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* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-40026
Summary Calendar
FEREYDOUN ZARE MONTANAGH,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
(A26-542-823)
(February 2, 1995)
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
This appeal is taken from a final order of the Board of
Immigration Appeals ("BIA") denying Petitioner's application for an
8 U.S.C. § 1182(c) ("section 212(c)") waiver of inadmissibility--a
waiver from deportation that is available to a lawful permanent
resident who is deportable or excludable and who has maintained a
lawful unrelinquished domicile in the United States for at least

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seven consecutive years. The sole issue is whether the BIA abused
its discretion in determining that Fereydoun Zare Montanagh
("Montanagh") was not eligible for a waiver of deportation. For
the reasons set forth below, we hold that the BIA did not abuse its
discretion.
FACTS
The BIA considered the following factors in making its
decision not to grant a waiver of deportability.
Montanagh stands convicted in two different courts of four
counts of burglary of dwelling places. On May 21, 1992, in the
Superior Court of Fulton County, Georgia, Montanagh pled guilty to
two counts of burglary of the dwelling places of two individuals on
February 29, 1992. He was sentenced to two years on each count.
On June 5, 1992, in the Superior Court of Dekalb County, Georgia,
Montanagh pled guilty to two counts of burglary of the dwelling
houses of different individuals on February 18, 1992. He again
received sentences of two years on each count.
Based on these convictions, an Order to Show Cause ("OSC") was
issued to Montanagh on May 25, 1993, charging him with
deportability for conviction of two crimes involving moral
turpitude, not arising out of a single scheme of criminal
misconduct. At his concluding evidentiary hearing, Montanagh
testified about his application for a section 212(c) waiver.
Montanagh first entered the United States in August 1977, at
the age of twenty-five, with a nonimmigrant student visa. He
received a bachelor's degree in engineering from a community

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college in Bridgeport, Connecticut. He adjusted his status in 1980
to lawful permanent resident, based upon his marriage to a United
States citizen or a permanent resident.
Montanagh has a son, who was born in the United States in
December 1985. Shortly after the child's birth, Montanagh and his
wife were divorced. Since late 1988, Montanagh has had no contact
with his son. Montanagh testified that he sent money for his son
approximately every two months to the address of his mother-in-law,
but he never received any response. He last sent money in January
1991.
Montanagh's employment history consists of ownership of a gas
station, carpet sales, construction work, driving a tractor-
trailer, and design and building houses. As a result of his
divorce, he had to sell his business and house. He drove a truck
until late 1991.
Montanagh admitted that he pled guilty to each of the
indictments for burglary; however, he maintains that he did not
commit the burglaries. He served fourteen months in prison. While
in prison, he worked in the kitchen, ran a painting crew, helped
organize an alcohol and drug treatment group, and assisted Turkish-
speaking inmates to communicate with their counsel. Montanagh
declared that his prison experience taught him not to associate
with the "wrong crowd."
Montanagh testified that his siblings told him that awful
things happened to his family in Iran because they were "kind of
rich." The family was associated with the previous government,

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under the Shah, and they were threatened with losing their property
or being imprisoned. Most of Montanagh's family lives in the
United States, including his parents, a brother, and two sisters.
Montanagh lost contact with his family after his divorce in
December 1986.
Montanagh testified that he is concerned about returning to
Iran because he served two years of military service under the
Shah. He claimed that he did not apply for asylum because an
Iranian told him that the Iranian counselor in Washington knows
most of the time who asks for asylum. Montanagh said that if he
returned to Iran, he would be placed under arrest. Also, the new
government might raise questions as to why he had not earlier gone
back to visit anybody. He also stated that it is a hardship for
everyone in Iran because the government is still not stable.
Montanagh testified that if he is required to return to Iran,
it will be a hardship on his son, who expects to see his father.
Also, he hopes to see his parents one day. If allowed to remain in
the United States, Montanagh states that he could get his job back
driving tractor-trailers, or he could work at designing blueprints
for construction jobs.
STANDARD OF REVIEW
This Circuit follows a standard of "most restricted review" to
apply to Attorney General discretionary decisions whether to
suspend deportation for aliens who satisfy the statutory
requirements for suspension of deportation. See Sanchez v. United

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States I.N.S., 755 F.2d 1158, 1160 (5th Cir. 1985); Childress &
Davis, Federal Standards of Review, § 15.12 (2d ed. 1992).
This standard accords greater freedom from judicial
review to the agency than is granted by the seventh
amendment to the verdict of a jury, whose conduct we may
overturn if not supported by substantial evidence, and
far greater latitude for unreviewable judgment than is
accorded to the fact findings of a trial judge, whose
determination may not be overturned if not clearly
erroneous.
Osuchukwu v. I.N.S., 744 F.2d 1136, 1140-41 (5th Cir. 1984)
(footnotes omitted). This standard of review is exceedingly
narrow, for the ultimate decision whether to suspend deportation is
"a matter of grace 'similar to a Presidential pardon,'" and
judicial review is strictly limited because the subject is uniquely
within the competence and power of the Attorney General. Ashby v.
I.N.S., 961 F.2d 555, 557 n.3 (5th Cir. 1992)(quoting Perales v.
Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990)). In short, the
Attorney General has unusually broad discretion, severely limiting
our review. Id. at 557.
ANALYSIS
Montanagh does not contest his deportability; rather, he
complains of the BIA's failure to declare him eligible for a waiver
of deportability under section 212(c) of the Immigration and
Nationality Act. Under this section, aliens admitted for permanent
residence who have maintained a lawful unrelinquished domicile in
the United States for seven consecutive years may, in the Attorney
General's discretion, be permitted to continue residing in the
United States notwithstanding their deportability under other

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1 We note that, on its face, section 212(c) does not apply
to Montanagh's situation. However, the scope of the statute was
extended to include all persons who were lawfully admitted for
permanent residence, have maintained a lawful unrelinquished
domicile in the United States for seven consecutive years, and
merit a favorable exercise of discretion. Ashby v. I.N.S., 961
F.2d 555, 557 n.2 (citing Mantell v. United States Dept. of
Justice, 798 F.2d 124, 125 (5th Cir. 1986) and Matter of Silva,
16 I & N 26 Dec. (BIA 1976)).
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sections of the Act.1 Montanagh bore the burden of demonstrating
that his request for a waiver warranted favorable consideration.
See Matter of Marrin, 16 I & N Dec. 581, 582-83 (BIA 1978). In
addition, a serious deportable offense requires the introduction of
additional offsetting evidence, including evidence of
rehabilitation. See Villarreal-San Miguel v. I.N.S., 975 F.2d 248,
251 (5thCir. 1992).
In exercising its unusually broad discretion, the BIA
considered all the facts and circumstances involved, balancing the
social and humane considerations against the adverse factors. The
BIA discredited Montanagh's claims of innocence of the criminal
acts for which he was convicted, explaining that neither it nor the
immigration judge can go behind the convictions to determine the
guilt or innocence of the alien. Specifically, the BIA found that
Montanagh offered no underlying mitigating circumstances; rather,
he simply claimed innocence, a claim which is not reviewable in
deportation proceedings.
The BIA similarly rejected Montanagh's argument that the
immigration judge underestimated the hardship to Montanagh's
family, if Montanagh was deported. The BIA pointed out that
Montanagh had no contact with his son and ex-wife, since 1988, and

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his parents or siblings, since 1986. The BIA also observed that
Montanagh never substantiated his claim that he had been sending
money to his son. The BIA found that there was no evidence to
indicate that the child would suffer financial or emotional
hardship from Montanagh's deportation.
The BIA also pointed out that, although Montanagh claimed that
he feared persecution on return to Iran, he did not apply for
asylum or withholding of deportation. Moreover, the BIA found that
Montanagh's testimony was not "sufficiently detailed to conclude
that he would suffer retribution for actions of his own or those of
his family."
The BIA concluded that the responsibility for any hardship
occasioned by a return to Iran rests solely with Montanagh. With
regard to Montanagh's claim of rehabilitation, the BIA observed
that his claim that he will no longer commit criminal acts was
untested because of the recency of his conviction and
incarceration, concluding that a section 212(c) waiver was neither
warranted nor in the best interests of the country.
CONCLUSION
The BIA weighed Montanagh's relevant equities and favorable
factors, including his sixteen years of residence and his
employment record, but found that the serious nature of his crimes
were not overcome by these factors. Montanagh's complete lack of
contact with his child, parents, and siblings, hardly provided a
compelling factor upon which a waiver should have been granted.
Nonetheless, this Court is without authority to determine how much

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weight must be given to a factor once it is considered; it is
necessary only that the BIA give some actual consideration to the
hardship factors. See Sanchez, 755 F.2d at 1161.
With regard to his claims of persecution, Montanagh had his
opportunity to apply for asylum and withholding of deportation, but
consciously and explicitly declined to do so. Appealing from the
denial of a waiver of deportation under section 212(c) is not the
proper forum to raise questions related to an unasserted
application for asylum.
The BIA sufficiently balanced the factors, in favor and
against, the granting of a waiver of deportation. We find no abuse
of discretion in the BIA's denial of Montanagh's request for a
waiver under section 212(c). The judgment is AFFIRMED.

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