IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 _____________________

No. 94-40108

 _____________________

JOSE LUIS RODRIGUEZ-GUTIERREZ,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

_______________________________________________________

Petition For Review of an Order of the

Immigration and Naturalization Service

_______________________________________________________

(February 1, 1995)

Before REAVLEY, DUHÉ and PARKER, Circuit Judges.

REAVLEY, Circuit Judge:

Jose Luis Rodriguez-Gutierrez was charged with deportability

under 8 U.S.C. §1251 (a)(1)(B) (Supp. 1994). The Immigration

Judge ("IJ") determined that Rodriguez was deportable. The IJ

denied Rodriguez's applications for suspension of deportation and

adjustment of status, but granted voluntary departure. Rodriguez

appealed the denial of suspension of deportation to the Board of

Immigration Appeals (the "BIA"). He also moved to reopen

deportation proceedings with respect to the adjustment of status

application. The BIA dismissed the appeal and denied the motion
 

* Rodriguez was also convicted by a federal court of

illegally transporting undocumented aliens, but the conviction

was later set aside because of his youth at the time of the

offense and his subsequent good behavior. 

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to reopen. Rodriguez appeals. We reverse and remand for

proceedings consistent with this opinion. 

BACKGROUND

Rodriguez was caught with undocumented aliens in his car

near the border in 1982. At the time he had legal immigration

status in the United States. He gave the INS agent a false name

and birthdate, because he did not want them to know his true

identity or immigration status. He also allegedly told him that

he had recently entered the country by swimming across the river. 

At his deportation hearing, Rodriguez testified that he had lied

to the Immigration officers because he was afraid. He testified

that he did not swim across the river, but instead entered

legally. The Immigration Judge found that this testimony lacked

credibility and that he entered the country illegally. The IJ

determined that he was deportable.* 

Rodriguez applied for suspension of deportation under 8

U.S.C. §1254(a)(1)(1970). The IJ found that Rodriguez was not

eligible for suspension of deportation because he interrupted his

seven years of continuous residency in the U.S. (a prerequisite

for suspension of deportation) by leaving the U.S. on several

occasions while his deportation proceedings were pending. On

appeal, the Board of Immigration Appeals (the "BIA") upheld the

denial of application for suspension, but on different grounds. 
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The BIA called into doubt the IJ's finding regarding continuous

residency in light of a Fifth Circuit case, which overruled a BIA

case relied on by the IJ in his findings regarding continuous

residency. The BIA upheld the IJ's determination, however,

because it concluded that the immigrant was not a person of good

moral character (another prerequisite for suspension of

deportation), because he gave "false testimony" at his

deportation hearing. 

Rodriguez also applied for an adjustment of status, but the

IJ found that he lacked one of the prerequisites for adjustment

of status -- a current visa application. He moved to reopen the

case for adjustment of status at the time of his appeal to the

BIA, because his wife had applied for a visa for him before that

appeal was addressed. The BIA did not address whether Rodriguez

met the requirements for adjustment of status, but instead

refused to exercise its discretion to reopen the case to address

his request for an adjustment of status. 

Rodriguez appeals both the suspension of deportation

determination and the BIA's refusal to reopen his case for

adjustment of status. 

DISCUSSION

A. Suspension of Deportation

The Attorney General may, in her discretion, suspend

deportation and adjust the status to that of an alien lawfully

admitted for permanent residence in the case of an alien who has

been found to be deportable and 1) has been physically present in
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the U.S. for a continuous period of not less than seven years

immediately preceding the date of the application for relief; 2)

establishes the he is a person of good moral character during

that period of time; and 3) is a person whose deportation would,

in the opinion of the Attorney General, result in extreme

hardship to the alien or to the alien's spouse, parent, or child,

who is a citizen of the U.S. or an alien lawfully admitted for

permanent residence. 8 U.S.C.§1254(a)(1). 

1. Continuous Presence

If an immigrant's absence from the U.S. was brief, casual

and innocent, it may not interrupt an immigrant's continuous

physical presence in this country. 8 U.S.C. 1254(b)(2)(Supp.

1994). If the departure involved criminal intent, continuous

residency is interrupted. Laredo-Miranda v. INS, 555 F.2d 1242,

1245-46 (5th Cir. 1977). The IJ found that Rodriguez's departure

in 1982 did not break his continuous presence because, even

though he was found deportable for having entered without

inspection and convicted of transporting aliens, he was not

convicted for aiding and abetting an entry, and therefore, lacked

the necessary criminal intent to constitute a meaningful

interruptive entry. He concluded, however, that subsequent trips

to Mexico did constitute interruption, because under Matter of

Becerrra-Miranda, 12 I & N Dec. 358 (BIA 1967), an alien who

departed during the pendency of deportation proceedings had

interrupted his permanent residence in the U.S. 
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The BIA noted that this conclusion was incorrect in light of

subsequent Fifth Circuit case law. We agree. The Fifth Circuit

rejected Matter of Becerra-Miranda and held that a more

subjective inquiry must be made before an alien's departure can

be held to have interrupted his status. Molina v. Sewell, 983

F.2d 676, 679-80 (5th Cir. 1993). According to Molina, the IJ

must look to the 1) length of time the alien is absent; 2) the

purpose of the visit; and 3) whether travel documents were

required. Id. at 680. The IJ concluded that, if Matter of

Becerra-Miranda's objective test did not bar a finding of

continuous presence, Rodriguez's departures would be considered

brief, casual and innocent under the subjective test. Indeed,

the record shows that each departure was for a very short period

of time, one or two days, and travel documents were not required. 

The purpose of the first visit was a brief visit with family

friends; the purpose of the second was to assist a family member

in distress; and the purpose of the third was to find witnesses

for his deportation hearing. 

2. Good Moral Character

The BIA did not disturb the IJ's refusal to suspend

deportation in this case, because it held that even if Rodriguez

met the continuous presence requirement, he did not meet the good

moral character requirement for suspension of deportation. Title

8 provides that no person shall be found to be a person of good

moral character who, during the time for which good moral

character is required to be established is or was "one who has
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given false testimony for the purpose of obtaining any benefits

under this chapter." 8 U.S.C.§1101(f)(6). 

The IJ found that Rodriguez was deportable, because he

entered the country illegally. In doing so, the IJ decided that

Rodriguez's testimony at his deportation hearing lacked

credibility. The BIA concluded that the IJ's determination that

Rodriguez's testimony lacked credibility was tantamount to a

finding that Rodriguez was not a person of good moral character

because he gave false testimony at the hearing. 

A finding that testimony lacked credibility does not alone

justify the conclusion that false testimony has been given. 

False testimony means knowingly giving false information with an

intent to deceive. A lack of credibility does not necessarily

stem from a conclusion that the speaker intends to deceive. As a

California district court stated, to assume that "a witness whose

testimony is not accepted by the trier of fact is a perjurer and

not a person of good moral character . . . is not only legally

invalid, but is contrary to the basic sense of fairness upon

which our legal system is founded." Acosta v. Landon, 125

F.Supp. 434, 441 (S.D. Cal. 1954). 

The BIA incorrectly concluded that Rodriguez was not a

person of good moral character, because it erroneously held that

a finding that testimony lacks credibility is the equivalent to a

finding that the witnesses has given false testimony. The IJ

discussed the effect of Rodriguez's conviction for transporting

aliens on a finding of good moral character and, in doing so,
 

** As the BIA noted in its opinion, "[w]hen the Board

determines that reopening is not warranted in the exercise of

discretion, the question of statutory eligibility for the

requested relief need not be considered." BIA Opinion at 6

(citing INS v. Bagamasbad, 97 S.Ct. 200, 201 (1976)). 

7

found that Rodriguez did have good moral character. In addition,

in granting voluntary departure, the IJ made an implicit finding

of good moral character. See 8 U.S.C. §1254(e)(providing that

good moral character is a prerequisite for a grant of voluntary

departure). This record supports this conclusion.

B. Denial of Motion to Reopen To Apply for Adjustment of Status

The status of an alien may be adjusted by the Attorney

General, in her discretion, if certain conditions are met. 

Rodriguez applied for adjustment of status at his deportation

hearing. The IJ found that Rodriguez could not be granted an

adjustment of status, because he did not meet the requirement

that "an immigrant visa [be] immediately available to him at the

time the application is filed." After the hearing and before his

appeal was decided, Rodriguez filed a motion to reopen with the

BIA because his wife had successfully filed a visa petition

during that time period. The Board did not find that Rodriguez

was not eligible for an adjustment of status, but instead

concluded that he did not warrant a favorable exercise of

discretion.** 

The BIA found that Rodriguez: 1) entered into the U.S.

without inspection in 1982 despite the fact that he was a lawful

permanent resident; 2) admitted that he gave a false name and

birth date to border patrol agents at the time of his arrest; 3)
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lied to the immigration officials about his name because he was

caught transporting aliens in his car; 4) attempted to cover-up

his behavior by giving false testimony at his hearing; and 5)

failed to give testimony in support of "false statements" in his

affidavit that border patrol agents coerced his statement by use

of a gun and physical intimidation. All of which "show[ed] a

blatant disrespect for the immigration laws of this country." 

The Board's denial of a motion to reopen is reviewed for

abuse of discretion. INS v. Doherty, 112 S.Ct. 719, 724 (1992). 

An abuse of discretion has occurred if the Board improperly

characterizes the misconduct of the alien and gives little weight

to the favorable factors for the purpose of discretionary

reopening. See Diaz-Resendez v. INS., 960 F.2d 493, 495 (5th

Cir. 1992)(holding that a decision by the Board may be found

arbitrary if the Board fails to address meaningfully all material

factors); Ng v. INS, 804 F.2d 534, 538 (9th Cir. 1986)(holding

that BIA is required to "show proper consideration of all factors

when weighing equities and denying . . . relief.").

All of the factors pointed to by the BIA as those supporting

a denial of relief in this case stem from Rodriguez's actions

taken in response to his arrest in 1983 for transporting illegal

aliens. Rodriguez was 26 years old at the time of this incident. 

Since that time a federal court has set aside the criminal

conviction for this offense because of a recognition that the

defendant's age at the time of the incident and his subsequent

admirable record indicated that Rodriguez deserved clemency. The
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BIA also again focused on Rodriguez's "false statements" at his

hearing. The trier of fact at his hearing, the IJ, weighed the

evidence before him and concluded that Rodriguez entered the

country illegally. In doing so, he did not brand Rodriguez a

liar. Indeed, the IJ went on to find, despite his credibility

assessment, that Rodriguez was a person of good moral character.

The BIA gave only cursory acknowledgment to the positive

factors supporting a grant of relief in this case. Rodriguez has

lived in this country for sixteen years (since he was 19 years

old). He has been married to a United States citizen for

fourteen years and is a father to six children (fathered five),

all of whom are fully dependent on him, live at home, and are

United States citizens. His mother-in-law, a widow who lives

with a disabled daughter, relies on Rodriguez for assistance. 

One of his son's is an "at risk" patient, requiring specialized

medical care. "Generally, favorable factors such as family ties,

hardship, length of residence in the United States, etc., will be

considered as countervailing factors meriting favorable exercise

of administrative discretion." Matter of Arai, 13 I. & N. Dec.

494, 496 (BIA 1970). The immigrant's status as an immediate

relative is a "special and weighty equity." Matter of Ibrahim,

18 I. & N. Dec. 55, 57-58 (BIA 1981). 

Rodriguez has a stable employment record and pays a mortgage

on his home. He is an active member of his church and

participates in community activities in a positive way. He was

terminated early from probation because of his "excellent
10

adjustment to supervision" and the "probation officer's prognosis

that Mr. Rodriguez would remain violation free." This

determination entitled him to a dismissal of his conviction. He

has indeed remained violation free. He has also expressed

remorse for lying to patrol agents and transporting the aliens. 

The record contains numerous affidavits and letters in support of

his petition. 

Rodriguez has no family in Mexico. His mother, brothers,

stepbrother, sister, and stepsister, all of whom are U.S.

citizens or lawful permanent residents, live in the United

States. Deportation would clearly cause great hardship to his

wife and family due to separation. It would also cause great

economic hardship to his family. It is unlikely that he could

find employment in Mexico which would allow him to pay his

mortgage or support his family. As a result, his family, all

American citizens, would probably become dependant on the

American Government for financial assistance as welfare

recipients. Therefore, deportation in this case would also cause

hardship on the Government.

The BIA abused its discretion by not meaningfully addressing

the positive equities in this case and by improperly

characterizing the negative equities in this case. 
 

*** The Government argues that on remand the BIA must still

refuse to grant an adjustment of status because Rodriguez is

excludable under 8 U.S.C. §1182(a)(6)(E). This issue is not

relevant to this appeal, since the BIA did not address

Rodriguez's statutory eligibility for adjustment of status, but

instead made a purely discretionary decision to deny the request

to reopen the case. We note, however, that the Government

misapplies section 1182. This provision states that an alien who

has knowingly encouraged, induced, assisted, abetted, or aided

any other alien to enter or try to enter the United States in

violation of law is excludable. As the IJ in this case noted,

Rodriguez was convicted for transporting illegal aliens rather

than for aiding and abetting an entry. Therefore, he is not

excludable under section 1182(a)(6)(E). The Government has also 

previously argued that Rodriguez is not eligible for an

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CONCLUSION

The record demonstrates that Rodriguez meets the

requirements for a suspension of deportation. Subsequent case

law has shown that the IJ's determination with respect to the

continuous presence requirement was legally incorrect. The IJ

stated in his opinion that absent considerations regarding the

pending deportation proceedings, Rodriguez's absences from the

country were brief, casual and innocent and would not disrupt a

continuous presence finding. The IJ also found that Rodriguez

was a man of good moral character. The BIA's basis for finding

to the contrary was not legally valid. The IJ also concluded

that deportation would result in extreme hardship to Rodriguez's

wife and family. The record supports this conclusion. We

reverse the BIA's dismissal of Rodriguez's appeal concerning his

application for a suspension of deportation and remand for

proceedings consistent with this opinion. 

We also reverse the BIA's denial of Rodriguez's motion to

reopen.*** Our determination that the BIA abused its discretion
adjustment of status because he entered the country without

inspection. The provision for adjustment of status has recently

been amended, however, to allow those with an entry without

inspection to apply for an adjustment of status while still in

the United States. See 8 U.S.C. §1255(i), added by Pub. L. No.

103-317, §506(c) (1994).

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in improperly weighing the equities in addressing Rodriguez's

request to reopen for an adjustment of status does not mean that

Rodriguez should, as a matter of law, receive an adjustment of

status. We hold merely that, in exercising its discretion to

grant or deny the motion to reopen for an adjustment of status,

the BIA must balance all of the equities in a meaningful way. We

trust that on remand they will do so and their determination of

the issue will be an equitable one. 

REVERSED AND REMANDED.