90 F.3d 374

Alexandra GEORGIU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70293.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1996.

Decided July 19, 1996.

*375Carol L. Edward, Seattle, Washington, for petitioner.

Michelle Gluck, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent.

Before: REAVLEY,* REINHARDT, and WIGGINS, Circuit Judges.

PER CURIAM:

Alexandra Georgiu, a thirty-year-old native and citizen of Romania, was lawfully admitted to the United States as a political refugee and granted permanent resident status on August 13, 1984. He has lived here since then and has maintained steady employment. On November 4, 1988, he was convicted of armed robbery in Michigan, and on December 8, 1988, he was sentenced to three and one-half to twenty years in prison.1 The record contains no evidence of Georgiu’s having been arrested or convicted of any other criminal offense, either here or in Romania.

On July 31, 1991, the Immigration and Naturalization Service (INS) ordered Geor-giu to show cause why he should not be deported under section 241 as an alien who has been convicted of a crime of moral turpitude within five years of the date of entry and sentenced or confined for at least one year. 8 U.S.C. § 1251(a)(2)(A)©. Georgiu admitted that he was eligible for deportation but petitioned for relief under section 212(c). 8 U.S.C. § 1182(c). The Immigration Judge (IJ) denied the waiver. Based upon its review of the record, the Board of Immigration Appeals (BIA) affirmed.

STANDARD OF REVIEW

We review decisions to deny section 212(e) relief under the abuse of discretion standard. Pablo v. INS, 72 F.3d 110, 113 (9th Cir.1995). “[T]he INS is required to “weigh favorable and unfavorable factors by evaluating all of them, assigning weight to *376each one separately and then to all of them cumulatively.’ ” Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir.1994) (quoting Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir.1993)). “ ‘[T]he agency must indicate how it weighed the factors involved and how it arrived at its conclusion.’ ” Id. (quoting Yepes-Prado v. INS, 10 F.3d 1363, 1370 (9th Cir.1993)). Mere conclusory statements are not sufficient. Campos-Granillo, 12 F.3d at 852. The agency abuses its discretion “if it fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief.” Pablo, 72 F.3d at 113 (citation and internal quotation marks omitted). “A denial of relief may be affirmed only on the basis articulated in the agency’s decision and [this court] cannot assume that the INS considered factors that it failed to mention.” Yepes-Prado, 10 F.3d at 1366.

DISCUSSION

The BIA abused its discretion in denying Georgiu’s petition for 212(c) relief.2 The BIA failed to adhere to the requirement that it weigh both favorable and unfavorable factors and did not properly explain the basis for its decision. First, the BIA failed to discuss Georgiu’s family ties in the United States, his employment history, or his value and service to the community (although it did consider the hardship that his deportation might have on him and his family members.) We cannot assume that the BIA considered the factors it failed to discuss. Second, the BIA failed to explain how it assessed the evidence of rehabilitation. Last, the BIA failed to address the facts and circumstances underlying the particular criminal offense and explain how that sole adverse factor outweighed all the positive factors considered cumulatively.

The positive equities the BIA failed to address are important. First, although the BIA mentioned that Georgiu’s entire family lives in the United States when assessing the hardship that would result from his deportation, it did not consider that Georgiu’s numerous family ties constitute a significant factor in his favor. See Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir.1994) (stating that “the existence of substantial family ties in the United States is a weighty factor in the support of the favorable exercise of discretion under § 212(c)”); see also Agustin v. INS, 700 F.2d 564, 565 (9th Cir.1983) (concluding that petitioner’s situation was no different from that of any other alien who faces deportation after living in this country for several years because his parents and five siblings resided in the country to which he would be deported).3 Second, the BIA ignored Georgiu’s employment history. Since his arrival in this country, including much of his time in prison, Georgiu has been steadily employed.4 His excellent work history is a *377factor that the BIA should have taken into account. See Pablo, 72 F.3d at 113 (listing “history of employment” as a positive factor). Third, although it is not clear what constitutes “evidence of value and service to the community,” id., Georgiu’s involvement in the community, which has made him an “asset” to the community, warrants serious consideration.5 The BIA’s failure to mention these factors, standing alone, constitutes an abuse of discretion. See Rashtabadi, 23 F.3d at 1571 (“The failure to consider an important factor or to make a record of considering it constitutes an abuse of discretion.”).

The BIA’s “finding” regarding rehabilitation is wholly inadequate. The BIA stated that Georgiu’s “showing on this issue is not sufficient when considered with the other factors in his case to justify favorable consideration of his waiver request.” AR 3. It is not clear from this statement what weight, if any, the BIA accorded the evidence of rehabilitation. We have stated that

[i]n order for us to give meaningful review to a finding regarding rehabilitation, we must understand what factors the INS considers in making such a determination. Obvious considerations include the lack of commission of any additional crimes; enrollment in and attendance at rehabilitation programs; statements of remorse; and letters of good character. The salience and weight of these and other factors may vary from case to ease, but where some of these factors exist, the Board must offer more than a bald statement that there is no evidence of rehabilitation.

Yepes-Prado, 10 F.3d at 1372-73 n. 19. Here, Georgiu established that he has committed no additional crimes since his incarceration, expressed deep remorse for his actions and a sincere desire to atone for them,6 and submitted letters from his parole officer and local senior citizen’s center director attesting to his good character — all of which are evidence of rehabilitation. See Rashtabadi 23 F.3d at 1571 (stating that evidence of petitioner’s taking G.E.D. and vocational classes in prison, positive evaluations by instructors, and absence of further criminal conduct was *378“at least probative of [petitioner’s] rehabilitation”). Nonetheless, the BIA addressed none of these factors in making its “bald statement” that the evidence of rehabilitation was not sufficient. For this court to review the BIA’s decision, we must have some idea of the factors the BIA considered in assessing the evidence of rehabilitation and the weight the BIA accorded that evidence.7

Next, the BIA failed to assess the particulars of Georgiu’s criminal conduct.8 “[T]he agency must examine the facts surrounding the precise offense and evaluate those circumstances before determining the weight to be afforded a particular ... conviction.” Yepes-Prado, 10 F.3d at 1371. “Even when classification as ‘serious’ leads to a requirement of ‘unusual’ or ‘outstanding’ equities, that categorization is not to be imposed in a rigid manner inevitably compelling the denial of relief; it is still essential that the seriousness of the petitioner’s particular conduct be assessed individually in determining its weight as an adverse factor.” Elramly v. INS, 73 F.3d 220, 223 n. 4 (9th Cir.1995). The BIA here simply noted that “on account of the respondent’s criminal conviction, he must demonstrate unusual or outstanding equities.” This does not constitute an assessment of the particulars of Georgiu’s offense.

Last, the BIA failed to explain how or why Georgiu’s criminal conviction, the sole adverse factor, outweighed the substantial equities weighing in favor of a waiver of deportation. See Yepes-Prado, 10 F.3d at 1373. Again, we were provided with only the barest of conclusory statements.

CONCLUSION

While it appears to us from the record that the equities in Georgiu’s favor, cumulatively considered, significantly outweigh the seriousness of his criminal conduct, and while it appears to us that a failure to grant a waiver of deportation would constitute an abuse of discretion, we do not adopt such a holding at this time. Rather, we VACATE the BIA’s denial of Georgiu’s petition and REMAND to the BIA for further proceedings consistent with this opinion. We are confident that when the BIA reexamines the record, applies the correct standard, and properly weighs the particular offense against the various positive equities, it will reach the proper result. This panel will retain jurisdiction over any further proceedings or any further petitions that may be filed in this matter.

VACATED and REMANDED.

Georgiu v. Immigration & Naturalization Service
90 F.3d 374

Case Details

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Georgiu v. Immigration & Naturalization Service
Decision Date
Jul 19, 1996
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90 F.3d 374

Jurisdiction
United States

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