit for time

spent in pretrial detention) before obtaining a parole.

On

Service

May 27,

1992, the

Immigration and

Naturalization

(INS) took steps to deport petitioner because he had (a)

committed a

crime involving moral turpitude within five years of

his

entry into

lawful

thereof

by

a court

of

the

United States,

competent

(b)

jurisdiction,

been convicted

and (c)

been

incarcerated on account of that conviction for a period in excess

of one year.

See
___

8 U.S.C.

1251(a)(2)(A)(i).

hearing on

a show-cause order,

petitioner

subject to

At

an Immigration Judge

deportation and,

inter alia,
_____ ____

a subsequent

(IJ) found

denied his

application for a waiver of excludability under section 212(c) of

the

Immigration

Petitioner

and

prosecuted

Nationality

Act,

an administrative

U.S.C.

appeal.

1182(c).

In a

terse

opinion dated November 13, 1995, the Board denied relief.

conceding deportability, petitioner now

Though

seeks judicial review of

the denial of the waiver.

II
II

A
A

In his

own words, petitioner's first

the Board deprived him of due process by

argument is that

"fail[ing] to state the

standard

of review it used in reviewing the decision of the IJ."

Whatever

constitutional

force this

standard-of-review argument

once may have generated, events have passed it by.

The genesis of the argument can be traced to an opinion

of the Court of

Appeals for the Seventh Circuit,

Ortiz-Salas v.
___________

INS, 992 F.2d 105 (7th Cir. 1993), in which Judge Posner, writing
___

for the panel, noted the Board's habitual silence

standard that it

concerning the

used when reviewing a discretionary decision of

an IJ (such as a decision to grant or deny a waiver under section

212(c)).

it

had

See id. at 108.

___ ___

a right

In response to the Board's claim

to inscrutability

and

standard of review, Judge Posner wrote:

need not

that

advertise its

That won't do.

It is

an undue hardship

to

require the alien to guess at the standard of

review that will be applied to his appeal . .
. .
to

[a]nd it is irresponsible
fail

to define

for the Board

its relationship

to the

immigration judges.

Id. at 107.
___

If Ortiz-Salas marked
___________

might present difficulties.

event removes the issue

the

the end of

the line, this

case

But the occurrence of an intervening

from the case.

On September 13,

1994,

Board decided Matter of Burbano, Interim Decision 3229 (BIA

__________________

1994),

in which it heeded

the message of

and made clear that whenever "the

discretionary determination

relies

upon

its

"own

the Ortiz-Salas court

___________

Board engages in a review of a

by an immigration judge,"

independent

judgment

in

the Board

deciding

the

ultimate

disposition of

the case."

Id.,
___

slip op.

eliminate all doubt, the

Board added that it "do[es]

an

standard when

abuse of

discretion

determinations of immigration judges."

reviewing

at 2.

To

not employ

discretionary

Id. at 3. Burbano
___
_______

thus

fills the gap that troubled the Ortiz-Salas court.

___________

The opinion in Burbano antedated the Board's opinion in

_______

this case by well over a year.

Burbano (via
_______

citation to it)

makes manifest

the

in the text

the untenability of the

circumstances

acknowledges

The Board's express invocation of

as

now

extant.

much in

his

argument is by the boards.

of the opinion

below

petitioner's claim under

Petitioner,

reply brief.

to

his

credit,

Consequently, the

B
B

Petitioner's

next asseveration relates to the adequacy

of the Board's

findings.

that for the most part

of

the

positive

determination to

It is true,

as petitioner points out,

the Board did not write its

and

deny the

negative

factors

requested waiver.

own analysis

undergirding

It did,

its

however,

make

clear that it had

and petitioner's

contentions on

with one exception,1

discretionary

reviewed the record,

the IJ

factors

that

petitioner

had

appeal, and it

"gave proper

concerning

section 212(c) relief."

the significant adverse

involvement

in the

denial of the

armed robbery,

waiver "for

consideration to

the

request

for

indicated its agreement

demonstrated equities

overbalance

concluded that,

[petitioner's]

The Board also

not

the IJ's decision,

sufficient

to

factors associated with his

and it

opted to

the reasons specified

affirm the

in [the

IJ's]

decision."

Petitioner complains that the Board's opinion is flawed

because

it is conclusory in nature.

Board, when

afresh,

exercising independent

and that

it neglected

He says in effect that the

review, must find

to do

so here.

We

the facts

think that

petitioner overstates the Board's obligation.

As a

general

decides that the facts

them have been

proposition,

if

reviewing

tribunal

and evaluative judgments prescinding from

adequately confronted and correctly resolved by a

____________________

1The Board disclaimed any reliance on hypothetical scenarios

set forth by
though

it agreed

activity,
was

the IJ in his decision.

of

the IJ

that

namely, his robbery of

"particularly

nature

with

The Board explained that,

the petitioner's

a store with

disturbing," nonetheless,

this crime

speaks for

itself,

a loaded weapon,

"the reprehensible
without any

speculate as to the feelings of the victims involved."

criminal

need to

trial

judge or hearing officer, then the tribunal is free simply

to adopt those findings

as long as its opinion or order clearly

indicates that it gave individualized attention to the

upon

reflection, elected to adopt

to write anew.

See
___

case and,

the trier's words rather then

Alaelua v. INS, 45 F.3d 1379, 1381 (9th Cir.

_______
___

1995);

Castaneda-Suarez v.
________________

1993);

cf. In re San Juan Dupont Plaza Hotel Fire Litig., 989

___ ________________________________________________

F.2d 36, 38 (1st Cir.

produced a

hesitate

INS,
___

993 F.2d

wax

146 (7th

1993) ("Where, as here, a trial

first-rate work product, a

to

142,

longiloquent

simply

Cir.

court has

reviewing tribunal should

to

hear

its

own words

resonate.").

These principles hold true in an administrative

of this genre.

To be sure, the Board is obliged to weigh all the

pertinent factors

due

consideration

tallying the

state

appeal

(both favorable

for the

and unfavorable), to

universe

of

weighted factors

equities, to exercise independent

plainly its reasons for

exhibit

when

judgment, and to

granting or denying

relief.

See
___

Alaelua, 45 F.3d at 1382; Martinez v. INS, 970 F.2d 973, 974 (1st
_______
________
___

Cir. 1992).

And, moreover, the Board's opinion must reflect that

it has carried

write

a long

out these obligations

essay merely

Martinez, 970 F.2d

________

"address

at 976

specifically each

to

but the

prove its

mettle.

(concluding that the

claim

Board need

the petitioner

Cf.,
___

not

e.g.,
____

Board need

not

made or

each

piece

of evidence

vernacular,

the

the

petitioner

if the Board's

law does

not

presented").

view is that the

demand that

the

Board go

To

use

the

IJ "got it right,"

through

the idle

motions of

dressing the

short,

novo review

de

IJ's findings in

and

what

its own

the Board

prose.2

chooses

In

to call

"independent review" is neither more nor less than de novo review

does not require the Board to reinvent the wheel.

On

ruling

the

this basis, we join eight of our sister circuits in

that the Board need not

IJ's

findings

requested

relief,

consideration

affirms

the

decision.3

to a

of fact

but,

and

rather,

his

for the

Prado-Gonzalez v.
______________

reasons

having

particular case,

IJ's decision

See
___

write at length merely to repeat

for denying

given

may simply

reasons

individualized

state that

set forth

INS, 75 F.3d
___

the

it

in that

631, 632

(11th

Cir. 1996); Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 1995);
___________
___

Urukov
______

v. INS, 55 F.3d 222, 227-28

___

(7th Cir. 1995); Alaelua, 45

_______

____________________

2In his reply brief, petitioner cites two precedents that he

claims
Perez v.

repudiate this view.

His reliance is mislaid.

One case,

INS, 643 F.2d 640 (9th Cir.) (per curiam), op. am., 665

_____

___

___ ___

F.2d 269 (9th Cir.

was not a

1981), cert. dismissed, 459 U.S.

_____ _________

case in which the Board adopted the findings of an IJ,

but, rather, a case in

which the Board, in violation of its own

________________________

regulations, neglected to
___________
considered in concluding
prima
_____

facie
_____

case

of

1254(a)(1)]," thereby
In

the second case,

1992),

983 (1982),

the Court

indicate on the record "the factors it

that [the alien] failed

extreme

hardship

to establish a

[under

frustrating judicial review.

Anderson v. McElroy, 953
________
_______

found an

abuse of

U.S.C.

Id. at 641.
___

F.2d 803 (2d Cir.

discretion in

the Board's

summary refusal to stay deportation pending the disposition of an

alien's motion to reopen, notwithstanding the INS' acknowledgment

of a significant change in circumstances and its request that the

Board

vacate the

proceedings.

deportation

decision and

See id. at 805-06.

___ ___

remand for

further

Neither case has any bearing on

the issue at hand.

3Where,

as

here,

conclusions of the

the

Board

adopts

IJ, the IJ's rescript serves de

Board's articulation of its ratio decidendi.

_____ _________
henceforth

refer to

adopted by

the Board, as if

first instance.

the

the

findings and

findings

and

facto as the

For that reason, we

conclusions

the Board had authored

of the

IJ,

them in the

F.3d

at 1382-83; Maashio
_______

1995);

v. INS, 45
___

Gandarillas-Zambrana
____________________

v. BIA,
___

F.3d 1235, 1238

44

F.3d

(8th Cir.

1251, 1255

(4th

Cir.), cert. denied, 116 S. Ct. 49 (1995); Panrit v. INS, 19 F.3d

_____ ______
______
___

544, 546 (10th Cir.

613

1994); Arango-Aradondo v. INS, 13

_______________
___

(2d Cir. 1994); see

___

also De Leon v.
____ _______

F.3d 610,

INS, 547 F.2d 142, 149

___

(1st

Cir. 1976)

(applying this

principle sub
___

silentio), cert.
________
_____

denied, 434 U.S. 841 (1977).

______

Here, the Board's individualized

is apparent.

the

See, e.g., supra

___ ____ _____

Board acted

note 1.

within its proper

petitioner's case

and resolved the

attention to the case

We hold, therefore, that

purview when

it adjudicated

appeal by adopting

the IJ's

findings and conclusions.

C
C

As our journey winds down, we reach

the

supportability

of

relief.

The fact

adopted

rather than

review.

As in any

the

Board's denial

the bedrock issue:

of

that the Board's findings and

original does

not

section

conclusions are

affect our

other section 212(c) case, we

212(c)

standard of

need determine

only whether

the decision is arbitrary, capricious,

of discretion.

See generally Gouveia v.

___ _________ _______

or an abuse

INS, 980 F.2d 814, 817

___

(1st Cir. 1992) (elucidating standard of review).

Waivers

of

deportation

granted.

In deciding

authority,

the

Board

whether

"must

factors

supporting

the

favoring

deportation."

are not

to

exercise its

balance the

application

Id.
___

at

profligately

816.

`social

against

When

to

be

discretionary

and

humane'

adverse

factors

the

ground

for

deportability

is the

high hurdle blocks the

circumstances

demonstrate

"it is

that

alien's commission of

a serious

path to section 212(c)

incumbent

favorable

upon a

factors

relief.

petitioner not

preponderate

present `unusual or outstanding equities'" in order

waiver.

Id.; accord Martinez, 970

___ ______ ________

951 F.2d

435, 438 (1st Cir.

petitioner stands

1991).

crime, a

In

such

only to

but also

to

to justify a

F.2d at 976; Hazzard v. INS,

_______
___

The armed

convicted indubitably

robbery of which

qualifies as

a serious

crime within this rubric.

In this

instance, the Board examined

all the relevant

factors,

applied

the

appropriate

standard,

decided

petitioner's proffer lacked persuasive force, and concluded

petitioner had failed

for

warrant to

that

to make out a sufficiently convincing case

an affirmative exercise of

have no

that

discretion.

second-guess the

On

Board's

this record, we

conclusion.

See
___

Martinez, 970 F.2d at 974 (explaining that rejection of a section

________

212(c)

waiver request will be upheld "unless it was made without

rational explanation,

policies,

or

rested

on

inexplicably departed

an

impermissible

from established

basis")

(citation

omitted).

Of

Petitioner

course, the credit side of the ledger is not empty.

had a

decade of

lawful permanent

residence, family

ties in this country, part-ownership in a house, some involvement

with

community

employment.

service, and

At

bottom,

equities; they simply do

chiaroscuro

however,

these

not rise to a level

record of

are

gainful

garden-variety

that would warrant

the appellation "unusual" or "outstanding."

INS, 74
___

F.3d

outstanding

1,

equities

(1st

on

Cir. 1996)

See, e.g., Henry

___ ____ _____

(finding

comparable showing

in

no

unusual

v.

or

adjustment-of-

status case).

Petitioner also

family

members

should

he be

envisions are not severe.

are in good health and

plans

to

start

made a

modest showing of

deported,

Petitioner's

but

hardship to

the

hardships he

relatives in this county

not dependent upon him for support.

business with

his

brother

are

His

embryonic.

Finally, we attach little weight to the hardships that petitioner

personally may experience upon

they are

returning

States.

of the sort

his repatriation to China because

that would be

to a less prosperous

See Ramirez-Durazo v.
___ ______________

common to almost

land after living

any alien

in the United

INS, 794 F.2d 491, 498 (9th

___

Cir.

1986).

The

short of it is that, as the Board determined after

mulling

all

the

relevant

factors,

petitioner's

equities

(including his litany of potential hardships) do not outweigh the

serious adverse factors that

the

record

reflects

determination, we

well

are present in his case.4

plausible

are constrained to

within its broad discretionary

the waiver.

See Gouveia,
___ _______

basis

for

find that the

the

Because

Board's

Board acted

powers in refusing to grant

980 F.2d at 818; Hazzard, 951

_______

F.2d at

____________________

4The armed robbery itself stands as the most serious adverse

factor.
showed no

In addition, the Board supportably found that petitioner

remorse for his actions

progress toward rehabilitation.

10

and that he had

made no real

438.

As we recently wrote

judgment call,

court

F.3d

pure and simple," and,

must defer to

proper balance.

in an analogous case,

the Board's notion

Gouveia, 980
_______

at 7 (counselling

consequently, a reviewing

of where

F.2d at 819;

that, in

to strike the

see also Henry,

___ ____ _____

such purlieus,

court may not reweigh the equities afresh").

III
III

"[t]his was a

74

"[a] reviewing

We need go

discretionary remedy.

or a palpable abuse

pages of this record

no further.5

Waiver of

In the absence of

of discretion

deportation is

either a mistake of law

neither of which sully

the Board's judgment must prevail.

The petition for review is denied and dismissed.

The petition for review is denied and dismissed.
_______________________________________________

the

____________________

5Petitioner's argument that the Board applied

in

effect holding

combination of

that

the crime

positive factors

was

so

a per se rule

heinous that

could have outweighed

it

belied by the record and does not require further comment.

11

no

is