COELHO

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) [

(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, 

(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, 

(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, 

(a)(2)(B) (Supp. 11 1990), by section 602(a) of the    Immigration Act of
1990, 

 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 

 (1982) and 

(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 inadmissi-
bility 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. 2 The 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

  2 The 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 respon-
dent's crime. According to the immigration judge, the respondent
testified that he never sold large quantities of cocaine. The immigra-
tion 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, 

 (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, 

 (2d Cir. 1976); see also Matter of Hernandez-
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                                                  Interim Decision #3172

Casillas, 

 (BIA 1990; A.G. 1991), Ord, 

(5th Cir. 1993).
    Section 212(c) of the Act, however, does not provide an indiscrimi-
nate 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, 

 (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. 

. 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
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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. 

. 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.

    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. 

. Such a heightened showing
is required when an alien has been convicted of a serious drug offense.

 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, 

 (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, 

 (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. 

   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 respon-
dent 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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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 intermit-
tent 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. Accord-
ingly, 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 informa-
tion 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, 

 (1982).
Motions to remand are an accepted part of appellate civil procedure
and serve a useful function. See, e.g., 

 (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 

, 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, 

 (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, 

 (1985). Further, the regulation
     -


pertaining to motions to reopen, 

 (1991), is couched
solely in negative terms. INS v. 

 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." 

 In fact, the
regulation does not specify any circumstances in which a motion to
reopen must be granted. INS v. Jong Ha Wang, 

, 143 n.5
(1981) (per curiam). Moreover, the regulations "plainly disfavor"
motions to reopen. /RS v. Abudu, 

 (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. 

; INS v. 

; INS v. Phinpathya, 

 The 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 ...." 

 (1991).
Interim Decision #3172

183, 188 n.6 (1984); see also INS v. Jong Ha 

 at 143 n.5.
Further, a party seeking reopening bears a "heavy burden." INS v.

. 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. 

 (footnote
omitted); see also INS v. 

 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. 

; INS v. 

.
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. 

; see also INS v. 

 INS v. Jong
Ha 

 Yousif v. INS, 

 (6th Cir. 1986);
Bahramnia v. United States INS, 

 (5th Cir.), cert. denied,

 (1986); Matter of Ruiz, 

 (BIA 1989);
Matter of Egbunine, 

 (BIA 1987); Matter of Tuakoi,

 (BIA 1985); Matter of Reyes, 

 (BIA
1982); Matter of Martinez-Romero, 

 (BIA 1981), affd,

 (9th Cir. 1982). Secondly, the Board must deny a motion
to reopen in the absence of previously unavailable, material evidence.
See 

 (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.

; Matter of Leon-Orosco and Rodriguez-Colas, 

 (BIA 1983; A.G. 1984); Matter of Martinez-Romero,
supra; Matter of Rodriguez-Vera, 

 (BIA 1979); see also

  4 The 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. 

INS v. 

 In such motions, the "'courts will indulge all presumptions in favor
of the validity of a verdict."' Taylor v. Illinois, 

, 414 n.18 (quoting Ragnar
Benson, Inc. v. Kassab, 

 (3d Cir. 1963)); see also INS v. 

. 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. 

 at 414 n.18 (quoting
Lloyd v. Gill, 

 (5th Cir. 1969)).
                                                              Interim Decision #3172


   INS v. 

; 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. 

; INS v. 

. 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. 5 The
    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
      5 This 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, 

 (2d Cir. 1982); see also Matter of
   Cerna, 20 l&N Dec. 399 (BIA 1991), affd, 

 (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 warrant-
ed. 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.




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