Matter of Edwards

Decided by Board May 2, 1990

1990年5月2日由委员会裁定

In a decision rendered on August 17, 1989, the immigration judge found the respondent deportable, based upon his admissions, on the charge set forth above, denied his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationali- ty Act, 8 U.S.C. § 1182(c) (1988), and ordered him deported from the United States to Barbados. The respondent, through counsel, has appealed from that decision only with respect to the denial of relief from deportation. The appeal will be dismissed.

在1989年8月17日作出的决定中，移民法官根据被申请人的承认，基于上述指控认定其可被驱逐，驳回其根据《移民和国籍法》第212(c)条，8 U.S.C. § 1182(c) (1988)，提出的不可入境豁免申请，并命令将其从美国驱逐至巴巴多斯。被申请人通过律师仅就拒绝给予驱逐救济这一部分对该决定提出上诉。上诉将被驳回。

The respondent is a 44-year-old native and citizen of Barbados, who was admitted to this country as a lawful permanent resident in 1968. The record reflects that he is married to a United States citizen and that has four United States citizen children. It further shows that he incurred the following criminal convictions while in this country: attempted burglary (1977); third degree burglary, larceny, possession of burglary tools, and possession of stolen property (1979); attempted burglary (1981); possession of a controlled substance (1985); posses- sion with intent to distribute a controlled substance (two counts), intentional distribution of a controlled substance (three counts), and conspiracy to distribute a controlled substance (one count) (1987).' In total, the respondent served some 2 1/2 years as a result of his criminal convictions, including a 1-year period stemming from his 1987 convictions, for which he was actually sentenced to concurrent terms of 3 to 5 years.2 At the deportation hearing, the respondent testified that he began abusing controlled substances in 1977, and he intimated that this vice formed the basis of his criminal record. He indicated that while incarcerated during the 1979 to 1981 period, he attended weekly drug rehabilitation sessions. He related that after his release from prison, he managed to remain free from drugs for 3 1/2 years, but that he eventually began to use them again due to family, financial, and legal difficulties. The respondent advised that he sold heroin during 1986 solely to support his own drug habit. He stated that he participated in weekly drug counselling sessions while in prison as a result of his 1987 convictions. He further testified that subsequent to his release from prison, he continued to attend a treatment program on a weekly basis. The respondent conceded that he used heroin in approximately August 1988, and that he tested positive for morphine in November 1988. He indicated that before he was able to begin tri-weekly counselling sessions, as suggested by his parole officer, the Immigration and Naturalization Service issued a warrant for his arrest. He advised that he planned to return to a treatment program after his release from Service detention. The respondent said that he would not abuse controlled substances again because he did not want to hurt his family. In this regard, he also cited a fear of Acquired Immune Deficiency

受访者是44岁的巴巴多斯本地公民，于1968年作为合法永久居民获准进入我国。记录显示，他与一名美国公民结婚，并有四名美国公民子女。记录进一步显示，他在我国期间曾有下列刑事定罪：未遂入室盗窃（1977年）；三级入室盗窃、盗窃、持有入室盗窃工具及持有赃物（1979年）；未遂入室盗窃（1981年）；持有受管制物质（1985年）；持有并意图分销受管制物质（两项罪名）、故意分销受管制物质（三项罪名）及共谋分销受管制物质（一项罪名）（1987年）。' 总计，受访者因其刑事定罪服刑约2 1/2年，其中包括因1987年定罪而服的1年刑期，就该定罪他实际被判处3至5年并行刑期。2 在驱逐出境听证会上，受访者作证称他于1977年开始滥用受管制物质，并暗示这一恶习构成了其犯罪记录的基础。他表示，在1979年至1981年监禁期间，他参加了每周一次的戒毒治疗课程。他叙述说，出狱后他设法保持3 1/2年未沾染毒品，但最终因家庭、经济及法律困难而再次开始使用。受访者表示，他在1986年期间出售海洛因完全是为了支持自己的毒瘾。他称，因1987年定罪而在监狱期间，他参加了每周一次的毒品咨询课程。他进一步作证称，出狱后他继续每周参加治疗项目。受访者承认他在1988年8月左右使用了海洛因，并于1988年11月吗啡检测呈阳性。他表示，在他能够按照假释官的建议开始每周三次的咨询课程之前，移民和归化局即签发了逮捕令。他表示计划在从移民局拘留中释放后重返治疗项目。受访者称他不会再滥用受管制物质，因为不想伤害家人。在这方面，他还提到对获得性免疫缺陷的恐惧

Syndrome and noted that, due to his high blood pressure, continued abuse of controlled substances would be fatal to him. With respect to his history of employment, the respondent advised that when he first came to this country, he worked in a nursing home for 10 years until 1977. He testified that his next job was as a taxicab driver, an occupation in which he remained for less than a year following his release from prison in 1981. He noted that he subse- quently worked at a die casting company for 2 1/2 years until 1985, when he was injured in a job-related accident. He related that he received workmen's compensation for approximately 1 year. The respondent said that he was unemployed during the period leading up to his 1987 convictions, that he sold drugs during this time, and that his spouse supported him. He stated that upon his release from prison to a halfway house, he worked as a kiln operator until he was laid off, i.e., from December 1987 until August 1988. He declared that he then earned money as a self-employed worker in the demolition and cleaning industry. He observed that he planned to return to this occupation upon his release from Service detention. The respondent implored that he be allowed to remain in the United States because of his family. He insisted that he would work hard to change his ways. He related that his wife and children, as well as his mother and siblings, resided here and that, he knew no one in Barbados. He asserted that it would be very difficult for him to find employment in Barbados because of his age. He recounted that he had discussed the possibility of returning to Barbados with his wife, but that his family would be unable to accompany him because his children were in school and Barbados lacked special educational facilities for his autistic son. In addition, the respondent offered the testimony of his wife on his behalf. She stated that she worked as a part-time aide at the school of her autistic son. She advised that she would not accompany her husband to Barbados as that country lacked the special educational facilities required for her autistic son. She related that the respondent was a good father and that he had changed for the better since his release from prison. She declared that she and her children had received public assistance since 1982, although her husband also had provided some support. Besides testimony, a number of documents were entered into evidence. These documents include the case notes of the respondent's Massachusetts parole officer, covering the period from February 8, 1988, to January 26, 1989. There also is a letter from the Massachu- setts Public Welfare Department, dated March 16, 1989, which describes the assistance given to the respondent's wife and children, and which opines that if the respondent is allowed to remain in this

综合症，并指出，由于其高血压，继续滥用受控物质将对他致命。 关于其就业经历，受访者表示，他初到该国时，在一家疗养院工作了10年，直到1977年。他作证说，他的下一份工作是出租车司机，1981年出狱后，他从事该职业不到1年。他指出，随后他在一家压铸公司工作了2 1/2年，直到1985年，当时他在一次工伤事故中受伤。他叙述说，他领取了大约1年的工伤赔偿。受访者说，在导致其1987年定罪的那段时期，他处于失业状态，在此期间他贩卖毒品，其配偶供养他。他表示，从监狱释放到中途之家后，他担任窑炉操作员，直到被裁员，即从1987年12月到1988年8月。他声明，此后他在拆迁和清洁行业以自雇工作者身份赚钱。他表示，他计划在从移民局拘留中释放后重返这一职业。 受访者恳求允许他因家庭原因留在美国。他坚称将努力工作以改变自己的生活方式。他叙述说，他的妻子和子女以及他的母亲和兄弟姐妹都居住在这里，而他在巴巴多斯不认识任何人。他声称，由于他的年龄，他在巴巴多斯很难找到工作。他讲述说，他曾与妻子讨论过返回巴巴多斯的可能性，但其家人无法陪同他，因为他的孩子们在上学，而巴巴多斯缺乏适合其自闭症儿子的特殊教育设施。 此外，受访者还提供了其妻子的证言以支持他。她说，她在其自闭症儿子的学校担任兼职助理。她表示，她不会陪同丈夫前往巴巴多斯，因为该国缺乏其自闭症儿子所需的特殊教育设施。她叙述说，受访者是一位好父亲，自出狱以来他已变得更好。她声明，自1982年以来，她和她的孩子们一直领取公共援助，尽管她的丈夫也提供了一些支持。 除证言外，若干文件也被纳入证据。这些文件包括受访者的马萨诸塞州假释官的案件记录，涵盖1988年2月8日至1989年1月26日期间。还有一封来自马萨诸塞州公共福利部的信函，日期为1989年3月16日，其中描述了向受访者的妻子和子女提供的援助，并认为如果允许受访者留在此

country, there would be numerous benefits to his family, including providing his children with two parents, and giving the family an opportunity to become independent of the public welfare system. Finally, the documentary evidence also comprises a medical report, dated January 21, 1988, confirming that the respondent's son has an autistic disorder. In his decision, the immigration judge determined that the respon- dent was statutorily eligible for a. section 212(e) waiver. However, he denied that relief in the exercise of discretion. He reasoned that the serious negative factor of the respondent's criminal convictions could only be overcome by a showing of unusual or outstanding equities, together with a demonstration of rehabilitation. He concluded that the respondent had failed to establish either of these requirements. On appeal, the respondent argues that the immigration judge erred by failing to consider all of the favorable factors presented in his case. He asserts that he demonstrated unusual and outstanding equities. He further contends that the immigration judge should have allowed him to submit evidence regarding the nature and circumstances of his criminal convictions. He points out that his criminal record resulted from his need to support his drug habit rather than a desire to make profits. Moreover, he argues that the immigration judge placed undue weight on the factor of rehabilitation. He explains that, as a practical matter, the immigration judge based the denial of relief solely on the issue of whether he had been rehabilitated with respect to his controlled substance dependency. He indicates that it was improper to preclude relief on this basis because he was in Service detention and therefore was unable to enter a treatment facility, as had been previously arranged. Finally, the respondent contends that the immi- gration judge improperly relied on the parole officer's report. For its part, the Service argues that the decision of the immigration judge is correct. It asserts, inter alia, that the respondent failed to make the requisite showing of unusual or outstanding equities. Section 212(c) of the Act provides, in pertinent part, that aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful' unrelinquished domicile of 7 consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds of exclusion. In light of our decision in Matter of Silva, 16 l&N Dec. 26 (BIA 1976), a lawful permanent resident is prima facie eligible for relief from deportation under section 212(c), even though he has not proceeded abroad subsequent to the acts which rendered him deportable. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976). Section 212(c) of the Act, however, does not provide an indiscrimi-

国家，他的家庭将获得诸多好处，包括为他的子女提供双亲，并使家庭有机会独立于公共福利制度。最后，书面证据还包括一份日期为1988年1月21日的医疗报告，确认受访者的儿子患有自闭症障碍。 在裁决中，移民法官认定受访者在法律上有资格获得第212(e)条豁免。然而，他行使自由裁量权拒绝了该救济。他的理由是，受访者刑事定罪这一严重负面因素只能通过证明异常或杰出的衡平因素以及展示康复来克服。他得出结论，受访者未能确立这两项要求中的任何一项。 在上诉中，受访者主张移民法官因未能考虑其案件中提出的所有有利因素而犯错。他声称他展示了异常和杰出的衡平因素。他进一步争辩，移民法官本应允许他提交关于其刑事定罪性质和情况的证据。他指出，他的犯罪记录源于他需要支持其毒瘾而非营利欲望。此外，他争辩，移民法官对康复因素给予了不当权重。他解释说，实际上，移民法官仅基于他是否在受控物质依赖方面已康复这一问题拒绝了救济。他表示，以此为由排除救济是不适当的，因为他处于移民局拘留中，因此无法进入先前已安排的戒毒治疗机构。最后，受访者主张移民法官不当依赖了假释官的报告。 移民局方面则争辩，移民法官的决定是正确的。它主张，除其他事项外，受访者未能作出所需的异常或杰出衡平因素的证明。 该法第212(c)条规定，在相关部分，合法获准永久居留的外国人，如临时自愿出国而非根据驱逐令出国，并返回连续7年的合法未放弃住所，可经司法部长自由裁量获准入境，而不考虑某些特定的排除理由。鉴于我们在Matter of Silva, 16 I&N Dec. 26 (BIA 1976)中的裁决，合法永久居民表面上即有资格根据第212(c)条获得驱逐救济，即使他在使其可被驱逐的行为之后并未出国。参见Francis v. INS, 532 F.2d 268 (2d Cir. 1976)。 然而，该法第212(c)条并未提供无差别的

nate waiver for all who demonstrate statutory eligibility for such relief. Instead, the Attorney General or his delegate is required to determine as a matter of discretion whether an alien merits the relief sought, and the alien bears the burden of demonstrating that his application warrants favorable consideration. Matter of Marin, 16 JAN Dec. 581, 582-83 (BIA 1978). The exercise of discretion in a particular case necessarily requires consideration of all the facts and circumstances involved. There must be a balancing of the social and humane considerations presented in an alien's favor against the adverse factors evidencing his undesirability as a permanent resident. Id. at 584. The Board has enunciated numerous factors to be considered in determining whether or not to grant section 212(c) relief. Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the respondent and his family if deportation occurs, service in this country's armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character. Id. at 584 85. Among the factors deemed adverse to an alien are the nature and underlying circumstances of the exclusion or deportation ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriousness, and the presence of other evidence indicative of a respondent's bad character or undesirability as a permanent resident of this country. Id. at 584. Moreover, one or more of these adverse considerations may ultimately be determinative of whether section 212(c) relief is in fact granted in an individual case. Id. We also have pointed out that as the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities. Id. at 585. Such a heightened showing is required when an alien has been convicted of a serious drug offense, particularly one relating to the trafficking or sale of drugs. Id. at 586 n.4. The necessity of demonstrating unusual or outstanding equities is not exclusively triggered by serious crimes involving controlled substances, however. Rather, one must examine the gravity of the offense per se. Matter of Buscemi, 19 I&N Dec. 628, at 633 (BIA 1988); see also Matter of Merin, supra. In addition, such a showing may be mandated because of a single serious crime, or because of a succession of criminal acts which together establish a pattern of serious

豁免给所有证明法定资格获得此类救济的人。相反，司法部长或其代表必须作为自由裁量事项确定外国人是否值得所寻求的救济，且外国人负有证明其申请值得有利考虑的举证责任。Matter of Marin, 16 I&N Dec. 581, 582-83 (BIA 1978)。 在特定案件中行使自由裁量权必然要求考虑所涉及的所有事实和情况。必须将有利于外国人的社会和人文考虑与证明其作为永久居民不受欢迎的不利因素进行权衡。同上，第584页。委员会已阐明了在决定是否授予第212(c)条救济时应考虑的众多因素。有利考虑已被认定包括诸如在美国的家庭纽带、在该国的长期居住（特别是当居住始于年轻时）、如驱逐出境对受访者及其家庭造成的困难的证据、在美国武装部队服役、就业历史、财产或商业联系的存在、对社区的价值和服务的证据、如存在犯罪记录则证明真正康复、以及其他证明受访者良好品格的证据。同上，第584-85页。被视为对外国人不利的因素包括所涉排除或驱逐理由的性质和基本情形、存在其他重大违反该国移民法的行为、存在犯罪记录以及如有则其性质、近期性和严重性、以及存在表明受访者不良品格或作为该国永久居民不受欢迎的其他证据。同上，第584页。此外，这些不利考虑中的一个或多个可能最终决定在个别案件中是否实际授予第212(c)条救济。同上。 我们还指出，随着负面因素变得更加严重，外国人有责任引入额外的抵消性有利证据，在某些案件中这可能必须涉及异常或杰出的衡平因素。同上，第585页。当外国人被判犯有严重毒品犯罪时，特别是与贩运或销售毒品有关的犯罪，需要这种更高的证明。同上，第586页注4。然而，证明异常或杰出衡平因素的必要性并非仅由涉及受控物质的严重犯罪触发。相反，必须审查罪行本身的严重性。Matter of Buscemi, 19 I&N Dec. 628, 第633页 (BIA 1988)；另见Matter of Merin, 同上。此外，这种证明可能因单一严重犯罪而成为必要，或因一系列犯罪行为共同确立严重

Interim Decision #3134

临时决定#3134

criminal misconduct. Matter of Buscemi, supra, at 633-34. We observe that an alien who demonstrates unusual or outstanding equities, as required, does not compel a favorable exercise of discretion; rather, absent such equities, relief will not be granted in the exercise of diScretion. 3 Id.; see also Matter of Marin, supra. There are cases in which the adverse considerations are so serious that a favorable exercise of discretion is not warranted even in the face of unusual or outstanding equities. Such was the situation in Matter of Buscemi, supra. With respect to the issue of rehabilitation, the Board noted in Matter of Marin, supra, at 588, and reiterated in Matter of Buscemi, supra, at 633-34, that a section 212(c) waiver applicant who has a criminal record "ordinarily" will be required to make a showing of rehabilitation before relief will be granted as a matter of discretion. This language has been interpreted in some cases as though a clear showing of reformation is an absolute prerequisite to a favorable exercise of discretion in every case involving an alien with a criminal record. To the extent that this language may be read as creating an absolute prerequisite to a favorable exercise of discretion, we withdraw from it. Rather, section 212(c) applications involving convicted aliens must be evaluated on a case-by-case basis, with rehabilitation a factor to be considered in the exercise of discretion_ In regard to the matter before us, we point out that we have reviewed the record on a de novo basis. Accordingly, the respondent has not suffered any prejudice due to the immigration judge's alleged errors in failing to consider all of the favorable evidence on his behalf or by placing an undue burden upon him regarding rehabilitation. Moreover, we observe that, for purposes of expediency, we have not relied on the report of the respondent's parole officer in rendering our decision. Consequently, we make no ruling as to the proper evidential weight which should have been accorded to the document or whether, in fact, it should have been accepted into evidence in the first in- stance.4

犯罪不当行为的模式而成为必要。Matter of Buscemi, 同上，第633-34页。我们注意到，按要求证明异常或杰出衡平因素的外国人并不强制要求有利行使自由裁量权；相反，缺乏此类衡平因素，则不会在行使自由裁量权时授予救济。3 同上；另见Matter of Marin, 同上。 有些案件中不利考虑如此严重，以至于即使面对异常或杰出衡平因素也不应行使有利自由裁量权。Matter of Buscemi, 同上，即是这种情况。 关于康复问题，委员会在Matter of Marin, 同上，第588页中指出，并在Matter of Buscemi, 同上，第633-34页中重申，有犯罪记录的第212(c)条豁免申请人"通常"将被要求在作为自由裁量事项授予救济之前证明康复。这一措辞在某些案件中被解释为，明确证明改造是每个涉及有犯罪记录的外国人案件中有利行使自由裁量权的绝对前提。若该措辞可被解读为创设有利行使自由裁量权的绝对前提，我们对此予以撤回。相反，涉及被定罪外国人的第212(c)条申请必须逐案评估，康复是行使自由裁量权时考虑的一个因素。 关于我们面前的事项，我们指出，我们已重新审查了记录。因此，受访者并未因移民法官据称未能考虑所有有利于他的证据或在康复问题上对其施加不当负担而受到任何损害。此外，我们注意到，为便利起见，我们在作出裁决时并未依赖受访者假释官的报告。因此，我们不对该文件本应被赋予的适当证据权重或事实上是否应在一开始就被采纳为证据作出裁决。4

Additionally, while it is true that the immigration judge initially noted that he would not hear testimony as to the respondent's motivation for his crimes, the respondent ultimately was able to indicate for the record that he engaged in criminal conduct in order to support his drug habit. See Matter of M -, 3 I&N Dec. 804, 805 (BIA 1949) (matter involving the seventh proviso to section 3 of the Immigration Act of 1917) (while the Board will not go behind a record of conviction to reassess an alien's ultimate guilt or innocence, inquiry may be had into the circumstances surrounding the commission of the crime in order to determine whether a favorable exercise of discretion is warranted). Therefore, the respondent did not suffer prejudice. We also point out that, at the time the immigration judge rendered his interlocutory ruling, the respondent's counsel expressed agreement with it. In analyzing the respondent's application for a section 212(c) waiver, we note that his statutory eligibility for that relief has not been contested. In regard to the exercise of discretion, we consider that the respondent possesses an extensive criminal record covering the period from 1977 until 1987, including convictions for burglary and attempt- ed burglary, possession of a controlled substance, possession with intent to distribute a controlled substance, and intentional distribution of a controlled substance. The respondent's overall 10-year pattern of criminal misconduct, as well as his controlled substance distribution offenses, each independently require that he demonstrate unusual or outstanding equities if he is to have the possibility of receiving a favorable exercise of discretion. In the respondent's favor we take into account the fact that he has resided in this country for approximately 22 years. We note that he is married to a United States citizen, that he has four United States citizen children, that his mother and siblings reside in this country, and that he apparently has no family remaining in Barbados. We observe that the respondent's wife declared that he is a good father. We acknowledge that his family will suffer emotional hardship if he is deported to Barbados. We are aware of the special hardship that the respondent's autistic child may suffer from a separation. In sum, we conclude that these equities cumulatively rise to the level of the unusual or outstanding. In regard to other alleged favorable equities forwarded by the

此外，尽管移民法官最初确实指出他不会就respondent（受访人）犯罪的动机听取证言，但respondent最终能够在记录中表明他实施犯罪行为是为了支持其吸毒习惯。见Matter of M -, 3 I&N Dec. 804, 805 (BIA 1949)（涉及1917年《移民法》第3条第七项但书的案件）（虽然Board不会超越定罪记录重新评估外国人的最终罪责或无罪，但可以调查犯罪实施 surrounding circumstances，以确定是否值得行使有利的自由裁量权）。因此，respondent没有受到损害。我们还指出，在移民法官作出中间裁决时，respondent的律师表示同意该裁决。 在分析respondent根据第212(c)条申请豁免时，我们注意到其对该救济的法定资格未被质疑。关于自由裁量权的行使，我们认为respondent拥有从1977年至1987年期间的广泛犯罪记录，包括入室盗窃和未遂入室盗窃、持有受管制物质、持有并意图分销受管制物质以及故意分销受管制物质的定罪。respondent整体10年的犯罪行为模式，以及其受管制物质分销罪行，各自独立要求他证明不寻常或杰出的衡平因素，如果他要有可能获得有利的自由裁量权行使。 有利于respondent方面，我们考虑他在该国居住约22年的事实。我们注意到他与一名美国公民结婚，有四名美国公民子女，其母亲和兄弟姐妹居住在该国，并且他显然在巴巴多斯没有剩余家人。我们观察到respondent的妻子声明他是一个好父亲。我们承认如果他被驱逐到巴巴多斯，其家庭将遭受情感困难。我们意识到respondent的自闭症孩子可能因分离而遭受特殊困难。总之，我们得出结论，这些衡平因素累积达到不寻常或杰出的水平。 关于respondent提出的其他据称有利的衡平因素，

Interim Decision #3134

临时决定#3134

respondent, however, we note that he has neglected to submit any evidence to support his conclusory allegation that he will be unable to find work in Barbados because of his age. In terms of the financial hardship that his family may face due to his deportation, we consider that they received support from the public welfare system before the respondent encountered any difficulties with our immigration laws. He has not shown that their financial situation will be materially exacerbated if he is forced to depart from this country. Turning to the issue of rehabilitation, we find it to be a significant factor in view of the nature and extent of the respondent's criminal history. Specifically, he has a record of offenses extending from 1977 until 1987, including convictions for controlled substance distribution. He attributed these crimes to his need to support his drug habit. While such a claim may tend to show that the respondent is not an inherently evil person, we still must consider the safety of our society. Regardless of the respondent's motivation, the community still will suffer the consequences of any future criminal behavior on his part. At the hearing, the respondent promised that he would try to mend his ways. He renounced further controlled substance abuse because of the adverse effect on his family and because of the dangers to his own health. He participated in a number of treatment programs, including one at the time of his detention by the Service. Although the respondent appears to have been able to free himself from drugs for various periods of time, we note that he ultimately was unsuccessful in his quest. For example, we consider that while on parole and participating in a treatment program after his most recent period of incarceration, the respondent used controlled substances on at least two occasions, in August and November 1988. Consequently, on the record before us, we determine that he failed in his attempt to rehabilitate himself. While it is unfortunate that the respondent apparently has not been able to participate in a controlled substance treatment program while in Service detention, we reject the respondent's suggestion that this fact bars a finding that he has not rehabilitated himself. See Matter of Maria, supra, at 588-89 (while it is more difficult for confined aliens to establish rehabilitation than those who are at liberty, this does not result in a violation of their constitutional rights). Further, we observe that the respondent was able to participate in a treatment program directly prior to his detention by the Service. However, he wasted this opportunity by continuing his use of controlled substances on at least two occasions during this period. In balancing the various factors in the respondent's case, we take note of his favorable equities, which we found to be unusual or outstanding. However, when we weigh these equities against the

然而，关于respondent，我们注意到他忽视提交任何证据支持其结论性指控，即由于年龄他将在巴巴多斯无法找到工作。关于其家庭可能因驱逐而面临的财务困难，我们认为他们在respondent遇到移民法任何困难之前就从公共福利系统获得支持。他未显示如果被迫离开该国，他们的财务状况将实质性恶化。 转向康复问题，鉴于respondent犯罪历史的性质和范围，我们认为这是一个重要因素。具体而言，他有从1977年至1987年的犯罪记录，包括受管制物质分销定罪。他将这些犯罪归因于支持其吸毒习惯的需要。虽然此类主张可能倾向于显示respondent不是天生邪恶的人，但我们仍必须考虑我们社会的安全。无论respondent的动机如何，社区仍将承受其未来任何犯罪行为的后果。 在听证会上，respondent承诺他将努力改过自新。他放弃进一步滥用受管制物质，因为对家庭的不利影响以及对自己健康的危险。他参加了多个治疗项目，包括在Service拘留期间的一个。尽管respondent似乎能够在不同时期摆脱毒品，但我们注意到他最终在追求中未成功。例如，我们认为在假释并参加最近监禁后治疗项目期间，respondent至少在两次场合使用受管制物质，即1988年8月和11月。因此，根据我们面前的记录，我们确定他康复尝试失败。 虽然不幸的是respondent显然未能在Service拘留期间参加受管制物质治疗项目，但我们拒绝respondent的建议，即这一事实禁止认定他未康复。见Matter of Maria, supra, at 588-89（虽然被拘留外国人比自由者更难建立康复，但这不导致违反其宪法权利）。此外，我们观察到respondent能够在被Service拘留前直接参加治疗项目。然而，他浪费了这一机会，在此期间至少两次继续使用受管制物质。 在权衡respondent案件的各种因素时，我们注意到其有利衡平因素，我们认为是不寻常或杰出的。然而，当我们将这些衡平因素与

adverse factors of his extensive criminal record, which includes controlled substance distribution offenses, and our lack of confidence as to his rehabilitation, we determine that a favorable exercise of discretion is not warranted. Accordingly, the appeal will be dismissed. ORDER: The appeal is dismissed.

其广泛犯罪记录的不利因素（包括受管制物质分销罪行）以及我们对其康复缺乏信心相权衡时，我们确定不值得行使有利的自由裁量权。 因此，上诉将被驳回。 命令： 上诉被驳回。

I respectfully concur. I fully concur with and join in the Board's order with respect to both its rationale and the result reached. However, I wish to elaborate on two points which apparently have caused some confusion in the application of our prior decisions. The first point is the Board's position with respect to weighing the equities in the course of exercising its discretion regarding an applicant for relief under section 212(c) who has been convicted of a serious crime or a succession of criminal acts which together establish a pattern of serious criminal misconduct. In Matter of Marin, 16 I&N Dec. 581 (BIA 1978), we pointed out that such an alien may be required to show unusual or outstanding equities in order to receive favorable consideration of his application. While the intention of the Board in this holding appears to be clear enough, it nevertheless caused misperceptions in some quarters, with the assumption being made that if unusual or outstanding equities could be shown, relief under section 212(c) would follow. In the hope of clarifying its position, the Board subsequently published its decision in Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). There we pointed out that the fact that an alien has demon- strated unusual or outstanding equities does not compel a favorable exercise of discretion. Rather, we held that an alien with a serious criminal record who failed to make a showing of unusual or outstanding equities had not met a threshold test to be considered for relief under section 212(c). The Board holds in the present case that consideration of an application for relief under section 212(c) may not be pretermitted, but that a complete review of favorable factors must be made before a proper determination can be made as to whether or not the alien has established unusual or outstanding equities. Aside from the problem of pretermission of waiver requests, the use of the phrase "unusual or outstanding equities" causes some other difficulties. First, there is no need to determine whether or not the equity is unusual. It is the weight of the equity that is significant, not the frequency with which it may occur. Therefore, I would not treat the unusual nature of the equity as a significant factor. With regard to

我恭敬地同意。 我完全同意并加入Board的命令，包括其理由和结果。然而，我希望详细阐述两点，这两点显然在我们先前决定的适用中造成了一些混淆。 第一点是Board在行使自由裁量权时权衡衡平因素的立场，关于根据第212(c)条申请救济且被定罪严重犯罪或一系列犯罪行为共同建立严重犯罪行为模式的申请人。在Matter of Marin, 16 I&N Dec. 581 (BIA 1978)中，我们指出此类外国人可能需要显示不寻常或杰出的衡平因素，以获得其申请的有利考虑。虽然Board在这一裁决中的意图似乎足够清楚，但它在某些方面造成了误解，假设是如果可以显示不寻常或杰出的衡平因素，则第212(c)条下的救济将随之而来。 为了澄清其立场，Board随后在Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988)中公布了其决定。我们在那里指出，外国人已证明不寻常或杰出衡平因素的事实并不强制有利行使自由裁量权。相反，我们裁定有严重犯罪记录但未能显示不寻常或杰出衡平因素的外国人未满足根据第212(c)条考虑救济的门槛测试。Board在本案中裁定，根据第212(c)条考虑救济申请不得被预先排除，但必须在作出适当确定外国人是否已建立不寻常或杰出衡平因素之前，对有利因素进行完整审查。 除了豁免请求预先排除的问题外，使用“不寻常或杰出衡平因素”一词造成了一些其他困难。首先，无需确定衡平因素是否不寻常。重要的是衡平因素的权重，而不是其可能出现的频率。因此，我不会将衡平因素的不寻常性质视为重要因素。关于

evaluating equities as "outstanding," there has been a problem of definition. For example, 7 years as a lawful permanent resident is a statutory minimum requirement, and therefore, that period of resi- dence logically would not be regarded as an outstanding equity, whereas 25 years of residence ordinarily would be considered to be an outstanding equity. But as time passes beyond the required 7 years, the question arises as to when the period of residence, per se, becomes an outstanding equity. We clearly should not pinpoint a specific period, e.g., 14 years, because the quality of the residence should also be considered in determining its weight. Similarly, there is no formula for determining the number and type of United States citizen and lawful permanent resident relatives who may constitute an outstanding equity. For these reasons, I would not attempt to assign a value of "outstanding" to any particular equity. I believe that the appropriate method for addressing the equities is to evaluate all of them, assigning weight or importance to each one separately and then to all of them cumulatively. They should then be balanced against the adverse factors, which should also be evaluated cumulatively. It is at this point that an alien who has been convicted of a serious crime may be granted a favorable exercise of discretion under section 212(c) because his equities are "outstanding" and are of sufficient weight to override the adverse factors present in his case. When the alien's equities are fully and properly evaluated and it has been determined that they are not of sufficient weight to overcome the adverse factors of record, there is little point in designating them as "outstanding." The second area of confusion flowing from the Board's decisions in these cases involves the issue of rehabilitation. The Board's order points out that language used in Matter of Marin, supra, and Matter of Buscemi, supra, has been interpreted in some cases as though a clear showing of reformation is an absolute prerequisite to a favorable exercise of discretion in every case involving an alien with a criminal record. The Board then withdraws from the language in those cases to the extent that it may be read as creating an absolute prerequisite to a favorable exercise of discretion. I agree with the position the Board has taken in that regard in the present case. I would emphasize, however, that the issue is mostly one of proof. The alien may have a clear record since his conviction and may have taken positive steps to establish rehabilitation; yet, because of incarceration, the length of time since his conviction, or some other reason, he may be unable to establish convincingly that he has been rehabilitated. While such evidence would not carry the same weight as evidence demonstrating complete rehabilitation, his efforts may be considered, and he is not barred automatically from discretionary relief. On the other hand, if an alien has been convicted of a serious crime, and the evidence suggests that

在将衡平因素评价为“杰出”时，一直存在定义问题。例如，作为合法永久居民7年是法定最低要求，因此，该居住期间在逻辑上不会被视作杰出的衡平因素，而25年的居住通常会被视为杰出的衡平因素。但随着时间超过所要求的7年，问题就产生了：居住期间本身何时成为杰出的衡平因素。我们显然不应确定一个具体期间，例如14年，因为在确定其权重时还应考虑居住的质量。同样，也没有公式来确定可能构成杰出衡平因素的美国公民和合法永久居民亲属的人数和类型。基于这些理由，我不会试图对任何特定的衡平因素赋予“杰出”的价值。我认为处理衡平因素的适当方法是评价所有衡平因素，分别赋予每一因素权重或重要性，然后对所有因素累积评价。然后应将它们与不利因素相权衡，不利因素也应累积评价。正是在这一点上，已被判定犯有严重罪行的外国人可以根据第212(c)条获得有利的自由裁量行使，因为其衡平因素“杰出”且具有足够权重以压倒其案件中存在的不利因素。当外国人的衡平因素得到充分和适当评价，并确定其权重不足以克服记录中的不利因素时，将其指定为“杰出”就几乎没有意义。 从委员会在这些案件中的裁决产生的第二个混淆领域涉及康复问题。委员会的命令指出，Matter of Marin, supra和Matter of Buscemi, supra中使用的语言在某些案件中被解释为：明确证明改过自新是每个涉及有犯罪记录的外国人案件中有利行使自由裁量的绝对前提。委员会随后撤回那些案件中的语言，只要其可被解读为创设有利行使自由裁量的绝对前提。我同意委员会在本案中就此采取的立场。然而，我要强调，该问题主要是证明问题。外国人自定罪以来可能记录清白，并可能已采取积极步骤确立康复；然而，由于监禁、自定罪以来的时间长度或某些其他原因，他可能无法令人信服地证明他已康复。虽然此类证据不会具有证明完全康复的证据同样的权重，但其努力可以被考虑，他不会被自动排除在自由裁量救济之外。另一方面，如果外国人已被判定犯有严重罪行，且证据表明

he has not been rehabilitated, a favorable exercise of discretion would be inappropriate. For example, where the alien, since his conviction, has engaged in further criminal activity, has used or dealt in illicit drugs, or has associated with criminal elements, those circumstances would indicate that the alien is unrehabilitated and is undeserving of a favorable exercise of discretion, even though his equities may be highly favorable and he may be able to show that he has taken steps which ordinarily might lead to a finding of rehabilitation. In sum, I believe that it is the Board's purpose to provide guidance in the exercise of discretion in these areas but that it is not the Board's intention to provide a formula that should be rigidly followed.

他尚未康复，则有利行使自由裁量将不合适。例如，如果外国人在定罪后从事进一步犯罪活动、使用或交易非法毒品，或与犯罪分子交往，这些情况将表明该外国人未康复，不值得有利行使自由裁量，即使其衡平因素可能非常有利，且他可能能够表明他已采取通常可能导致康复认定的步骤。 总之，我认为委员会的目的是在这些领域为自由裁量行使提供指导，但委员会不打算提供应 rigidly 遵循的公式。

CONCURRING IN PART AND DISSENTING IN PART: Michael J. Heilman, Board Member

部分同意、部分反对： 委员会成员 Michael J. Heilman

I respectfully concur in part and dissent in part. I agree with the major purpose and conclusion expressed in the majority opinion. There is one part of the opinion, however, that could easily sow more confusion and more difficulty. That is the part of the majority opinion that finds certain of the respondent's equities to "cumulatively" use to the level of "unusual or outstanding." It may well be that any attempt to formulate a method for exercising "discretion" is doomed to be either too broad or too narrow, and that rough formulas may be all one can devise. It seems to me, however, that in Matter of Malin, 16 I&N Dec. 581 (BIA 1978), as well as in Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988), it was fairly clear that the term "outstanding or unusual" equities was not itself confusing. The majority opinion does not attempt to clarify or explain that term. Unfortunately, however, as a result of the majority opinion in this case, vie may well find ourselves having to explain our use of the term in its application to the equities in this case. The majority uses that term in a manner not previously employed. It appears to find that a number of equities, some of which in themselves are in no sense "unusual or outstanding," become so by an apparent mathematical operation. The declaration of the respondent's wife that he is a "good father" is surely evidence of a laudable quality. Likewise, the possibility that the family might suffer "emotional hardship" is a factor to be taken into account. But why these "equities" become equities of the highest quality is never explained, although the clear implication of the majority's discussion is that this occurs through the process of addition. It would thus appear that the majority is presenting the option to applicants to establish the existence of "unusual or outstanding" equities by presenting a certain number of

我尊重地部分同意、部分反对。 我同意多数意见所表达的主要目的和结论。然而，意见中有一部分很容易播下更多混淆和更多困难。那就是多数意见中认定被申请人某些衡平因素“累积”达到“不寻常或杰出”水平的部分。很可能任何试图制定“自由裁量”行使方法的尝试都注定要么过于宽泛要么过于狭窄，粗略公式可能就是所能设计的全部。然而，在我看来，在Matter of Malin, 16 I&N Dec. 581 (BIA 1978)以及Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988)中，相当清楚的是，“杰出或不寻常”衡平因素这一术语本身并不令人混淆。多数意见并未试图澄清或解释该术语。然而不幸的是，由于本案多数意见，我们很可能发现自己不得不解释我们在将该术语适用于本案衡平因素时的用法。多数意见以先前未曾采用的方式使用该术语。它似乎认定若干衡平因素——其中一些本身绝非“不寻常或杰出”——通过明显的数学运算而变得如此。被申请人妻子关于他是“好父亲”的声明无疑是值得称赞品质的证据。同样，家庭可能遭受“情感困难”的可能性也是应考虑的因素。但为什么这些“衡平因素”成为最高质量的衡平因素，从未得到解释，尽管多数意见讨论的明确含义是这通过相加过程发生。因此，多数意见似乎向申请人提供了通过提出一定数量的

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equities of a lesser magnitude which "cumulatively" will be trans- formed into equities of a higher level. On its face, this optional approach presents some rather daunting problems. Initially, it implicitly abandons the approach taken in both Matter of Math!, supra, and Matter of Buscemi, supra, which seemed to require an identification of individual "unusual or outstanding" equities, in the absence of which an applicant could not overcome highly adverse factors. This approach at least had the virtue of an "objective" standard in judging equities, which would apply equally to a drug trafficker and an armed robber. For example, in most instances, it would allow one to consider 20 years of permanent residence an "outstanding" equity. The "cumulative" approach, however, would allow one to deter- mine that no individual "unusual or outstanding" equities existed, and then allow one to nonetheless grant the waiver because a certain number of more mundane equities were presented. To my knowledge, neither Matter of Marin, supra, nor Matter of Buscemi, supra, has been construed to provide this option. In my estimation, this optional approach would in fact take us back to the situation which existed prior to the publication of Matter of Maria, supra. I would not do that and so do not join in that portion of the majority opinion.

较小程度的衡平因素来确立“不寻常或杰出”衡平因素存在的选项，这些因素“累积”后将转化为更高水平的衡平因素。 从表面上看，这种可选方法带来一些相当棘手的问题。首先，它隐含放弃了Matter of Math!, supra和Matter of Buscemi, supra中采取的方法，那些方法似乎要求识别个别“不寻常或杰出”衡平因素，若缺乏此类因素，申请人无法克服高度不利因素。这种方法至少具有以“客观”标准判断衡平因素的优点，该标准将同等适用于毒品贩运者和持械抢劫者。例如，在大多数情况下，它允许将20年永久居留视为“杰出”衡平因素。 然而，“累积”方法将允许认定不存在个别“不寻常或杰出”衡平因素，然后仍允许授予豁免，因为提出了若干更平凡的衡平因素。据我所知，Matter of Marin, supra和Matter of Buscemi, supra均未被解释为提供这一选项。 在我看来，这种可选方法实际上会将我们带回Matter of Maria, supra公布之前存在的情况。我不会这样做，因此不加入多数意见的那部分。