* District Judge of the Southern District of Mississippi, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 90–4792.

Benedictor DIAZ–RESENDEZ, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent.

May 12, 1992.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and WINGATE, * District Judge.

POLITZ, Chief Judge:

Benedictor Diaz–Resen dez pet itions for review of an order of the Board of Immigration

Appeals denying discretionary relief from deportati on under 8 U.S.C. § 1182(c). Concluding that the

Board's decision is arbitrary and beyond the pale of its discretion we grant review, vacate and remand.

Background

Diaz–Resendez was admitted to the United States as a lawful resident when he was 17 years

old. He has been in continuous lawful-resident status for 37 years, has been married to a United

States citizen for 29 years, and they are the parents of six children, all born in the United States. Two

of the children are adults and are married, living on their o wn in Roma, Texas where the family

resides. Four of the children still reside in the home, one of whom has special education needs as a

result of a head injury sustained in a bicycle accident. That child attends private night school. A

second child is attending public high school and the third is taking GED courses. The fourth child

is currently emp lo yed. Diaz–Resendez is the primary source of income for his family and has a

consistent history of employment. His earnings have averaged around $5000 a year from his various

work as a carpenter, construction worker, and field worker. The exception is one year in which his

earnings were only $375, a time when Diaz–Resendez was forced to apply for assistance in the form1 Section 212(c) of the Act, 8 U.S.C. § 1182(c), has been interpreted to provide for

discretionary relief from deportation for permanent resident aliens who have accrued more than

seven consecutive years of lawful, unrelinquished domicile in the United States. See e.g., Mantell

v. INS, 798 F.2d 124, 125 n. 2 (5th Cir.1986); Tapia–Acuna v. INS, 640 F.2d 223 (9th

Cir.1981); Francis v. INS, 532 F.2d 268 (2d Cir.1976). of food stamps. The health of this 54–year–old is reasonably good although he receives treatment

for a prostate problem. His wife, however, has a progressive and incurable medical condition causing

spinal column disintegration.

A disastrous event occurred in the life of Diaz–Resendez on October 28, 1985 when the INS

arrested him at a checkpoint and approximately 21 pounds of marihuana was found secreted in the

car he was driving. Diaz–Resendez pled guilty to possession of marihuana with intent to distribute.

He explained that he did this criminal act because of desperation caused by the economic straits he

had encountered and his inability to provide for his family, something he had done with pride all of

his married life. He was sentenced to imprisonment for three years followed by a special parole term

of five years. Of part icular note, and of substantial significance, the very experienced trial judge

suspended all but four months of the jail sentence. The only other brush with the law Diaz–Resendez

had during his 37 years of lawful permanent reside nce in t he United States was a DWI charge in

1983, immediately following which he quit drinking alcoholic beverages.

Deportation proceedings were triggered by the drug offense. Pleading that he would never

be involved in such conduct again, Diaz–Resendez conceded that he was deportable under 8 U.S.C.

§ 1251(a)(11), which calls for the deportati on of persons who violate our drug laws, but requested,

based on all of the relevant circumstances, that he be granted a waiver of deportati on under 8 U.S.C.

§ 1182(c). 1

A deportati on hearing was conducted by an Immigration Judge. Diaz–Resendez testified, as

did his wife who stated, inter alia, that she and the children would not move to Mexico and that the

deportati on of her husband wo uld result in a separation of their close-knit family. In addition,documentary evidence was introduced in an effort to buttress the claim that Di az–Resendez was

entitled to relief under section 212(c). That evidence included proof of employment and earnings,

a favo rable letter from the probation officer, and letters of recommendation urging favorable

consideration of his petition. The IJ denied relief and ordered depo rt at ion to Mexico.

Diaz–Resendez appealed to the Board which refused relief. He timely petitioned this court for review

of the Board's decision.

Standard of Review

A permanent resident alien requesting discretionary relief from deportation under sect io n

212(c) bears the burden of demonstrating that hi s application merits favorable consideration.

Blackw ood v. INS, 803 F.2d 1165 (11th Cir.1986). Neither the statute nor applicable regulation

contain provisions specifying the circumstances under which such discretion should be exercised. S ee

8 U.S.C. § 1182( c); 8 C.F.R. § 213.3 (1990). Typically, deference is given to the Board's

interpretation of the Act unless there are persuasive indicators that the Board erred. Z amora–Morel

v. INS, 905 F.2d 833, 838 n. 2 (5th Cir.1990).

The Board's denial of an applicant's petition for relief under section 212(c) is reviewed for

abuse of discretion. F

oti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); B al v. Moyer,

883 F.2d 45 (7th Cir.1989). Such denial will be upheld unless it is arbitrary, irrational, or contrary

to law. Zamora–Morel, 905 F.2d at 838; Blackw ood, 803 F.2d at 1168; Daniel v. INS, 528 F.2d

1278 (5th Cir.1976). When determining whether the Board's action was arbitrary, irrational, or not

in accordance with the law, we "engage in a substantial inquiry, ... a thorough, probing, in-dept h

review of [the] discretionary agency action." C itizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136, 153 (1971); A cadian Gas Pipeline System v.

FERC, 878 F.2d 865 (5th Cir.1989) (reviewing court does not rubberstamp agency decisions;

instead, review must be searching and careful).Under this standard, the Board's decision may be reversed as an abuse of discretion when it

is made without rational explana t io n, or inexplicably departs from established policies.

Martinez–Montoya v. INS, 904 F.2d 1018 (5th Cir.1990) (reversing Legalization Appeal Unit order

because a deferr ed adjudication under Texas law was not a "conviction" under BIA precedent);

Graphic Communications Int. Union, Local 554 v. Salem–Gravure Div. of World Color Press, Inc.,

843 F.2d 1490, 1493 (D.C.Cir.1988) c ert. denied sub nom. World Color Press, Inc. v. Dole, 489

U.S. 1011, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989) ("Agency decisions that depart from established

precedent without a reasoned explanation will be vacated as arbitrary and capricious."). Further, a

decision by the Board may be found arbitrary if the Board fails to address meaningfully all mat erial

factors extant. L uciano–Vincente v. INS, 786 F.2d 706 (5th Cir.1986) (the Board's failure to consider

a pertinent factor constitutes abuse of discretion); M attis v. INS, 774 F.2d 965 (9th Cir.1985) (BIA

discretionary denials must demonstrate that the BIA weighed both favorable and unfavorable factors)

(citing De La Luz v. INS, 713 F.2d 545 (9th Cir.1983)); Z amora–Garcia v. INS, 737 F.2d 488,

490–91 (5th Cir.1984) (INS must "actually consider" the facts, "meaningfully address" each claim of

hardship, and give "reasons for denying relief that reflect full consideration of the evidence.") (citing

Ramos v. INS, 695 F.2d 181 (5th Cir.1983)).

Findings of fact supporting the Board's exercise of discretion, however, are reviewed merely

to determine whether they are supported by substantial evidence. Z amora–Morel, 905 F.2d at 838

(citing Young v. INS, 759 F.2d 450, 455–56 n. 6 (5th Cir.), cert. denied, 474 U.S. 996, 106 S.Ct.

412, 88 L.Ed.2d 362 (1985)).

Applicable Law

In Matter of Marin, 16 I & N Dec. 581 (BIA 1978), the Board established a balancing test

for determining whether an alien seeking relief under section 212( c ) merits a favorable exercise of

discretion.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

.... Among the factors deemed adverse to a respondent's application have been the

nature and underlying circumstances of the exclusio n ground at issue, the presence of

additional significant violations of this country's immigration laws, the existence of a criminal

reco rd, 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 considerations have been found to include such factors as family t ies

within the United States, residence of long duration in t his country (particularly 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.

Id. at 584.

Th e Bo ard also explained that "[a]s the negative factors grow more serious, it becomes

incumbent upon the applicant to introduce additional offsetting favorable evidence, which in some

cases may involve unusual or outstanding equities." I d. at 585. Applicants for discretionary relief

who have been convicted of serious drug offenses must show "unusual or outstanding equities." I d.

at 586 n. 4; Matter of Edwards, Interim Decision 3134 (BIA May 2, 1990); Matter of Buscemi,

Interim Decision 3058 (April 13, 1988). Although it is not an absolute prerequisite, an applicant with

a criminal record will ordinarily be required to make a showing of rehabilitation before section 212(c)

relief will be granted.

Analysis

Diaz–Resendez contends that the Board erred in dismissing his appeal. His issues for review

reduce to four; specifically, the Bo ard: (1) incorrectly weighed his positive equities; (2) acted

inconsistently in finding that he failed to demonstrate unusual or outstanding equities; (3) failed to

consider relevant positive factors; and (4) erred in its factual finding that he failed to establish proof

of genuine rehabilitation.

Improper Weighing of the Equities2 It is also interesting to note that the two separate opinions in Edwards identified both 25 and

20 years of residency as ordinarily sufficient to constitute an outstanding equity. Edwards, at 13

(Morris, Board Member, concurring); at 15 (Heilman, Board Member, concurring and

dissenting). The Board found that Diaz–Resendez's equities, while substantial, did not rise to the level of

being unusual or outstanding. Diaz–Resendez argues that the Board improperly balanced the positive

and negative factors outlined in Marin. He asserts that Marin and its progeny require that the positive

and negative aspects of a case be separately evaluated—that a determination is to be made whether

the favorable equities rise to the level of unusual and outstanding prior to balancing them against the

negative fact ors. Diaz–Resendez argues that the Board erred because it counted the absence of

several positive factors as negative factors and subtracted them from th e positive factors before

determining that the remainder did not constitute unusual or outstanding equities.

Our review of the record convinces us that the Board did not properly weigh serious positive

equities, some of which are detailed above and some of which are discussed further herein.

Inconsistent Treatment of Similar Cases

Diaz–Resendez next contends that the Board acted arbitrarily by hol ding that he fai l ed to

demonstrate unusual or outstanding equities, although the Board had reached a contrary conclusion

on much weaker facts in Buscemi. In Buscemi the Board found that the alien had demonstrated

unusual or outstanding equities by the fact that his immediate family—parents and four siblings—all

resided in the United States, that he had helped to support the family financially (although they were

economically self-supporting without his contributions) and as a father figure, that he remained close

wit h his family who would suffer emotional hardship if he were deported, that he had resided in the

United States for 17 years and that such residence began at an early age, that he had a history of

gainful employment, and that he was forced to grow up under difficult circumstances. Buscemi was

a 26–year–old single man with no dependents. The Buscemi court considered Buscemi's 17 years of

residence in this country, beginning at the age of nine, to be a particularly outstanding equity. 2The equities in the case at bar readily exceed those in Buscemi. These include petitioner's age;

his 37 years in the United States; 29 years of marriage; the fathering of six citizen children, four of

whom still reside with him and three of whom, including one wit h a brain-damage injury, are fully

depend ent o n him; and a sick wife. The characterization in the letters of recommendation of

Diaz–Resendez as a "hardworking family man and provider" and his clear criminal record for 37 years

other than the sole DWI charge which ended his drinking of alcoholic beverages, factor heavily in the

equity-weighing equation.

The Board offered no explanation for disparate treatment of these two factually similar cases,

even though the dissenting membe r o f the panel noted, "in Matter of Buscemi, we found equities

inferior to those of [Diaz–Resendez] to be outstanding [citation omitted]." "The BIA acts arbitrarily

when it disregards its own precedents and policies without giving a reasonable explanation for doing

so." I srael v. INS, 785 F.2d 7 3 8, 740 (9th Cir.1986). S ee also, Martinez–Montoya, 904 F.2d at

1023; Graphic Communications, 843 F.2d at 1493.

Failure to Consider Positive Factors

Diaz–Resendez also contends that the Board failed to consider some of his favorable equities

when deciding whether his equities rose to the level of unusual or outstanding. He contends that the

Board overlooked factors including the imminent breakup of his marriage if he were deported, the

fact that his children would be left fatherless, and the severe economic hardship that the family would

incur.

The Board considered some but not all of the relevant factors. The Board must do more than

just refer to relevant factors in passing. We previously have held in the context of 8 U.S.C. §

1254(a)(1) discretionary deportati on cases, that the Attorney General or his delegates "must actually

consider "the facts and circumstances respecting each petitioner 's claim of extreme hardship.' "

Zamora–Garcia, 737 F.2d at 491 (citations omitted) (emphasis in original). Similarly, we have heldthat "[t]he Board's decision must reflect that it has meaningfully addressed and reached a reasoned

conclusion on the alien's specific assertions of hardship that are based on evidence." R amos v. INS,

695 F.2d 181, 188 (5th Cir.1983). Although the Board has no duty to write ext ensively on every

issue, the record herein does not reflect that the Board actually considered or meaningfully addressed

Diaz–Resendez' assertions of hardship.

Rehabilitation

W e find t hat the treatment accorded the issue of rehabilitation falls below the warranted

threshold. Although the Board's review covered some of the oversights by the IJ, the totality of

Diaz–Resendez' 54 years and his performance after his arrest are relevant. We are not convinced that

these were properly weighed. Apparently the Board inappropriately evaluated the matter because

it was "troubled ... that [Diaz–Resendez'] testimony did not contain direct statements of remorse."

We are of the view that remorse is demonstrated in many ways, some being more forceful than facile

words. Although the Board has "no duty to write an exegesis on every contention," O suchukwu v.

INS, 744 F.2d 1136, 1142 (5th Cir.1984), we are not convinced that it actually cons idered the

positive factors. Diaz–Resendez did not expressly state his remorse (he was never asked that direct

question), but he testified that he would not do it again. Further, the dissenting Board member noted

that the Board

fail[ed] to consider [Diaz–Resendez'] post-conviction behavior. At the time of the hearing,

the respondent had successfully completed nearly all of his 3 years of probation and had been

free of criminal activity during that period. Further, he submitted a letter from his probation

officer supporting his progress during probation. Moreover, the record reflects that this is

the respondent's only criminal offense, which was contrary to the rest of his lifestyle, as

evidence[d] by his family life and satisfactory record of employment.

We remain unpersuaded that the Board "actually consider[ed]" and "meaningfully addressed" all of

the factors regarding rehabilitation. Z amora–Garcia, 737 F.2d at 490–91. For that reason, we find

the Board's treatment of the issue of rehabilitation to be arbitrary and an abuse of discretion.

ConclusionThe Board abused its discretion by inexplicably departing from established precedent and

failing to actually consider and meaningfully addr ess t he positive equities and favorable evidence

when reaching its decision.

Diaz–Rese ndez committed a serious crime—possessing marihuana with the intent to

distribute. For this crime he was punished, serving time in jail and on probation. As a result of his

conviction he is also subject to deportati on, 8 U.S.C. § 1251(a)(11). Congress, however, has enacted

a remedial statute that grants a waiver of exclud abilit y t o a broad range of otherwise inadmissible

aliens, including those who have been convicted of crimes invo lving controlled substances, 8 U.S.C.

§ 1182(c). The IJ is t o "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." Marin, at

584.

Having reviewed the entire record in the context of the exist ing law, we conclude that the

petition of Diaz–Resendez for section 212(c) relief has not been accorded the treatment to which it

is entitled.

The petition for review is GRANTED; the decision of the Board is VACATED, and the

matter is REMANDED to the Board for reconsideration consistent herewith.