993 F. 2d 883 - Martinez-Canazal v. US Immigration and Naturalization Service

MEMORANDUM**

Jose Luis Martinez-Canazal petitions for review of a final order by the Board of Immigration Appeals which reversed the immigration judge's relief from deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c).1 We have jurisdiction of the BIA's final order under 8 U.S.C. § 1105a(a). We affirm.

Martinez is a native and citizen of Mexico who resided in the United States as a lawful permanent resident alien. In April 1991, he pleaded guilty to delivery of cocaine and was sentenced to two years of confinement. The INS issued an order to show cause why he should not be deported as an alien convicted of a crime relating to a controlled substance under § 241(a)(4)(B) of the Act. The immigration judge granted Martinez's application for § 212(c) relief. On appeal, the BIA vacated the decision and ordered him deported to Mexico.

In deciding whether an alien merits relief under § 212(c), the BIA "must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." Matter of Marin, 16 I. & N.Dec. 581, 584 (1978); see Ayala-Chavez v. United States Immigration and Naturalization Serv., 944 F.2d 638, 641 (9th Cir.1991) (expressly approving Marin test). Because this deportation order resulted from a drug offense, Martinez also must show that unusual or outstanding equities compel discretionary relief. See Ayala-Chavez, 944 F.2d at 641 (strong congressional policy against lenient treatment of drug offenders in immigration laws justify BIA's higher standard of equities for 212(c) relief).

"We review the BIA's balancing of equities for section 212(c) relief for an abuse of discretion." Id. at 642 (citation omitted). We will reverse the BIA's decision only if it "fails to support its conclusions with a reasoned explanation based upon legitimate concerns." Vargas v. United States Dep't of Immigration and Naturalization, 831 F.2d 906, 908 (9th Cir.1987).

Martinez's arguments are twofold: (1) the BIA did not consider adequately all the favorable factors presented in his application and (2) it failed to provide a rational explanation for overruling the immigration judge's findings. Both are meritless.

The BIA decision need not be elaborate. "Although we have required the [BIA] to provide more than '[m]ere conclusory statements' ... all that is necessary is a decision that sets out terms sufficient to enable us as a reviewing court to see that the [BIA] has heard, considered, and decided." Villanueva-Franco v. Immigration and Naturalization Serv., 802 F.2d 327, 330 (9th Cir.1986) (citations omitted).

The BIA correctly balanced the equities for § 212(c) relief. It noted that Martinez had lived in the United States for at least eight years.2 Three of his siblings resided here while his parents and several other siblings lived in Mexico. Martinez did not own property. The BIA also took note of his prison record, rehabilitation progress and steady work history. Having considered these factors, it concluded that the equities simply did not "rise to the level of unusual or outstanding."

In light of our narrow standard of review, we cannot say that the BIA abused its discretion in denying the relief requested. We deny the petition and affirm the BIA decision. We also deny Martinez's request for attorney fees under 28 U.S.C. § 2412(d).

AFFIRMED.