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Seaton v. Immigration and Naturalization Service

filed*fn*: February 10, 1994.


On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A34-061-094

Before: Schroeder, Canby, and Wiggins, Circuit Judges


Yourie Saint John Christopher Seaton, a native and citizen of Jamaica, petitions pro se for review of the Board of Immigration Appeals' ("BIA") decision affirming the immigration Judge's ("IJ") denial of (1) his request for a waiver of deportation under section 212(c) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1182(c), and (2) his request for a continuance. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We deny the petition for review.


Discretionary Relief from Deportation

On July 2, 1992, the Immigration and Naturalization Service ("INS") issued an order to show cause charging Seaton with being deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii), as an alien who had been convicted at any time after entry of an aggravated felony. Seaton had been convicted of possession for sale of cocaine base. At a deportation hearing on September 11, 1992, the IJ found Seaton deportable as charged and denied his request for a section 212(c) waiver of deportation.*fn1 The BIA affirmed the IJ's decision.

A discretionary waiver of deportation pursuant to section 212(c) is granted only where an alien demonstrates statutory eligibility for the relief and where equitable circumstances exist that are sufficient to warrant a waiver of deportability. Matter of Buscemi, Int. Dec. 3058 (BIA 1988). Because Seaton meets the statutory requirements, the only issue the BIA considered was whether equity required a waiver.

"We review the BIA's balancing of the equities for section 212(c) relief for an abuse of discretion." Ayala-Chavez v. INS, 944 F.2d 638, 642 (9th Cir. 1991) (citing, Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987)). "We may set aside the BIA's denial of section 212(c) relief 'only if the Board failed to support its Conclusions with a reasoned explanation based upon legitimate concerns.'" Id. (quoting Vargas, 831 F.2d at 908).

In deciding whether an alien merits relief under section 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 to determine whether the granting of section 212(c) relief appears in the best interest of the country."*fn2 Matter of Marin, 16 I & N. Dec. 581, 584 (BIA 1978), approved, Ayala-Chavez, 944 F.2d at 641. An applicant seeking 212(c) relief carries the burden of establishing his or her eligibility for discretionary relief. Id. at 583. The BIA requires a showing of unusual and outstanding equities by aliens seeking discretionary relief under section 212(c) if the alien has been convicted of serious criminal activity such as drug trafficking. Ayala-Chavez, 944 F.2d at 641.

Because Seaton was convicted of a serious offense, cocaine possession and trafficking, he was required to demonstrate "outstanding" equities before section 212(c) relief could be granted. See Ayala-Chavez, 944 F.2d at 641.

Here, the BIA considered the adverse factors evidencing Seaton's "undesirability as a permanent resident," including his drug trafficking conviction, his conviction for receiving stolen property,*fn3 his history of unemployment, the fact that he was fired from his last job as a result of his drug use, and that he has been homeless for the last 1 1/2 years. The BIA also considered "the social and humane considerations" presented on Seaton's behalf such as his 18 years of lawful residency in the United States, his entry into the country at the age of 7, and his family ties which include his mother and three siblings. The BIA noted, however, that although Seaton's mother and siblings reside in the United States he had not spoken to them for over a year and that his family members declined to post his bond or be present at his immigration hearing. The BIA also found that Seaton had failed to show any evidence of community involvement or significant drug rehabilitation.

The BIA concluded that Seaton's criminal record and his long history of drug addiction outweighed his demonstration of favorable equities. The BIA supported this Conclusion with "a reasoned explanation based upon legitimate concerns." See Ayala-Chavez, 944 F.2d at 642. Accordingly, the BIA did not abuse its discretion by affirming the IJ's denial of Seaton's request for section 212(c) relief. See id.


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