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Hernandez v. Immigration and Naturalization Service

*fn* submitted: February 22, 1993.

ERNESTO L. HERNANDEZ, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review an Order Of the Board of Immigration Appeals. INS No. A40-495-537

Before: Goodwin, Schroeder, and Canby, Circuit Judges.

MEMORANDUM

Ernesto Hernandez, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from the immigration Judge's ("IJ") decision denying Hernandez's application for waiver of deportation under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) ("Act"). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We review the BIA's decision for abuse of discretion, Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991), and we deny the petition for review.

I

Background

On September 13, 1979, Ernesto Hernandez's present wife, Juleta, emigrated to the United States as a lawful permanent resident and established residency in Seattle, Washington.*fn1 In September 1985, Juleta acquired her United States citizenship and, in October 1985, she returned to the Philippines and married Hernandez. Hernandez entered the United States for the first time in June 1986.

Hernandez lived with Juleta in Seattle from June 1986 until November 1986, when he returned to the Philippines. In January 1987, Hernandez returned to Seattle. That same month, Hernandez traveled to Alaska in search of employment. From January 17, 1987 until November 5, 1987, Hernandez worked in an Alaskan cannery.

On November 5, 1987, Hernandez shot his supervisor in the arm with a gun. On August 16, 1988, Hernandez pleaded no contest and was convicted of Assault in the First Degree, in violation of Alaska Stat. § 11.41.200(a)(1). Hernandez received a sentence of five years. In March 1991, Hernandez was released from prison and returned to Seattle.

On September 21, 1989, the Immigration and Naturalization Service ("INS") issued Hernandez an order to show cause ("OSC") charging him with deportability pursuant to section 241(a)(4) of the Act, 8 U.S.C. § 125l(a)(2)(A)(1).*fn2 On January 31, 1991, Hernandez applied for adjustment of status to permanent resident pursuant to section 245, 8 U.S.C. § 1255, seeking a waiver of inadmissibility under section 212(h).

On December 3, 1991, at the deportation hearing in Seattle, Hernandez, represented by counsel, admitted the allegations of the OSC and conceded deportability. On March 5, 1992, the IJ held a hearing on the merits of Hernandez's application for waiver of deportability. The IJ received testimony from Hernandez, Juleta, Hernandez's probation officer, a friend of Hernandez, and Hernandez's brother-in-law. The IJ found that although Hernandez would not be a threat to the welfare, safety, or security of the United States, Hernandez failed to demonstrate extreme hardship. The IJ therefore denied Hernandez's request for section 212(h) waiver and ordered Hernandez deported to the Philippines.

On March 12, 1992, Hernandez appealed the IJ's decision to the BIA, contending that the IJ abused his discretion by failing to find that Hernandez had shown extreme hardship would result from deportation and that the IJ failed to consider all favorable factors and evidence. On July 8, 1992, the BIA dismissed Hernandez's appeal. The BIA found Hernandez failed to demonstrate extreme hardship. Moreover, the BIA stated that even if Hernandez met the statutory requirements of section 212(h), the BIA would have denied Hernandez's application in exercise of its discretion because of the seriousness of Hernandez's crime and the absence of significant countervailing equities. Hernandez timely petitions for review.

II

Analysis

Hernandez contends the BIA abused its discretion by finding that Hernandez's deportation would not result in extreme hardship to ...


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