Interim Decision #2666 

MATTER OF MARIN 

In Deportation Proceedings 

A-13923847 

Decided by Board August 4, 1978 

(1) An application for discretionary relief under section 212(c) of the Act necessitates a 

balancing of the adverse factors of record evidencing an alien's undesirability as a 

permanent resident with the social and humane considerations presented in his behalf to 

determine whether the granting of relief is in the best interest of this country. 

(2) A statutorily eligible applicant who has the right to apply for relief under section 212(c) 

must be given the reasonable opportunity to come forward with favorable considerations which may offset the adverse matters of record. 

(3) The equities that an applicant for relief under section 212(c) must bring forward to 

establish that favorable discretionary action is warranted will depend in each case on 

the nature and circumstances of the ground of exclusion sought waived and on the 

presence of any additional adverse factors (factors previously deemed favorable and 

unfavorable set forth) 

(4) An applicant for discretionary relief under section 212(c) who has been convicted of a 

serious drug offense must demonstrate "uriusuar .or "outstanding" countervailing 

equities before a favorable exercise of discretion will be considered. 

(5) An applicant for relief under section 212(e) who has a criminal record will ordinarily be 

required to make a showing of rehabilitation before relief will be granted as a matter of 

discretion. 

(6) There is no irrebuttable presumption that a confined or recently convicted alien can 

never establish either that rehabilitation has occurred vr that relief under section 212(e) 

should otherwise be granted. 

(7) The recency of a conviction and the fact of confinement are matters relevant to the 

consideration of whether an alien has demonstrated his rehabilitation and whether relief 

should be granted as a matter of discretion. 

(8) A District Director is not required to withhold the issuance of an Order to Show Cause 

in the case of a confined or recently convicted alien who is statutorily eligible for relief 

under section 212(c) in order to provide the alien a better opportunity to demonstrate 

his rehabilitation. 

(9) The decision to institute deportation proceedings is vested in the discretion of the 

District Director and the Board of Immigration Appeals is not the proper forum in 

which to seek a review of the rationale underlying a District Director's decision in this 

regard. 

CHARGE: 

Order: Act of 195Z-3ection 241(e)(11) [8 U.S.C. 1261(o.)(11)] Conviction of nareoti'es 

charge 

581 
interim vecimon IF LUOU 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Willard H. Myers, III, Esquire George W. Masterton 

Prisoners' Legal Services of New York Appellate Trial Attorney 

515 Lake Street 

Elmira, New York 14901 

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members 

In a decision dated August 23, 1977, the immigration judge found the 

respondent deportable as charged, denied his application for a waiver of 

inadmissibility under section 212(c) of the Immigration and Nationality 

Act, 8 U.S.C. 1182(c), and ordered his deportation to Colombia The 

respondent has appealed. The appeal will be dismissed. 

The respondent, a 46-year-old native and citizen of Colombia, was 

admitted to the United States for lawful permanent residence on February 3, 1965. In March 1976, he entered a guilty plea in a New York 

State criminal court to the felony charge of criminal sale of cocaine. On 

April 29, 1976, he was sentenced to the minimum mandatory sentence 

provided under New York law for that offense, an indeterminate sentence of one year to life. Including credited pretrail confinement, the 

respondent served some 20 months of this sentence (from November 

1975 through May 1978) in New York State penal institutions. 

On May 11, 1977, while still confined, an Order to Show Cause was 

issued charging the respondent with being deportable under section 

241(a)(11) of the Act, 8 U.S.C. 1251(a)(11), as an alien convicted of a 

designated drug offense. At the hearing held on July 20, 1977, the 

respondent conceded deportability. The immigration judge accordingly 

found him deportable as charged and that finding is not in issue on 

appeal. 

At the deportation hearing, the respondent applied for relief under 

section 212(c) of the Act. That section 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 seven consecutive 

y ears, may be admitted in the discretion of the Attorney General without regard to certain specified grounds for exclusion enumerated in 

section 212(a) of the Act. The grounds specified include an alien who has 

been convicted of a drug offense, as set forth in section 212(a)(23) of the 

Act, 8 U.S.C. 1182(a)(23). In light of our decision in Matter of Silva, 

Ititerim Decision 2532 (BIA 1976), the immigration judge properly concluded that the respondent was statutorily eligible for relief from deporttion under section 212(c) even though he had not proceeded abroad 

subsequent to his entry for lawful permanent residence. See Francis v. 

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

Section 212(e), however, does not provide an indiscriminate waiver 

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interim uecision /FLOOD 

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 applicant warrants the relief sought. The alien 

bears the burden of demonstrating that his application merits favorable 

consideration. 

In the case before us, the immigration judge concluded that the 

respondent had failed to establish that "a waiver of deportability Masi 

merited as a matter of discretion." ' In this regard, he noted the nature 

of the respondent's criminal offense and subsequent confinement and 

concluded that a waiver should not be granted absent a showing of 

"unusual or outstanding equities." Other than his residence in the 

United States for 12 years, however, the respondent was "unable to 

advance any substantial equities." z He was single, childless, and had no 

relatives residing in this country. His closest relatives (a brother and 

sister) both lived in Colombia. 'The respondent's employment history 

was sporadic and he presented no evidence that he would have particular difficulty returning to Colombia other than stating that "life [was] 

too hard there." 

Based on the "entire record," the immigration judge concluded that 

the respondent's conviction as a drug offender had not been sufficiently 

offset by his "twelve years of residence in the United States" and "his 

adjustment to prison life" to warrant the granting of discretionary relief 

under section 212(0_ The application for relief was accordingly denied. 

On appeal, the respondent, through counsel, states that the "decision 

of the immigration judge denying [his section 212(c)] application . . . in 

the exercise of discretion was neither founded upon standards which 

have been promulgated through regulation or adjudication, nor did the 

standards applied rest upon a permissible basis." The respondent submits that a wealth of preeendenti al standards exist regarding the discretionary granting of section 212(e) relief, that the immigration judge 

made a "radical departure from the precedent decisions of this Board 

[by instead] employing the standards of Matter of Fernandez, supra, 

and Matter of Arai, supra," that he did so without citation or comment 

on the existing precedent decisions, that this departure "violated any 

standard for fair play, as well as due process," and that the factors 

actually relied upon by the immigration judge were impermissible. 

The immigration judge cited Matter of Fernandez, 14 1. & N. Dec. 24 (BIA 1972) 

(involving a section 212(h) waiver) as permitting him to refuse to entertain the section 

212(c) application because the respondent was still in prison, but he in fact accepted the 

application and allowed the respondent the full opportunity to present evidence in support 

of a favorable exercise of discretion. 

2 The immigration judge noted the factors deemed favorable in our decision in Matter of 

Anti, 15 1. & N. Dec. 404 (BIA 1070) (involving adjustment of status under section 245 of 

the Act) and examined the record for their presence. 

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Interim Decision #2666 

We find no merit to this basis of appeal. The Board has not adopted an 

inflexible test for an immigration judge to use to determine as a contclusory matter whether section 212(c) relief should be granted as a matter of 

discretion. The undesirability and "difficulty, if not impossibility, of 

defining any standard in discretionary matters of this character which 

may be applied in a stereotyped manner" has long been recognized . See 

Matter of L—, 3 I. & N. Dec. 767 (BIA 1949; A.G. 1949) (involving the 

seventh proviso to section 3 of the Act of 1917). Instead, it has been held 

that each case must be judged on its own merits. The immigration judge 

must balance the adverse factors evidencing an alien's undesirability as 

a permanent resident with the 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. 

In order to provide the framework for an equitable application of 

discretionary relief, the Board has enunciated factors relevant to the 

issue of whether section 212(c) relief should be granted as a matter of 

discretion. 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 

tins 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. See, for example, Matter of 

C'arraseo, Interim Decision 2579 (BIA 1977), aff d on other grounds, 

C arraseo-Favela v. INS, 563 F.2d 1220 (5 Cir. 1977); Matter of Edward-3, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter of M—, 3 I. & N. 

Dec. 804 (BIA 1949) (involving the seventh proviso to section 3 of the 

Irranigration Act of 1917); Matter of V—, 1 I. & N. Dec. 293 (BIA 1942) 

(seventh proviso); Matter of G—, 1 I. & N. Dec. 8 (BIA 1940; A.G. L940) 

(seventh proviso). 

Although in an individual case, one or more of these adverse factors 

may ultimately be determinative of whether section 212(c) relief is in 

fact granted, their presence does not preclude a respondent from presenting evidence in support of a favorable exercise of discretion. See 

r-issian v. INS, 548 F.2d 325, 330 (10 Cir. 1977). 3Favorable considerations have been found to include such factors as family ties within 

the United States, residence of long duration in this country (particu- 

.Matter of Fernandez, supra, which involved an application for section 212(h) relief 

filled by an incarcerated applicant in exclusion proceedings, should not be read as permittlaig an immigration judge to decline to entertain an application for relief under section 

213(c) by a statutorily eligible respondent merely because he is held in confinement. A 

respondent with the right to apply for such relief must be given the reasonable opportuniity to meet his burden of establishing that relief should he granted as a matter of 

dtseretion. See Matter of M—, 71. & N. Dec. 368 (BIA 1956). 

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Interim Decision #2666 . 

laxly when the inception of residence occurred 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 business 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 (e.g., affidavits from family, friends, and responsible 

community representatives). See Matter of Edwards, supra; Matter of 

G—A—, 7 I. & N. Dec. 274 (BIA 1956); Matter of F—, 6 I. & N. Dec. 

537 (BIA 1955); Matter of S —, 6 I. & N. Dec. 392 (BIA 1954; A.G. 1955); 

Matter of M— , 5 I. & N. Dec. 598 (BIA 1954); Matter of G— Y—G--, 4 I. 

& N. Dec. 211 (BIA 1950; Act'g A.G. 1951) (seventh proviso); Matter of 

M—, 3 I. & N. Dec. 804 (BIA 1949) (seventh proviso); Matter of V—I— , 

3 I. & N. Dec. 571 (BIA 1949) (seventh proviso); Matter of L—, supra; 

Matter of V—, supra; Matter of G—, supra. 

Upon review of the record as a whole, the immigration judge is 

required to balance the positive and adverse matters to determine 

whether discretion should be favorably exercised. The basis for the 

immigration judge's decision must be enunciated in his opinion. In some 

cases, the minimum equities inherent in eligibility for section 212(c) 

relief (i.e., residence of at least seven years and status as a lawful 

permanent resident) may be sufficient in and of themselves to warrant 

favorable discretionary action. No general standard has been adopted 

that applications for such relief should ordinarily be granted in the 

absence of unfavorable factors, however, as an application for section 

212(c) relief of necessity carries with it at least one adverse consideration (the ground of exclusion sought waived). Compare Matter of Arai, 

supra (involving standards for discretionary review of application for 

adjustment of status under section 245 of the Act). See also Matter of 

alas, Interim Decision 2485 (BIA 1974; A.G. 1976). 

The equities that an applicant for section 212(c) relief must bring 

forward to establish that favorable discretionary action is warranted 

will depend in each case on the nature and circumstances of the ground 

of exclusion sought waived and on the presence of any additional adv erse matters. As the negative factors grow more serious, it becomes 

incumbent upon the applicant to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or 

outstanding equities. Such a showing at times may be required solely by 

virtue of the circumstances and nature of the exclusion ground sought 

waived. 

The standards provided in this area have of necessity been general in 

n ature. The framework for the desired equitable availability of discretionary relief under section 212(c), however, is furnished by the enunciation of factors deemed relevant to the decision-mating process, the 

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Interim Decision #2666 

requirement that the immigration judge specify the basis for any discretionary decision reached, and the presence of this Board to review any 

such decision on appeal. 

It is within this context that the respondent submits that the immigration judge when exercising his discretion made a "radical departure" 

from the precedent decisions of the Board. We find no such departure, 

"radical" or otherwise. The immigration judge reviewed the record as a 

whole after providing the respondent the complete opportunity to introduce offsetting equitable matters in his behalf. Based on the nature of 

the adverse matters of record, the immigration judge concluded that 

favorable discretionary action should be withheld absent a showing of 

"unusual" or "outstanding" equities. Matter of Arai, supra, was cited in 

this regard. We agree that such a requirement was proper in view of 

both the nature of the criminal offense at issue here ', its recency, and 

the significant period (some 30 months) for which the respondent was 

confined. 

The respondent objects to the immigration judge's citation to Matter 

of Arai, supra. As a general rule it is prudent to avoid cross-application, 

as between different types of relief from deportation, of particular 

principles or standards for the exercise of discretion. In the present 

ease, however, the reference to Arai concerned only the general approach stated there (i.e., the balancing of favorable and unfavorable 

factors within the context of the relief sought). This may be applied to 

any case involving the exercise of discretion. 

Appellate counsel states that the Arai standards require a showing of 

"unusual" or "outstanding" equities in every section 245 case in which 

adverse factors appear. An adverse matter will be present in every 

section 212(c) application. It is, therefore, submitted that if the Arai 

standards are adapted in section 212(e) cases, the existence of the single 

urifavorable matter inherent in such cases would improperly become the 

"trigger for a showing by the applicant of a higher order of equities 

• - ." This requirement, it is argued, would be "inconsistent with the 

ameliorative purpose of the statute." 

The problem with this analysis, however, lies in a mistaken reading of 

Afatter of Arai, supra. The decision in Arai did not mandate a showing 

of extraordinary equities in every case in which adverse matters appear. It merely indicated that dependent upon the nature of the adverse 

Clear distinctions arise in the Act in the treatment of aliens convicted of drug offenses 

ark d those convicted of other crimes. Compare sections 241(a)(4) and 241(a)(11). Also see 

se etion 241(h)• Crwart Chow Tok v. INS, 538 F.2d 36 (2 Cir. 1976); Oliver v. INS, 517 F.2d 

426 (2 Cir. 1975). In view of this disparate statutory treatment and the disfavor with 

rihich we view such offenses, we require a showing of unusual or outstanding countervail1113g equities by applicants for discretionary relief who have been convicted of serious drug 

°frames, particularly those involving the trafficking or sale of drugs. 

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Interim Decision #2666 

matters of record, such a showing might be required. This is equally 

true in the context of a section 212(c) application. The immigration 

judge was not mistaken in this regard as he clearly based his requirement for a showing of "unusual" or "outstanding" countervailing 

equities on the nature of the unfavorable matters in the record before 

him, rather than on the mere fact that adverse factors were present. 

We, therefore, find no error in the immigration judge's reference to 

Matter of Arai, supra. 

We further agree that the equities presented by respondent did not 

sufficiently offset the adverse matters of record. The respondent states 

that the factors deemed relevant by the immigration judge were in large 

part impermissible. In this regard, it is submitted that the immigration 

judge improperly deemed the respondent's absence of close family ties 

to this country to be an "adverse" matter. 

A respondent, however, bears the burden of demonstrating that 

discretionary relief should be exercised in his behalf. Thus, while the 

absence of a particular favorable matter (e.g., close family ties) is not an 

"adverse" factor, it will of necessity make it more difficult for a respon-

, dent to successfully establish that he warrants the relief sought. Here, 

it is clear from the immigration judge's decision that he did not treat the 

respondent's familial status as a negative factor requiring a showing of 

countervailing equities. He merely noted the absence of family ties in 

Lhe context of the respondent's failure to allow sufficient equities to 

offset the specified adverse matters. 

We find no merit to the challenge to the other considerations cited by 

the immigration judge in reaching his decision on the exercise of discretion (e.g., the presence of a brother and sister in Colombia; the absence 

of a showing of unusual "hardships" if deported) for the same reasons 

noted above. Each factor cited was relevant to the issue of whether 

discretion should be favorably exercised, and each was considered by 

the immigration judge in the context of finding that the respondent had 

failed to come forward with sufficient equities to offset the significant 

unfavorable evidence. 

As an additional, but related, basis of appeal, the respondent submits 

that new standards must be adopted with specific regard to the treatment of applications for section 212(c) relief filed by imprisoned aliens_ 

It is stated that the Board has required applicants with a criminal 

record to demonstrate a "positive rehabilitation" before discretionary 

relief will be granted. The respondent submits that we have tied this 

showing of rehabilitation exclusively to time-based factors (i.e., the 

recency of the offense or fact of present confinement). The result, it is 

argued, is that a District Director by merely electing to issue an Order 

to Show Cause while an alien is confined can effectively preclude any 

successful application by that respondent for section 212(c) relief. This 

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Interim Decision #2666 

leads the respondent to the "inescapable conclusion" that under the 

Board's present standards the prosecution of incarcerated aliens is 

"selective," "impermissible," and clearly at variance with the due process and equal protection clauses of the United States Constitution. It is 

urged that the remedy to this perceived constitutional defect is either 

for the Board to adopt revised standards which would permit an incarcerated alien to demonstrate his "entitlement to relief without regard to 

the fact that he is currently confined" and without use of a "time-based 

measure . . : of reformation" or for the Board to "forbid the commencement of proceedings altogether [against incarcerated aliens] until [they 

have] been permitted a sufficient period [to demonstrate their] reformation." 

We find no merit to this ground of appeal. It is true that applicants for 

section 212(c) relief who have criminal records will ordinarily be required to make a showing of rehabilitation. It is also true that this Board 

has found both the fact of confinement and the recency of the offense to 

be relevant to the question of whether rehabilitation has been established. However, although those factors may ultimately in given cases 

be determinative of the issue, we have never adopted a "conclusive" 

time-based standard of reformation that creates an irrebuttable presumption that a confined alien can never establish either that he is 

rehabilitated or that relief should otherwise be granted. 5 

Confined aliens and those who have recently cumulated eihninal acts 

Nvill have a more difficult task in showing that discretionary relief should 

be exercised in their behalf than aliens who have committed the same 

offenses in the more distant past. Dependent upon the nature of the 

offense and the circumstances of confinement, it may well be that a 

confined respondent will not be able to demonstrate rehabilitation. This 

does not mean, however, that different and constitutionally defective 

standards are applied to aliens, depending on whether they are recent 

criminals, in confinement, or released ex-offenders. The same test for 

the exercise of discretion is applied to each category of aliens. It is the 

factual circumstances that the alien finds himself in as a result of his own 

misconduct that results in the varying difficulty for successful application for discretionary relief. This fact does not mandate that standards 

be adopted which ignore considerations clearly relevant to the issue of 

a The cases cited by respondent in this regard, with one exception, merely found that 

the passage of time without further criminal activity was indicative of rehabilitation. See, 

For example, Matter of G—A—, supra.; Matter of —, supra. InMatter of Carrasco, supra. 

We found simply that on the facts there before us discretionary relief was appropriately 

denied the respondent in view of the recency of his conviction and the nature of his crime 

(importing 26 pounds of marihuana). None of the cases cited held that confined or recently 

convicted aliens could never establish that discretionary relief under section 212(c) wao 

warranted. 

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Interim Decision #2666 

rehabilitation and the exercise of discretion. Nor does it compel a 

District Director to withhold instituting proceedings in cases where an 

alien is either recently convicted or still confined in order to give the 

alien a better opportunity to demonstrate his rehabilitation. See section 

242(h) of the Act, 8 U.S.C. 1252(h). 

In any case involving discretionary relief, the timing of the issuance of 

the Order to Show Cause can have a significant effect on either statutory eligibility for the relief sought or on the circumstances relevant to 

the exercise of discretion. That fact alone, however, does not render a 

District Director's decision to institute proceedings suspect. The respondent cites Lennon, v. United States, 387 F. Supp. 561 (S.D. N.Y. 

1975) (involving an allegation that deportation proceedings were instituted against an alien solely because of his lawful exercise of constitutional rights). We find no allegation or evidence, however, of an abuse of 

discretion of the nature at issue in Lennon. 6 

We finally note in this regard that the decision to institute deportation 

proceedings is vested hi the discretion of the District Director. 8 C.F.R. 

242.1(a). This Board is an administrative body of limited jurisdiction and 

is not the proper forum in which to seek review of the rationale underlying a District Director's decision to issue an Order to Show Cause. 

Matter of Lennon,, Interim Decision 2304 (BIA 1974), rev'd on other 

grounds, Lennon v. INS, 527 F.2d 187 (2 Cir. 1975); Matter of 

Gcroninzo, 13 I. & N. Dec. 680 (BIA 1971). 

Upon review of the record, we conclude that the immigration judge's 

decision is supported by both law and fact. We find no merit to the 

arguments advanced on appeal by the respondent. The appeal will 

accordingly be dismissed. 

ORDER: The appeal is dismissed. 

° The respondent notes that the New York and Buffalo districts of the Service and the 

New York State Department of Correctional Services (D.O.C.S.) have entered into an 

agreement by which each will cooperate to locate the expeditiously determine the immigration status of aliens incarcerated in the New York State Correctional System. Respondent concedes that the agreement not only is of benefit to the Service and the D.O.C.S., 

but also is of benefit in several ways to the alien. We find nothing arising from this 

agreement that eitimi indicates or implies a. District Director's abdication of discretion or 

abase thereof. 

589