ARREGUIN

Interim Decision #3247


Interim Decision #3247



         In re Catalina ARREGUIN De Rodriguez, Applicant

                              File A35 507 157 - Dublin

                                 Decided May 11, 1995

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

(1) An alien who has committed a serious drug offense faces a difficult task in establishing that
  she merits discretionary relief; nevertheless, the applicant met her burden of demonstrating
  that relief under section 212(c) of the Immigration and Nationality Act, 

(c)
  (Supp. V 1993), was warranted where this was her only conviction, the sentencing court
  noted her acceptance of responsibility and “minor role” in the offense, there was substantial
  evidence of efforts toward rehabilitation, and the applicant presented unusual or outstanding
  equities, including nearly 20 years of lawful residence and two minor dependent United
  States citizen children.
(2) In considering the factors to be weighed in the exercise of discretion with regard to an
  application for relief under section 212(c) of the Act, evidence such as community ties,
  property and business holdings, or special service to the community are to be considered in
  the applicant’s favor; however, the absence of those additional ties in themselves does not
  negate the weight to be accorded an applicant’s long residence in this country.

Pro se

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Thomas L. Day, General
Attorney

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, Board
Member; HOLMES, Alternate Board Member. Dissenting Opinion: HEILMAN, Board
Member.

VACCA, Board Member:

   This is an appeal by the applicant from the decision of an Immigration
Judge denying her application for a waiver of inadmissibility under section
212(c) of the Immigration and Nationality Act, 

(c) (Supp. V
1993). The appeal will be sustained.

                           I. PROCEDURAL HISTORY
   The applicant is a 41-year-old native and citizen of Mexico. She began
residing in the United States in 1970, when she was 17 years old, and was

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admitted into the United States as an immigrant on December 12, 1975. On
September 29, 1993, the applicant was convicted in a United States District
Court of importing marijuana in violation of 

(a) and
960(a)(1) (1988). The 78.45 kilograms of marijuana were found in a camper
shell of a pickup truck the applicant was driving across the border. The appli-
cant was arrested upon her attempted entry and, because of the marijuana
found in the truck and her subsequent conviction, was placed in exclusion
proceedings under sections 212(a)(2)(A)(i)(II) and (C) of the Act, 

(a)(2)(A)(i)(II) and (C) (Supp. V 1993).1 In these proceedings, the
applicant has not contested her excludability, but has applied for a waiver
under section 212(c) of the Act.
   At the conclusion of the hearing on the merits of the applicant’s request for
relief from exclusion, the Immigration Judge issued an oral decision finding
that relief under section 212(c) of the Act was not warranted in the exercise of
discretion, and ordering her exclusion and deportation to Mexico. On appeal,
the applicant asserts that the Immigration Judge erred in his evaluation of the
equities in her case. She is thus requesting that the decision of the Immigra-
tion Judge be vacated and that she be granted relief from exclusion under sec-
tion 212(c) of the Act.

                               II. ISSUE PRESENTED
   Section 212(c) of the Act provides:
   Aliens lawfully admitted for permanent residence who temporarily proceeded abroad vol-
   untarily and not under an order of deportation, and who are returning to a lawful
   unrelinquished domicile of seven consecutive years, may be admitted in the discretion of
   the Attorney General without regard to the provisions of subsection (a) . . . .

   In adjudicating an application under section 212(c) of the Act, we balance
the adverse factors evidencing the applicant’s undesirability as a permanent
resident with the social and humane considerations presented in her behalf to
determine whether the granting of section 212(c) relief appears to be in the
best interests of this country. See Matter of Edwards, 

 (BIA
1990); Matter of Buscemi, 

 (BIA 1988); Matter of Marin, 

 (BIA 1978). Accordingly, the issue in this case is whether,
considering the particular facts presented, relief is warranted in the exercise


  1 Section 212(a)(2)(A)(i)(II) of the Act provides that “any alien convicted of . . . a violation

of (or a conspiracy to violate) any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), is excludable.”
     Section 212(a)(2)(C) of the Act provides that “[a]ny alien who the consular or immigration
officer knows or has reason to believe is or has been an illicit trafficker in any such controlled
substance or is or has been a knowing assister, abettor, conspirator, or colluder with others in
the illicit trafficking in any such controlled substance, is excludable.”

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of discretion. Upon our independent review of the record, we find that relief
should be granted. See Matter of Burbano, 

 (BIA 1994).

                            III. REHABILITATION
   We first address the question of the applicant’s rehabilitation. In his oral
decision, the Immigration Judge states that the applicant “must also convince
the court that she has rehabilitated.” This statement leaves the erroneous
impression that an applicant may be barred from relief simply by a failure to
demonstrate that she is rehabilitated. A clear showing of reformation is not
an absolute prerequisite to a favorable exercise of discretion in every section
212(c) application involving an alien with a criminal record. See Matter of
Edwards, supra. Section 212(c) applications involving convicted aliens must
be evaluated on a case-by-case basis, with rehabilitation a factor to be consid-
ered in the exercise of discretion. Matter of Roberts, 

 (BIA
1991); Matter of Edwards, supra. Here, the applicant is currently serving her
sentence for the conviction underlying these proceedings. We recognize the
difficulties an incarcerated alien faces in demonstrating convincing efforts
towards rehabilitation. However, any efforts will be considered, and the
applicant is not barred automatically from discretionary relief by her incar-
ceration. Accordingly, in our review of this matter, we have taken into
account the following indicators of the applicant’s efforts at rehabilitation.
   Evidence of the applicant’s efforts towards rehabilitation include her
apparent acceptance of responsibility for her crime. In this regard, we note
that the criminal court reduced the applicant’s sentence because of her accep-
tance of responsibility. This was based on the presentence investigation
report prepared for the applicant’s sentencing, which states:
   The Defendant made a voluntary post-arrest statement in which she admitted her involve-
   ment in the instant offense. On August 2, 1993, she pled guilty and during the subsequent
   presentence interview, she again admitted responsibility for smuggling the camper shell
   containing the marijuana into the United States for remuneration.

   Likewise, at the hearing the applicant did not disclaim responsibility for
the crime and did express remorse for her participation, stating that she was
thankful she was caught so that she was unable to carry out the importation.
   Despite her current incarceration, the record reflects that the applicant has
apparently used her time in prison well in that she has advanced her otherwise
meager education by voluntarily pursuing GED studies, for which she
received a letter of commendation, has pursued other courses, has had no
prison infractions, and has been involved in a church ministry.
   In sum, the applicant’s acceptance of responsibility for her crime and her
achievements while in prison are favorable indicators of efforts at rehabilita-
tion which we take into account in weighing the equities of her application.


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                IV. OTHER FAVORABLE FACTORS
   The other two major equities to be considered in the applicant’s favor are
her long residence and her five United States citizen children. The Immigra-
tion Judge seems to have found that these did not constitute unusual or out-
standing equities. We disagree. Of the applicant’s five United States citizen
children, two are minors, Fernando, 11 years old, and Myra, 3 years old. The
other three are emancipated adults. Due to the applicant’s incarceration, the
minor children are presently in the custody of the applicant’s sister, who is
receiving Aid to Families with Dependent Children on their behalf, since she
is unable to support them on her salary while also raising her own children.
However, the record reflects that they lived with the applicant prior to her
arrest. The letters of support submitted by the applicant assert that she is a
responsible and caring mother and that her exclusion and deportation would
bring great hardship upon the children. Accordingly, we find that the minor
children do constitute an outstanding equity, and that the three adult children
are additional family ties to the United States to be considered in her favor.
   Likewise, we find that the applicant’s nearly 20 years of lawful permanent
residence in this country constitutes an unusual or outstanding equity. The
immigration judge found this not to be so because she “has little to show for her
residence in the United States.” There is no doubt that additional community
ties, property and business holdings, or special service to the community
would be equities in her favor. See Matter of Marin, supra. However, the
absence of those additional ties in themselves does not negate the weight to be
accorded the applicant’s long residence in this country, which is otherwise
without a criminal record, and during most of which she was employed. We
note that the applicant testified that she has paid income taxes and she submit-
ted copies of returns for 1982 to 1986. Accordingly, we consider the appli-
cant’s long residence to be an unusual and outstanding equity in her favor.
   We additionally take into account that a letter submitted on behalf of the
applicant states that she will be offered full-time employment upon her
release. In this regard, we note that the applicant is apparently undecided as to
whether the two minor children would accompany her or remain if she were
deported; thus, they might remain in the United States if she were deported.
We accordingly take into consideration that if the applicant remains in the
United States and reenters the work force the children would be able to stop
receiving welfare, as they would no longer be dependent on her sister.
   The record reflects that during most of her 25 years of residence in this
country the applicant has supported herself and her children and, according to
the presentence report, has paid rent when living with her sisters. During two
periods she resorted to welfare—after she was divorced, from 1977 to 1979,
and after her youngest child was born, from 1991 until 1993, when she was
arrested. In balance, we consider the applicant’s long history of employment
to be a favorable equity.

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   In sum, upon consideration of the applicant’s efforts at rehabilitation and
the other factors outlined above, we give greater weight to the favorable facts
of record than did the immigration judge.

                         V. ADVERSE FACTORS
    As well as differing with the immigration judge regarding the favorable
facts presented by the applicant, we make the following observations regard-
ing the negative facts of record. First, as noted above, the court that convicted
the applicant reduced her sentence on account of her acceptance of responsi-
bility, as recommended in the presentence report. In addition, the sentencing
court itself further reduced the sentence “because the defendant played a
minor role in the offense.” The applicant has had no other convictions or
arrests, except for the incident discussed below. Thus, while we do not dis-
count the gravity of the applicant’s conviction, we take into account the miti-
gating factors relied upon by the sentencing court, as well as the fact that this
is the applicant’s only criminal conviction.
    With regard to the applicant’s immigration history, the Immigration and
Naturalization Service presented documentation regarding the applicant’s
arrest in 1980 on suspicion of smuggling aliens. The applicant was alleged to
have picked up a number of undocumented aliens near the border in an
attempt to transport them further into the country for gain. The apprehension
report states that prosecution was declined, and we note that deportation pro-
ceedings were never instituted on the basis of this incident. At the hearing,
the applicant admitted that she gave a ride to a family, but denied that she was
paid for it or that she was engaged in any wrongdoing. She also testified that
the three birth certificates and social security cards mentioned in the report
belonged to her three children, and that she always carried them with her.
    The Immigration Judge concluded that this incident was a negative factor
to be considered in exercising discretion. Just as we will not go behind a
record of conviction to determine the guilt or innocence of an alien, so we are
hesitant to give substantial weight to an arrest report, absent a conviction or
corroborating evidence of the allegations contained therein. Here, the appli-
cant conceded that the arrest took place but admitted to no wrongdoing. Con-
sidering that prosecution was declined and that there is no corroboration,
from the applicant or otherwise, we give the apprehension report little
weight.

                            VI. CONCLUSION
   An alien who has committed a serious drug offense faces a difficult task in
establishing that she merits discretionary relief. Nevertheless, relief under
section 212(c) of the Act may be merited based upon the totality of circum-
stances presented in a particular case. Matter of Burbano, supra. Here, we
have weighed the negative fact of the applicant’s only conviction, the

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mitigating facts of her minor role and efforts toward rehabilitation, and the
favorable facts of record, which include nearly 20 years of lawful residence
and two minor dependent children, and we find that relief under section
212(c) of the Act is warranted in this instance.
   In granting this waiver we particularly advise the applicant that if she
commits another offense leading to exclusion or deportation proceedings,
she is not likely to be the beneficiary of such relief again.
   ORDER:            The appeal is sustained.
   FURTHER ORDER:                    The applicant is granted a waiver of inad-
missibility under section 212(c) of the Act and is hereby admitted to the
United States as a returning lawful permanent resident.
DISSENTING OPINION: Michael J. Heilman, Board Member
   I respectfully dissent.
   The respondent’s appeal did not specifically identify any errors in the
Immigration Judge’s decision, and I therefore find no ground on which to
exercise our appellate authority to reverse the decision.
   This is not an easy or simple case to adjudicate, as we are presented with a
serious conviction involving a large quantity of marijuana on the one hand,
and substantial equities on the other. Presented with this difficult decision,
the Immigration Judge took into consideration the requisite factors set forth
in our precedent decisions. The favorable factors the Immigration Judge took
into consideration included the respondent’s long residence in the United
States, her family ties (especially giving weight to her two minor children),
evidence of her rehabilitative efforts, and her employment history, although
he found the latter diminished by her receipt of public assistance during two
periods. By way of adverse factors, the Immigration Judge took into consid-
eration the serious conviction underlying these proceedings, as well as the
arrest in 1980 on alien smuggling grounds. Upon weighing these competing
factors, the Immigration Judge decided, in the exercise of discretion, that
relief was not warranted.
   Reasonable minds can easily reach conflicting decisions in a case as close
as this one. Nevertheless, it is my opinion that the respondent here did not
adequately raise specific objections to the Immigration Judge’s decision so
as to warrant the re-weighing of the equities engaged in by the majority here.
Accordingly, I would not have reversed the decision of the Immigration
Judge in this instance.




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