USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit

[Not for Publication]

____________________

No. 96-1456

CARLOS ALBERTO TARANAS DE MEDEIROS,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

____________________

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

____________________

Before

Boudin, Stahl and Lynch

Circuit Judges
______________

____________________

Gary A. Pappas was on brief for petitioner.

______________

Frank W. Hunger, Assistant

________________
McConnell,
_________

Attorney General, with whom

David
_____

Assistant Director, Office of Immigration Litigation, w

on brief for respondent.

____________________

October 25, 1996

____________________

PER CURIAM.
PER CURIAM.

Carlos

Alberto Taranas de Medeiros, a

citizen

of Portugal and

a lawful permanent

resident of the

United States since 1970, challenges the Board of Immigration

Appeals' denial

under Immigration

1182(c).

of his

request for relief

and Nationality Act

He does not appeal the

deportable under INA

from deportation

212(c), 8

U.S.C.

Board's decision that he is

241(a)(4),1 8 U.S.C.

1251(a)(4).

We

affirm.2

____________________

1.

The

statute codified at

proceedings

is presently codified

U.S.C.

1251(a)(2)(A)(ii).

2.

recently enacted

The

Penalty Act
(Apr.

241(a)(4) at the time of these

of 1996

at

241(a)(2)(A)(ii), 8

Antiterrorism and

(AEDPA), P.L.

104-132, 110 Stat.

24, 1996) does not affect this appeal.

of AEDPA on its
jurisdiction
aliens who

to

Effective Death

Section 440(a)

face deprives the federal appeals

review deportation

are deportable for, inter

_____

orders

1214

courts of

entered against

alia, having committed

____

two

crimes

judicial

involving

review

moral

does

not

turpitude,

but

apply unless

this

both

bar

crimes

committed within five years after the alien's entry

to
were

into the

United States.
Section 440(a)

of AEDPA states:

"Any final order

of deportation against an alien by reason of having committed

a criminal offense . . . covered
for

which both

241(a)(2)(A)(i),
court."

predicate
shall

offenses are

not

be

covered by

subject to

review

section
by

any

In essence, then, the AEDPA jurisdictional provision

applies to cases

in which

241(a)(2)(A)(ii)

(two

after

by section 241(a)(2)(A)(ii)

entry

aliens found

crimes

not arising

out

of moral

turpitude

any time

of

scheme of

criminal

same

misconduct) also meet the standards of

crime

of moral

which

a sentence of

Medeiros's

case,

turpitude within
one year or

both

of

deportable under

241(a)(2)(A)(i) (one

5 years

after entry,

more may be

the two

crimes

imposed).
supporting

for
In
the

finding of his deportability were committed in 1984, 14 years

after his

entry into the

country.

Thus,

although Medeiros

was found to be deportable based upon his convictions for two

crimes involving
offenses

moral turpitude,

are covered

by

neither of

241(a)(2)(A)(i),

court has jurisdiction to review the case.

-22

the predicate
and thus

this

Our review in

discretion.

Chen
____

Gouveia v. INS,
_______
___

212(c) cases is solely for abuse of

v. INS,
___

87 F.3d

5,

8 (1st

980 F.2d 814, 817 (1st Cir.

1992).

said that there are three ways in which the Board

an

abuse

significant

of

discretion:

factor

that

"by

neglecting

appropriately

discretionary decision, by attaching

Cir. 1996);

We have

can commit

to

consider

bears

on

the

weight to a factor that

does not appropriately bear on

all the

making

the decision, or by

assaying

proper factors and no improper ones, but nonetheless

a clear judgmental error in weighing them."

INS, 74 F.3d 1, 4
___

that the

irrelevant

(1st Cir. 1996).

Board ignored

one.

His

a relevant

sole

Medeiros makes

factor or

contention

Henry v.
_____

no claim

considered an

is that

the

Board

improperly weighed the factors.

Where "the record

the

reflects a

Board's determination," however,

plausible basis

for

"we are constrained to

find that the Board acted well within its broad discretionary

powers in refusing to grant the waiver."

The record before

the Board,

with its

Chen, 87 F.3d at 9.
____

ample references

to

____________________

It is
Medeiros
amended

similarly clear

ineligible to seek
INA

212(c)

as amended by
deportable

"by

reason

in section

predicate offenses are

after

of

into

not render

AEDPA

440(d)

way that

440(a)

Section 212(c),

seeking relief aliens

having

committed

any

covered by section

241(a)(2)(A)(i).

-33

are

both

241(a)(2)(A)(i)."

offenses, committed

the country,

found

criminal

241(a)(2)(A)(ii) for which

above, Medeiros'

his entry

the same

review section.

AEDPA, bars from

offense covered

As discussed

212(c) relief.

in much

amended the INA's appellate

that AEDPA does

14 years

not covered

by

Medeiros's considerable criminal activity,3

clearly reflects

a plausible basis for the denial of the waiver.

on

all fours with our

the Board's

discretionary denial

deportable alien.

"took

decision in Gouveia,
_______

into account

In Gouveia,
_______

as

here,

212(c)

appropriately considered

Finally,

in Gouveia, as here,

. .

makes

And in that case,

manifest that

the entire panoply

factors

and numerous positive character

decision

negative

relief to

familial equities,

Gouveia, 980 F.2d at 818-19.

_______

"[t]he Board's

where we upheld

as here, the Board adequately

petitioner's

lengthy period of residency,

references."

of

This case is

in declining

to

grant

it

of positive and

waiver."

the Board decided

Id.
___

in the end

_______

"that

petitioner's equities

scales."

did

not

sufficiently tip

the

Id.
___

Because we look only for an abuse of discretion, it

is

not our place to substitute our judgment for the judgment

of the

Board.

See Henry,
___ _____

74 F.3d at 7

("A reviewing court

____________________

3.

Medeiros's criminal

two assault

record includes, in addition

and battery convictions (which

of the finding of deportability):

entering

in the

nighttime

to the

formed the basis

threatening, breaking, and

with intent

to commit

larceny;

receiving stolen property; possession of a Class C controlled

substance

with intent

dangerous

weapon;

to dispense;

loitering;

unlawful carrying

unlawful

possession

of a
of

dangerous weapon; unlawful possession of a Class D controlled

substance; disorderly conduct; disturbing the peace; open and
gross lewdness; armed assault
a witness;

in a dwelling; intimidation of

malicious destruction of property

than $100; non-support of

a minor child; and

valued at less
numerous motor

vehicle licensing and registration infractions.

criminal convictions -- for

One of these

disorderly conduct -- came after

the INS instituted the deportation proceedings against him.

-44

may not reweigh the equities afresh.");

819

which

("We refuse to second-guess

it

weights different

ultimate decision.").

Gouveia, 980 F.2d at

_______

the Board on

factors

when

The Board's decision

the manner in

arriving at

its

was "a judgment

call, pure and simple," id. at 819, and there is no reason to

___

call it into question.4

Petitioner's

that

law

212(c) relief

after he met

Buscemi,
_______

unusual

notion.

type of

it.

should have been granted as a matter of

the burden,

19 I. & N.

and

argument boils down to the contention

imposed on

Dec. 628 (1988),5

outstanding equities.

See Gouveia, 980 F.2d

___ _______

qualify

This

as 'unusual'

is an

untenable

equities in this

of the story, not

at 816 ("[E]ven the

preponderant equities or equities

Matter of
_________

of demonstrating his

The petitioner's demonstration of

case is the beginning

him by

the end of

presence of

that in the abstract could

or 'outstanding'

does not

compel the

Board

to grant

212(c)]

relief."); Henry,
_____

74 F.3d

at 7

____________________

4.
with

Contrary to Medeiros's suggestion, there is nothing amiss

the

BIA's

Immigration

"adopt[ion]

[of]

Judge's decision."

earlier this year,

As

prose."

5.

contents

of

the

this court

pointed out

"if the Board's view is that

the IJ 'got

it right,' the law does not demand

the idle motions

the

of dressing

that the Board go through

the IJ's findings

in its

own

Chen, 87 F.3d at 7-8.

____

Under

exhibited,

Buscemi,
_______

an

inter
_____

alia,
____

alien
a

facing
pattern

misconduct must meet this higher burden

of

212(c) relief.

951

F.2d

435,

Id.
___

438 (1st

deportation
of

serious

who

has

criminal

to justify the grant

at 633-34; see also Hazzard v. INS,

___ ____ _______
___
Cir.

1991).

Medeiros does

challenge the applicability of Buscemi to his case.

_______

-55

not

("Adjustment of status is not an entitlement, but, rather, an

extraordinary

remedy.

available to

that

allowance

omitted)).

Board need not

all who theoretically

951 F.2d at

held

The

438 ("Neither the

finding

of

of

waiver

The Board is

qualify."); cf. Hazzard,

___ _______

BIA nor this

'outstanding

of

make the anodyne

court has

equities'

excludability."

ever

compels

(citations

charged with balancing the alien's

adverse factors against his equities in reaching its decision

about

the availability of

16 I. & N. Dec.

212(c) relief.

581, 584 (BIA 1978).

the Board did in this case.

Affirmed.

Matter of Marin,
_______________

This is exactly

what

-66