Matter of MENDEZ, 21 I&N Dec. 296 (BIA 1996)

In re Jose MENDEZ-Moralez, Respondent

File A41 940 178 - Lincoln

Decided April 12, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In assessing whether an applicant has met his burden of establishing that a grant of a waiver

of inadmissibility is warranted in the exercise of discretion under section 212(h)(1)(B) of the

Immigration and Nationality Act, 8 U.S.C. 1182(h)(1)(B) (1994), the Immigration Judge

must balance the adverse factors evidencing an alien’s undesirability as a permanent resi-

dent with the social and humane considerations presented on his behalf to determine

whether the grant of relief in the exercise of discretion appears to be in the best interests of

this country.

(2) Establishing extreme hardship and eligibility for section 212(h)(1)(B) relief does not create

any entitlement to that relief; extreme hardship, once established, is but one favorable dis-

cretionary factor to be considered.

(3) The equities that the applicant for section 212(h)(1)(B) relief must bring forward to estab-

lish that he merits a favorable exercise of administrative discretion will depend in each case

on the nature and circumstances of the ground of exclusion sought to be waived and on the

presence of any additional adverse matters, and as the negative factors grow more serious, it

becomes incumbent upon the applicant to introduce additional offsetting favorable

evidence.

(4) Taking responsibility and showing remorse for one’s criminal behavior does constitute

some evidence of rehabilitation, although an alien who claims innocence and does not

express remorse is not precluded from ever presenting persuasive evidence of rehabilitation

by other means.

(5) While the lack of persuasive evidence of rehabilitation may not in itself be an adverse fac

tor, the absence of this equity in the alien’s favor may ultimately be determinative in a given

case concerning the exercise of discretion under section 212(h)(1)(B) of the Act, particu

larly where an alien has engaged in serious misconduct and there are questions whether the

alien will revert to criminal behavior; and conversely, evidence of rehabilitation in some

cases may constitute the factor that raises the significance of the alien’s equities in total so as

to be sufficient to counterbalance the adverse factors in the case and warrant a favorable

exercise of discretion.

FOR RESPONDENT: Clayton H. Brant, Esquire, Lincoln, Nebraska

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Paul R. Sctultz, District

Counsel

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BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, VILLAGELIU, FILPPU, COLE, and MATHON, Board Members. Concurring

and Dissenting Opinion: SCHMIDT, Chairman, joined by, GUENDELSBERGER, Board

Member. Dissenting Opinion: ROSENBERG, Board Member.

VACCA, Board Member:

I. PROCEDURAL HISTORY

In a decision dated November 22, 1994, an Immigration Judge found the

respondent deportable as charged under section 241(a)(2)(A)(i) of the Immi

gration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(i) (1994), as an alien

convicted of a crime involving moral turpitude committed within 5 years of

entry into the United States. He also denied his application for adjustment of

status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (1994), as well as

his corresponding application for a waiver of inadmissibility under section

212(h) of the Act, 8 U.S.C. § 1182(h) (1994), and ordered him deported from

the United States to Mexico. The respondent hasappealed from thatdecision.

The appeal will be dismissed.

II. ISSUE PRESENTED

The respondent, a 42-year-old native and citizen of Mexico, was first

admitted to the United States as a lawful permanent resident on May 2, 1988.

He was convicted in a Nebraska court by a jury verdict on November 19,

1992, of first degree sexual assault, inviolation of section 28-319(1)(c) of the

Nebraska Revised Statutes. For this crime, committed in April or May 1992,

the respondent was sentenced on January 5, 1993, to an indeterminate sen

tence of 2 to 3 years. Reportedly, he was released from prison on parole in

January 1995, afterhavingserved 1 yearof his sentence. Therespondent con

ceded his deportability during the proceedings and has not contested his

deportability on appeal. The only issue before us is whether the Immigration

Judge properly denied the respondent’s application for adjustment of status

under section 245 of the Act and, in the exercise of discretion, the corre

sponding waiver of inadmissibility under section 212(h) of the Act. We find

that he did.

III. ADJUSTMENT OF STATUS UNDER SECTION 245

Section 245 of the Act provides that the Attorney General may in her dis

cretion adjust the status of an alien inspected and admitted or paroled into the

United States to that of an alien lawfully admitted for permanent residence if

the alien applies for adjustment, the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent residence, and an

immigrant visa is immediately available. An alien subject to deportation pro

ceedings may also apply for adjustment of status before the Immigration

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Judge and, if inadmissible undersection 212(a) of the Act,may also apply for

a waiver of the ground of inadmissibility. See 8 C.F.R. § 242.17(a) (1995).

In the case before us the respondent’s application for adjustment of status

is based on his February 20, 1987, marriage to a United States citizen and the

immediate relative visa petition she filed on his behalf, which was approved

by the Immigration and Naturalization Service on November 21, 1994. As

such, it appears that the respondent is eligible for an immigrant visa that is

immediately available to him. The fact that he is a lawful permanent resident

does not preclude him from applying for adjustment of status under section

245. Tibke v. INS, 335 F.2d 42 (2d Cir. 1964); Matter of Parodi, 17 I&N Dec.

608 (BIA 1980); Matter of Loo Bing Sun, 15 I&N Dec. 307 (BIA 1975); Mat

ter of Krastman, 11 I&N Dec. 720 (BIA 1966); see also Matter of

Gabryelsky, 20 I&N Dec. 750 (BIA 1993).

IV. WAIVER OF INADMISSIBILITY UNDER SECTION 212(h)

However, the respondent is not admissible to the United States as required

for eligibility under section 245. By virtue of his conviction for a crime

involving moral turpitude, he is inadmissible under section

212(a)(2)(A)(i)(I) of the Act. An alien who is inadmissible under this section

as an alien convicted of a crime involving moral turpitude may seek a waiver

of inadmissibility under section 212(h) of the Act. Section 212(h) may be

used to waive inadmissibility which would otherwise preclude adjustment of

status. See Osuchukwu v.INS, 744F.2d 1136,1139 (5thCir. 1984);Matter of

Goldeshtein, 20 I&N Dec. 382 (BIA 1991), rev’d on other grounds, 8 F.3d

645 (9th Cir. 1993); Matter of Parodi, supra; Matter of Sanchez, 17 I&N

Dec. 218 (BIA 1980);Matter of Shaughnessy, 12 I&NDec. 810 (BIA 1968).

Section 212(h) provides:

The Attorney General may, in his discretion, waive the application of subparagraphs

(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsec

tion insofar as it relates to a single offense of simple possession of 30 grams or less of mari

juana if -

(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney

General that -

(i) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such subsec

tion or the activities for which the alien is excludable occurred more than 15 years

before the date of the alien’s application for a visa, entry, or adjustment of status,

(ii) the admission to the United States of such alien would not be contrary to the

national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated; or

(B) in the caseof an immigrantwho is thespouse, parent, son, or daughter of a citizen of the

United States or an alien lawfully admitted for permanent residence if it is established to the

satisfaction of the Attorney General that the alien’s exclusion would result in extreme hard

ship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such

alien; and

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(2) the Attorney General, in his discretion, and pursuant to such terms, conditions and pro

cedures as he may by regulations prescribe, has consented to the alien’s applying or reap

plying for a visa, for admission to the United States, or adjustment of status.

No waiver shall be provided under this subsection in the case of an alien

who has been convicted of (or who has admitted committing acts that consti

tute) murder or criminal acts involving torture.

The amended version of section 212(h) essentially creates two categories

of immigrants eligible for section 212(h) relief. The first category includes

any immigrant who meets eligibility criteria that largely concern the type of

exclusion ground involved or when the excludable activity occurred, as well

as issues of the alien’s rehabilitation and the national welfare, safety, or secu

rity of the United States. The secondcategory includes immigrants who dem

onstrate the requisite relationship to a United States citizen or lawful

permanent resident, andestablish that theirexclusion would result in extreme

hardship to that relative. See Matter of Alarcon, 20 I&N Dec. 557 (BIA

1992). In the case at hand, the respondent, who is assimilated to the position

of an immigrant for purposes of seeking adjustment of status, is married to a

United States citizen and has three United States citizen children. As such, he

may demonstrate eligibility under section 212(h)(1)(B) of the Act by estab-

lishing extreme hardship to his United States citizen wife or children if he

were excluded.

In his decision the Immigration Judge in fact found that extreme hardship

to the wife and children had been established, and that the respondent conse-

quently was eligible for section 212(h) relief. However, he denied the section

212(h) waiver in the exercise of discretion, and accordingly found him ineli-

gible for adjustment of status because of his inadmissibility resulting from

his criminal conviction.

A. Exercise of Discretion Under Section 212(h)(1)(B):

Factors Considered

On appeal, the respondent has contested the discretionary denial of relief,

arguing that he merited a favorable exercise of discretion in light of his equi

ties and the hardship to his family if he were deported. In the respondent’s

view, the Immigration Judge erred in ruling that he had not demonstrated

rehabilitation and in placing too much emphasis on his claim of innocence of

the crime of which he was convicted. According to the respondent, the Immi

gration Judge also erred in requiring that rehabilitation be shown.

As is true for other discretionary forms of relief, the burden is on the appli

cant to establish that a grant of a waiver of inadmissibility under section

212(h)(1)(B) of the Act is warranted in the exercise of discretion. See Matter

of Fernandez, 14 I&N Dec. 24 (BIA 1972). This has been held to be the case

for other waivers of inadmissibility. See Matter of Marin, 16 I&N Dec. 581

(BIA 1978) (section 212(c) waiver). As is also true for other waivers of inad

missibility that would allow an alien to be admitted to the United States as a

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lawful permanent resident, the Immigration Judge must balance the adverse

factors evidencing an alien’s undesirability as a permanent resident with the

social and humane considerations presented on his behalf to determine

whether the grant of relief in the exercise of discretion appears to be in the

best interests of this country. See id.

We find this use of Matter of Marin, supra, as a general guide to be appro

priate. For the most part, it is prudent to avoid cross application, as between

different types of relief, of particular principles or standards for the exercise

of discretion. Id. However, our reference to Matter of Marin, supra, is only

for the purpose of the approach taken in that case regarding the balancing of

favorable and unfavorable factors within the context of the relief being

sought under section 212(h)(1)(B) of the Act. See, e.g., Palmer v. INS, 4 F.3d

482 (7th Cir. 1993) (balancing of discretionary factors under section 212(h)).

We find this guidance to be helpful and applicable, given that both forms of

relief address the question of whether aliens with criminal records should be

admitted to the United States and allowed to reside in this country

permanently.

What we do not find applicable is the analysis for determining whether

adjustment of status under section 245 of the Act is warranted in the exercise

of discretion, as set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970).

There, the Board ruled that generally where there are adverse factors present,

favorable factors such as family ties, hardship, length of residence in the

United States, etc., will be considered as countervailing factors meriting a

favorable exercise of discretion, and that in the absence of adverse factors,

adjustment will be ordinarily granted in discretion. See also Matter of Blas,

15 I&N Dec. 626 (BIA 1974; A.G. 1976). This approach has no application

to relief under section 212(h) of the Act. A waiver of inadmissibility under

section 212(h) necessarily involves at least one adverse consideration, spe

cifically the criminal conviction or activity constituting the ground of exclu

sion sought to be waived. See Matter of Marin, supra, at 585. Thus, there can

be no presumption that relief is warranted in the exercise of discretion. Fur

ther, this criminal conviction or activity would usually be more severe than

any adverse factor presentin the application foradjustment ofstatus, presum

ing admissibility and general eligibility for adjustment of status.

These principles taken from Matter of Marin, supra, are to be applied in

the context ofthe particular considerationsthat will arise in an application for

section 212(h)(1)(B) relief. Section 212(h)(1)(B) relief is its own distinct

form of waiver, with the balancing of factors to be undertaken in view of the

particular purposes either stated or inherent in the statute. To exemplify, we

would emphasize two considerations that do not often arise in an application

for section 212(c) relief. First, a section212(h) applicant seeking to adjust his

status need not be, and in most cases is not already, a lawful permanent resi

dent, and those lawful permanent residents that do apply may not necessarily

have the length of residency attained by those eligible for section 212(c)

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relief. Secondly, those found eligible for relief under section 212(h)(1)(B)

will by definition have already established extreme hardship to qualified

family members, which would be a factor favorable to the alien in exercising

discretion.

We emphasize that establishing extreme hardship and eligibility for sec

tion 212(h)(1)(B) reliefdoes not createany entitlement tothat relief. Extreme

hardship is a requirement for eligibility, but once established it is but one

favorable discretionary factor to be considered. We would note, however,

that an application for discretionary relief, including a waiver under section

212(h), may bedenied in the exercise of discretion withoutexpress rulings on

the question of statutory eligibility. Matter of Goldeshtein, supra; see also

Silva v. Carter, 326 F.2d 315, 320 (9th Cir. 1963), cert. denied, 377 U.S. 917

(1964); cf. INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); INS v.

Bagamasbad, 429 U.S. 24, 25 (1976). We also emphasize that the discretion

ary analysis discussed is specifically applicable only to those aliens applying

for relief under subsection (B) of 212(h)(1), subsection (A) having particular

eligibility criteria that, if met, will affect the exercise of discretion.

In evaluating whether section 212(h)(1)(B) relief is warranted in the exer-

cise of discretion, the factors adverse to the applicant include the nature and

underlying circumstances of the exclusion ground at issue, the presence of

additional significant violations of this country’s immigration laws, the exis-

tence of a criminal record and, if so, its nature, recency and seriousness, and

the presence of other evidence indicative of an alien’s bad character or

undesirability as a permanent resident of this country. See e.g., Matter of

Marin, supra, and cases cited therein. The favorable considerations include

family ties in the United States, residence of long duration in this country

(particularly where the alien began his residency at a young age), evidence of

hardship to the alien and his family if he is excluded and deported, service in

this country’s ArmedForces, ahistory of stable employment,the existence of

property or business ties, evidence of value and service to the community,

evidence of genuine rehabilitation if a criminal record exists, and other evi

dence attesting to the alien’s good character (e.g., affidavits from family,

friends, and responsible community representatives). See, e.g., id., and cases

cited therein.

Upon review of therecord as a whole,the ImmigrationJudge is required to

balance the equities and adverse matters to determine whether discretion

should be favorably exercised. The basis for the Immigration Judge’s deci

sion must be enunciated in his opinion. See, e.g., id. The equities that the

applicant for section 212(h)(1)(B) relief must bring forward to establish that

he merits a favorable exercise of administrative discretion will depend in

each case on the nature and circumstances of the ground of exclusion sought

to be waivedand onthe presence of anyadditional adverse matters,and asthe

negative factors growmore serious, itbecomes incumbent upon the applicant

to introduce additional offsetting favorable evidence. See, e.g., id.

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The underlying significance of the adverse and favorable factors is also to

be taken into account. For example, if the alien has relatives in the United

States, the quality of their relationship must be considered in determining the

weight to be awarded this equity. Further, the equity of a marriage and the

weight given to any hardship to the spouse isdiminished if the parties married

after the commencement of deportation proceedings, with knowledge that the

alien might be deported. Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992), cert.

denied, 507 U.S. 971 (1993). Similarly, if the alien has a history of employ

ment, it is important to consider the type of employment and its length and

stability. Further, when looking at the length of the alien’s presence in the

United States, the nature of his presence during this period must be evaluated.

For example, a period of residency marked by a term of imprisonment dimin

ishes the significance of the period of residency. See generally Douglas v.

INS, 28 F.3d 241 (2d. Cir. 1994) (residency marked by criminal activity).

B. Exercise of Discretion in Respondent’s Case

Having reviewed therecord and the Immigration Judge’sdecision, and the

contentions made on appeal, we agree with the Immigration Judge that a

favorable exercise of discretion is not warranted. The respondent has demon-

strated equities that may be characterized as substantial. Although he has

only been in this country lawfully for a little more than 7 years, he does have

significant family ties, including his United Statescitizen wife of 8 years. His

United States citizen children include a 9-year-old stepson, a 7-year-old

daughter, and a 4-year-old son. According to the wife’s testimony, the

respondent has been a loving father and the children are close to him emo-

tionally. The respondent also has a consistent history of employment as an

agricultural worker and mechanic at various ranches, and he has testified that

his most recent employer has assured himof a position as a mechanic at$6 an

hour upon his release from prison. The record also reflects that the respon

dent has continuously supported his family financially before his incarcera

tion, except for a period in 1991 when he injured his back. The family began

receiving food stamps that year, and since his incarceration they have also

received welfare payments and housing assistance as well. The respondent’s

wife last worked as a cashier for a department store from 1989 to 1991, when

she was terminated from her employment because she was pregnant.

The respondent also has other family ties in the United States, including

two lawful permanent resident brothers living in Colorado and Kansas, a sis

ter living in Colorado, and his lawful permanent resident parents, who also

live in Colorado and who are self-supporting. The respondent testified that

his sister was not a lawful permanent resident, but he did not elaborate as to

her specific status in this country. The respondent also testified that he has

two children in Mexico, but he has no contact with them and does not know

their whereabouts.

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As notedabove, the Immigration Judge found that the respondent’s depar

ture would cause extreme hardship to his wife and children, as they are

dependent upon him financially and are emotionally close to him. The wife

testified that if her husband were deported she would remain in the United

States with the children and likely move to Kansas with her adoptive father.

She also testified that she was receiving psychiatric treatment for depression,

noting that she had attempted to commit suicide in 1992 after the criminal

charges were filed against her husband, and observing that she was attempt

ing to obtain disability payments. She also observed that she had a medical

condition involving her spineand hipsthat precluded her fromlifting things.

In sum, the respondent has demonstrated substantial equities in his favor,

including hardship to his wife and children if he were deported. Some hard

ship to the respondent is also apparent in view of his ties to this country and

the poor economic conditions in Mexico, as documented by news articles

submitted bythe respondent,although he has not demonstrated that he would

be virtually precluded from finding employment in Mexico. However, his

equities must be balanced against the adverse factors in his case, particularly

the serious crime of which he was convicted. The seriousness of his crime

can be seen from a reading of the statute under which he was convicted and

the surrounding circumstances. The Nebraska statute in question provides:

Sexual assault; first degree; penalty.

(1) Any person who subjects another person to sexual penetration and (a) overcomes the

victim by force, threat of force, express or implied, coercion or deception, (b) knew or

should have known that the victim was mentally or physically incapable of resisting or

appraising the nature of his or her conduct, or (c) the actor is nineteen years of age or older

and the victim is less than sixteen years of age is guilty of sexual assault in the first degree.

(2) Sexual assault in the first degree is a Class II felony. The sentencing judge shall consider

whether the actor shall have caused serious personal injury to the victim in reaching his

decision on the sentence.

(3) Any person who shall be found guilty of sexual assault in the first degree for a second

time shall be sentenced to not less than twenty-five years and shall not be eligible for parole.

Neb. Rev. Stat. § 28-319 (1992).

The respondent wasconvicted undersection 28-319(1)(c) of sexuallypen

etrating a victim under the age of 16. In fact the record before the Immigra

tion Judge made clear that the respondent’s victim was 13 years old at the

time of the sexual assault, at a time when he was 40 years of age.

The young

girl, who lived in the same apartment building, frequented the respondent’s

home. Apparently she practically lived there, reportedly because her own

mother was mentally disabled to some degree and did not exert much

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While the Immigration Judge and this Board may not go beyond the record of convictionto

determine the guilt or innocence of the alien, it is proper to look to probative evidence outside

the record of conviction in inquiring as to the circumstances surrounding the commission of the

crime in order to determine whether a favorable exercise of discretion is warranted. Matter of

Edwards, 20 I&N Dec. 191 (BIA 1990).

parental control, and the respondent and his wifewere not willingto force her

to leave. The respondent has acknowledged that their unwillingness to force

her to leave led to situations where the young girl was present when he and

his wife were watching sexually explicit movies or engaging in sexual inter

course themselves. He has also admitted soliciting the victim’s mentally dis

abled mother for sex, as repayment for money the mother had borrowed from

him. According to the respondent, he did this in order to discourage her from

asking to borrow more money. The circumstances of his crime clearly show

its egregiousness.

We point out that as a matter of law, a 13-year-old child is incapable of

consent where the act is being perpetrated by a grown man 27 years older.

Where a statute makes sexual acts with a child under a specified age a crime,

without regard to consent, such statutes are construed as fixing the age of

consent. The purpose of these statutes is to protect children from illicit acts

by rendering them incapable of consenting. See Matter of Dingena, 11 I&N

Dec. 723 (BIA 1966).

Given the nature ofthe respondent’scrime, wedo notfind thathis equities

are sufficient to counterbalanceits seriousness. We findthis tobe particularly

so given that his equities do not include any persuasive evidence of rehabili-

tation. We donot find hisrelease from prison after 1year due tohis good con-

duct in following prison rules in a controlled setting to be persuasive

evidence of rehabilitation from his criminal act of sexually assaulting a

young child. At hishearing, the respondent deniedthat the sexual assaultever

occurred, stated that he had been “falsely accused,” and did not express

remorse for his crime. In addition, when asked whether he had attempted to

get any “sexual offender treatment,” he responded, “I believe that I do not

have a sexual problem.”

The respondent argues onappeal thathis assertion of innocenceshould not

be used against him because he is, in fact, innocent and the criminal justice

system makes mistakes, and he therefore should not be forced to be dishonest

with himself. However, in ascertaining the effect of a criminal conviction,

neither the Board nor the Immigration Judge may go beyond the judicial

record to determinethe guilt orinnocence of analien. See Matterof Edwards,

20 I&N Dec. 191 (BIA 1990); Matter of Khalik, 17 I&N Dec. 518 (BIA

1980). He must be considered guilty of the crime. Taking responsibility and

showing remorse for one’s criminal behavior does constitute some evidence

of rehabilitation. See Gonzalez v. INS, 996 F.2d 804 (6th Cir. 1993);

Villareal-San Miguel v. INS, 975 F.2d 248 (5th Cir. 1992); Akrap v. INS, 966

F.2d 267 (7th Cir.1992). This is notto say that analien who claims innocence

and does not express remorse could never present persuasive evidence of

rehabilitation by other means. But the fact remains that in the case before us,

there is no evidence of remorse or of acknowledgement of guilt. Moreover,

the claim of innocence is inconsistent with the jury verdict and the

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respondent’s own pre-trial admission that he had engaged in sexual inter

course with the victim.

The Board acknowledges the humanitarian concerns in this case, particu

larly the hardship to the respondent’s wife and children, but the Board also

has the obligation to consider the welfare and safety of the other citizens and

residents of this country in making its discretionary determination. In the

case before us, we have an individual who sexually assaulted a 13-year-old

girl. After serving a short period of imprisonment, he has not offered any sig

nificant evidence that he is rehabilitated from his criminal behavior.

As pointed out by the respondent on appeal, a showing of rehabilitation is

not an absolute prerequisite in all cases involving an alien with a criminal

record. However, rehabilitationor the lack thereof is a factor to be considered

in the exercise of discretion, and it may be ultimately determinative in some

cases. See Matter of Edwards, supra. There will be cases where such a show

ing is necessary before a favorable exercise of discretionis warranted in view

of the other aspectsof the case. Thus,while thelack of persuasive evidenceof

rehabilitation may not in itself be an adverse factor, the absence of this equity

in the alien’s favor may ultimately be determinative in a given case, particu-

larly where an alien has engaged in serious misconduct and there are ques-

tions whether the alien willrevert to criminal behavior. Conversely,evidence

of rehabilitation in some cases may constitute the factor that raises the signif-

icance of the alien’s equities in total so as to be sufficient to counterbalance

the adverse factors inthe caseand warrant a favorableexercise ofdiscretion.

However, having weighed the respondent’s equities in this case, which do

not include persuasive evidence of rehabilitation, against the extremely seri-

ous nature of his criminal behavior involving a sexual offense against a child,

the Board agrees that the respondent has not met his burden of establishing

that a grant of section 212(h) relief is warranted in the exercise of discretion.

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

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The respondent underwent a polygraph examination in July 1992. A copy of the polygraph

report was admitted into evidence at the deportation hearing without objection. The report

reflects that following the questioning of the respondent, he acknowledged to the examiner that

he had engaged in a sexual act with the victim. When questioned about this by the Immigration

Judge, the respondent acknowledged this admission, but testified that the polygraph examiner

kept “moving the needles with his fingers...andafter that [he] was forced to say yes.” In his

decision, the Immigration Judge found that the respondent’s testimony in this regard was not

credible. On appeal, the respondent does not challenge, or even reference, this evidence and

adverse finding by the Immigration Judge.

CONCURRING AND DISSENTING OPINION: Paul W. Schmidt,

Chairman, inwhich JohnW. Guendelsberger, Board Member, joined

I respectfully concur in part and dissent in part. I concur in the analysis of

the general criteria to be applied in exercisingdiscretion under section 212(h)

of the Immigration and Nationality Act, 8 U.S.C. 1182(h) (1994), as con

tained in parts I, II, III, and IV(A) of the majority opinion. However, I dissent

from the application of those criteria to the facts of this case, as contained in

Part IV(B) of the majority opinion.

As recognized by the majority, the respondent has very substantial family

equities in the United States. He has a United States citizen wife of 8 years,

two United States citizen children, a 7-year-old daughter and a 4-year-old

son, and a 9-year-old United States citizen stepson. His wife suffers from

severe depression and other medical conditions. She has not worked in 4

years. There has beena finding that therespondent’s deportationwould cause

extreme hardship to his wife and children, as they are dependent upon him

financially and are emotionally close to him.

The respondent also has other family ties to the United States, including

two lawful permanent resident brothers and lawful permanent resident par-

ents. The majority acknowledges that the respondent’s economic outlook in

Mexico is bleak, thereby inhibiting his ability to contribute to the support of

his family in the United States.

It also seems unlikely that his family will be able to afford to visit the

respondent in Mexico. The respondent’s ability to visit his family in the

United States will depend upon the willingness of the United States Depart-

ment of State to recommend, and the Immigration andNaturalization Service

to grant, a waiver of inadmissibility to an inadmissible nonimmigrant. More

over, from my experience, it is quite possible that, even with a waiver, the

respondent would be precluded from future visits as a nonimmigrant because

the presence of an immediate family in the United States would be consid

ered evidence of a lack of “proper nonimmigrant intent” on the respondent’s

part. Therefore, the respondent’s deportation is likely to permanently sever

the family unit.

The respondent’s crime is serious, involving sexual misconduct with a

minor. However, the respondent, who is 42 years old with no known prior

history of sexual offenses, was required to serve only 1 year of a potential

3-year sentence. That indicates at least some confidence on the part of the

State of Nebraska that the respondent’s sexual offense was unlikely to be

repeated and that its citizens did not need the extra protection from the

respondent that a longer sentence might have offered.

As described by the majority, the respondent was convicted under a

Nebraska statute that made the element of consent by the minor irrelevant. It

appears that the rather unusual interrelationship between the respondent’s

family and the victim’s family, which provided the context for the sexual

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assault on the 13-year-old victim, no longer exists and is unlikely to be repli

cated. Therefore, although we all admittedly lack clairvoyance, there is some

reason, based on this record, to believe that a repetition of the respondent’s

serious sexual misconduct is unlikely.

In addition to the nature of the crime, the majority’s other primary reasons

for denying relief are interrelated and involve the respondent’s failure to

demonstrate remorsefulness, truthfulness, and rehabilitation when con

fronted with his crime during the hearing before the Immigration Judge.

These interrelated adverse considerations, while serious, do not, in my opin

ion, warrant a denial of the section 212(h) waiver to the respondent. See Mat

ter of Edwards, 20 I&N Dec. 191 (BIA 1990).

This is admittedly a close case. However, I believe that the extreme hard

ship that will be sufferedby the respondent’s United States citizen family, his

extensive family ties to theUnited States, and the evidenceof record suggest

ing a relatively low risk of recidivist behavior outweigh the adverse factors

relied upon by my colleagues in the majority. I therefore would grant the

respondent a section 212(h) waiver.

Consequently, I respectfully dissent from Part IV(B) of the majority deci-

sion which denies the section 212(h) waiver in the exercise of discretion.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

This case involves an individual who has been convicted of one serious

crime of moral turpitude. As a result he has applied for a waiver and demon-

strated that he is statutorily qualified for the waiver he needs, as his wife and

children will suffer extreme hardship in the event of his deportation. Despite

this, the Immigration Judge denied his waiver application and the majority of

this Board affirms that denial. At issue in the resolution of this appeal is this

Board’s interpretation ofthe statute governingapplications for waiversunder

section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h)

(1994), and this Board’s applicationof the standard it employs in the exercise

of discretion in such cases.

My quarrel with the reasoning and conclusion adopted by the majority

goes beyond a disagreement over the weight to be given the favorable and

adverse factors of record and the outcome of that balancing exercise. In my

view, the majority makes a fundamental error when it embraces exclusively

this Board’s articulation of discretionary factors which make up the entirety

of a waiver adjudication under section 212(c) of the Act. Matter of Marin,16

I&N Dec. 581 (BIA 1978). Such an analysis fails to give meaning to the

unique statutory language which characterizes a waiver under section 212(h)

and distinguishes itfrom other waivers provided by the Act.While the major

ity cautions that “it is prudent to avoid cross-application” between different

principles or standards for the exercise of discretion, these well-intentioned

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words of caution do not prevent its inevitable descent down this slippery

slope.

I. IMPROPER CONSTRUCTION OF THE STATUTE

The starting point of any interpretation begins with a construction of the

statute. Chevron, U.S.A., Inc., v. Natural Resources Defense Council Inc.,

467 U.S. 837 (1984). If the statutory language is clear, boththe courts and the

Board must give effect to the unambiguously expressed intent of Congress.

Matter of Farias, 21 I&NDec. 269 (BIA1996) (Holmes, Rosenberg, concur

ring); Matter of Hou, 20 I&N Dec. 513, 519-20 (BIA 1992); see also K Mart

v. Cartier, Inc., 486 U.S. 281, 291 (1988) (in ascertaining “plain meaning,”

the Board must look not only to the statutory language at issue, but to the lan

guage and design of the statute as a whole).

The text of the particular section at issue here, which provides a discre

tionary waiver for acts of prostitution and crimes involving moral turpitude,

is found in the opinion of the majority. Notably, as most recently amended in

1990, it contains two subsections: one, section 212(h)(1)(A), governs appli-

cations by persons who seek a waiver for offenses which occurred more than

15 years before the application and explicitly requires a showing of rehabili-

tation, but does not require either that certain family relationships exist or

that a showing of extreme hardship to those persons be made as a predicate

for theexercise of discretion. The other, section 212(h)(1)(B), with which we

are concerned here, does require both the existence of specific family rela-

tionships and evidenceof extremehardship to thosedesignated personsin the

absence of a waiver. Thereis no statutory requirement either that any particu-

lar amount of time must have passed since the offense giving rise to the need

for the waiver, or that rehabilitation be demonstrated or that admission be in

the national interest.

This Board, acknowledging the principle underlying the Supreme Court’s

decision in INS v.Cardoza-Fonseca, 480 U.S. 421,449 (1987), has stated:“It

is a well-established rule of statutory construction that, in cases in which

Congress includes particular language in one section of a statute but omits

that language in another . . ., a presumption arises that the disparate inclusion

and exclusion was intentional and purposeful.” Matter of Hou, supra.I

believe that the reasoning employed and the result reached by the majority in

this case depart without reason from this important maxim.

In my opinion,to best effectuatethe intent of Congress as expressed by the

statutory language of any discretionary waiver within the Act, the equities

should be weighed and balanced differently relative to the statutory eligibil

ity factors required. If that is not done in this case,then the statutory language

distinct to section 212(h)(1)(B), as compared to other waivers provided by

the statute, is rendered meaningless.

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A. Section 212(h)(1)(B) Explicitly Requires Evidence of Extreme

Hardship to Family Members

In a section 212(h)(1)(B) case, the statutory emphasis is on the existence

of specified close family members and a showing of extreme hardship to

those family members. Close family ties and a compelling level of economic,

personal, or professional harm or suffering amounting to extreme hardship

are statutory predicates for the exercise of discretion. By contrast, in section

212(c) applications, they are no more than individual considerations, albeit

important and arguably primary ones, in the overall exercise of discretion.

While it might constitute a reasonable exercise of discretion to deny a

waiver under section 212(c) despite evidence of close family ties and hard

ship on the basis that these are merely factors on the positive side of the dis

cretionary equation, I cannot conclude that comparable treatment of the same

factors in a section 212(h) waiver case would be appropriate. The majority

tends to ignore the statutory distinction between these waiver provisions, and

fails to treat the section 212(h) waiver applicant as entering into the discre-

tionary arena already having met a significant mandatory standard which

itself necessitates the assembly of impressive favorable factors. Rather, the

majority appears to give little if any weight in the subsequent exercise of dis-

cretion to the factthat a section 212(h)applicant has alreadyestablished close

family ties and extreme hardship.

Further, I take issue with the conclusion of the majority that the precedent

decisions issued by this Board pertaining to adjustment of status under sec-

tion 245 of the Act are inapposite. A waiver under section 212(h) historically

and literally arises in connection with an application for admission, since, to

date, this Board has not recognized the availability of this waiver to those

within the United States only seeking to avoid deportation. Cf. Yeung v. INS,

76 F.3d 337 (l1th Cir. 1996). The typical waiver applicant either is not yet a

lawful permanent resident or is a lawful permanent resident seeking that sta

tus anew. See Matter of Gabreylsky, 20 I&N Dec. 750 (BIA 1994).

While

some immigrant visas are provided for those approved in asylee, refugee, or

employment-based categories, over two-thirds of immigration to the United

States is based upon family relationships, and family reunification is a

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The majority’s citation to INS v. Bagamasbad, 429 U.S. 24, 25 (1976), and Matter of

Goldeshtein, 20 I&N Dec. 382 (BIA 1991), rev’d on other grounds, 8 F.3d 645 (9th Cir. 1993),

for the proposition that an adjudicator need not even address the statutory “extreme hardship”

predicate for the exercise of discretion in suspension and section 212(h) adjudications is

misleading in the context of this case.While it is true that an adjudicator need not make express

rulings concerning statutory eligibility, and may skip ahead to a discretionary denial in

appropriate cases, this does not provide the adjudicator with a license to ignore relevant factors

in rendering that discretionary determination.

The respondent has resided in the United States since 1983 and has held the status of a

lawful permanent resident for over 7 years. He is applying for lawful resident status anew, in

conjunction with his application for a waiver.

fundamental purpose underlying the terms of Act. I cannot agree that our

decisions concerning the exercise of discretionary factors involving the

admission of close family relatives have no applicability here.

B. Section 212(h)(1)(B) Explicitly Does Not Require

Evidence of Rehabilitation

The majority finds not only that the statutory standard has been satisfied

but that substantial equities exist. That being the case, one might ask, why

then does the majority conclude the waiver is not warranted? The only bases

articulated by the majority are the nature of the conviction involved and the

issue of rehabilitation in the respondent’s case. While these are not improper

factors for considerationin theultimate discretionary equationin eithera sec

tion 212(c) or a section 212(h) case, it is notable that the factor of rehabilita

tion specifically is not a statutory prerequisite to the exercise of discretion in

a section 212(h) application submitted under section 212(h)(1)(B).

In my view, however,by importing without distinctionthe establisheddis-

cretionary factors applicablein a section212(c) adjudication (whererehabili-

tation is an equity, see Matter of Marin, supra) into a section 212(h)

adjudication, the majority has skewed the basis for a reasonable adjudication

consistent with the governing statutorysection and the fair exercise of discre-

tion.

Not only does the majority consider rehabilitation in this case, but it

elevates rehabilitation as at least one of two determinative factors in its

denial. A reading of the majority decision suggests that the statutorily

required elements of close family ties and extreme hardship pale next to the

presence or absence of rehabilitation. Moreover, I believe that the emphasis

given its findingthat rehabilitationis not present (whichI dispute) constitutes

an improper assessment of rehabilitation contrary to our holdings in both

Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995) (stating that absence of one

or more favorable factors does not convert such factors into adverse consid

erations), and Matter of Edwards, 20 I&N Dec. 191 (BIA 1990) (holding that

absolute rehabilitation is not required).

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It appears that the reason the majority dismisses as inapplicable the discretionary

evaluations conducted in Matter of Arai, 13 I&N Dec. 494, 495-96 (BIA 1970), modifying

Matter of Ortiz-Prieto, 11 I&N Dec. 317 (BIA 1965) (holding that adjustment of status could be

granted only when outstanding equities were present), is that the adverse factor which triggers

the need for a section 212(h) waiver is a criminal conviction. Nonetheless, I believe it

instructive that we found that Ortiz-Prieto was “too broad in its impact and probably more

demanding than necessary,” and concluded that factors such as family ties, hardship, and length

of residence constitute countervailing factors warranting a favorable exercise of discretion.

Matter of Arai, supra, at 495.

For example, the majority states that “he has only been in the United States for a little more

than 7 years.” (Emphasis added.) While this may be relevant in a section 212(c) case, in fact, a

waiver under section 212(h) was originally contemplated to provide a means of overcoming

excludability for a new immigrant who has not been in the United States at all.

II. IMPROPER BALANCING OF DISCRETIONARY FACTORS

A. Undue Emphasis on Admission of Guilt

While rehabilitation is not a statutory requirement, it is not unreasonable

to consider this factor in light of the fact that a section 212(h)(1)(B) waiver

overcomes excludability based upon either criminal conduct or a conviction.

However, in its discretionary determination, the majority follows the course

set by the Immigration Judge and treats the absence of an outright admission

of guilt by the respondent as dispositive of the absence of rehabilitation. Cf.

Matter of Roberts, 20 I&N Dec. 294 (BIA 1991). In my view, this constitutes

an impermissible treatment of the rehabilitative element of remorse, contrary

to the decisions of thisBoard and the courts ofappeals. See Guillen-Garcia v.

INS, 999 F.2d 199 (7thCir. 1993); Matter of Edwards, supra. I am inclined to

adopt the reasoning of the United States Court of Appeals for the Seventh

Circuit, which was articulated most recently in Canales-Lopez v. INS,76

F.3d 381 (7th Cir. 1996),

that reliance on a failure or refusal to acknowledge

guilt, no matter how framed, “does not constitute adequate consideration of

all the circumstances surrounding the petitioner’s efforts to demonstrate

rehabilitation.” Id. (citing Guillen-Garcia v. INS, supra, at 205); see also

Guillen-Garcia v. INS, 60 F.3d 340, 344-45 (7th Cir. 1995) (upholding BIA

on other grounds), cert. denied, 116 S. Ct. 775 (1996).

Elevation of a claim of innocence as dispositive of a lack of rehabilitation

actually does what we say we will not do—redetermine guilt or innocence.

Cf. Matter of Roberts, supra. Matter of Roberts states clearly that for discre-

tionary purposes we may look behind the conviction—but we may not rede-

termine guilt or innocence. Id. at 301. If we are allowed to look at mitigating

factors (and lack of culpability going to an inability to express remorse for

something one hasnot donewould fall intothat zone),we should notpenalize

an alien who testifies to innocence under oath, barring a showing that he has

intentionally given false testimony. An individual faces an untenable situa

tion if subsequent discretionary relief—be it sentencing disposition or collat

eral immigration benefits—is conditioned upon an admission of guilt. As a

result, some federal courts have long recognized that even after conviction,

when post-conviction options may have been exhausted, it continues to be

unfair and unreasonable to require a defendant to admit guilt (contrary to his

testimony in the criminal proceedings), as to do so also might be to require

him to admit perjury.

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While I understand that Canales-Lopez v. INS, supra, is an unpublished decision, it

provides a compelling analysis of this Board's consideration of the element of an admission of

guilt in the context of establishing rehabilitation as a discretionary equity, one which I adopt for

purposes of my dissent in this case.

See Thomas v. United States, 368 F.2d 941, 945 (5th Cir. 1966), in which the court

determined that the defendant was “between the devil and the deep blue sea,” when the district

In this case, the respondent did not plead guilty in his criminal trial but

maintained his innocence and was found guilty. In the record before us, the

respondent admitted to aspects of the criminal conduct in question and

denied the explicit charges underlying his conviction.

The Immigration

Judge acknowledged that the respondent testified that he recognizes the

crime involved to be a serious one, for which someone should be punished.

The majority emphasizes the fact of the respondent’s responses on the lie

detector test administeredprior totrial as comparedwith histestimony before

the Immigration Judge.

This not only appears to contravene this Board’s

position in Matter of Roberts, supra, but the majority fails to indicate the ulti

mate significance of either the respondent’s statement or the results of the

test.

This is particularly so, in light of the fact that the majority itself

acknowledges in the same paragraph that one who claims innocence is not

categorically foreclosed from establishing that he has taken steps towards

rehabilitation. Matter of Edwards, supra.

In assessing rehabilitation, we are making “an estimate or prediction of an

individual’s future conduct.” Palacios-Torres v. INS, 995 F.2d 96, 99 (7th

Cir. 1993). The respondent and his wife are well aware of the poor judgment

and unacceptable conduct which characterized their former living situation.

The family has moved away from the area in which the circumstances giving

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court told him to repent or receive a longer sentence. See also Miller v. United States, 589 F.2d

1117, 1138 (1st Cir. 1978), cert. denied, 440 U.S. 958 (1979); Scott v. United States, 419 F.2d

264 (D.C. Cir. 1969). In fact, the Scott court noted that a glib willingnessto admit guilt in order

to secure something in return may indicate quite the opposite of repentance.

Evidence in the record, contained in the investigating officer’s report and in a pre-trial

polygraph report, reflects that an unorthodox situation had developed in the apartment

complex, that the assaulted child was in counseling with a social worker, that she received no

parental control or guidance, that rumors of a sexual relationship between the child and the

respondent had been circulated by the child throughout the apartment complex, and that a prior

investigation had revealed no evidence of such a relationship. The respondent does not deny

having improperly touched the child or having allowed her to remain in his family’s apartment,

and he admits that he wrestled with her and even that he had, in his wife’s presence, lain on top

of her.

The report of the lie detector examination reveals that upon admitting having had sexual

intercourse with the complainant, the respondent explained further that the complainant, a

neighbor’s daughter, approached him in his apartment, and lay down on his bed next to him.

While I don’t doubt that the alleged sexual contact occurred, I can understand how, in the

hearing before the Immigration Judge, the respondent, not being legally trained to understand

the concept of a minor’s lack of consent, and given the unorthodox situation which preceded

this incident, would not think of his conduct necessarily as forcible sex or a sexual assault,as

the charge and conviction is worded.

Under the circumstances, he could honestly admit the act but deny the charge as entitled in

the record of conviction without being inconsistent or incredible. See Canales-Lopez v. INS,

supra, at 2 (Board’s denial of relief as being on account of lack of credibility rather

unacceptable, as relief cannot be denied on this basis alone, and lack of credibility for failing to

acknowledge guilt is not a separate ground supporting a denial). See also Guillen-Garcia v.

INS, supra, at 205.

rise to the respondent’s crime occurred. There is no evidence of any criminal

conduct whatsoever by the respondent prior to the situation which underlies

the respondent’s conviction. Further, there is no evidence of recidivism dur

ing the pendency of the criminal charges or since his release for good behav

ior following a 1-year period of incarceration, an early release from a 3-year

sentence.

The majority contends that it is not holding that one who claims innocence

and fails to express remorse is precluded from ever showing persuasive evi

dence of rehabilitation. However, here the respondent has presented his role

in his family,his productive employment, and the absence of any other crimi

nal conduct. The majority’s failure to articulate any other basis for its rejec

tion of the respondent’s claim of rehabilitation, however, renders its

treatment ofthe absenceof anadmission of guilt as being determinative of an

insufficient level of rehabilitation. Canales-Lopezv. INS, supra; cf. Matterof

Edwards, supra. I believe that reliance upon the absence of evidence of

remorse, coupled only with the serious nature of the single criminal offense

giving rise to this respondent’s need for a waiver is not a sound basis on

which to deny relief in this case.

B. Undue Weight Given Criminal Offense

This is a waiver we are adjudicating. It presupposes a violation of the

immigration laws. An application under section 212(h) comes before us only

when there has been either conduct involving prostitution or conviction or

admission of a crime involving moral turpitude. No applicant will ever

appear before us who has not committed an offense which we consider, in

some degree, reprehensible. In my opinion, theresult reached by the majority

certainly appears to approach an impermissible per se basis in which to deny

a discretionary waiver. See Gonzales v. INS, 996 F. 2d 804, 810 (6th Cir.

1993); cf. Matter of Burbano, 20 I&N Dec. 872, 877-78 (BIA 1995). But see

Yepes-Prado v. INS, 10 F.3d 1363, 1371-72 (9th Cir. 1993).

Indeed, I believe we contravene the statute when we so readily engage in

the practice of finding the offense to be waived an adequate basis alone

on which to deny relief.

Moreover, I don’t believe that one can read the

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The record reflects that while in prison the respondent achieved “exemplary unit conduct

and observed work performance,” and that he had no infractions and conducted himself

according the institution’s rules and orders.

I recognize that we have said consistently in the section 212(c) context that a single factor

may be so egregious as to overwhelm any existing equities. Matter of Marin, supra, at 584-85. I

do not disagree with that principle nor do I disagree with the majority that we must also

consider the safety and well-being of others in oursociety. I do not foreclose the possibility that,

based on concrete evidence of recidivism, a propensity for violence, or actual harm that will be

caused by allowing an offender toremain in this country, denial based upon a singleunderlying

offense might not be appropriate. However, I read Matter of Marin to mean that when dealing

with the offense to be waived, such a result, while not impermissible, must be the exception

majority opinion without concluding that it has relegated the significant and

compelling factors of family ties and extreme hardship to the back burner. I

cannot find that dismissing statutory prerequisites or treating them as no

more than a threshold for a discretionary adjudication which demands other

factors to overcome the adverse factor of the offense giving rise to the need

for a waiver is either reasonable in the exercise of discretion or consistent

with the statute.

The respondent is in violation of the immigration laws on account of a sin

gle, albeit serious, conviction, giving rise to his need for a section 212(h)

waiver. His crime, statutory rape of a young teenager, is not to be dismissed

lightly and it should be punished—in the criminal justice system, and exam

ined further—in the exercise of our discretion to waive his deportation.

Whether it is an offense such that under no circumstances should this man be

allowed to remain in the United States with his family as a lawful permanent

resident after being released from prison with goodconduct reports and when

his wife and children want and need him is another story.

The respondent has established, as the majority concedes, substantial

equities relating to the statutory qualifications of close family ties and

extreme hardship to be suffered by the family members should the respon-

dent be deported. His wife begs us to allow him to remain, and there is ample

evidence in the record that she has suffered depression on account of the cir-

cumstances and other hardships due to his absence, which will only be exac-

erbated by his deportation. Further, his deportation would mean not only a

loss of financial support to the household and his children’s loss of the pres-

ence of their father, but the permanent disruption of this family.

In addition to the factors emphasized explicitly by Congress, the record

reflects that the respondent has resided in the United States for 13 years and

has been a lawful permanent resident since 1987. There is evidence that he is

a responsible husband and father who previously was regularly employed

and supported his family,and that he hasemployment towhich he will return.

While in prison he studied towards receiving his GED. The record also con

tains enthusiastic commendations of his character and of his being an honest,

hardworking individual. Each of these factors individually and cumulatively

indicates that he has the character and family base from which he can return

to society as a contributor rather than a predator, and that he has taken steps

towards rehabilitation from the conduct resulting in his conviction.

With regard to his conviction, I believe he attempted to provide an expla

nation for his criminal conduct, and while his unwillingness to acknowledge

his offense squarely may be the product of shame or denial, I don’t find him

to be either an outright liar or an unrepentant criminal. Nor do I conclude, as

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rather than the rule. See also Braun v. INS, 992 F.2d 1016, 1020 (9th Cir. 1993); Matter of

Alonzo, 17 I&N Dec. 292 (Comm. 1979) (if underlying offense is considered, a waiver could be

denied in every case).

apparently the majority does, that his failure to acknowledge culpability to

their satisfaction isa reliable indiciaof either rehabilitationor future conduct.

With the exception of the poor exercise of judgment in condoning the situa

tion which led to his commission of the crime in question, there is no evi

dence that the respondent lived other than a normal lifestyle. He has no

criminal record of any kind other than the offense giving rise to these pro

ceedings. He has no prior immigration violations. He provided evidence of

good conduct while in prison.

I note that this crime was an aberration in his otherwise law-abiding his

tory and appeared connectedto theunorthodox circumstances of the family’s

living situation in relation to their former neighbors. That living situation no

longer exists. In my opinion there is absolutely no reason to conclude that he

would not move on from this incident, which I view as an aberration in an

otherwise regular record, and continue to be a provider for his family and a

contributing member of our society.

I do not contend that this Board may not or should not address either the

offense itself or rehabilitation in the course of adjudicating a waiver applica-

tion under section 212(h) of the Act. However, in this case, the majority not

only fails to address any other aspect of rehabilitation present in the record,

but concludes, without citing any evidence of record or other authority, that

the nature of the crime for which this applicant already has been convicted

and imprisoned is serious enough to make him an undesirable member of our

society in the future. I conclude that such a treatment of the record not only

constitutes an abuse of our discretion, but does violence to the statutory

language.

III. CONCLUSION

I believe it is reasonable to look at the statute in a way which gives mean

ing and reason to its separate provisions overall. In my view the majority’s

failure to truly distinguish section 212(h) from other waiver provisions

according to its statutory components impermissibly skews and distorts the

majority’s discretionary assessment. I believe that discretionary assessment

is flawed further by the majority’s over-reliance on an admission of culpabil

ity and the specific crime involved in lieu of a fair consideration, on balance,

of the overwhelming evidence of strong family ties and the hardship the fam

ily faces without the respondent, as well as the respondent’s role as a pro

vider, reports of his good conduct, affirmations of his good character, and no

evidence of anything other than a good prognosisfor the future.I would grant

the relief requested in the exercise of discretion.

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