IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 91-4664

No. 92-4177

_______________

IBRAHIM FEZ GHASSAN,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

_________________________

Petitions for Review of Orders of the

Immigration and Naturalization Service

_________________________ (September 8, 1992)

Before WISDOM, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ibrahim Fez Ghassan, a native and citizen of Lebanon who was

a permanent resident of the United States, was convicted of

conspiracy to import and distribute heroin. After he was released

from prison, the Immigration and Naturalization Service ("INS")

began deportation proceedings. An immigration judge ("IJ") denied

his application for waiver of deportation, and the Board of

Immigration Appeals ("BIA") affirmed that denial and denied

Ghassan's motions to reconsider or reopen. Ghassan petitions for1 Now codified at 8 U.S.C. § 1251(a)(2)(B)(i).

2 review of the BIA's decisions. Finding that the decisions were

within the BIA's discretion, we deny the petitions.

I.

Ghassan first came to the United States in 1978 at the age of

seventeen to attend college in Minnesota. In 1980 he began dating

Donna Owings, a U nited States citizen and resident of Minnesota.

This relationship ended in 1982 when Owings moved to North Carolina

with her parents.

In 1981 Ghassan gained permanent resident alien status. In

1983 he and several other Lebanese citizens, including his brother,

began a scheme to import and distribute heroin. The following

year, Ghassan pleaded guilty to an indictment charging him with

conspiracy to import and distribute heroin; he was sentenced to

eight years in prison and a $25,000 fine.

While Gha ssan served his sentence, Owings contacted him and

they began corresponding. She was married and had a son but was

separated from her husband because he had abused her. Ghassan was

released from prison in 1989 into the c ustody of the INS, which

initiated deportation proceeding s in Louisiana in March 1989,

pursuant to 8 U.S.C. § 1251(a)(11 )

. 1 Ghassan and Owings, who had

divorced her first husband, were married in September 1989, at

which time Owings knew that Ghassan was liable to be deported.

Ghassan was charged with deportability because of his heroin

conspiracy conviction. He admitted the conviction, and the IJ2 8 U.S.C. § 1182(c). By its terms the statute seems to apply only to

aliens who temporarily left the country voluntarily, but the Second Circuit has

held that the Equal Protection Clause forbids distinguishing between aliens who

briefly left and reentered the country and are facing deportation proceedings and

those who have not left and are being deported. S ee Francis v. INS

, 532 F.2d

268, 272-73 (2d Cir. 1976). The BIA applies the Second Circuit's ruling

nationwide. S ee Ashby v. INS

, 961 F.2d 555, 557 n.2 (5th Cir. 1992); Mantell v. United States Dep't of Justice , 798 F.2d 124, 125 (5th Cir. 1986).

3 found him to be deportable. Ghassan declared that he would apply

for a waiver of deportation and for asylum; the application for

asylum later was withdrawn.

In March 1990, the IJ held a hearing on the merits of the

waiver applic ation and then denied the application. Ghassan

appealed this decision to the BIA, which received briefs and heard

oral argument. The BIA denied the waiver application on July 12,

1991. Ghassan then filed a petition for review with this court.

While that petition was pending, Ghassan filed with the BIA a

motion to reopen the deportation proceedings and a motion to

reconsider its decision. The BIA denied both motions. Ghassan

then sought our review of the denial of those motions. The

petitions have been consolidated in this case.

II.

Section 212(c) of the Im migration and Naturalization Act 2

allows the At torney General to waive deportation of eligible

permanent resident aliens, including those convicted of controlled

substances offenses. To be eligible for waiver, an alien must have

been in legal permanent residence for at least seven years. The4

INS does not dispute that Ghassan was eligible to apply for the

waiver.

We recently explained the BIA's balancing test for considering

applications under section 212(c):

The imm igration judge must balance the adverse factors

evidencing an alien's undesirability as a permanent resident

with th e social and humane considerations presented in his

behalf to determine whether the granting of section 212(c)

relief appears in the best interests of this country . . . .

Among the factors deemed adverse to a respondent's application

have been the nature and underlying circumstances of the

exclusion ground at issue, the presence of additional significant violations of this country's immigrati on 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

. . . . Favorable

considera tions have been found to include such factors as

family ties w ithin the United States, residence of long

duration in this country (particularly when the inception of

residence o ccurred while the respondent was of young age),

evidence of hardship to the respondent and family if deportation occurs, service in this country's armed forces, a history

of employment, the existence of property or b usiness ties,

evidence of value and service to the community, proof of a genuine rehabilitation if a criminal record exists, and other

evidence attesting to a respondent's good character.

Diaz-Resendez v. INS

, 960 F.2d 493, 495-96 (5th Cir. 1992) (quoting

In re Marin

, 16 I & N Dec. 581, 584 (BIA 1978)). We also stated

that "[a]pplicants for discretionary relief who have been convicted

of serious drug offenses must show `unu sual or outstanding

equities'" and that "an applicant with a criminal record will

ordinarily be required to make a showing of rehabilitation." Id.

at 496.

The IJ found that Ghassan had established rehabilitation but

that the hardship Ghassan's wife faced was diminished because she

had entered into the marriage with knowledge that he might be5

deported. The IJ also reasoned that Ghassan's length of residence

was undercut by the fact that he had been a permane nt resident

alien for only one year more than the minimum required for

eligibility under section 212(c). Finally, the IJ found it

significant that he had served four and one-half years of his

prison sentence, stating that such a duration was two years longer

than normal.

On administrative appeal, the BIA ruled that the IJ had erred

in attributing any significance to the le ngth of Ghassan's

incarceration. The BIA then considered the factors weighing in

favor of granting waiver to Ghassan, most notably the extent to

which his wife and her son depended upon him and the hardship they

would suffer if he were deported, which would be exacerbated by the

fact that United States law would prevent them from traveling to

Lebanon with him. The BIA agreed with the IJ, however, that the

wife's hardship was lessened by her prior knowledge of possible

deportation.

The BIA also disagreed with the IJ's conclusion regar ding

rehabilitation, stating that it was "unconvinced" of Ghassan's

rehabilitation. Finally, the BIA stressed the gravity of drug

offenses under our immigration laws. After balancing the factors,

the BIA dismissed the appeal.

III.

Although Ghassan questions the standard of review we apply to

BIA decisions on section 212(c) a pplications, we recently made3 Although Correa

, by its terms, applies only to equities arising after a

final order of deportation, Ghassan has provided us with no convincing reason not

to hold t hat prenuptial knowledge of the possibility of deportation is an

equitable factor weighing against the hardship that a spouse may suffer.

6 plain that we look for abuse of discretion. In D iaz-Resendez

,

decided after the briefs were submitted in the instant case, we

stated,

The Board's denial of an applicant's petition for relief

under section 212(c) is reviewed for abuse of disc retion.

Such denial will be upheld unless it is arbitrary, irrational,

or contrary to law . . . .

Under this standard, the Board's decision may be reversed

as an abuse of discretion when it is made without rational

explanation, or inexplicably departs from established policies. Further, a decision by the Board may be found arbitrary

if the Board fails to address meaningfully all m aterial

factors extant.

Fin d ings of fact supporting the Board's exercise of

discretion, however, are reviewed merely to determine whether

they are supported by substantial evidence.

Id. at 495 (citations omitted).

Ghas san argues that the BIA considered an irrelevant factor

when it stated that his wife's hardship was diminished by the fact

that she had entered the marriage with knowledge of his possible

deportation. We disagree. The factors the BIA considers are

equities, matters of fairnes s. Considering his wife's previous

knowledge seems eminently equ itable. S ee In re Correa

, 19 I & N

Dec. 130, 134 (BIA 1984) (discounting equities arising after a

final order of deportation). 3

Ghassan also argues that the BIA failed to consider all of the

relevant evidence. Our examination of the BIA's opinion shows,

however, that to the extent it can consider evidence presented for4 The INS did no t file a formal brief with the BIA. Rather, it filed a

memorandum adopting the IJ's findings.

5 The cases upon which Ghassan bases this portion of his argument refer not

to argume nts raised before the BIA but to arguments raised for the first time

before courts of appeals. E .g.

, Zalega v. INS

, 916 F.2d 1257, 1259 (7th Cir.

1990); United States v. Rodriguez , 888 F.2d 519, 524 (7th Cir. 1989).

6 Although Ghassan likens findings of rehabilitation to findings of

credib ility, in which the BIA generally defers to the IJ, that analogy is

incorrect. Findings of rehabilitation require consideration of evidence

extrinsic to that presented by the subject witness and depend upon more than his

demeanor.

7 the first time on appeal, the BIA did consider all of Ghassan's

evidence )) it just did not find it compelling.

Finally, Ghassan argues that the BIA erred in finding that he

was not rehabilitated. His challenge has two prongs: First, he

argues that the BIA should not have disregarded the IJ's finding,

because the INS did not challenge that finding in its brief. 4 We

disagree.

Unlike the circuit courts of appeals, the BIA is not a court

of error. 5 S ee e.g.

, Cor doba-Chaves v. INS , 946 F.2d 1244, 1249

(7th Cir. 1991); DeLucia v. INS

, 370 F.2d 305, 308 (7th Cir. 1966),

cert. denied , 386 U.S. 912 (1967). The BIA reviews the record de

novo and is not bound by the IJ's findings. C astillo-Rodriguez v.

INS

, 929 F.2d 181, 183 (5th Cir. 1991); Rivera v. INS

, 810 F.2d

540, 541 (5th Cir. 1987); In re Lok

, 18 I & N Dec. 101, 106 (BIA

1981), aff'd on other grounds sub nom

. L ok v. IN S , 681 F.2d 109

(2d Cir. 1982). 6 Indeed, where no party has appealed an IJ's

ruling, the BIA may certify proceedings to itself. 8 C.F.R.

§ 3.1(c) (1991). In the instant case, the BIA based its decision8

upon the administrative record as a whole. There was no procedural

impropriety.

Second, Ghassan argues that the BIA abused its discretion

because the evidence in the record overwhelmingly establishes his

rehabilitation. We disagree again. In rejecting Ghassan's appeal

the BIA stated,

[D]espite the immigration judge's finding, we remain

unconvinced as to the respond ent's rehabilitation. He

took part in an elaborate criminal conspiracy despite the

obv i ous consequences if he should be discovered and

despite the pernicious nature of the activity in which he

was engaged. We are not persuaded by the respondent's

good behavior since his conviction that he will not

succumb again to his family's pressure and the temptation

of the large profits to be had in such activities.

The BIA did not refer to any specific evidence to support its

finding that Ghassan is not rehabilitated. The BIA need not "write

an exegesis on every contention," however. Rather, its opinion

must reflect that "it has heard and thought and not merely

reacted." L uciano-Vincente v. INS

, 786 F.2d 706, 708-09 (5th Cir.

1986) (quoting Osuchukwu v. INS , 744 F.2d 1136, 1142-43 (5th Cir.

1984)). After reviewing the BIA's opinion and the record, we find

that the BIA provided us with sufficient basis to review its

decision.

The BIA's ruling states that Ghassan has not established that

his brother will be unable to entice him into another criminal

scheme. Ghassan has the burden of proving that he deserves

discretionary relief from deportation. D iaz-Resendez

, 960 F.2d at

495. Although Ghassan introduced several affidavits to his good

character and excellent recent employment history, nothing in the7 Additionally, at least one circuit court has re cognized that the

involvement of members of a petitioner's family in crime may be a negative factor

in these proceedings. Munez-Pena v. INS , 956 F.2d 223, 226 (10th Cir. 1992).

9 record shows that his brother is no longer involved in criminal

activity, nor is there evidence that Ghassan has become immune to

his brother's blandishments or has broken off contact with him.

Indeed, according to his testimony during the waiver hearing,

Ghassan solicited an affidavit from his brother that asserted that

Ghassan had not been involved in the heroin conspiracy and had

pleaded guilty in a plea bargain to protect the brother, an

assertion that Ghassan admitted was not true. 7 Further, as the BIA

noted, nothing reveals how Ghassan would cope with fi nancial

hardship.

Having failed to prove rehabilitation , Ghassan could have

little hope of obtaining section 212(c) waiver of deportati on.

Although rehabilitation is not a formal prerequisite for waiver, it

is a crucial factor. "As the negative factors grow more serious,

it becomes incumb ent upon the applicant to introduce additional

offsetting favorable evid ence, which in some cases may involve

unusual or outstanding equities." Diaz-Resendez , 960 F.2d at 496

(quoting Marin

, 16 I & N Dec. at 585). "[A]n applicant with a

criminal record will ordinarily be required to make a showing of

rehabilitation before section 212(c) relief will be granted." I d.

Furthermore, as the BIA stated in its denial of the motion for

reconsideration, even if Ghassan had been found rehabilitated, such

a finding would not dispose of his application fo r relief.

Ghassan's crime, participation in a well organized, international8 The Supreme Court repeatedly has acknowledged the severity of the

societal prob lems stemming from the importation of illegal drugs. S ee

, e.g.

, National Treasury Employees Union v. Von Raab

, 489 U.S. 656, 668 (1989) (drug

smuggling "one of the greatest problems affecting the health and welfare of our population"); United States v. Montoya de Hernande z , 473 U.S. 531, 538 (1985)

(citing "veritable national crisis in law enforcement caused by smuggling of

illicit narcotics"); see also Scarabin v. Drug Enforcement Admin.

, 966 F.2d 989,

994-95 (per curiam) (discussing "drug scourge"); Guan Chow Tok v. INS

, 538 F.2d

36 (2d Cir. 1976) (distinction between narcotics offenders and other offenders

reasonable) (cited in Anetekhai v. INS

, 876 F.2d 1218, 1224 (5th Cir. 1989)); In

re Cerna

, Interim Dec. 3161 (BIA Oct. 7, 1991) (few adverse matters BIA views as more serious than illegal drug importation).

9 Ghassan also argues that the BIA erred in calling the hardship inflicted

by his deportation to Lebanon, w here his family could not follow, an unusual

equity, rather than two unusual equities. This argument is without merit. The

BIA engages in equitable balancing, not mathematical equations. S ee DiazResendez , 960 F.2d at 495-96.

10 scheme to smuggle heroin into the United States and distribute it,

was extremely serious. 8

The BIA legitimately could conclude, consistently with its prior

holdings, that when balanced against the equities i n his favor,

which were diminished because his wife married him knowing that he

might be deported, the conviction tipped the scales, especially as

his wife's son was not his by blood or adoption and Ghassan was not

a child when he came to this country. 9

IV.

We next consider Ghassan's petition to reopen the deportation

proceedings. Ghassan moved for reopening so that the BIA could

consider additional evidence of his rehabilitation and the hardship

that deportat ion would cause him and his family. The BIA denied

the motion because it found that Ghassan was statutorily ineligible

to apply for relief under section 212(c).

In order to warrant reopening, a petitioner must make a prima

fa cie showing that he is eligible for the relief sought. I NS v.11

Abudu

, 485 U.S. 904, 912 (1988). The BIA deems deportation

determinations final after the board's decision on appeal. E.g.

,

Lok , 18 I & N Dec. at 105; see C.F.R. § 243.1 (1991). After such

a final decision, the petitioner's status as a permanent resident

alien is ended. S ee 8 U.S.C. § 1101(a)(20). Thus, the BIA

reasoned that Ghassan's case cannot be reopened to reconsider

section 212(c) re lief because after the BIA's initial determination, he no longer meets the section 212(c) requirement of seven

years as a permanent resident alien, as he is no longer a permanent

resident alien.

Although Ghassan disputes the standard of review, it is

settled that we review the denial of a motion to reopen for abuse

of discretion. See INS v. Rios-Pineda , 471 U.S. 444, 449 (1985).

Where the denial rests on a finding of statutory ineligibility, we

also review for errors of law. Finally, we give great weight to

the agenc y's interpretation of it own regulations, but this

interpretation may be discounted if it is plainly unreasonable. K a

Fung Chan v. INS , 634 F.2d 248, 252 (5th Cir. Jan. 1981).

Ghassan objects to the fact that the BIA treats the motion to

reopen as a n ew application for section 212(c) relief. If this

were the first time he had attempted to obtain relief under

section 212(c) in the context of these proceedings, such a rule

would make sense, he argues, but when a petitioner is seeking to

reopen the proceedings to present new evidence on the same grounds

for relief, treat ing the motion as a new application seems

unreasonable.12

Our pr ior decisions preclude Ghassan's argument. We have

already effectively upheld the BIA's practice. In G arcia-Hernandez

v . INS , 821 F.2d 222, 224 (5th Cir. 1987), where we had affirmed

the denial by the BIA of section 212(c) relief before a motion to

reopen wa s filed, we stated, "[W]hen that [section 212(c)] claim

was defeated fina lly by denial in appeal to this court and the

determination of deportability had also become final before that

time, there was no longer any authority to reopen

. . . because

petitioner clearly was no longer in lawfully ad mitted permanent

residence." We also have upheld the INS's position that a

deportability decision becomes fi nal at the time the BIA renders

its decision and that permanent resident alien status ends at that

time. S ee Rivera v. INS

, 810 F.2d 540, 541-42 (5th Cir. 1987),

vacating on reh'g 791 F.2d 1202 (5th Cir. 1986).

In Rivera we considered whether a petition for section 212(c)

relief could be instituted after a final decision of deportability.

In the instant case, as in Garcia-Hernandez

, the original petition

for section 212(c) relief was filed before the final decision of

deportability; thus, Ghassan had the right to pursue that relief.

Unlike the circumstance in Garcia-Hernandez

, the BIA's decision to

deny section 212(c) relief has not been upheld by this court. That

does not provide a basis upon which to distinguish this case.

In Garcia-Hernandez we concluded that the BIA was correct in

holding that the petitioner was no longer eligible for

section 212(c) relief because he was no longer a lawful resident

and so could not obtain reopening. 821 F.2d at 224. Under R ivera1 0 Accord Gonzales v. INS

, 921 F.2d 236, 240 (9th Cir. 1990) ( upholding

rule). C ontra Vargas v. INS

, 938 F.2d 358 (2d Cir. 1991) (holding rule arbitrary

and capricious).

13 an alien's lawful status ends when the BIA rules him deportable.

810 F.2d at 541-42. Thus, after the BIA decides that an alien is

d eportable, he is no longer a legal resident and thus is not

eligible for section 212(c) relief, so his petition for reopening

must be r ejected. 10 Accordingly, the BIA did not err in denying

Ghassan's motion to reopen.

V.

Ghassan makes three arguments as to his motion to reconsider.

First, he raises essentially the same points as in his petition on

the merit s

. Second, he contends that the BIA erred by not

considering evidence that was submitted during the appeal and with

the motion to reconsider. Third, he states that the BIA erred in

refusing to reconsider that a change in INS policy, banning

dep ortees from reentry for twenty years, rather than five,

increased the hardship on him and his family.

We review the denial of a motion to reconsider for abuse of

discretion. O suchukwu

, 744 F.2d at 1141. Reopening and

r econsideration are not favored. A budu

, 485 U.S. at 107. We do

not believe that the BIA erred.

Ghassan's first point of error reiterates his ar guments

concerning the plural nature of his outstanding equities, the BIA's

consideration of his rehabilitation, and the BIA's discounting of

his family hardship because his marriage occurred after deportation1 1 See Briscoe v. LaHue , 460 U.S. 325, 333 (1983); M arrero v. City of

Hialeah

, 625 F.2d 499, 508 (5th Cir. 1980) (quoting Imbler v. Pechtman

, 424 U.S.

409, 439-40 (1976) (White, J., concurring)).

1 2 See 8 U.S.C. § 1182(a)(6)(B) (deported alien convicted of an aggravated

felony who seeks admission within 2 0 years is excludable). In 1991 the INS

announced that it would apply th at provision to convictions that predate its

enactment in 1988. 68 Interpreter Releases 341 (Mar. 25, 1991).

14 proceedings had begun. We already have rejected those arguments

and need not revisit them.

Nor do we accept Ghassan's second argument that the BIA erred

by not considering additional evidenc e of his rehabilitation and

hardship that he submitted during the administrative appeal. The

BIA stated that it did not consider this evidence because the BIA

considers only the record that was before the IJ. The BIA is

correct.

Wh en evidence is submitted with a motion to reopen or

r econsider, the BIA considers that evidence only as necessary to

determine whether a new hearing is warranted. See 8 C.F.R. § 3.8

(1991) ("Motions to reopen shall state the new facts to be proved

at the reopened hearing . . . ."). It would be inappropriate for

the BIA to revise its opinion based upon evidence that had not been

tested in the "crucible of the judicial process," including cross

examination. 11

Finally, Ghassan argues that the BIA should have reconsidered

because his hardship was increased by a change in INS policy,

w hereby his reentry after deportation would be barred for twenty

years instead of five. 12 The BIA correctly noted that this was, in

essence, a motion to reopen for consi deration of additional

evidence and thus, as we have explained, was not available to15

Gha ssan. The BIA further stated that even if it considered the

matter to be a motion to reconsider, Ghassan had not demonstrated

any additional hardship he will suffer on account of the change in

the law.

We do not believe that the BIA abused its discretion in

rejecting the motion. The portion of Ghassan's motion addressing

the INS policy seeks to convince the BIA to consider new facts that

were not before the IJ. It is thus a motion to reopen, not a

motion to reconsider. S ee Pierre v. INS

, 932 F.2d 418, 421-22 (5th

Cir. 1991); 8 C.F.R. § 3.8 (1991). For reasons already discussed,

Ghassan was no longer eligible for reopening, and we reject his

argument.

VI.

We recognize that deporting Ghassan may cause hardship to him,

his wife, and her son. Nevertheless, in light of the well

established public policy against drug trafficking, we cannot say

that the BIA abused its discretion in mandating Ghassan's

deportation. As the importation of illegal narcotics continues to

pose a grave menace to society, those involved with the drug trade

can expect to find that they inevitably hurt those they care for as

well as those upon whom they prey.

AFFIRMED.