Muncal-Clemente

MEMORANDUM **

Fausto Louis Muncal-Clemente (“Mun-cal”) applied unsuccessfully for a waiver of deportability and for suspension of deportation. He timely petitioned for review of those decisions. We deny the petition.

*81 We review for abuse of discretion the BIA’s denial of a waiver of deportability. Hernandez-Robledo v. INS, 777 F.2d 536, 540 (9th Cir.1985). There was no abuse of discretion as long as the BIA’s decision was rational. See id. at 541 .

The BIA considered factors both in favor of and opposing waiver. It acknowledged that Muncal had resided in the United States for 18 years, that he had relatives, including his mother, living in the United States, that he was an active member of the community, and that he had a responsible job. It noted, however, that neither Muncal nor his family members in the United States would suffer abnormal hardship if he were deported. 1 It also noted that, because Muncal’s wife and three children live in the Philippines, his primary family unit would not be disrupted. The BIA concluded that the positive factors were outweighed by the frauds Muncal had perpetrated in attempting to obtain naturalization, which included lying about the…

dissenting in part.

I respectfully dissent in so far as the panel denies Mr. Muncal-Clemente’s petition for review of the BIA’s denial of his application for a waiver of deportability. I believe the BIA abused its discretion by failing to consider a plainly relevant positive factor—hardship to an ailing parent— in assessing the merits of Mr. Muncal-Clemente’s application. See In re Tijam, Interim Decision 3372, 1998 BIA LEXIS 43, 11-12, 1998 WL 883735 (BIA 1998). Though the BIA, in its analysis, mentioned Mr. Muncal-Clemente’s various family members, the BIA did not consider the particular hardships his elderly dependant mother would suffer were he to be deported. 1 Accordingly, I would reverse and remand.

. When weighing factors in favor of an application for a waiver of deportability, the BIA takes into account the various hardships that would he endured by family members who are United States citizens, including non-financial assistance and care provided by the applicant. In re Tijam, Interim Decision 3372, 1998 BIA LEXIS at 11-12. In the case *82 before us, Mr. Muncal-Clemente, a tax auditor for the State of California, presented evidence that his 77 year-old mother, who…