Interim Decision #3229 

MATTER OF BURRANO 

In Deportation Proceedings 

A-38045964 

Decided by Board September 13, 1994 

(1) When the Board of Immigration Appeals reviews a discretionary determination of an 

immigration judge, it relies upon its own independent judgment in deciding the 

ultimate disposition of the case. 

(2) The Board does not have a de facto policy of denying relief under section 212(c) of 

the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. V 1993), to all aliens 

convicted of a serious drug offense; however, a serious drug crime will be accorded 

duo weight, as is consistent with the evolution of the immigration law in this area, and 

may ultimately be the determinative factor in a given case. 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(2)(A)(i) [8 U.S.C. § 1251(a)(2)(A)(i)j—Crime involving 

moral turpitude 

Sec. 241(a)(2)(A)(ii) [8 .U.S.C. § 1251(a)(2)(A)(ii)j—Crimes involving moral turpitude 

Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)a—Convicted of 

controlled substance violation 

ON BEHALF OF RESPONDENT: 

George J. DeFabio, Esquire 

DeFabio & Fenn 

2121 Ponce de Leon Boulevard, 

Suite 430 

Coral Gables, Florida 33134 

ON BEHALF OF SERVICE: 

William Gossard 

General Attorney 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes, 

Alternate Board Member 

In a decision dated January 27, 1993, an immigration judge found 

the respondent deportable as charged under sections 241(a)(2)(A)(i), 

(A)(ii), and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. 

§§ 1251(a)(2)(A)(i), (A)(ii), and (B)(i) (Sum V 1993), as an alien who 

has been convicted of a crime involving moral turpitude within 5 years 

after entry, of two crimes involving moral turpitude not arising out of 

a single scheme of criminal misconduct, and of a controlled substance 

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Interim Decision #3229 

violation. The immigration judge also denied the respondent's application for a waiver of inadmissibility under section 212(c) of the Act, 8 

U.S.C. § 1182(c) (Supp. V 1993), and ordered him deported from the 

United States to his native country of Colombia. The respondent 

appealed from that decision. The appeal will be dismissed. 

PRELIMINARY DISCUSSION: STANDARD OF REVIEW 

The only issue raised on appeal is whether relief from deportation is 

warranted as a matter of discretion. However, before discussing this 

matter, there is a preliminary issue to be addressed. The Board of 

Immigration Appeals has recently been questioned concerning the 

standard of review we utilize when considering a discretionary 

decision of the immigration judge, such as the section 212(c) 

application in the instant case. See Ortiz-Salas v. INS, 992 F.2d 105 

(7th Cir. 1993); see also Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 

1993); Campos-Granillo v. INS, 12 F.3d 849 (9th Cir. 1993). Specifically, we have been questioned about the relationship between the 

Board and the immigration judge in terms of discretionary authority. 

We state at the outset that when the Board engages in a review of a 

discretionary determination by an immigration judge, we rely upon 

our own independent judgment in deciding the ultimate disposition of 

the case. This is in accord with our mandate to "exercise such 

discretion and authority conferred upon the Attorney General by law 

as is appropriate and necessary for the disposition of the case." See 8 

C.F.R. § 3.1(d)(1) (1994). The authority of the Board to issue a 

discretionary decision independent from that of the immigration judge 

has been recognized by the federal courts. See, e.g., Panrit v. INS, 19 

F.3d 544 (10th Cir. 1994); Huaman-Cornelio v. BIA, 979 F.2d 995, 

998-99 (4th Cir. 1992); Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 

1992), cert. dented, 113 S. Ct. 1412 (1993); Charlesworth v. INS, 966 

F.2d 1323, 1325 (9th Cir. 1992); Hazzard v. INS, 951 F.2d 435, 440 

(1st Cir. 1991); Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir. 

1991). Thus, we do not employ an abuse of discretion standard when 

reviewing discretionary determinations of immigration judges. 

The advantage of an independent standard of review is that it 

promotes uniformity in the application of the various discretionary 

provisions of the Act. See Matter of Cerna, 20 I&N Dec. 399, 405 

(BIA 1991) (noting that a principal mission of the Board of Immigration Appeals is to ensure as uniform an interpretation and application 

of the immigration laws as possible), aff'd, Cerna v. INS, 979 F.2d 212 

(11th Cir. 1992). We note in this regard that the individualistic nature 

of a discretionary determination permits the possibility that differing 

decisions may be reached based on essentially identical facts, with 

each decision arguably falling within a reasonable exercise of discreR71 
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tion. If our review were limited to questioning whether the immigration judge abused his or her discretion, we would be unable to remedy 

such situations. However, by utilizing our own discretionary authority, 

there exists a forum available to promote uniformity of result. 

Nevertheless, our independent review authority does not preclude 

the Board from adopting, or affirming a decision of the immigration 

judge, in whole or in part, when we are in agreement with the 

reasoning and result of that decision. In this situation, the Board's 

final decision may be rendered in a summary fashion; however, such 

summary treatment of a case does not mean that we have conducted 

an abbreviated review of the record or have failed to exercise our own 

discretion. Rather, it is simply a statement that the Board's conclusions upon review of the record coincide with those which the 

immigration judge articulated in his or her decision. 

Moreover, we recognize that the immigration judge who presides 

over a case has certain observational advantages due to his or her 

presence at the exclusion or deportation bearing. For example, the 

Board ordinarily gives significant weight to the determinations of the 

immigration judge regarding the credibility of witnesses at the hearing. 

See, e.g., Matter of Pula, 19 I&N Dec. 467 (BIA 1987); Matter of 

Magana, 17 I&N Dec. 111 (BIA 1979); Matter of T-, 7 I&N Dec. 417 

(BIA 1957); cf. Ghassan v. INS, supra (recognizing that the Board 

retains power to make independent credibility determinations when 

appropriate). Similarly, we also may give significant consideration to 

other findings of an immigration judge that are based upon his or her 

observance of witnesses when the basis for those findings are 

articulated in the immigration judge's decision. 

Finally, we acknowledge that questions concerning our standard of 

review were invited by occasional decisions of the Board which 

concluded that the immigration judge "did not abuse his discretion." 

We agree that the use of this and similar language can be misleading. 

However, such language is attributable to inartful drafting rather than 

to a limited review of the record on the part of the Board. We 

additionally point out that sometimes the only question raised on 

appeal to this Board is whether the immigration judge "abused his or 

her discretion." In this situation, our conclusion on the issue might 

simply represent a response to that specific argument on appeal. 

Nonetheless, we recognize the desirability of avoiding such language, 

and we reiterate that the Board relies upon its own independent 

judgment in deciding the ultimate disposition of a case when reviewing 

a discretionary determination of an immigration judge. 

THE RESPONDENT'S APPEAL 

We now turn to the respondent's appeal, in which he contests the 

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denial of his application for a waiver of inadmissibility under section 

212(c) of the Act.' The respondent argues that the immigration judge 

erred in finding that his equities are, insufficient to outweigh the 

adverse factors of record. We have reviewed the record in its, entirety, 

and we conclude that the immigration judge accurately considered the 

evidence presented and applied the relevant legal precedent. See 

generally Matter of Morin, 16 1&N Dec. 581 (BIA 1978); see also 

Matter of Roberts, , 20 I&N Dec. 294 (BIA 1991); Matter ofEdwards, 20 

I&N Dec. 191 (BIA 1990); Matter of uscemi, 19 I&N Dec. 628 (BIA 

1988). We agree with the reasoning of the immigration judge's 

decision and with his conclusion that the application should be denied 

in the exercise of discretion. We therefore adopt the content of that 

decision and add only the following observations. 

Although not specifically stated by the immigration judge, the 

respondent's lengthy criminal history requires him to show that he has 

unusual or outstanding equities in this country. 2 See Matter of 

Buscemi, supra. We concur with the immigration judge that the 

respondent's equities in this country, while significant, are insufficient 

to overcome his numerous criminal convictions. 3 

As the respondent has been a lawful permanent resident of the 

United. States since June 1983, his period of residency extends only 3 

years beyond the statutory minimum for section 212(c) relief. He has 

been incarcerated for a number of those years. Further, his first 

criminal conviction occurred only 3 years after his entry. These factors 

diminish the significance of the respondent's length of residence and 

prevent that residence from being deemed an outstanding equity. 

With respect to the respondent's family ties, his mother and four 

Section 212(c) of the Act states: 

Aliens lawfully admitted for permanent residence who temporarily proceeded 

abroad voluntarily and not under an order of deportation, and who are returning to a 

lawful unrelinquished domicile of seven consecutive years, may be admitted in the 

discretion of the Attorney General without regard to the provisions of subsection (a) 

(other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit 

the authority of the Attorney General to exercise the discretion vested in him under 

section 211(b). The first sentence of this subsection, shall not apply to an alien who has 

been convicted of one or more aggravated felonies and has served for such felony or 

felonies a term of imprisonment of at least 5 years. 

2The immigration judge stated instead that the respondent's equities fell "short of the 

requisite minimum." 

3The respondent's criminal record includes three convictions for possession or 

attempted possession of cocaine, as well as a conviction for attempted robbery and two 

convictions for theft, all occurring between 1986 and 1990. The details of these 

convictions are set forth in the immigration judge's decision. However, the immigration 

judge neglected to mention the respondent's August 14, 1989, conviction in the Superior 

Court for the District of Columbia for unlawful entry. Consideration of this conviction 

only serves to further support the denial of the respondent's waiver application. 

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Interim Decision #3229 

siblings are lawful permanent residents of the United States. Several of 

these relatives testified on his behalf at the hearing. However, neither 

their testimony nor any other evidence of record indicates that the 

adverse effect of deportation upon the respondent and his family will 

exceed that typically suffered by a family in this situation. Therefore, 

while we are sympathetic to the inherent difficulties involved in family 

separation, we cannot find that the respondent's family ties in this 

country qualify as unusual or outstanding equities. We further note 

that the respondent is married and has a United States citizen stepchild. However, these factors are not dispositive even when considered 

in conjunction with the other equities presented in this case. We point 

out that the marriage occurred in 1992, during the pendency of these 

deportation proceedings, and that the respondent's wife is not legally 

in this country. 

We further find, as did the immigration judge, that the respondent's 

employment history is not particularly notable, and that his evidence 

of rehabilitation does not present a significant equity in his favor. In 

this regard, we note that the respondent submitted evidence indicating 

that he performed well in the controlled environment of prison. 

However, after his release from his first documented period of 

incarceration, the respondent was convicted of theft. This post-release 

conviction diminishes the significance of any record of good behavior 

in prison, especially considering the respondent's long and varied 

criminal history. Similarly, due to the brief passage of time involved, 

we cannot accord considerable weight to the fact that the respondent 

has had no further convictions since being released from prison in 

February 1992. 

Lastly, we note that the immigration judge did not find the 

respondent's testimony at the hearing regarding his past crimes to have 

been credible. The immigration judge's credibility determination, 

which was not challenged on appeal, militates against any claims of 

rehabilitation. Further, apart from any question with respect to 

rehabilitation, lack of candor in itself serves as an adverse factor 

weighing against a favorable exercise of discretion. 

Having considered the record and the respondent's arguments on 

appeal, we find no basis for disturbing the decision of the immigration 

judge. Accordingly, the appeal will be dismissed. However, one final 

matter requires our attention. 

SECTION 212(c) RELIEF AND SERIOUS DRUG OFFENSES 

As indicated above, it has been the established practice of the Board 

to balance the positive and negative factors of an individual case when 

making a discretionary determination under section 212(c) of the Act. 

See, e.g., Matter of Marin, supra. However, our practice in this regard 

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has recently been questioned by the United States Court of Appeals for 

the Sixth Circuit. See Gonzalez v. INS, 996 F.2d 804 (6th Cir. 1993); 

see also Yepes-Prado v. IRS, supra, at 1370-72. In Gonzalez v. INS, 

supra, the respondent had been found deportable based upon her 

convictions for drug offenses, one of which involved possession with 

intent to distribute approximately 2 kilograms of cocaine. The Board 

dismissed her appeal from an immigration judge's discretionary denial 

of her application for a waiver of inadmissibility under section 212(c) 

of the Act. Upon petition for review, the Sixth Circuit upheld the 

Board's decision. However, the court found "some merit" in the 

respondent's contention that the Board engages in a "de facto" policy 

of denying section 212(c) relief to aliens convicted of a single and 

serious drug offense. Id. at 810. Because we have never adopted such a 

"de facto" policy, we believe this matter should be further addressed. 

Initially, we note that during oral argument in Gonzalez v. INS, 

supra, the court requested that Government counsel provide examples 

of Board decisions granting section 212(c) relief to "serious" drug 

offenders.4In response, the Government submitted a decision granting 

a waiver which had been issued by the Board several days earlier. In its 

decision, the court found that this submission of a single decision 

granting relief "leaves then impression" that the Board has a policy of 

denying relief in all cases in which an alien has been convicted of a 

serious drug offense. Id. at 810. We believe the court's reference to a 

single favorable decision may be somewhat misleading. The case 

presented to the court was intended to provide a contemporaneous 

example of the type of decision requested by the court and to refute the 

allegation that the Board would "never" grant discretionary relief to 

an alien convicted of a serious drug crime. The decision was submitted 

solely for illustrative purposes and was not represented to be the only 

such decision, nor was it intended to be an indication that section 

4The definition of a "serious" drug offense can certainly be subject to differing 

opinions. In providing information to be used to respond to the court's request, we 

viewed a "serious-drug offense as a drug trafficking crime which constitutes an 

"aggravated felony" under the Act. See section 101(a)(43) of the Act, 8 U.S.C. 

§ 110 1(a)(43) (Supp. V 1993)_ We acknowledge that within this category of offense, 

certain crimes will be more or less serious than others, and that the degree of seriousness 

in a given case might be its determinative factor. However, we would be hesitant to 

characterize any aggravated felony as "hardly serious," as the court appeared to do, due 

to the congressionally mandated treatment of this category of offenses. Gonzalez v. INS, 

supra, at 810. For example, section 243(h)(2) of the Act, 8 U.S.0 § 1253(h)(2) (Supp. V 

1993), renders an alien convicted of any aggravated felony to be ineligible for 

withholding of deportation, even if it is established that the alien faces imminent harm 

or death due to persecution in Lis or her native country based on any of the enumerated 

grounds. See also section 208(d) of the Act, 8 § I158(d) (Supp. V 1993). 

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212(c) waivers involving serious drug crimes would only be issued 

under identical circumstances. 

This having been said, however, it should not be unexpected that 

individuals who have been convicted of serious drug offenses may well 

have a difficult time prevailing on appeal before this Board. First, as 

noted by the court, the Board reviews "only a small percentage of the 

total number of cases heard by immigration judges [who] are also 

vested with the discretion to grant relief." Gonzalez v. INS, supra, at 

810. Indeed, virtually all cases before the Board involving applications 

for relief under section 212(c) have been adjudicated by an immigration judge after a full hearing on the merits, in proceedings in which 

the applicant for relief carries the burden of proofs Many such 

applications are granted by the immigration judges and one would 

expect that the most deserving cases ordinarily will have been resolved 

in favor of the applicant at this level. 

Moreover, certain groups of aliens are less likely than others to be 

successful in meeting their burden of demonstrating that a favorable 

exercise of discretion is warranted, due to the particular nature of their 

crime or crimes. Indeed, it has been long understood that as an alien's 

crimes become more serious, there will be less likelihood that he or she 

will be able to establish that a favorable exercise of discretion is 

warranted. There may also be situations where the specific crime or 

crimes involved in a given case will ultimately be the determinative 

factor in a decision. For example, if an individual has been convicted 

of a particularly heinous murder, that fact in itself may be dispositive 

of the discretionary issue, regardless of the nature of the equities 

presented. It would be disingenuous to suggest otherwise. 

Likewise, an alien who has committed a serious drug offense will 

face a difficult task in establishing that he or she merits discretionary 

relief. The detrimental effect on society resulting from drug violations 

has been consistently recognized by Congress in the clear distinctions 

that have been drawn between drug offenses and other crimes and the 

disparate treatment that has been accorded to different types of 

criminals. See generally Matter of Gonzalez, 19 I&N Dec. 682 (MA 

1988). The immigration law disfavors drug offenders by subjecting 

them to exclusion and deportation from this country and by limiting 

5As it is often a source of confusion, we point out that both the immigration judges 

and the Board of Immigration Appeals are part of the Executive Office for Immigration 

Review and are independent of the Immigration and Naturalization Service, which is a 

separate entity within the United States Department of Justice. See 8 C.F.R. §§ 3.0, 

100.2 (1994). The Board has been independent of the service since June 1940 when 

immigration responsibilities were transferred from the Secretary of Labor to the 

Attorney General. Immigration judges have been fully independent of the Service for 

over a decade. 

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their eligibility for the various forms of relief from exclusion and 

deportation. This is particularly true of aliens whose drug offenses 

constitute aggravated felonies under the Act; indeed, aliens convicted 

of aggravated felonies are subject to stricter procedures in general. See, 

e.g., sections 242, 276(b)(2) of the Act, 8 U.S.C. §§ 1252, 1326(b)(2) 

(1988); section 242A of the Act, 8 U.S.C. § 1252a (Supp. V 1993); see 

also supra note 4. 

It has been firmly established that aliens convicted of serious drug 

offenses are required to show unusual or outstanding equities before 

discretionary relief under section 212(c) will be further considered. See 

Ayala-Chavez v. INS, 944 F.2d 638 (9th Cir. 1991); Blackwood v. INS, 

803 F.2d 1165 (11th Cir. 1986) (per curiam); Matter of Buscemi, supra; 

Matter of Duarte, 18 I&N Dec. 329 (BIA 1982); Matter of Main, 

supra. Additionally, Congress recently amended section 212(c) of the 

Act to preclude relief to those who have committed an aggravated 

felony for which they have served a term of imprisonment of 5 or more 

years. See section 212(c) of the Act; see also Matter of RamirezSomera, 20 UN Dec. 564 (BIA 1992). Thus, it is increasingly evident 

that Congress disfavors granting relief from deportation to aliens who 

commit serious drug offenses. Consequently, an alien convicted of a 

serious drug offense should be aware of the difficulties to be faced in 

obtaining discretionary relief. We emphasize that this observation 

should not be taken as an indication that the Board will never award 

relief to an alien convicted of a serious drug offense. See Matter of 

Cerna, supra, at 403-04. Rather, it is an acknowledgement that a 

serious drug crime or crimes will be accorded due weight, as is 

consistent with the evolution of the immigration law in this area. 

In sum, this Board has never implemented, in law or in fact, a strict 

policy of denying section 212(c) relief to every alien convicted of a 

serious drug offense without regard to the totality of circumstances 

presented in the case. Our established practice has been, and continues 

to be, to premise discretionary determinations on the individual 

factors presented in a given case. 

ORDER: The appeal is dismissed. 

879