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Yazkurt v. Immigration and Naturalization Service

filed: January 15, 1992.

ISMET YAZKURT, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A13-778-280.

Before: Tang, Reinhardt, And Trott, Circuit Judges.

MEMORANDUM

Ismet Yazkurt ("Yazkurt") appeals a Board of Immigration Appeals decision affirming the immigration Judge's denial of his application for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1192(c). We affirm.

Ismet Yazkurt, a fifty-one year old citizen of Turkey, was granted lawful permanent resident status in the United States in 1966, and has resided in this country almost continuously since that time. On April 29, 1985, Yazkurt was convicted in the United States District Court, District of Maryland, of conspiracy to import heroin into the United States in violation of 18 U.S.C. § 371. Yazkurt was given a suspended five-year sentence, was placed on probation, and fined $10,000 in exchange for his cooperation and guilty plea.

The I.N.S. initiated deportation proceedings against Yazkurt on June 18, 1987. Yazkurt was charged with deportability under section 241(a)(11) of 8 U.S.C. § 1251(a)(11), as an alien convicted of a crime relating to a controlled substance. At the Conclusion of the hearing, the immigration Judge found Yazkurt deportable and ineligible for Section 212(c) relief. The Board of Immigration Appeals ("BIA") upheld that decision. The BIA's decisions denying discretionary relief from deportation are reviewed for abuse of discretion, Vargas v. United States Dep't of Immigration, 831 F.2d 906, 908 (9th Cir. 1987), and should be set aside "only if the board fails to support its Conclusions with a reasoned explanation based upon legitimate concerns." Id.

On appeal, Yazkurt first argues a crime which provides a ground for deportation also cannot be the basis for denying discretionary relief from such deportation. However, this circuit in Vargas, 831 F.2d at 909, upheld the BIA's decision to deny a request for a waiver of deportation to an alien convicted of a drug offense. In Ayala-Chavez v. INS, No. 90-70657, slip op. 13111 (9th Cir. filed Sept. 19, 1991), this circuit again upheld the BIA's rejection of a waiver application when this decision was based primarily on the alien's drug conviction. This argument, therefore, fails.

Yazkurt contends that the BIA improperly relied on Matter of Marin, 16 I. & N. Dec. 581 (1978), and unlawfully added an intermediate step between statutory eligibility and the BIA's exercise of discretion. He argues that in Marin, the BIA enlarged upon thirty-eight years of administrative precedent by requiring a showing of unusual or outstanding countervailing equities when discretionary relief from deportation is sought for drug-related offenses. This argument has no merit. This circuit has held that the requirement of "unusual" or "outstanding" equities to offset a criminal drug offense represents a permissible interpretation of the Act. Ayala-Chavez, No. 90-70657, slip op. at 13117.*fn1

Yazkurt argues that the BIA failed to balance the favorable factors against the adverse factors, and failed to engage in the balancing process required by statute once it found that no unusual or outstanding equities existed. This argument also has no merit.

Indeed, the BIA did not reach the discretionary stage of the analysis: "As a primary matter, we find that the respondent must demonstrate unusual or outstanding equities before we will enter into an analysis of whether he merits section 212(c) relief as a matter of discretion . . . we find that as a general matter, drug related trafficking offenses are sufficiently serious to require outstanding or unusual equities." BIA decision at 5. However, the Board went on to say, "although we have determined that the respondent has not met the threshold requirement of outstanding or unusual equities, we note that had we needed to reach the discretionary stage of section 212(c) analysis, we would not have found in the respondent's favor." Id. Immediately preceding that statement, the BIA did assess Yazkurt's equities:

In assessing the respondent's equities, we observe that he has resided in the United States for 23 years, having arrived here when he was approximately 26 years old. In addition the respondent has accumulated extensive real estate holdings, valued in excess of $1,000,000. While these equities are significant, we agree with the immigration Judge that, under the circumstances of this case, they are not unusual or outstanding. Regarding the respondent's residence, we note that he arrived here as an adult and has not developed any permanent family ties or demonstrated any particular attachment to his community. Further, he was involved for a 4-year period in a conspiracy to import heroin into this country, and he is still on probation for that crime. With respect to the respondent's real estate holdings, we observe that the record fails to establish how he acquired the properties. Considering the extent of these holdings and the absence of a clear employment history for the respondent, we are particularly troubled by that omission. Further, no objective evidence was provided to support the respondent's contention that he will suffer financial losses from the forced sale of his properties.

BIA decision at 5. Remanding this case for the board to evaluate Yazkurt's equities would be useless, and thus inappropriate.

Yazkurt also argues that the BIA failed to properly assess his particular culpability in the crime. A review of the record, including the information to which he pled guilty, plainly shows that there was sufficient evidence that Yazkurt's role in the drug trafficking conspiracy was a serious crime. There was testimony that Yazkurt willingly and knowingly participated with Ahmet Kizgin, a Turkish national, in planning a kidnapping in order to collect a heroin debt of $375,000. Yazkurt, it was claimed, knowingly and willingly drove his co-conspirator from Dallas to Houston to effect the kidnapping and collection of the debt. Yazkurt also stated that he knew that $3,000 of his own money was being used to ensure the success of a heroin deal.

Yazkurt alleges that there were several factual findings that were erroneous. Most of the errors were committed by the immigration Judge. We do not review that decision. Yazkurt alleges, however, that the BIA falsely found that Yazkurt admitted to having a gun with him to consummate the drug deal. Even if Yazkurt did not admit to having a gun, there was substantial testimonial evidence in the record that could have led the BIA to reasonably believe that he did have one in his possession. Moreover, there is no indication that the BIA used this fact in reaching its decision.

Finally, Yazkurt argues that the fact he was expecting a child was an equity that the BIA should have considered in balancing his positive and negative factors. The BIA did note his unborn child in their decision, and it was reasonable for them not to consider it as a positive factor. It was not an abuse of discretion for the BIA to find that fathering a child with a woman then married to someone else is not an equity. Moreover, deporting Yazkurt would create no hardship with respect to his relationship with his child because the child's mother testified that, if Yazkurt is deported, she would follow him to Turkey.*fn2 The record in this respect amply supports the Board's Conclusion that Yazkurt "has not developed any permanent family ties." As for Yazkurt's marriage to Teresa Horton, this fact is not part of this ...


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