MEMORANDUM**

Juan Segundo Valencia-Garcia seeks reversal of the decision of the Board of Immigration Appeal's (BIA) decision affirming the immigration judge's order denying voluntary departure. Valencia-Garcia makes the following contentions in this petition for review:

One. The immigration judge abused his discretion in denying voluntary departure.

Two. The immigration judge improperly considered Valencia-Garcia's arrest for conspiracy to sell a controlled substance as a derogatory factor.

Three. The immigration judge's finding that Valencia-Garcia falsely claimed that he was a United States citizen is clearly erroneous because it is not supported by the record.

Four. The BIA's finding that Valencia-Garcia procured a fraudulent California identification card is clearly erroneous because it is not supported by the record.

Five. Valencia-Garcia had difficulty understanding some of the questions put to him at the hearing before the immigration judge.

Six. The immigration judge abused his discretion because the positive factors he presented far outweigh any alleged derogatory factors.

* We review the BIA's denial of voluntary departure for abuse of discretion. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir.1986). We "examine only whether the BIA exercised discretion and whether the manner in which it was exercised was arbitrary or capricious." Id. A BIA decision must be affirmed if its opinion sets forth the basis for its decision so that this court can determine after examining the record that it "heard, considered, and decided" (id. at 330) and balanced all the relevant factors in denying voluntary departure.

As set forth above, Valencia-Garcia argues that the immigration judge (1) abused his discretion in denying voluntary departure; (2) improperly considered the fact that the petitioner was arrested for conspiracy to sell a controlled substance, notwithstanding his acquittal; and (3) erred in finding that the petitioner claimed to be a United States citizen. We do not review an immigration judge's findings unless they are adopted by the BIA. See Torres-Guzman v. INS, 804 F.2d 531, 533 (9th Cir.1986) (this court only reviews the BIA's findings unless the findings of the immigration judge have been adopted by the BIA.)

The BIA did not adopt the immigration judge's finding that Valencia-Garcia's arrest was "a derogatory factor which must be considered in terms of the exercise of jurisdiction." Accordingly, we will not review the appropriateness of the immigration judge's consideration of the fact of arrest as a derogatory factor.

As noted by the BIA, Valencia-Garcia's claim that the immigration judge found that the petitioner stated that he was a United States citizen is not supported by the record. Instead, the immigration judge found that Valencia-Garcia falsely claimed that he was a "citizen of Panama." The record shows that Valencia-Garcia admitted under oath that he falsely claimed that he was a citizen of Panama. The BIA found Valencia-Garcia's explanation that he lied about his true nationality when he was arrested by an immigration service officer "because I didn't know who he was," not convincing. The BIA's finding that Valencia-Garcia lied about his true nationality is not clearly erroneous because it is fully supported by the record.

The BIA found from its independent review of the record that Valencia-Garcia "procured false California identification because he was here illegally." The transcript of the hearing before the immigration judge reflects the following colloquy:

Q. Did you obtain a California driver's license on January 2, 1985?

A. No, an I.D.

Q. Why did you obtain the California identification?

A. Because I was here illegally, so I presented myself there and obtained the I.D. with my passport."

The BIA's finding that Valencia-Garcia procured false California identification because he was here illegally is not clearly erroneous. The BIA could properly infer that Valencia-Garcia procured the California identification card so that he could claim falsely that he was legally in the United States.

Valencia-Garcia's claim that he could not understand the questions put to him at the hearing is not supported by the record. A Spanish interpreter was present at the hearing. No objection was made at the hearing on the ground that the translator was inadequate or that the petitioner could not understand the questions. Furthermore, Valencia-Garcia did not raise this issue before the BIA. Thus, Valencia-Garcia has failed to exhaust his administrative remedies with respect to this question. Accordingly, we have no jurisdiction to review this contention. Vargas v. INS, 831 F.2d 906, 907-908 (9th Cir.1987).

Valencia-Garcia contends that the BIA failed to give weight to the positive factors he presented in support of his request for voluntary departure. He argues that because the evidence of his acquittal on criminal charges, the absence of a criminal record, his "minimal immigration history, and his family background" far outweighed the derogatory factors shown by the record, the BIA abused its discretion in denying voluntary departure. Contrary to Valencia-Garcia's allegations, the written decision of the BIA shows that it considered his denial that he sold drugs and that he was acquitted of this charge. The BIA's opinion sets forth Valencia-Garcia's testimony that he had never been convicted of any crime in the United States or Columbia. The BIA also noted that Valencia-Garcia lived with his wife and child in Columbia.

The BIA concluded that because Valencia-Garcia had entered the United States illegally in 1985, obtained California identification because he was here illegally, had no family ties in California, and falsely stated that he was a Panamanian citizen, the record "demonstrated a willingness on the part of [Valencia-Garcia] to circumvent the immigration laws of the United States."

The BIA's determination that the negative factors outweighed the evidence presented by Valencia-Garcia in support of his request for voluntary departure was not arbitrary or capricious. The record shows that the BIA recognized its duty to weigh and balance the evidence for and against voluntary departure. Because the BIA did not abuse its discretion, the petition is DENIED.