ROBERTS, 20 I&N Dec. 294 (BIA 1991)

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MATTER OF ROBERTS
In Deportation Proceedings
A-35959317
Decided by Board May 1, 1991

(1) An applicant for a waiver of inadmissibility under section 212(c) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(c) (1988), who is an aggravated felon is not
required to meet a heightened discretionary test beyond the requirements set forth in
Matter of Marin, 16 I&N Dec. 581 (BIA 1978), Matter of Buscemi, 19 I&N Dec. 628
(BIA 1988), and Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).

(2) A sole conviction for the felony sale of a controlled substance is sufficient to support
a determination that the respondent is a drug trafficker within the meaning of section
101(a)(43) of the Act, 8 U.S.C. § 1 101(a)(43) (1988).

(3) The imm.gration judge, in exercising his discretiun lu grant section 212(c) relief, may
not consider evidence on a theory of entrapment after the introduction of the
respondent's conviction record because such theory directly relates to the issue of the
respondent's ultimate guilt or innocence.

CHARGE:

Order: Act of 1952-Sec. 241(a)(4)(B) [8 U.S.C. § 1251(a)(4)(B)]-Convicted of aggra-
vated felony

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)]-Convicted of controlled
substance violation

ON BEHALF OF RESPONDENT:
Pro se

ON BEHALF OF SERVICE:
Karl V. Cozad
General Attorney

BY: Milhollan, Chairman; Dunne, Vacca, and Morris, Board Members. Concurring in
part and dissenting in part: Heilman. Board Member.

In a decision dated June 7, 1990, the immigration judge found the
respondent deportable under sections 241(a)(4)(B) and (11) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(4)(B) and (11)
(1988), as an alien convicted of an aggravated felony and of a
controlled substance violation. The immigration judge granted the
respondent's application for a waiver of inadmissibility under section
212(c) of the Act, 8 U.S.C. § 1182(c) (1988). The Immigration and
Naturalization Service has appealed. The appeal will be sustained.

The respondent is a 41-year-old native and citizen of Jamaica who
entered the United States as a lawful permanent resident on September
17, 1979, at the age of 29. Conviction records for the respondent

reflect that on October 12, 1989, he was convicted in a Missouri State
court, upon a plea of guilty, of the felony offense of sale of a controlled
substance (cocaine). He was sentenced to 8 years in prison. Reported-
ly, the respondent's sentence was modified to a term of 120 days.1

On June 7, 1990, at a hearing on the merits of the respondent's
application for relief from deportation pursuant to section 212(c) of
the Act, the respondent testified that he is married but separated from
his wife, who lives in New York with their four children, whose ages
range from 18 to 11. The respondent stated that he and his family
resided in Brooklyn, New York, from 1979 until 1987. He related that
during this period, he worked for a construction company and for a
private security company. The respondent stated that in 1987, he
moved to Kansas City where he resided with his girlfriend, with whom
he subsequently had a son. He testified that he commuted between
New York City and Kansas City from 1987 to 1989, and that he
continued to work for the same construction company in New York on
a job-by-job basis but was unemployed in Kansas City. He added that
he and his girlfriend ended their relationship in 1989, and that his
young son is in the custody of the child's grandmother.

The respondent testified that his wife and his three oldest children
are lawful permanent residents and that his youngest daughter and 2-
year-old son are United States citizens. He stated that he has no other
close relatives living in Jamaica with the exception of his father and
his aunt, with whom he does not communicate. The respondent
related that he has an 11th grade education, and that he had requested
some classes in prison but was released before his request was acted
upon. He stated that he has no other convictions and has never been
charged by the police with any other offenses. He added that while in
prison, he obeyed all the rules and was known as the quiet one because
he spent a lot of time reading his Bible. He stated that he filed income
tax returns up through 1986. The respondent testified that he gave his
wife most of the money he earned, including that earned while they
were separated.

The respondent testified that his arrest was the result of doing a
favor for a friend by allowing a man to pick up drugs in exchange for
money at his home, and he claimed that it had been a "set up." He
asserted that he pled guilty only to the fact of giving the man his
friend's package in exchange for the money, but not to the offense of

" The modification to the respondent's sentence is not reflected in the conviction
record. However, the respondent testified that he was only required to serve 120 days of
his sentence and was released from prison in mid-February of 1990. This fact is
substantiated by the Service's statement to the court that the respondent was released
from state custody prior to the time that the Service received notification and
apprehended the respondent on March 6, 1990, for deportation proceedings.

# Interim Decision #3148

selling drugs. The respondent added that at the time he agreed to plead
guilty, he had no knowledge of the 8-year sentence to be imposed. He
claimed that his public defender did not tell him that his conviction
may affect his immigration status. He testified that his desire is to
return to his family and job in New York. The respondent implored
that he be allowed to remain in the United States because his family
needs his support, and he would not be able to afford construction
tools or real estate in Jamaica.

Besides testimony, a number of documents were entered into
evidence. These documents include the respondent's criminal indict-
ment and judgment upon his guilty plea in 1989, the respondent's
immigration documents, including his Immigrant Visa and Alien
Registration (Form FS-511) evidencing his arrival in New York on
September 17, 1979, and letters from his wife and three of his children
requesting that the respondent be permitted to resume living with
them and working in New York.

In his decision, the immigration judge determined that the respon-
dent was statutorily eligible for a section 212(c) waiver, and that such
relief was warranted in the exercise of discretion. He reasoned that the
serious negative factor of the respondent's criminal conviction was
overcome by the respondent's period of residence in this country, his
family ties and the hardship that deportation would have upon his
family, his clean criminal record prior to and after his conviction, and
his history of employment. The immigration judge stated that the
respondent's sole conviction for sale of cocaine was not sufficient to
establish that he is a drug trafficker. The immigration judge also noted
that the circumstances of the respondent's arrest and the long delay
before indictment raised the possibility of entrapment. He further
noted that the respondent was misinformed during his criminal plea
arrangement because he was not told of the effect that such a plea
would have on his immigration status. For these reasons, the
immigration judge granted the respondent's section 212(c) waiver
request.

On appeal, the Service argues that the immigration judge erred in
finding that the respondent merited a section 212(c) waiver as a matter
of discretion. The Service contends that the immigration judge
incorrectly concluded that the respondent's sole felony conviction for
sale of cocaine was not sufficient to find that he was a "drug
trafficker." The Service further asserts that a determination of
eligibility for section 212(c) relief for an aggravated felon requires a
higher discretionary test than is presently recognized by case law.

Section 241(a)(4)(B) of the Act, added by section 7344 of the Anti-
Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4470-
71, renders deportable an alien who is "convicted of an aggravated

felony at any time after entry." Prior to the enactment of the
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, on
November 29, 1990, section 101(a)(43) of the Act, 8 U.S.C.
§ 1101(a)(43) (1988), defined the term "aggravated felony" to include
any drug trafficking crime as defined in section 18 U.S.C. § 924(c)(2)
(1988), or any attempt or conspiracy to commit any such act,
committed within the United States. In Matter of Barrett, 20 I&N Dec.
171 (BIA 1990), the Board of Immigration Appeals held that the
definition of "drug trafficking crime" in section 18 U.S.C. § 924(c)(2)
(1988), as amended by section 6212 of the Anti-Drug Abuse Act of
1988, 102 Stat. at 4360, for purposes of determining a drug-related
"aggravated felony" within the meaning of section 101(a)(43) of the
Act, encompasses state convictions for crimes analogous to offenses
under the Controlled Substances Act, 21 U.S.C. § 801 et seq. (1988),
the Controlled Substances Import and Export Act, 21 U.S.C. § 951 et
seq. (1988), or the Maritime Drug Law Enforcement Act, 46 U.S.C.
App. § 1901 et seq. (1988).

While the Service's appeal was pending in this case, Congress
enacted section 501(a) of the Immigration Act of 1990, 104 Stat. at
5048, which significantly revises the definition of an aggravated felony
contained in section 101(a)(43) of the Act. Section 101(a)(43) was
amended, in pertinent part, to provide that the term "aggravated
felony" includes "any illicit trafficking in any controlled substance (as
defined in section 102 of the Controlled Substances Act)" and that
"[s]uch term applies to offenses described in the previous sentence
whether in violation of Federal or State law." Moreover, section
501(b) of the Immigration Act of 1990, 104 Stat. at 5048, further
provides that amended section 101(a)(43), which clarifies that illicit
trafficking in controlled substance offenses under state law are now
covered in the definition of an aggravated felony, "shall be effective as
if included in the enactment of section 7342 of the Anti-Drug Abuse
Act of 1988."

In the case before us, the respondent was convicted of the felony
offense of criminal sale of a controlled substance, cocaine, in violation
of Missouri law. At his deportation hearing, the respondent was found
to be an aggravated felon within the meaning of the Act. The
respondent's state conviction for sale of cocaine is now clearly
included in the definition of an aggravated felony under section
101(a)(43) of the Act. Section 501 of the Immigration Act of 1990, 104
Stat. at 5048. We therefore conclude that the respondent's deportabili-
ty under both sections 241(a)(4)(B) and (11) of the Act has been
established by clear, unequivocal, and convincing evidence. See 8
C.F.R. § 242.14(a) (1991); Woodby v. INS, 385 U.S. 276 (1966).

Section 212(c) of the Act provides, in pertinent part, that aliens

"lawfully admitted for permanent residence who temporarily proceed-
ed abroad voluntarily and not under an order of deportation, and who
are returning to a lawful unrelinquished domicile of seven consecutive
years, may be admitted in the discretion of the Attorney General
without regard to" certain specified grounds for exclusion enumerated
in section 212(a) of the Act. A lawful permanent resident may in fact
be eligible for relief from deportation under section 212(c), even
though he has not proceeded abroad subsequent to the acts which
rendered hirn deportable. See Francis v. INS, 532 F.2d 268 (2d Cir.
1976); Matter of Silva, 16 I&N Dec. 26 (BIA 1976).

The Service does not contest this respondent's statutory eligibility
for relief under section 212(c).2 Rather, the Service contends that a
heightened discretionary test should apply to aggravated felons beyond
the requirements set forth in Matter of Marin, 16 I&N Dec. 581, 582-
83 (BIA 1978), and Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988).

Section 2 12(c) of the Act does not provide an indiscriminate 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, supra.

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. Matter of Marin, supra, 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 occure,
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.

2 We note that section 511(a) of the Immigration Act of 1990, 104 Stat. at 5052,
amended section 212(c) of the Act to provide that a section 212(c) waiver of
inadmissibility is not available to an alien who has been convicted of an aggravated
felony and has served a term of imprisonment of at least 5 years. Such reference to the
unavailability of a section 212(c) waiver to designated aggravated felons indicates that a
section 212(c) waiver is available to others. Sce Matter of Mesa, 20 1&N Dee. 257 (BIA
1991). Section 511(b) of the Immigration Act of 1990, 104 Stat. at 5052, further
provides that this amendment "shall apply to admissions occurring after the date of the
enactment of this Act."

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 scriousness, 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.

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, supra; see also Matter of Edwards, 20 I&N Dec. 191 (BIA
1990); Matter of Marin, 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 criminal
misconduct. Matter of Buscemi, supra. 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. Matter of
Buscemi, supra; see also Matter of Marin, supra.

With respect to the issue of rehabilitation, a section 212(c) waiver
applicant who has a criminal record will ordinarily be required to
present evidence of rehabilitation before relief is granted as a matter of
discretion. Matter of Marin, supra, at 588; see also Matter of Buscemi,
supra. However, 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. Matter of Edwards,
supra. We recognize that it is more difficult for confined aliens to
establish rehabilitation than for those who are at liberty, but this does
not preclude us from considering rehabilitation as a significant
discretionary factor. See Matter of Edwards, supra; Matter of Marin,
supra.

The Service recommends that an applicant for section 212(c) relief
who is an aggravated felon be required to meet the following
heightened or additional test: a showing that the respondent is fully
rehabilitated and that deportation would result in exceptional and

extremely unusual hardship to the respondent's spouse, parent, or
child who is a lawful permanent resident or citizen of the United
States. However, the Board finds that the present balancing test set
forth in Matter of Marin, supra, Matter of Buscemi, supra, and Matter
of Edwards, supra, adequately allows for determining the appropriate
strength of the equities necessary to overcome an alien's crimes in view
of their nature and seriousness. In Matter of Marin, supra, we stated
that we require a heightened showing of offsetting equities 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. In Matter of
Buscemi, supra, we recognized that such a showing may be mandated
because of a single serious crime. However, we emphasized that the
necessity of demonstrating unusual or outstanding equities is not
exclusively triggered by serious crimes involving controlled substances,
but rather upon examination of the gravity of the offense per se. Thus,
we do not look to what ground of deportability or inadmissibility a
particular crime comes within, but rather, the nature of the underlying
crime itself in determining the degree of equities that will be required
to overcome the crime. We also pointed out in Matter of Buscemi,
supra, that a showing of unusual or outstanding equities does not
compel a grant of section 212(c) relief, for in some cases, the
seriousness of the crime may still not be overcome by the equities
demonstrated.

Another issue raised on appeal is whether the respondent's sole
conviction for felony sale of cocaine is sufficient to determine that he
is a drug trafficker within the meaning of the Act. A drug trafficking
crime is a felony punishable under the statutes enumerated in 18
U.S.C. § 924(c)(2) (1988). Matter of Barrett, supra. That section, as
amended by section 6212 of the Anti-Drug Abuse Act of 1988, 102
Stat. at 4360, defines the term "drug trafficking crime" as "any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et
seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951
et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App.
1901 et sec.)." The sale of cocaine is a felony punishable under the
Controlled Substances Act, 21 U.S.C. § 801 et seq. (1988), and is
therefore a drug trafficking crime. We have found nothing in the
statutes listed above or in the applicable case law that requires more
than one drug trafficking conviction to classify the respondent as a
drug trafficker. We agree with the Service that the respondent's
conviction for sale of cocaine brings him within the definition of a
drug trafficker.

The only issue remaining for resolution in this case is whether the
immigration judge properly granted the respondent's application for a
section 212(c) waiver of inadmissibility as a matter of discretion. We

note that the immigration judge based his decision to grant 212(c)
relief, in part, on his perception that the respondent's offense was the
result of entrapment and that his guilty plea was made without
knowledge of its potential effect on his immigration status. The
Service points out that the immigration judge must look to judicial
records to determine whether an alien has been convicted of a crime,
and he may not determine on his own the alien's guilt or innocence.
Matter of Contreras, 18 I&N Dec. 30 (BIA 1981): see also Aguilera-
Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975), cert. denied, 423 U.S.
1050 (1976). While 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, it is impermis-
sible to go behind a record of conviction to reassess an alien's ultimate
guilt or innocence. Matter of Edwards, supra, (citing Matter of M-, 3
I&N Dec. 804, 805 (BIA 1949)); see also Trench v. INS, 783 F.2d 181
(10th Cir.), cert. denied, 479 U.S. 961 (1986). In this case, the
immigration judge's analysis, particularly as regards the issue of
entrapment, directly related to the question of the respondent's
ultimate guilt or innocence. Under these circumstances, we conclude
that the immigration judge improperly considered the respondent's
testimony on a theory of entrapment in exercising his discretion to
grant section 212(c) relief.

After our independent review of the entire record of proceedings,
including the transcript from the respondent's deportation hearing, we
cannot agree with the immigration judge's assessment of the respon-
dent's equities and the adverse factors presented against him. We
conclude that a favorable exercise of discretion is not warranted under
the facts of this case.

We find that the respondent's conviction for sale of cocaine
constitutes an extremely serious adverse factor. As such, the respon-
dent must demonstrate unusual or outstanding equities if he is to have
the possibility of receiving a favorable exercise of discretion on his
waiver application. Matter of Buscemi, supra. We conclude that the
respondent has not demonstrated unusual or outstanding equities so as
to offset the serious adverse factors in his record.

In the respondent's favor, we take into account the fact that he has
resided in the United States for approximately 12 years. However, we
do not find that this period is so lengthy as to constitute an unusual or
outstanding equity, particularly where the respondent was an adult
when he was first admitted to this country as a lawful permanent
resident. The majority of the respondent's family reside in New York,
and although none of them appeared to testify on his behalf, they did
submit letters in support of his waiver request. We note that although
the respondent has many close relatives residing lawfully in the United

## Interim Decision #3148

States, he has been separated from his wife and their four children
since 1987. Further, he admitted that he did not call or write to his
wife since he was convicted in 1989. In addition, the respondent
testified that he is not sure of the whereabouts of his 2-year-old son but
believes that he is in the custody of the child's maternal grandmother,
who supports him from her welfare income. In terms of the financial
difficulties that his family may face due to his deportation, we note
that none of the respondent's family appear to rely on him for
financial support. The respondent admitted that between 1987 and
1989, he provided only occasional support of a minimal amount, and
that since 1989, he has provided no support at all. In addition, his
testimony regarding his 2-year-old son indicates that he does not
provide any support for him. Therefore, the respondent has not shown
that his family's financial situation will be materially altered if he is
forced to depart from this country.

We do not consider the respondent's employment history to be an
unusual or outstanding equity. The irregularity of his employment
between 1987 and 1989 certainly impairs the significance of this
factor. The respondent admits he has paid no income taxes since 1986.
Additionally, he did not demonstrate that he has any business or
property ties to this country. The respondent merely asserts that he
would not be able to afford tools or real estate in Jamaica. Aside from
this statement, he did not present any evidence that he would have
difficulty residing in Jamaica. In fact, the respondent testified that he
may have relatives living there, including his father and his aunt.

On the other hand, the respondent was convicted of sale of cocaine,
an aggravated felony under the Act. Although he claims that he did not
engage in drug trafficking for financial gain, his participation in such a
transaction clearly demonstrates a serious disregard for the welfare of
society. See Matter of Edwards, supra. Moreover, considering the
recency and seriousness of the respondent's conviction, we would
require a firm showing of rehabilitation from him before we could
conclude that granting a waiver would be in the best interests of this
country. Matter of Marin, supra. The respondent has been detained
since he was sentenced for his felony conviction, with the exception of
a 3-week period between imprisonment and Service custody. As
previously stated, we recognize that it is more difficult for confined
aliens to establish rehabilitation than it is for those who are at liberty,
but this does not preclude us from considering the lack of rehabilita-
tion as an adverse factor. See Matter of Edwards, supra; Matter of
Marin, supra. The respondent pleaded guilty to the felony charge of
sale of cocaine. At his hearing, the respondent appeared to be more
intent in showing that he was "set up" for the crime of which he was
convicted, than in expressing remorse for his acts. He has not

submitted any evidence of participation in a drug counselling program
nor shown a desire to enroll in one. His assurances that he will not be
involved with drug traffickers in the future does not demonstrate
rehabilitation. We conclude that there is insufficient evidence in the
record to show genuine rehabilitation on the part of the respondent.

After balancing the respondent's equities, which we do not find to
be unusual or outstanding, against the adverse factor of his serious
criminal conviction for the sale of a controlled substance, and our lack
of confidence as to his rehabilitation, we conclude that he has not
demonstrated that he warrants a favorable exercise of discretion.

Accordingly, the appeal will be sustained.

ORDER: The appeal is sustained.

FURTHER ORDER: The respondent shall be deported from
the United States to Jamaica.

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

I respectfully concur in part and dissent in part.

The respondent has argued on appeal that a single conviction for a
single sale of cocaine should not result in a finding that he is a drug
trafficker for purposes of the "aggravated felony" definition set forth
in section 101(a)(43) of the Immigration and Nationality Act, & U.S.C.
§ 1101(a)(43) (1988). The majority dismisses this argument as if it is
self-evidently wrong. This is not surprising, as this Board has over a
period of years moved to the position that anything other than
possession for personal use constitutes "trafficking." This interpreta-
tion developed even before the 1990 amendment to section 101(a)(43)
of the Act, which broadened the term "aggravated felony" to include
sale of a controlled substance as "trafficking." Immigration Act of
1990, Pub. L. No. 101-649, § 501(a), 104 Stat. 4978, 5048.

While one can certainly continue to interpret "trafficking" to
include everything but simple possession for personal use, the
consequences of this interpretation should certainly give one pause.
First, this interpretation covers the entire universe of drug transactions
and results in the lumping in of the one-time sale of a small amount of
marijuana with the organized distribution of large amounts of drugs.
In doing so, this enormously broad interpretation fails to recognize
fundamental differences in the infinite range of actions that can now
be called "trafficking." It defies credulity that the average reasonable
person would consider the ringleader of a heroin importation ring the
moral or legal equivalent of an unemployed father who sells some
marijuana for 2 few hundred dollars badly needed cash. But this is the
net effect of an interpretation that categorizes fundamentally different
actions as completely equivalent.

Previously this equivalence had severe consequences for permanent
resident aliens who were charged with excludability under section
212(a)(23) of the Act, 8 U.S.C. § 1182(a)(23) (1988), because that was
the only provision that proscribed "illicit trafficking" in controlled
substances. Now, this term applies to permanent resident aliens
charged with deportability under section 241(a)(4)(B) of the Act, 8
U.S.C. § 1251(a)(4)(B) (1988), and the universe of persons affected is
tremendously expanded.

At the same time, the term "aggravated felony," a term of recent
vintage, has also been expanded in scope to cover "traffic" in
controlled substances. The result is that a person who would otherwise
be rightfully treated under state or federal criminal law as a petty
offender, the street-level seller of a small amount of cocaine or a
"mule" transporting a small load of marijuana, is elevated to the
remarkable status of an "aggravated felon" "illicit trafficker," upon
whose head the most drastic immigration consequences may fall, a
person treated the same as murderers, armed robbers, and rapists.
Indeed, in one of those twists of absurdity for which the immigration
laws of this country are rightfully, but shamefully, known, the person
who sells a few grams of marijuana at any time after entry is an
"aggravated felon," but a rapist who commits his crime 5 years after
entry is not even deportable; neither is an armed robber or a person
who commits manslaughter.

If this situation seems bizarre, perhaps even unconscionable, then
the interpretation favored by the majority should be considered in this
light. A provision whose application may be draconian is best applied
with some consideration of decency. It is also best applied with as
narrow an interpretation as possible. It has indeed been well under-
stood in the immigration law that the consequences of deportation
necessitate a narrow interpretation, with any ambiguity in terms
construed in the alien's favor. As the Supreme Court has stated:

[Dleportation is a drastic measure and at times the equivalent of banishment or exile.
It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a
penalty. To construe this statutory provision less generously to the alien might find
support in logic. But since the stakes are considerable for the individual, we will not
assume that Congress meant to trench on his freedom beyond that which is required
by the narrowest of several possible meanings of the words used.

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (citation omitted);
see also INS v. Errico, 385 U.S. 214, 225 (1966); Woodby v. INS, 385
U.S. 276, 285 (1966). "This principle has been widely invoked in
deportation cases, and it requires the courts to interpret all aspects of
the immigration laws ... liberally in favor of the alien." Squires v.
INS, 689 F.2d 1276, 1280 (6th Cir. 1982).

All of these considerations are present in abundance in this case, but
this well-established principle of statutory construction is given no

effect by the majority. With these thoughts in mind, I would construe
"traffic" and "trafficking" to mean more than a single sale of a small
amount of drugs, as the respondent proposes here, to give it the
meaning normally associated with the term "trafficking," which is the
business of buying and selling. If I sell a chair at a yard sale, I am no
more trafficking in furniture than a child who sells lemonade one
warm day is trafficking in lemonade.

The second aspect of the majority's opinion that I cannot join in is
its application of Matter of Edwards, 20 I&N Dec. 191 (BIA 1990), in
regard to the matter of rehabilitation. The majority states that it
"would require a firm showing of rehabilitation from him before we
could conclude that granting a waiver would be in the best interests of
this country." The majority concludes that it lacks "confidence as to
his rehabilitation." It may well be that most people would lack
confidence. In my estimation, the great majority of aliens who have
had their deportation hearing shortly after release from criminal
custody are unable to make a highly persuasive case for reformation.
Unlike the majority, however, I would not treat rehabilitation as a
requirement, but rather as an equity. If it exists, it is a positive factor
to be balanced against the negative factors; the greater the evidence of
rehabilitation, the greater the equity. If rehabilitation cannot be found,
then the respondent has simply failed to establish an equity, and this
failure will not be held against him as an adverse factor.

In this sense, rehabilitation would be like any other equity the
respondent might wish to present for consideration. It might well be
that the failure to establish rehabilitation would swing the balance
against the respondent. This would occur, however, not because
rehabilitation is a requirement, but because the adverse criminal
record is so substantial that one or two outstanding equities alone
would not suffice. Some other equity might be considered where
rehabilitation is not established.

Although I do not agree that the respondent is a drug trafficker
because he has a single conviction for sale of cocaine, he is nonetheless
deportable under section 241(a)(11) of the Act, as one who was
convicted of sale of a controlled substance. Under Matter of Marin, 16
I&N Dec. 581 (BIA 1978), this is a serious offense, which requires the
respondent to establish outstanding or unusual equities. In this regard,
I agree with the majority that the respondent's length of residence,
family ties, and employment history do not rise to this level. I would
sustain the appeal on these grounds.

ROBERTS

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