Interim Decision #3134 

MATTER OF EDWARDS 

In Deportation Proceedings 

A-18274740 

Decided by Board May 2, 1990 

(1) A clear showing of reformation is not an absolute prerequisite to a favorable exercise 

of discretion in every section 212(c) application involving an alien with a criminal 

record; therefore, section 212(c) applications involving convicted aliens must be 

evaluated on a case-by-case basis, with rehabilitation a factor to be considered in the 

exercise of discretion. Matter of Buscemi, 19 MN Dec. 628 (B1A 1988); and Matter of 

Morin, 16 I&N Dec. 581 (BIA 1978), clarified. 

(2) A proper determination as to whether an alien has demonstrated unusual or 

outstanding equities in a section 212(c) application can only be made after a complete 

review of the favorable factors in his case, and, therefore, the use of the term 

"threshold test" is deemed to be inappropriate in this context, as it might be 

interpreted to imply that a full examination of an alien's equities can somehow be 

pretermitted. Matter of Buscemi, supra, clarified. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11))—Convicted of-controlled 

substance violation 

ON BEHALF OF RESPONDENT: 

Fernando Colon-Navarro, Esquire 

Harvard Law Clinic 

264 Third Street 

Cambridge, Massachusetts 02142 

ON BEHALF OF SERVICE: 

Patricia B. Feeney 

General Attorney 

BY: Milhollan, Chairman; Dunne and Vacca, Board Members. Concurring Opinion: 

Morris, Board Member. Concurring in part and dissenting in part: Heilman, 

Board Member. 

In a decision rendered on August 17, 1989, the immigration judge 

found the respondent deportable, based upon his admissions, on the 

charge set forth above, denied his application for a waiver of 

inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1988), and ordered him deported from the 

United States to Barbados. The respondent, through counsel, has 

appealed from that decision only with respect to the denial of relief 

from deportation. The appeal will be dismissed. 

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Interim Decision #3134 

The respondent is a 44-year-old native and citizen of Barbados, who 

was admitted to this country as a lawful permanent resident in 1968. 

The record reflects that he is married to a United States citizen and 

that has four United States citizen children. It further shows that he 

incurred the following criminal convictions while in this country: 

attempted burglary (1977); third degree burglary, larceny, possession 

of burglary tools, and possession of stolen property (1979); attempted 

burglary (1981); possession of a controlled substance (1985); possession with intent to distribute a controlled substance (two counts), 

intentional distribution of a controlled substance (three counts), and 

conspiracy to distribute a controlled substance (one count) (1987).' In 

total, the respondent served some 2 1/2 years as a result of his criminal 

convictions, including a 1-year period stemming from his 1987 

convictions, for which he was actually sentenced to concurrent terms 

of 3 to 5 years.2 

At the deportation hearing, the respondent testified that he began 

abusing controlled substances in 1977, and he intimated that this vice 

formed the basis of his criminal record. He indicated that while 

incarcerated during the 1979 to 1981 period, he attended weekly drug 

rehabilitation sessions. He related that after his release from prison, he 

managed to remain free from drugs for 3 1/2 years, but that he 

eventually began to use them again due to family, financial, and legal 

difficulties. The respondent advised that he sold heroin during 1986 

solely to support his own drug habit. He stated that he participated in 

weekly drug counselling sessions while in prison as a result of his 1987 

convictions. He further testified that subsequent to his release from 

prison, he continued to attend a treatment program on a weekly basis. 

The respondent conceded that he used heroin in approximately August 

1988, and that he tested positive for morphine in November 1988. He 

indicated that before he was able to begin tri-weekly counselling 

sessions, as suggested by his parole officer, the Immigration and 

Naturalization Service issued a warrant for his arrest. He advised that 

he planned to return to a treatment program after his release from 

Service detention. The respondent said that he would not abuse 

controlled substances again because he did not want to hurt his family. 

In this regard, he also cited a fear of Acquired Immune Deficiency 

1 We observe that the record is inconsistent with respect to the number and nature of 

the respondent's criminal convictions. Therefore, in a decision limited to this particular 

matter, we have adopted the list compiled by the respondent's own counsel in his 

appellate brief. as he presumably was in the best position. after a review of the 

proceedings below, to verify the various convictions. 

2The record reflects that during the final 3 to 4 months of his most recent period of 

confinement, the respondent was released to a halfway house. 

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Interim Decision #3134 

Syndrome and noted that, due to his high blood pressure, continued 

abuse of controlled substances would be fatal to him. 

With respect to his history of employment, the respondent advised 

that when he first came to this country, he worked in a nursing home 

for 10 years until 1977. He testified that his next job was as a taxicab 

driver, an occupation in which he remained for less than a year 

following his release from prison in 1981. He noted that he subsequently worked at a die casting company for 2 1/2 years until 1985, 

when he was injured in a job-related accident. He related that he 

received workmen's compensation for approximately 1 year. The 

respondent said that he was unemployed during the period leading up 

to his 1987 convictions, that he sold drugs during this time, and that 

his spouse supported him. He stated that upon his release from prison 

to a halfway house, he worked as a kiln operator until he was laid off, 

i.e., from December 1987 until August 1988. He declared that he then 

earned money as a self-employed worker in the demolition and 

cleaning industry. He observed that he planned to return to this 

occupation upon his release from Service detention. 

The respondent implored that he be allowed to remain in the 

United States because of his family. He insisted that he would work 

hard to change his ways. He related that his wife and children, as well 

as his mother and siblings, resided here and that, he knew no one in 

Barbados. He asserted that it would be very difficult for him to find 

employment in Barbados because of his age. He recounted that he had 

discussed the possibility of returning to Barbados with his wife, but 

that his family would be unable to accompany him because his 

children were in school and Barbados lacked special educational 

facilities for his autistic son. 

In addition, the respondent offered the testimony of his wife on his 

behalf. She stated that she worked as a part-time aide at the school of 

her autistic son. She advised that she would not accompany her 

husband to Barbados as that country lacked the special educational 

facilities required for her autistic son. She related that the respondent 

was a good father and that he had changed for the better since his 

release from prison. She declared that she and her children had 

received public assistance since 1982, although her husband also had 

provided some support. 

Besides testimony, a number of documents were entered into 

evidence. These documents include the case notes of the respondent's 

Massachusetts parole officer, covering the period from February 8, 

1988, to January 26, 1989. There also is a letter from the Massachusetts Public Welfare Department, dated March 16, 1989, which 

describes the assistance given to the respondent's wife and children, 

and which opines that if the respondent is allowed to remain in this 

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Interim Decision #3134 

country, there would be numerous benefits to his family, including 

providing his children with two parents, and giving the family an 

opportunity to become independent of the public welfare system. 

Finally, the documentary evidence also comprises a medical report, 

dated January 21, 1988, confirming that the respondent's son has an 

autistic disorder. 

In his decision, the immigration judge determined that the respondent was statutorily eligible for a. section 212(e) waiver. However, he 

denied that relief in the exercise of discretion. He reasoned that the 

serious negative factor of the respondent's criminal convictions could 

only be overcome by a showing of unusual or outstanding equities, 

together with a demonstration of rehabilitation. He concluded that the 

respondent had failed to establish either of these requirements. 

On appeal, the respondent argues that the immigration judge erred 

by failing to consider all of the favorable factors presented in his case. 

He asserts that he demonstrated unusual and outstanding equities. He 

further contends that the immigration judge should have allowed him 

to submit evidence regarding the nature and circumstances of his 

criminal convictions. He points out that his criminal record resulted 

from his need to support his drug habit rather than a desire to make 

profits. Moreover, he argues that the immigration judge placed undue 

weight on the factor of rehabilitation. He explains that, as a practical 

matter, the immigration judge based the denial of relief solely on the 

issue of whether he had been rehabilitated with respect to his 

controlled substance dependency. He indicates that it was improper to 

preclude relief on this basis because he was in Service detention and 

therefore was unable to enter a treatment facility, as had been 

previously arranged. Finally, the respondent contends that the immigration judge improperly relied on the parole officer's report. 

For its part, the Service argues that the decision of the immigration 

judge is correct. It asserts, inter alia, that the respondent failed to make 

the requisite showing of unusual or outstanding equities. 

Section 212(c) of the Act provides, in pertinent part, that aliens 

lawfully admitted for permanent residence who temporarily proceed 

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

returning to a lawful' unrelinquished domicile of 7 consecutive years, 

may be admitted in the discretion of the Attorney General without 

regard to certain specified grounds of exclusion. In light of our 

decision in Matter of Silva, 16 l&N Dec. 26 (BIA 1976), a lawful 

permanent resident is prima facie eligible for relief from deportation 

under section 212(c), even though he has not proceeded abroad 

subsequent to the acts which rendered him deportable. See Francis v. 

INS, 532 F.2d 268 (2d Cir. 1976). 

Section 212(c) of the Act, however, does not provide an indiscrimi194 
Interim Decision #3134 

nate waiver for all who demonstrate statutory eligibility for such relief. 

Instead, the Attorney General or his delegate is required to determine 

as a matter of discretion whether an alien merits the relief sought, and 

the alien bears the burden of demonstrating that his application 

warrants favorable consideration. Matter of Marin, 16 JAN Dec. 581, 

582-83 (BIA 1978). 

The exercise of discretion in a particular case necessarily requires 

consideration of all the facts and circumstances involved. There must 

be a balancing of the social and humane considerations presented in an 

alien's favor against the adverse factors evidencing his undesirability 

as a permanent resident. Id. at 584. The Board has enunciated 

numerous factors to be considered in determining whether or not to 

grant section 212(c) relief. Favorable considerations have been found 

to include such factors as family ties within the United States, 

residence of long duration in this country (particularly when the 

inception of residence occurred at a young age), evidence of hardship 

to the respondent and his family if deportation occurs, service in this 

country's armed forces, a history of employment, the existence of 

property or business ties, evidence of value and service to the 

community, proof of genuine rehabilitation if a criminal record exists, 

and other evidence attesting to a respondent's good character. Id. at 

584 85. Among the factors deemed adverse to an alien are the nature 

and underlying circumstances of the exclusion or deportation ground 

at issue, the presence of additional significant violations of this 

country's immigration laws, the existence of a criminal record and, if 

so, its nature, recency, and seriousness, and the presence of other 

evidence indicative of a respondent's bad character or undesirability 

as a permanent resident of this country. Id. at 584. Moreover, one or 

more of these adverse considerations may ultimately be determinative 

of whether section 212(c) relief is in fact granted in an individual case. 

Id. 

We also have pointed out that as the negative factors grow more 

serious, it becomes incumbent upon the alien to introduce additional 

offsetting favorable evidence, which in some cases may have to involve 

unusual or outstanding equities. Id. at 585. Such a heightened showing 

is required when an alien has been convicted of a serious drug offense, 

particularly one relating to the trafficking or sale of drugs. Id. at 586 

n.4. The necessity of demonstrating unusual or outstanding equities is 

not exclusively triggered by serious crimes involving controlled 

substances, however. Rather, one must examine the gravity of the 

offense per se. Matter of Buscemi, 19 I&N Dec. 628, at 633 (BIA 

1988); see also Matter of Merin, supra. In addition, such a showing 

may be mandated because of a single serious crime, or because of a 

succession of criminal acts which together establish a pattern of serious 

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criminal misconduct. Matter of Buscemi, supra, at 633-34. We observe 

that an alien who demonstrates unusual or outstanding equities, as 

required, does not compel a favorable exercise of discretion; rather, 

absent such equities, relief will not be granted in the exercise of 

diScretion. 3 Id.; see also Matter of Marin, supra. There are cases in 

which the adverse considerations are so serious that a favorable 

exercise of discretion is not warranted even in the face of unusual or 

outstanding equities. Such was the situation in Matter of Buscemi, 

supra. 

With respect to the issue of rehabilitation, the Board noted in 

Matter of Marin, supra, at 588, and reiterated in Matter of Buscemi, 

supra, at 633-34, that a section 212(c) waiver applicant who has a 

criminal record "ordinarily" will be required to make a showing of 

rehabilitation before relief will be granted as a matter of discretion. 

This language has been interpreted in some cases as though a clear 

showing of reformation is an absolute prerequisite to a favorable 

exercise of discretion in every case involving an alien with a criminal 

record. To the extent that this language may be read as creating an 

absolute prerequisite to a favorable exercise of discretion, we withdraw 

from it. Rather, section 212(c) applications involving convicted aliens 

must be evaluated on a case-by-case basis, with rehabilitation a factor 

to be considered in the exercise of discretion_ 

In regard to the matter before us, we point out that we have 

reviewed the record on a de novo basis. Accordingly, the respondent 

has not suffered any prejudice due to the immigration judge's alleged 

errors in failing to consider all of the favorable evidence on his behalf 

or by placing an undue burden upon him regarding rehabilitation. 

Moreover, we observe that, for purposes of expediency, we have not 

relied on the report of the respondent's parole officer in rendering our 

decision. Consequently, we make no ruling as to the proper evidential 

weight which should have been accorded to the document or whether, 

in fact, it should have been accepted into evidence in the first instance.4 

3 1n Matter of Buscenn, supra, at 634, we stated that an alien who makes a required 

showing of unusual or outstanding equities merely satisfies the "threshold test for having 

a favorable exercise of discretion considered in his case." Upon review, we find this 

language to be misleading, as it might be read to imply that a full examination of an 

alien's equities can somehow be pretermitted. On the contrary, a proper determination 

as to whether an alien has demonstrated unusual or outstanding equities can only be 

made after a complete review of the favorable factors in his case. Accordingly, we have 

eliminated the offending language from our legal analysis. 

4We note in passing, however, that because the respondent did not object to the entry 

of this document into evidence at Me hearing below, it is not appropriate for him to 

object on appeal. Cf. Matter ofSamai,17 l&N Dec. 242 (BIA 1980) (objection raised for 

first time on appeal concerning improper notice of deportation hearing). Further, we 

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Interim Decision #3134 

Additionally, while it is true that the immigration judge initially 

noted that he would not hear testimony as to the respondent's 

motivation for his crimes, the respondent ultimately was able to 

indicate for the record that he engaged in criminal conduct in order to 

support his drug habit. See Matter of M -, 3 I&N Dec. 804, 805 (BIA 

1949) (matter involving the seventh proviso to section 3 of the 

Immigration Act of 1917) (while the Board will not go behind a record 

of conviction to reassess an alien's ultimate guilt or innocence, inquiry 

may be had into the circumstances surrounding the commission of the 

crime in order to determine whether a favorable exercise of discretion 

is warranted). Therefore, the respondent did not suffer prejudice. We 

also point out that, at the time the immigration judge rendered his 

interlocutory ruling, the respondent's counsel expressed agreement 

with it. 

In analyzing the respondent's application for a section 212(c) 

waiver, we note that his statutory eligibility for that relief has not been 

contested. In regard to the exercise of discretion, we consider that the 

respondent possesses an extensive criminal record covering the period 

from 1977 until 1987, including convictions for burglary and attempted burglary, possession of a controlled substance, possession with 

intent to distribute a controlled substance, and intentional distribution 

of a controlled substance. The respondent's overall 10-year pattern of 

criminal misconduct, as well as his controlled substance distribution 

offenses, each independently require that he demonstrate unusual or 

outstanding equities if he is to have the possibility of receiving a 

favorable exercise of discretion. 

In the respondent's favor we take into account the fact that he has 

resided in this country for approximately 22 years. We note that he is 

married to a United States citizen, that he has four United States 

citizen children, that his mother and siblings reside in this country, 

and that he apparently has no family remaining in Barbados. We 

observe that the respondent's wife declared that he is a good father. 

We acknowledge that his family will suffer emotional hardship if he is 

deported to Barbados. We are aware of the special hardship that the 

respondent's autistic child may suffer from a separation. In sum, we 

conclude that these equities cumulatively rise to the level of the 

unusual or outstanding. 

In regard to other alleged favorable equities forwarded by the 

consider that the respondent, while attacking the propriety of that document, at the 

same time takes the somewhat contradictory position in his Notice of Appeal (Form 

290A) that the immigration judge failed to consider favorable information contained in 

the document. In any event, we observe that the favorable information found in the 

document is simply repetitive of that which appears elsewhere in the record. 

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Interim Decision #3134 

respondent, however, we note that he has neglected to submit any 

evidence to support his conclusory allegation that he will be unable to 

find work in Barbados because of his age. In terms of the financial 

hardship that his family may face due to his deportation, we consider 

that they received support from the public welfare system before the 

respondent encountered any difficulties with our immigration laws. 

He has not shown that their financial situation will be materially 

exacerbated if he is forced to depart from this country. 

Turning to the issue of rehabilitation, we find it to be a significant 

factor in view of the nature and extent of the respondent's criminal 

history. Specifically, he has a record of offenses extending from 1977 

until 1987, including convictions for controlled substance distribution. 

He attributed these crimes to his need to support his drug habit. While 

such a claim may tend to show that the respondent is not an inherently 

evil person, we still must consider the safety of our society. Regardless 

of the respondent's motivation, the community still will suffer the 

consequences of any future criminal behavior on his part. 

At the hearing, the respondent promised that he would try to mend 

his ways. He renounced further controlled substance abuse because of 

the adverse effect on his family and because of the dangers to his own 

health. He participated in a number of treatment programs, including 

one at the time of his detention by the Service. Although the 

respondent appears to have been able to free himself from drugs for 

various periods of time, we note that he ultimately was unsuccessful in 

his quest. For example, we consider that while on parole and 

participating in a treatment program after his most recent period of 

incarceration, the respondent used controlled substances on at least 

two occasions, in August and November 1988. Consequently, on the 

record before us, we determine that he failed in his attempt to 

rehabilitate himself. 

While it is unfortunate that the respondent apparently has not been 

able to participate in a controlled substance treatment program while 

in Service detention, we reject the respondent's suggestion that this 

fact bars a finding that he has not rehabilitated himself. See Matter of 

Maria, supra, at 588-89 (while it is more difficult for confined aliens to 

establish rehabilitation than those who are at liberty, this does not 

result in a violation of their constitutional rights). Further, we observe 

that the respondent was able to participate in a treatment program 

directly prior to his detention by the Service. However, he wasted this 

opportunity by continuing his use of controlled substances on at least 

two occasions during this period. 

In balancing the various factors in the respondent's case, we take 

note of his favorable equities, which we found to be unusual or 

outstanding. However, when we weigh these equities against the 

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adverse factors of his extensive criminal record, which includes 

controlled substance distribution offenses, and our lack of confidence 

as to his rehabilitation, we determine that a favorable exercise of 

discretion is not warranted. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

CONCURRING OPINION: James P. Morris, Board Member 

I respectfully concur. 

I fully concur with and join in the Board's order with respect to both 

its rationale and the result reached. However, I wish to elaborate on 

two points which apparently have caused some confusion in the 

application of our prior decisions. 

The first point is the Board's position with respect to weighing the 

equities in the course of exercising its discretion regarding an applicant 

for relief under section 212(c) who has been convicted of a serious 

crime or a succession of criminal acts which together establish a 

pattern of serious criminal misconduct. In Matter of Marin, 16 I&N 

Dec. 581 (BIA 1978), we pointed out that such an alien may be 

required to show unusual or outstanding equities in order to receive 

favorable consideration of his application. While the intention of the 

Board in this holding appears to be clear enough, it nevertheless 

caused misperceptions in some quarters, with the assumption being 

made that if unusual or outstanding equities could be shown, relief 

under section 212(c) would follow. 

In the hope of clarifying its position, the Board subsequently 

published its decision in Matter of Buscemi, 19 I&N Dec. 628 (BIA 

1988). There we pointed out that the fact that an alien has demonstrated unusual or outstanding equities does not compel a favorable 

exercise of discretion. Rather, we held that an alien with a serious 

criminal record who failed to make a showing of unusual or 

outstanding equities had not met a threshold test to be considered for 

relief under section 212(c). The Board holds in the present case that 

consideration of an application for relief under section 212(c) may not 

be pretermitted, but that a complete review of favorable factors must 

be made before a proper determination can be made as to whether or 

not the alien has established unusual or outstanding equities. 

Aside from the problem of pretermission of waiver requests, the use 

of the phrase "unusual or outstanding equities" causes some other 

difficulties. First, there is no need to determine whether or not the 

equity is unusual. It is the weight of the equity that is significant, not 

the frequency with which it may occur. Therefore, I would not treat the 

unusual nature of the equity as a significant factor. With regard to 

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evaluating equities as "outstanding," there has been a problem of 

definition. For example, 7 years as a lawful permanent resident is a 

statutory minimum requirement, and therefore, that period of residence logically would not be regarded as an outstanding equity, 

whereas 25 years of residence ordinarily would be considered to be an 

outstanding equity. But as time passes beyond the required 7 years, the 

question arises as to when the period of residence, per se, becomes an 

outstanding equity. We clearly should not pinpoint a specific period, 

e.g., 14 years, because the quality of the residence should also be 

considered in determining its weight. Similarly, there is no formula for 

determining the number and type of United States citizen and lawful 

permanent resident relatives who may constitute an outstanding 

equity. For these reasons, I would not attempt to assign a value of 

"outstanding" to any particular equity. I believe that the appropriate 

method for addressing the equities is to evaluate all of them, assigning 

weight or importance to each one separately and then to all of them 

cumulatively. They should then be balanced against the adverse 

factors, which should also be evaluated cumulatively. It is at this point 

that an alien who has been convicted of a serious crime may be granted 

a favorable exercise of discretion under section 212(c) because his 

equities are "outstanding" and are of sufficient weight to override the 

adverse factors present in his case. When the alien's equities are fully 

and properly evaluated and it has been determined that they are not of 

sufficient weight to overcome the adverse factors of record, there is 

little point in designating them as "outstanding." 

The second area of confusion flowing from the Board's decisions in 

these cases involves the issue of rehabilitation. The Board's order 

points out that language used in Matter of Marin, supra, and Matter of 

Buscemi, supra, has been interpreted in some cases as though a clear 

showing of reformation is an absolute prerequisite to a favorable 

exercise of discretion in every case involving an alien with a criminal 

record. The Board then withdraws from the language in those cases to 

the extent that it may be read as creating an absolute prerequisite to a 

favorable exercise of discretion. I agree with the position the Board has 

taken in that regard in the present case. I would emphasize, however, 

that the issue is mostly one of proof. The alien may have a clear record 

since his conviction and may have taken positive steps to establish 

rehabilitation; yet, because of incarceration, the length of time since 

his conviction, or some other reason, he may be unable to establish 

convincingly that he has been rehabilitated. While such evidence 

would not carry the same weight as evidence demonstrating complete 

rehabilitation, his efforts may be considered, and he is not barred 

automatically from discretionary relief. On the other hand, if an alien 

has been convicted of a serious crime, and the evidence suggests that 

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he has not been rehabilitated, a favorable exercise of discretion would 

be inappropriate. For example, where the alien, since his conviction, 

has engaged in further criminal activity, has used or dealt in illicit 

drugs, or has associated with criminal elements, those circumstances 

would indicate that the alien is unrehabilitated and is undeserving of a 

favorable exercise of discretion, even though his equities may be highly 

favorable and he may be able to show that he has taken steps which 

ordinarily might lead to a finding of rehabilitation. 

In sum, I believe that it is the Board's purpose to provide guidance 

in the exercise of discretion in these areas but that it is not the Board's 

intention to provide a formula that should be rigidly followed. 

CONCURRING IN PART AND DISSENTING IN PART: 

Michael J. Heilman, Board Member 

I respectfully concur in part and dissent in part. 

I agree with the major purpose and conclusion expressed in the 

majority opinion. There is one part of the opinion, however, that could 

easily sow more confusion and more difficulty. That is the part of the 

majority opinion that finds certain of the respondent's equities to 

"cumulatively" use to the level of "unusual or outstanding." It may 

well be that any attempt to formulate a method for exercising 

"discretion" is doomed to be either too broad or too narrow, and that 

rough formulas may be all one can devise. It seems to me, however, 

that in Matter of Malin, 16 I&N Dec. 581 (BIA 1978), as well as in 

Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988), it was fairly clear that 

the term "outstanding or unusual" equities was not itself confusing. 

The majority opinion does not attempt to clarify or explain that term. 

Unfortunately, however, as a result of the majority opinion in this 

case, vie may well find ourselves having to explain our use of the term 

in its application to the equities in this case. The majority uses that 

term in a manner not previously employed. It appears to find that a 

number of equities, some of which in themselves are in no sense 

"unusual or outstanding," become so by an apparent mathematical 

operation. The declaration of the respondent's wife that he is a "good 

father" is surely evidence of a laudable quality. Likewise, the 

possibility that the family might suffer "emotional hardship" is a 

factor to be taken into account. But why these "equities" become 

equities of the highest quality is never explained, although the clear 

implication of the majority's discussion is that this occurs through the 

process of addition. It would thus appear that the majority is 

presenting the option to applicants to establish the existence of 

"unusual or outstanding" equities by presenting a certain number of 

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equities of a lesser magnitude which "cumulatively" will be transformed into equities of a higher level. 

On its face, this optional approach presents some rather daunting 

problems. Initially, it implicitly abandons the approach taken in both 

Matter of Math!, supra, and Matter of Buscemi, supra, which seemed 

to require an identification of individual "unusual or outstanding" 

equities, in the absence of which an applicant could not overcome 

highly adverse factors. This approach at least had the virtue of an 

"objective" standard in judging equities, which would apply equally to 

a drug trafficker and an armed robber. For example, in most instances, 

it would allow one to consider 20 years of permanent residence an 

"outstanding" equity. 

The "cumulative" approach, however, would allow one to determine that no individual "unusual or outstanding" equities existed, and 

then allow one to nonetheless grant the waiver because a certain 

number of more mundane equities were presented. To my knowledge, 

neither Matter of Marin, supra, nor Matter of Buscemi, supra, has been 

construed to provide this option. 

In my estimation, this optional approach would in fact take us back 

to the situation which existed prior to the publication of Matter of 

Maria, supra. I would not do that and so do not join in that portion of 

the majority opinion.