Interim Decision #3172 

MATTER OF COELHO 

In Deportation Proceedings 

A-18024357 

Decided by Board April 30, 1992 

(1) The Board of Immigration Appeals may deny a motion to remand or motion to 

reopen proceedings where a prima facie case for the relief sought has not been 

established or in the absence of previously unavailable, material evidence or where the 

ultimate relief is discretionary, if the relief would not be granted in the exercise of 

discretion. 

(2) A party who seeks a remand or to reopen proceedings to pursue relief bears a "heavy 

burden" of proving that if proceedings before the immigration judge were reopened, 

with all the attendant delays, the new evidence would likely change the result in the 

case. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(1 I) [8 U.S.C. § 1251(a)(11)]—Convicted of controlled 

substance violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Joseph F. O'Neil, Esquire Richard Neville 

120 Lincoln Street General Attorney 

Boston, Massachusetts 02111-2580 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated October 30, 1989, the immigration judge found 

the respondent deportable under section 241(a)(11) of the Immigration 

and Nationality Act, 8 U.S.C. § 1251(a)(11) (1988), as an alien 

convicted of a controlled substance violation.' The immigration judge 

further denied the respondent's application for a waiver under section 

212(c) of the Act, 8 U.S.C. § 1182(c) (1988), and ordered his 

deportation to Portugal. The respondent appealed from that decision 

and requested oral argument. The request was granted on May 7, 1991, 

This provision has been revised and redesignated as section 241(a)(2)(B) of the Act, 8 

U.S.C. § 1251(a)(2)(B) (Supp. 11 1990), by section 602(a) of the Immigration Act of 

1990, Pub. L. No. 101-649, 104 Stat. 4978, 5080, but that amendment does not apply to 

deportation proceedings for which notice has been provided to the alien before March 1, 

1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082. 

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Interim Decision #3172 

but was later waived by the respondent through counsel. The 

respondent submitted a brief to the Board and then subsequently filed 

a motion to remand for additional proceedings. The Board received no 

brief or response from the Immigration and Naturalization Service. 

The motion to remand will be denied and the appeal will be dismissed. 

The respondent, a 36-year-old native and citizen of Portugal, 

entered the United States as a lawful permanent resident on August 16, 

1968. The record reflects that the respondent was convicted on August 

28, 1986, in the United States District Court for the District of 

Massachusetts, of knowingly and intentionally conspiring with others 

to possess with the intent to distribute cocaine, and of knowingly and 

intentionally possessing with the intent to distribute quantities of 

cocaine in violation of 18 U.S.C. § 2 (1982) and 21 U.S.C. 

§§ 841(a)(1) and 846 (1982). The respondent was sentenced to 3 years' 

confinement, given a special parole term of 3 years, and ordered to pay 

a special assessment of $150. On August 31, 1988, the Service issued 

an Order to Show Cause, Notice of Hearing, and. Warrant for Arrest of 

Alien (Form 1-221S), charging that the respondent was deportable for 

having been convicted of a law relating to a controlled substance. 

At his deportation hearing, the respondent admitted to the truth of 

the allegations contained in the Order to Show Cause and conceded his 

deportability. The respondent then applied for a waiver of inadmissibility under section 212(c) of the Act. In support of his request for 

relief, the respondent submitted his application, his written statement, 

and a letter from his pastor. During the deportation hearing, the 

respondent offered his testimony and the testimony of his brother and 

a friend to support his request for relief. In an effort to show that he 

merited a favorable exercise of discretion, the respondent primarily 

relied upon his arrival in the United States in 1968 when he was 13 

years old, his continued residence in this country since that time, and 

the fact that he is the father of two United States citizen children who 

would suffer hardship if the respondent is deported. 

The immigration judge first noted that the respondent appeared to 

he statutorily eligible for a waiver of inadmissibility. Then the 

immigration judge evaluated the favorable factors presented by the 

respondent, including his 23 years of residence in the United States; 

his two United States citizen children; the residence of eight of his nine 

siblings in either the United States or Canada; and his elderly mother's 

residence in this country with the respondent. 2The immigration judge 

considered the respondent's prior employment history as a fisherman, 

noting that the respondent is out to sea for up to 14 days, then returns 

2The record does not contain any information regarding the immigration status of the 

respondent's mother. 

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Interim Decision #3172 

to port for a few days until he is able to obtain employment on another 

fishing vessel. 

The immigration judge contrasted these factors with the respondent's crime. According to the immigration judge, the respondent 

testified that he never sold large quantities of cocaine. The immigration judge compared this testimony to the respondent's account of his 

arrest, in which he stated that he had about 2 pounds of cocaine. The 

immigration judge noted the respondent's testimony that he intended 

to sell the cocaine for $50,000 and realize a profit of $5,000 for his 

participation in the scheme. The immigration judge further considered 

that the record reflected that the respondent had been using and selling 

cocaine for at least several months prior to his arrest. After weighing 

these factors, the immigration judge concluded that the serious nature 

of the respondent's conviction and criminal involvement outweighed 

the favorable factors of record. He further determined that the 

respondent did not show that a grant of relief was warranted in the 

exercise of discretion, so he denied the respondent's request for a 

waiver of inadmissibility. 

On appeal, the respondent, through present counsel, asserts that he 

met his burden of demonstrating that his application merited a 

favorable exercise of discretion. The respondent contends that the 

evidence of his family ties within the United States, his residence of 

long duration in this country since a young age, hardship to himself 

and his family once his deportation occurs, employment history, value 

to the community, rehabilitation, good character, lifestyle, behavior 

while in prison, and his demeanor all support a favorable exercise of 

discretion. The respondent believes that he demonstrated unusual and 

outstanding equities and that it was an abuse of discretion for the 

immigration judge to deny him relief. We disagree and will dismiss the 

respondent's appeal. After reviewing the respondent's application for a 

waiver of inadmissibility, we will examine the respondent's motion to 

reopen the proceedings. 

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. Pursuant to our 

decision in Matter of Silva, 16 I&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); see also Matter of HernandezAAA 
Interim Decision #3172 

Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), Ord, 983 F.2d 231 

(5th Cir. 1993). 

Section 212(c) of the Act, however, does not provide an indiscriminate 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 I&N 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 (...ountry. 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. 

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, 633 (BIA 

1988); see also Matter of Marin, supra_ In addition, such a showing 
Interim Decision #3172 

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

succession of criminal acts which together establish a pattern of serious 

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. Id.; see also Matter of Morin, 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, we have noted in Matter 

of Edwards, 20 I&N Dec. 191 (BIA 1990), that a clear showing of 

reformation is not an absolute prerequisite to a favorable exercise of 

discretion in every case involving an alien with a criminal record. 

Rather, section 2 I 2(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. Id. 

Turning to an examination of the respondent's application for a 

waiver of inadmissibility, we note that his statutory eligibility for that 

relief has not been contested. In regard to the question whether relief is 

warranted as a matter of discretion, we note that we have reviewed the 

record on a de novo basis. Consequently, the respondent has not been 

prejudiced by any alleged error on the part of the immigration judge in 

failing to properly consider the factors in his case. See id. at 8. 

We find that the respondent's convictions for conspiracy to possess 

with the intent to distribute a quantity of cocaine and for possession of 

cocaine with the intent to distribute in August 1986, in addition to his 

admitted prior use and sales of cocaine, compel the respondent to 

show unusual or outstanding equities to warrant a grant of relief. See 

Matter of Buscemi, supra. 

In the respondent's favor, we consider most significant his familial 

ties in the United States and his more than 23 years of residence in this 

country, beginning when he was only 13 years old. The respondent is 

the father of two United States citizen children,- who at the time of the 

deportation hearing were 5 and 7 years of age. At the time of the 

deportation hearing, both children were living with the respondent's 

former spouse. The record reflects that both the respondent and his 

former spouse have joint custody over the children, and the respondent is not required to pay any support. The respondent testified that 

he nevertheless sends them between $75 and $300 per week depending 

on whether he has gone out fishing. 

A majority of the respondent's other family members reside in the 

United States. The respondent testified that at the time of his 

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Interim Decision #3172 

deportation proceedings, six of his siblings were living in the United 

States, while two were in Canada and only one was in Portugal. He 

stated that his father was deceased and that his mother, with whom he 

was currently living, was in the United States. The record reflects that 

the respondent and his mother reside in a three-family dwelling, 

owned and lived in by one of his sisters. At the time of the deportation 

hearing, the respondent's mother was 74 years old and was primarily 

supported by the respondent. The respondent has sustained intermittent employment since the age of 16 with the fishing industry. 

We find that the respondent's more than 23 years in the United 

States, beginning at age 13, and his familial circumstances are 

sufficient to show unusual or outstanding equities. Given the fact that 

most of his family is in this country, that he has two United States 

citizen children that he supports, and that he currently resides with 

and supports his mother, the respondent's equities, taken as a whole, 

rise to the level of unusual or outstanding. Our analysis, however, does 

not end here. The fact that an alien demonstrates the requisite unusual 

or outstanding equities does not mandate that discretion be exercised 

in his favor, rather, we must weigh the equities against the adverse 

factors. Matter of Edwards, supra, at 196. 

In regard to the adverse factors in the case, we note the seriousness 

Of the respondent's conviction for his two offenses. Both offenses 

involved cocaine possession with the intent to distribute. As indicated 

previously, the respondent was sentenced to confinement for 3 years, 

given a special parole term of 3 years, and ordered to pay $150. By the 

respondent's own admission, he intended to sell 2 pounds of cocaine 

when he was arrested. The respondent planned to reap and share in the 

$50,000 from the illicit drug transaction. 

We agree with the immigration judge's conclusion that even though 

the respondent denied any involvement in distributing large amounts 

of cocaine, the record reflects that he had been involved in cocaine 

trafficking for an extended period of time. The respondent testified 

that he first became involved with cocaine distribution when he was 25 

or 26 years old, which would mean that he participated in the 

distribution of cocaine from 1980 or 1981 until his conviction in 1986. 

The respondent also admitted that he used cocaine himself during this 

period of time. We find that this testimony and the fact that 2 pounds 

of cocaine were found on the respondent contradict his statement that 

he was not involved in the distribution of large quantities of drugs. 

Furthermore, we find that the respondent's testimony regarding his 

involvement was very evasive. 

When questioned by the Service on how he became involved with 

cocaine distribution, the respondent replied only, "It's like I said, you 

know, by friends." When the Service attempted to ask him exactly 
Interim Decision #3172 

what he did to distribute the cocaine, the respondent answered that he 

would deliver it to "some people." The Service also asked the 

respondent where he got the 2 pounds of cocaine, and the respondent 

answered that he received it from a friend. When asked the friend's 

identity, the respondent's reply was circumspect. He said, "I can't even 

think about his name now," even though he indicated that he had 

known this individual for 3 to 4 years. The Service then asked if there 

was anyone else involved in the conspiracy to sell the cocaine. This 

time, the respondent stated that he knew his accomplice's first name 

only, even though he had known him for 5 or 6 years. 

The respondent attempted to show that he had completed his 

rehabilitation. He testified that he had no other convictions, that he 

pleaded guilty to his offenses, and that he had complied with all the 

terms of his probation. Notwithstanding his testimony, we conclude 

that the respondent has not established rehabilitation. During his 

testimony at the deportation hearing, the respondent was unwilling to 

give straightforward answers in response to the Service's questioning. 

The respondent did not express any remorse and was unwilling to 

provide details regarding his cocaine transactions. For these reasons, 

we conclude that he did not prove rehabilitation. 

After evaluating the facts of this case, we find that a grant of relief is 

not warranted or in the best interests of this country. In reaching this 

conclusion, we have considered the respondent's outstanding equities 

and the serious adverse factors presented in this case, as well as our 

determination that he has not demonstrated either rehabilitation or 

other factors to merit a favorable exercise of discretion. While the 

respondent's deportation may well involve hardship to himself and 

certainly much unhappiness for his family, the responsibility for this 

result rests with the respondent alone. The record reflects that the 

respondent's mother lives in the same dwelling with his sister and was 

forced to five without his assistance during his incarceration. While the 

respondent's departure will cause his mother some hardship, it will not 

be unlike the hardship she endured while he was incarcerated. The 

respondent's sister will be able to provide support to her The 

respondent testified that he does still speak Portuguese and would be 

able to continue his employment as a fisherman in Portugal. Accordingly, the respondent's request for a waiver of inadmissibility is denied 

in the exercise of discretion. 

In addition to his appeal, the respondent has moved this Board to 

remand his case for further proceedings to submit additional information regarding his waiver application. The respondent, through 

counsel, contends that he can now show that he is completely 

rehabilitated. The respondent reasons that since he can now prove 

rehabilitation, he merits another opportunity to present additional 
Interim Decision #3172 

evidence for his waiver application. We will deny the respondent's 

request to remand for further proceedings. 

Motions to remand are not expressly addressed by the Act or the 

regulations. However, such motions are commonly addressed to the 

Board. See generally Gerald S. Hurwitz, Motions Practice Before the 

Board of Immigration Appeals, 20 San Diego L. Rev. 79 (1982). 

Motions to remand are an accepted part of appellate civil procedure 

and serve a useful function. See, e.g., 28 U.S.C. § 2106 (1988). 

Where a motion to remand simply articulates the remedy requested 

by an appeal, we treat it as part of the appeal and do not require it to 

conform to the standards for consideration of motions. However, 

where a motion to remand is really in the nature of a motion to reopen 

or a motion to reconsider, it must comply with the substantive 

requirements for such motions. The requirements for these motions 

are set forth at 8 C.F.R. .§§ 3.2 and 3.8 (1991). See also 8 C.F.R. 

§§ 103.5, 242.22 (1991). In this instance, the motion to remand is in 

the nature of a motion to reopen since the respondent requests 

additional proceedings to present evidence regarding his rehabilitation 

which was not available during the initial proceedings. 

The Supreme Court has recently revisited this Board's authority to 

deny a motion to reopen deportation proceedings. INS V. Doherty, 502 

U.S. 314 (1992). First, the Supreme Court reemphasized that there is 

no statutory provision for the reopening of a deportation proceeding 

and noted that the authority for such motions is derived solely from 

regulations promulgated by the Attorney General. Id.; see also INS v. 

Rios-Pineda, 471 U.S. 444, 446 (1985). Further, the regulation 

pertaining to motions to reopen, 8 C.F.R. § 3.2 (1991), is couched 

solely in negative terms. INS v. Doherty, supra, at 315? As the 

Supreme Court stated, the pertinent regulation "requires that under 

certain circumstances a motion to reopen be denied, but it does not 

specify the conditions under which it shall be granted." Id. In fact, the 

regulation does not specify any circumstances in which a motion to 

reopen must be granted. INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5 

(1981) (per curiam). Moreover, the regulations "plainly disfavor" 

motions to reopen. /RS v. Abudu, 485 U.S. 94, 110 (1988). 

The Supreme Court has also noted that the granting of a motion to 

reopen is discretionary and that the Attorney General has "broad 

discretion" to grant or deny such motions. INS v. Doherty, supra, at 

315; INS v. Rios-Pineda, supra, at 449; INS v. Phinpathya, 464 U.S. 

3The regulation provides in pertinent part as follows: "Motions to reopen in 

deportation proceedings shall not be granted unless it appears to the Board that evidence 

sought to be offered is material and was not available and could not have been 

discovered or presented at the former hearing ...." 8 C.F.R. § 3.2 (1991). 
Interim Decision #3172 

183, 188 n.6 (1984); see also INS v. Jong Ha Wang, supra, at 143 n.5. 

Further, a party seeking reopening bears a "heavy burden." INS v. 

Abudu, supra, at 110. In this regard, the Court has stated: "Motions for 

reopening of immigration proceedings are disfavored for the same 

reasons as are petitions for rehearing, and motions for a new trial on 

the basis of newly discovered evidence. This is especially true in a 

deportation proceeding where, as a general matter, every delay works 

to the advantage of the deportable alien who wishes merely to remain 

in the United States." INS v. Doherty, supra, at 315-16 (footnote 

omitted); see also INS v. Abudu, supra, at 107-08; INS v. Rios-Pineda, 

supra, at 450.4 

The Supreme Court has held that there are "at least" three 

independent grounds on which this Board might deny a motion to 

reopen. INS v. Doherty, supra, at 316; INS v. Abudu, supra, at 104-05. 

In the first instance, this Board may deny a motion to reopen based 

upon the failure to establish a prima facie case for the relief sought. 

INS v. Doherty, supra, at 316; see also INS v. Abudu, supra; INS v. Jong 

Ha Wang, supra; Yousif v. INS, 794 F.2d 236 (6th Cir. 1986); 

Bahramnia v. United States INS, 782 F.2d 1243 (5th Cir.), cert. denied, 

479 U.S. 30 (1986); Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989); 

Matter of Egbunine, 19 I&N Dec. 478 (BIA 1987); Matter of Tuakoi, 

19 I&N Dec. 341 (BIA 1985); Matter of Reyes, 18 I&N Dec. 249 (BIA 

1982); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), affd, 

692 F.2d 595 (9th Cir. 1982). Secondly, the Board must deny a motion 

to reopen in the absence of previously unavailable, material evidence. 

See 8 C.F.R. § 3.2 (1991). Thirdly, where the ultimate relief is 

discretionary, the Board may conclude that we would not grant the 

relief in the exercise of discretion; therefore, a moving party must 

show that he warrants the relief sought as a matter of discretion. INS v. 

Doherty, supra, at 316; Matter of Leon-Orosco and Rodriguez-Colas, 19 

I&N Dec. 136 (BIA 1983; A.G. 1984); Matter of Martinez-Romero, 

supra; Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979); see also 

4The Supreme Court has found the appropriate analogy in a criminal setting to be a 

motion for a new trial on the basis of newly discovered evidence. INS v. Doherty, supra; 

INS v. Abudu, supra. In such motions, the "'courts will indulge all presumptions in favor 

of the validity of a verdict."' Taylor v. Illinois, 484 U.S. 400, 414 n.18 (quoting Ragnar 

Benson, Inc. v. Kassab, 325 F.2d 591, 594 (3d Cir. 1963)); see also INS v. Abudu, supra, 

at 110. A motion for a new trial based on newly discovered evidence "'may not be 

granted unless the facts discovered are of such nature that they will probably change 

the result if a new trial is granted, ... they have been discovered since the trial and 

could not by the exercise of due diligence have been discovered earlier, and ... they are 

not merely cumulative or impeaching."' Taylor v. Illinois, supra, at 414 n.18 (quoting 

Lloyd v. Gill, 406 F.2d 585, 587 (5th Cir. 1969)). 
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INS v. Rios-Pineda, supra, at 449; Matter of Tuakoi, supra; Matter of 

Reyes, supra. 

In a case such as the present one, making a prima facie showing of 

eligibility for the underlying relief being sought is largely irrelevant, as 

the respondent has already established eligibility to be considered for 

relief under section 212(c) of the Act and has already been provided 

the opportunity to apply for such relief. Moreover, the issue is not 

simply whether there is "new" evidence as, in some respects, there 

arguably always will be additional evidence regarding a respondent's 

application for relief under section 2I2(c) of the Act, as the mere 

passage of time can be said to augment an applicant's equities. Rather, 

• in cases such as this, the Board ordinarily will not consider a 

discretionary grant of a motion to remand unless the moving party 

meets a "heavy burden" and presents evidence of such a nature that 

the Board is satisfied that if proceedings before the immigration judge 

were reopened, with all the attendant delays, the new evidence offered 

would likely change the result in the case. See INS v. Doherty, supra, at 

315-16; INS v. Abudu, supra, at 102-11. Stated another way, if we 

conclude that our decision on the appeal would be the same even if the 

proffered evidence were already part of the record on appeal, we will 

deny the motion to remand. 

In this case, the respondent's motion to remand is predicated on his 

assertion that he can now show that he has rehabilitated himself. 5The 

only actual new claims presented in the motion are that a pre-release 

investigation request submitted by the respondent indicated that there 

had been no adverse comments noted during the respondent's 

incarceration and no disciplinary action taken; that the respondent has 

continued to comply with the conditions of his parole; that the 

respondent paid a school bill for his two children; and that an 

acquaintance has offered support to the respondent_ We do not find 

that this proffered evidence warrants reopening of the proceedings 

before the immigration judge for a further evidentiary hearing. 

Contrary to the respondent's contention, the proffered evidence 

does not in our view "clearly establish" his rehabilitation. The 

respondent still has failed to adequately address either the severity of 

his criminal activity or his evasive testimony given at his deportation 

hearing involving his criminal complicity in the sale of cocaine. 

Moreover, even if the information provided by the respondent was 

5This Board received the respondent's motion to remand prior to our entry of a final 

administrative order of deportation. Accordingly, the respondent is still statutorily 

eligible for consideration of a waiver of inadmissibility. See Matter of Lok, 181&N Dec. 

101 (BIA 1981), affd on other grounds, 681 F.2d 107 (2d Cir. 1982); see also Matter of 

Cerna, 20 l&N Dec. 399 (BIA 1991), affd, 979 F.2d 212 (11th Cir. 1992). 

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Interim Decision #3172 

indicative of his rehabilitation and the evidence had already been a 

part of the record on appeal, that showing alone would not compel the 

favorable exercise of discretion. See Matter of Edwards, supra. The 

record reflects that the respondent has engaged in the use and sale of 

cocaine over a number of years. He freely engaged in the sale of 

cocaine to the point where he was arrested and convicted for 

possession of 2 pounds of cocaine, which he intended to sell for 

$50,000. The additional information proffered by the respondent is 

largely cumulative of the evidence already in the file. We do not find 

that the respondent has met the "heavy burden" required to satisfy us 

that reopened proceedings before the immigration judge are warranted. Had the information proffered by the respondent already been part 

of the record on appeal, the decision on appeal would be the same. 

Under such circumstances, the motion to remand will be denied. 

ORDER: The appeal is dismissed. 

FURTHER ORDER The motion to remand is denied. 

474