United States Court of Appeals For the First Circuit
No. 21-1335
JOSE PEDRO SANTOS FARIA BARROS,
Petitioner,
v.
MERRICK B. GARLAND, United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, Howard and Thompson, Circuit Judges.
Manuel R. Pires, with whom Rodrigues Pires PC was on brief, for petitioner. Rodolfo D. Saenz, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Zoe J. Heller, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent. Gilles Bissonnette and SangeYeob Kim were on brief for amicus curiae American Civil Liberties Union of New Hampshire.
April 19, 2022 THOMPSON, Circuit Judge. We again face a claim that the
Board of Immigration Appeals ("BIA") violated its standard of
review when reviewing the grant of discretionary relief from
removal by an Immigration Judge ("IJ"). After clearing some
jurisdictional hurdles along the way, we conclude the BIA
impermissibly changed an IJ's balance-tipping factual finding. We
thus grant the petition for review.
Background
Jose Pedro Santos Faria Barros first entered the United
States as a lawful permanent resident in 1991, at the age of five.
He came with the rest of his family, including his mother, father,
and siblings, from Cape Verde. He has resided here ever since.
In fact, Barros has never been back to Cape Verde. All of his
immediate family resides here, too.
Barros has a history of depression, anxiety, self-harm,
and drug use. He attributes his struggles to a fall when he was
4 years old in which he struck his head. He began to experience
headaches around age 11, and he says those headaches led to
difficulty concentrating, which in turn led to depression and
anxiety. His depression and anxiety, in turn, led to suicidal
ideations and at least three suicide attempts.
Barros also began using drugs around the time he turned
18. He says it started with crack cocaine, which he used to cope
with his depression and anxiety. At age 32, he also started to
- 2 - use heroin. He's been to treatment at least three times, though
he often relapsed. He last sought treatment not long before he
was hauled before the immigration court in this case. And, as of
February 2020, he had been sober for about ten months.
Beginning in 2003, Barros began amassing a criminal rap
sheet. He's been convicted six times, including four convictions
for possession of controlled substances and two for breaking and
entering. He's also been arrested at least an additional ten times
for charges such as breaking and entering, malicious destruction
of property, shoplifting, disorderly conduct, assault and battery,
and prison vandalism. Barros has said that, on at least one of
these occasions, he stole to get money for drugs.
Barros's run-ins with the law at some points involved
his behavior towards his family in his efforts to get cash for
drugs. First, in 2015, Barros went to his parents' house to get
money. When his mother refused, he grabbed her by the throat,
struck his father on the head, and smashed a crystal vase and a
flat-screen television. Barros was charged with assault and
battery on a person 60 years or older, as well as malicious
destruction of property, though the charges were later dismissed.
Second, the next year, Barros got into another argument with his
father, which although did not spawn an arrest, resulted in his
father taking out a short-lived restraining order against him.
Finally, in October 2017, Barros was arrested after he went to his
- 3 - sister's house, high on drugs, again demanding money for narcotics.
When she refused, and Barros's niece told him that he needed help,
Barros became angry, yelling and raising his arms in the air as if
he was going to strike his niece. After the commotion continued
outside, Barros's sister and niece went back into the house and
locked the door. But Barros, undeterred, dropped his shoulder
into the door and broke the chain lock. He was later arrested for
assault, trespassing, and breaking and entering.
Also in 2017, Barros pled guilty to and was convicted of
possession of crack cocaine. He initially received a probationary
sentence, but after violating his probation, he was sentenced to
one year in prison. After his release in March 2019, he moved in
with his parents, where he took care of his aging mother.
When November 2019 rolled around, immigration officials
knocked on Barros's door, handed him a notice alleging his
deportability from the United States, and hauled him off in cuffs.
While he was still in custody but awaiting his final hearing,
Barros's mother passed away. And that brings us to the immigration
proceedings at issue in this petition.
Legal Primer
Before diving into what happened in those proceedings,
we begin with a brief overview of the relevant legal principles.
Cancellation of removal is one of many forms of relief
from removal. See 8 U.S.C. § 1229b(a). To qualify under the
- 4 - relevant provision for cancellation, a lawful permanent resident
must establish that she: (1) has been lawfully admitted for
permanent residence for not less than 5 years; (2) "has resided in
the United States continuously for 7 years after having been
admitted in any status"; and (3) "has not been convicted of any
aggravated felony." Id. § 1229b(a)(1)–(3).1
Even so, establishing these three criteria does not
automatically entitle the individual to relief: "[T]he Attorney
General's decision to grant such relief is discretionary and
'amounts to an act of grace.'" Cabrera v. Lynch, 805 F.3d 391,
394 (1st Cir. 2015) (quoting Sad v. INS, 246 F.3d 811, 819 (6th
Cir. 2001)). It is the applicant who bears the burden of proving
both that she satisfies the eligibility requirements and that she
merits a favorable exercise of administrative discretion. 8 U.S.C.
§ 1229a(c)(4)(A).
In exercising that discretion, IJs (and later, the BIA)
apply the host of factors laid out in Matter of C-V-T-, 22 I. & N.
Dec. 7, 11 (BIA 1998). Favorable factors to consider include: (1)
family ties in the United States; (2) duration of residence here
1 Different provisions apply depending on whether the individual seeking relief is a lawful permanent resident, see 8 U.S.C. § 1229b(a), is a nonpermanent resident, see id. § 1229b(b)(1), is a battered spouse or child, see id. § 1229b(b)(2), or falls under other special provisions, see 1 Charles Gordon et al., Immigration Law and Procedure § 64.04[1] (2021).
- 5 - "(particularly when the inception of residence occurred at a young
age)"; (3) evidence of hardship to the applicant and her family in
the event of deportation; (4) service in the U.S. Armed Forces;
(5) history of employment; (6) property or business ties here; (7)
value and service to the community; (8) proof of "genuine
rehabilitation" if the applicant has a criminal record; and (9)
evidence of the applicant's "good character." Id. On the other
hand, the IJ must also consider the adverse factors, including:
(1) the nature and grounds underlying the removal; (2) significant
violations of the immigration laws; (3) the applicant's criminal
record and its "nature, recency, and seriousness"; and (4) other
evidence of the applicant's bad character or "undesirability as a
permanent resident of this country." Id. Where adverse factors
are present, the BIA has said, applicants may need to offset them
by showing unusual or outstanding equities in the opposite
direction. Matter of Arai, 13 I. & N. Dec. 494, 496 (BIA 1970);
see Matter of C-V-T-, 22 I. & N. Dec. at 11–12.
In reviewing decisions of an IJ, the BIA is bound by
certain standards of review. When reviewing the IJ's decision on
questions of law, discretion, and judgment, the BIA may exercise
de novo review. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).2
2The appeal in this case was filed on July 17, 2020. So the version of 8 C.F.R. § 1003.1 in force at that time applies here, and not the amendments effective January 15, 2021. See Appellate Procedures and Decisional Finality in Immigration Proceedings;
- 6 - But when reviewing factual conclusions, the BIA's power
is much narrower. That is so because "[t]he IJ has the front-line
duty of finding the facts." Chen v. Holder, 703 F.3d 17, 22 (1st
Cir. 2012). The BIA is prohibited from "engag[ing] in factfinding
in the course of deciding appeals." 8 C.F.R. § 1003.1(d)(3)(iv)
(2020). Rather, when the BIA reviews the IJ's findings of fact,
it reviews them only for clear error. Id. § 1003.1(d)(3)(i); see
Adeyanju v. Garland, 27 F.4th 25, 33 (1st Cir. 2022) (further
detailing the clear-error standard applied by the BIA).
To find clear error, the BIA must be "left with the
definite and firm conviction that a mistake has been committed."
Board of Immigration Appeals: Procedural Reforms To Improve Case
Management, 67 Fed. Reg. 54878-01, 54889 (Aug. 26, 2002)
[hereinafter "BIA Reforms"]. In other words, "to show clear error
[one] 'must show that the contested finding stinks like a 5 week
old, unrefrigerated, dead fish.'" Adeyanju, 27 F.4th at 33
(quoting United States v. Baptiste, 8 F.4th 30, 42 (1st Cir.
2021)). It is not enough to "show that the finding is probably
wrong, for [the BIA] can reverse on clear-error grounds only if --
after whole-record review -- it has a strong, unyielding belief
that the [immigration] judge stumbled." Id. (cleaned up, but with
Administrative Closure, 85 Fed. Reg. 81588, 81588 (Dec. 16, 2020) (noting the amendments "apply only to appeals filed . . . on or after the effective date of the final rule").
- 7 - new alterations added) (quoting United States v. Rivera-
Carrasquillo, 933 F.3d 33, 42 (1st Cir. 2019)).
The Immigration Proceedings
Before the IJ, Barros conceded removability. To avoid
removal, he applied for cancellation of removal and requested
voluntary departure. The parties agreed that Barros satisfied the
statutory prerequisites for each. Thus, the only issue before the
IJ was whether Barros merited a favorable exercise of
administrative discretion.
So the IJ took evidence on the discretionary factors,
including Barros's own testimony, a gob of documentary evidence
concerning his criminal and medical history, letters from his
family, and a declaration from his father. Barros testified
extensively concerning his addiction and mental health challenges,
his criminal record, and his family relationships. His father
wrote in his declaration that, notwithstanding their prior
conflicts, he wanted his son to stay with him.
After finding Barros a credible witness, the IJ began by
identifying the positive factors weighing in favor of a favorable
exercise of discretion. The court noted that Cape Verde, the
country to which Barros would be deported, has a history of human-
rights abuse and generally poor conditions. Barros, the IJ also
found, has been in the United States since he was 5 years old, has
spent nearly his entire life here, and has his entire family here.
- 8 - The IJ further highlighted Barros's efforts at sobriety and his
history of employment, though the latter was spotty.
And, critically to the issues on appeal, the IJ
identified as another positive equity "the hardship to [Barros's]
family in light of the recent death of his mother from COVID-19"
if Barros were removed, which the IJ said "is significant and is
the factor which ever so slightly tips the scales." According to
the IJ, Barros's father already experienced a significant loss in
the death of his wife of over fifty years, and "[t]he removal of
a child on top of that . . . is extreme hardship to [Barros]'s
father."
The IJ found some negative factors, too. The IJ detailed
Barros's criminal record, including his violence towards family
members and his relapses into criminal and violent behavior related
to his struggles with drug addiction. Continuing, the IJ noted
that Barros has not paid child support since 2015, and he presented
no evidence that he paid taxes.
Weighing the factors, the IJ found that Barros merited
a favorable exercise of administrative discretion. The court
specifically noted that the hardship to Barros's family if he was
removed, along with the benefits to Barros's mental-health
treatment if he remained here, were the factors that made this
close case weigh in Barros's favor. Alternatively, the IJ also
concluded that Barros should be granted voluntary departure.
- 9 - Believing the IJ got it wrong, DHS appealed to the BIA,
and the BIA sustained the appeal. Upon its "de novo review," the
BIA concluded that Barros did not merit a favorable exercise of
discretion. The BIA surveyed the positive and negative factors,
including almost all the factors identified by the IJ.3 And the
BIA "acknowledge[d] that there are sympathetic factors in this
case," including "that some family members, particularly
[Barros's] father, may suffer some hardship." Yet, the BIA said,
the positive factors didn't outweigh Barros's adverse factors,
particularly his lengthy criminal record. The BIA thus concluded
that Barros did not merit cancellation of removal, and "[f]or the
same reasons" concluded he did not merit voluntary departure
either. Barros timely petitioned for our review.
Our Take
I. Jurisdiction
As always, we begin by checking our jurisdiction. That
inquiry in this case leads us down two paths: one argued by the
parties and one not.
3 The one positive factor the IJ identified that the BIA appeared to not consider was Barros's (albeit limited) employment history. Instead, the BIA appeared to consider Barros's "sparse" work history as a negative factor. Also, the BIA did not identify Barros's failure to pay taxes as a negative factor, even though the IJ did.
- 10 - A. Jurisdiction-stripping provision
The government contends we lack jurisdiction over
Barros's petition because it comes from a denial of discretionary
relief. Under 8 U.S.C. § 1252(a)(2)(B), we typically lack
jurisdiction to review the BIA's discretionary remedy of
cancellation of removal. See Tacuri-Tacuri v. Garland, 998 F.3d
466, 471 (1st Cir. 2021); see also Adeyanju, 27 F.4th at 36. But
as a general proposition, we have jurisdiction over petitions for
review from BIA denials of discretionary forms of relief if the
petitions raise "constitutional claims or questions of law." 8
U.S.C. § 1252(a)(2)(D); see Adeyanju, 27 F.4th at 36. As we said
just recently, claims that the BIA misapplied (or failed to apply)
the proper standard of review can give rise to legal questions.
Adeyanju, 27 F.4th at 37; see also Perez-Trujillo v. Garland, 3
F.4th 10, 22 (1st Cir. 2021). We remain mindful, however, that
"the presence of a constitution or legal question is a 'matter of
substance, not a function of labeling.'" Tacuri-Tacuri, 998 F.3d
at 471 (quoting Alvarado v. Holder, 743 F.3d 271, 275 (1st Cir.
2014)).
Though the government contends that Barros's claims are
attacks at the BIA's discretionary conclusion thinly veiled as
claims of legal error, we are not convinced. Rather, after
reviewing Barros's claim that the BIA misapplied the clear-error
standard of review, we conclude it properly raises a legal question
- 11 - over which § 1252(a)(2)(D) grants us jurisdiction. See Adeyanju,
27 F.4th at 37 ("Just as a petitioner may not cloak her attacks on
discretion in question-of-law garb, '[t]he BIA cannot reverse an
IJ's findings and cloak its actions in the euphemistic language of
reweighing.'" (quoting Zhu v. U.S. Att'y Gen., 703 F.3d 1303, 1315
(11th Cir. 2013))).
B. Exhaustion
Another jurisdictional wrinkle remains. Per statute, we
may review final orders of removal only if the immigrant "has
exhausted all administrative remedies available to [her] as of
right." 8 U.S.C. § 1252(d)(1). Administrative exhaustion serves
a panoply of purposes. For one, allowing courts to take first
crack at legal issues within the agency's -- here, the BIA's --
ken "would effectively usurp the agency's function." Mazariegos-
Paiz v. Holder, 734 F.3d 57, 62 (1st Cir. 2013). Exhaustion also
"afford[s] the parties the full benefit of the agency's expertise
and allowing the agency the first opportunity to correct its own
bevues." Id. at 63.
The exhaustion requirement "constitutes a limitation on
our power of review." Id. at 62. And though the government did
not raise exhaustion in its initial briefing here, this
jurisdictional requirement cannot be waived. See García-Cruz v.
Sessions, 858 F.3d 1, 7 (1st Cir. 2017).
- 12 - Turning to the exhaustion issue here, we previously said
in a case addressing claims of "impermissible factfinding" by the
BIA that such a claim "is unexhausted unless and until the
[petitioner] files a timely motion asking the BIA to reconsider
its actions." Meng Hua Wan v. Holder, 776 F.3d 52, 57 (1st Cir.
2015). Yet here, Barros did not file any motion to reconsider
with the BIA. Instead, he vaulted right to us to claim that the
BIA erred in deciding his appeal. But after taking a closer look
at Wan, we conclude that Barros was not bound to file another
motion with the BIA to properly preserve his arguments here. Allow
us to explain.
In Wan, the petitioner found himself in immigration
court after being arrested on allegations related to a bogus green
card. 776 F.3d at 55. The problem was that he also faced removal
proceedings eleven years earlier in 2001 at which he never
appeared. Id. He said, though, that he had hired a lawyer for
that proceeding, and the lawyer told him he didn't have to attend
court hearings or worry about anything. Id. Turns out, Wan's
lawyer didn't do anything. Instead, no one ever showed up to any
of Wan's prior court dates, and he was ordered removed in absentia.
Id. at 54–55.
So, when he was hauled before the IJ again in 2013, Wan
moved to reopen his prior order of removal, claiming (among other
grounds) ineffective assistance of counsel. Joint Appendix at
- 13 - 198–201, Wan, 776 F.3d 52 [hereinafter "Wan J.A."]. When it came
time to rule on the motion to reopen raising his claims of
ineffective assistance, the IJ did not pass on the merits of his
claims, instead denying the motion simply because it was untimely.
Id. at 191.4 Indeed, the IJ specifically said: "[T]he Court
declines to address the merits of the Respondent's claim that he
received ineffective assistance of counsel." Id. at 191 n.7.
On appeal to the BIA, the BIA took another tack. Citing
its standard for ineffective-assistance claims, see Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988), the BIA concluded that Wan
"failed to comply with the procedural prerequisites" for his claim,
Wan J.A. at 16.5 And, the BIA said, Wan's case "is not an obvious
4 The IJ also concluded that, for other reasons, sua sponte reopening was not appropriate either. Id. at 191–92. 5 Under Matter of Lozada, an immigrant seeking to make out a claim of ineffective assistance of counsel must support her claim with:
(1) an affidavit explaining the petitioner's agreement with counsel regarding legal representation; (2) evidence that counsel has been informed of the allegations of ineffective assistance and has had an opportunity to respond; and (3) if it is asserted that counsel's handling of the case involved a violation of ethical or legal responsibilities, a complaint against the attorney filed with disciplinary authorities or, in the alternative, an explanation for why such a complaint has not been filed.
Ferreira v. Barr, 939 F.3d 44, 46 (1st Cir. 2019) (quoting Pineda v. Whitaker, 908 F.3d 836, 839 n.2 (1st Cir. 2018)); see Lozada, 19 I. & N. Dec. at 639.
- 14 - case of ineffective assistance." Id. The BIA made that conclusion
even though Wan had filed an affidavit from his wife and an
unsworn, unsigned declaration of his own, detailing the scam pulled
over by the supposed immigration attorney and their efforts, to no
avail, to track him down to hold him accountable. Id. at 207–09,
256–59.
Wan petitioned for our review. He claimed the BIA
engaged in impermissible factfinding because the findings the BIA
made were "not made by the immigration judge and [were] not
contained in the record." Br. of Pet. at 17–18, Wan, 776 F.3d 52.
We said that claim was not exhausted because it was "directed to
the BIA's actions rather than to anything that happened before the
IJ." Wan, 776 F.3d at 57. We reasoned that "the core purpose of
the exhaustion requirement is frustrated when . . . the BIA's
decision gives rise to a new issue and the [immigrant] fails to
use an available and effective procedure for bringing the issue to
the agency's attention." Id. Thus, we said, claims of
"impermissible factfinding" are not exhausted unless a motion to
reconsider is filed with the BIA. Id. (emphasis added).
While at first blush Wan's holding appears to be broad
in reach, we think that Wan's exhaustion requirement is best read
to be limited in scope to cases presenting similar circumstances
to those present there: when the BIA makes findings of disputed
- 15 - issues of fact concerning legal claims that the IJ did not consider
in the first instance.6
We think that is so because Wan's principal complaint
was that the IJ never had the opportunity to make front-line
findings concerning his ineffective-assistance claim. Wan J.A. at
17. It was not an argument that the BIA applied the wrong legal
standard to the facts at issue as found by the IJ. Indeed, the
BIA regulations in effect at the time of Wan's appeal (which mirror
those applicable here) drew a distinction between review of the
findings the IJ actually made and the procedure for when factual
findings still need to be made. Compare 8 C.F.R. § 1003.1(d)(3)(i)
(2014) (providing that "[f]acts determined by the [IJ] . . . shall
be reviewed only to determine whether the findings of the [IJ] are
clearly erroneous" (emphasis added)), with id. § 1003.1(d)(3)(iv)
(providing that "[a] party asserting that the [BIA] cannot properly
resolve an appeal without further factfinding must file a motion
for remand," and that "[i]f further factfinding is needed in a
particular case, the [BIA] may remand"). And in Wan, there were
no factual findings to review for clear error, since the IJ
explicitly forwent making any findings on the Lozada factors. Wan
6After we raised the potential exhaustion issue here, the government told us that it is "generally not [the Attorney General's] position that claims of Board error must be exhausted in motions to reconsider." Pressed at oral argument to tell us whether the government thought Wan was incorrectly decided, the government declined to take a position.
- 16 - J.A. at 191 n.7. Nor did the IJ even discuss the ineffective-
assistance claim. It was in that narrow circumstance that the
BIA's appellate factfinding spawned something wholly new, and we
thus said Wan had to raise his argument to the BIA in a motion to
reconsider in order to satisfy the exhaustion requirement. See
Wan, 776 F.3d at 57.
Here, though, Barros claims only that the BIA mis-
applied a legal standard it was bound to apply in deciding his
appeal. That is, the IJ here made findings of fact, and Barros
says the BIA failed to review those facts only for clear error as
the regulations require. Though we are bound by Wan's precise
holding, we are not bound to expand its reach. See United States
v. Serrano-Delgado, 29 F.4th 16, 25 (1st Cir. 2022).
Nor do we see good reason to expand Wan's reach. To our
knowledge, we have not required a petitioner to file a motion to
reconsider in order to exhaust a claim that the BIA misapplied a
legal standard. Rather, we have often considered petitions for
review challenging the BIA's failure to apply binding statutes,
regulations, or precedent without ever mentioning a requirement
that a motion to reconsider be filed. See, e.g., Tacuri-Tacuri,
998 F.3d at 470–72 (raising no exhaustion issue, notwithstanding
lack of motion to reconsider, as to claim that the BIA applied the
incorrect substantive legal standard); Rosales Justo v. Sessions,
895 F.3d 154, 162 (1st Cir. 2018) (same). In our view, the BIA's
- 17 - failure to apply clear-error review to the IJ's record findings is
no different than the BIA's failure to apply a binding substantive
legal standard. And, if that wasn't enough, we have even exercised
jurisdiction over a claim that the BIA improperly applied clear-
error as opposed to de novo review where the petitioner did not
file any motion to reconsider with the BIA prior to petitioning
for our review -- again, without addressing exhaustion. See
DeCarvalho v. Garland, 18 F.4th 66, 69, 73–74 (1st Cir. 2021); see
also Samayoa Cabrera v. Barr, 939 F.3d 379, 382–84 (1st Cir. 2019)
(reviewing whether BIA properly applied clear-error review where
no motion to reconsider was filed, while also finding another issue
unexhausted); Rosales Justo, 895 F.3d at 165–66.7
We thus conclude that Barros did not, under Wan, need to
file a motion to reconsider with the BIA in order to exhaust his
claim that it violated clear-error review in deciding his appeal.
II. Merits
We turn now to Barros's claim of BIA error. Barros
claims the BIA failed to apply clear-error review to the IJ's
7Some of our sister circuits have similarly addressed claims that the BIA misapplied the standard of review in cases where the courts did not mention that any motion to reconsider was filed or ruled upon by the BIA, also without mentioning a potential exhaustion issue. See, e.g., Cruz-Quintanilla v. Whitaker, 914 F.3d 884, 888 n.1, 889 (4th Cir. 2019) (addressing claim of improper standard of review without applying exhaustion threshold, yet also finding another issue unexhausted); Mendoza-Ordonez v. Att'y Gen. of the U.S., 869 F.3d 164, 169 (3d Cir. 2017); Padmore v. Holder, 609 F.3d 62, 68 (2d Cir. 2010).
- 18 - finding that Barros's removal, on top of the recent loss of
Barros's mother, "is extreme hardship to [Barros]'s father." In
detailing this factor, the BIA stated that "some family members,
particularly [Barros's] father, may suffer some hardship."
According to Barros, the BIA's characterization of this fact
changed it from a finding that hardship would occur to a finding
that hardship might occur. Naturally, the government disagrees.
According to the government, the BIA simply used a different
lexicon to describe this factor in order to explain why it gave
different discretionary weight to this factor.8
We agree with Barros. To be sure, the "BIA is not bound
simply to parrot the precise language used by the IJ [and] may use
its own vocabulary." Chen, 703 F.3d at 23. But language matters.
And, as we've said recently, "the line between factfinding and the
BIA's application of discretionary weight to undisputed record
facts" -- or facts found by the IJ -- "is fine." Adeyanju, 27
F.4th at 44.
8 At oral argument, Barros also argued that the BIA violated clear-error review when it concluded that his criminal behavior was due "largely" to his drug addiction. We won't reach that here because "arguments not raised in a party's initial brief and instead raised for the first time at oral argument are considered waived" "except in extraordinary circumstances" -- which Barros did not try to present. Conduragis v. Prospect Chartercare, LLC, 909 F.3d 516, 518 n.2 (1st Cir. 2018) (quoting United States v. Pulido, 566 F.3d 52, 60 n.4 (1st Cir. 2009)).
- 19 - Here, the language the BIA used changed the nature of
the IJ's predictive finding on hardship. Implicit in the BIA's
conclusion that the family members only "may suffer some hardship"
is the question of whether that hardship might actually be
experienced. Indeed, DHS implicitly took on the IJ's finding of
hardship in its brief to the BIA. As DHS put it: "[O]ne cannot
help but question the hardship resulting from the removal of a
family member who, as in this case, spent years assaulting and
fighting with his family members, badgering them for money for
drugs, and destroying their property." The IJ, though, considered
this evidence but still concluded that Barros's potential removal
"is extreme hardship" to Barros's father.
The government also argues that the existence of the
hardship here is not a factual finding, but merely a factor the IJ
and BIA can consider in the discretionary analysis. That argument
conflates two separate questions: whether a fact exists, and what
weight that fact should garner in the discretionary analysis.
"[F]or the purposes of BIA review, the IJ's 'predictive
findings of what may or may not occur in the future are findings
of fact . . . subject to a clearly erroneous standard of review.'"
Samayoa Cabrera, 939 F.3d at 382 (quoting Matter of Z-Z-O-, 26
I. & N. Dec. 586, 590 (BIA 2015)). It is "the question of whether
those predicted events, insofar as they occur, 'meet the legal
requirements for relief from removal' [that] is reviewed de novo."
- 20 - Id. at 382–83 (quoting Matter of Z-Z-O-, 26 I. & N. Dec. at 591);
see also DeCarvalho, 18 F.4th at 73; Kaplun v. Att'y Gen. of the
U.S., 602 F.3d 260, 271 (3d Cir. 2010) ("While looking at the
hardship necessarily involves ascertaining the future factual
consequences that would result from removal of the [immigrant], it
is the degree of hardship that constitutes a legal question,
namely, whether it is 'exceptional and extremely unusual.'"
(quoting BIA Reforms, 67 Fed. Reg. at 54890)).
The rulemaking accompanying the regulation enacting the
BIA's standards of review makes this clear, too. In the context
of the statutory requirement of "exceptional and extremely unusual
hardship" under different provisions for cancellation of removal,
the rulemaking explains:
[T]hose facts that a respondent claims make up "exceptional and extremely unusual hardship" to a respondent's putative qualifying relative . . . , and whether the putative qualifying relative is actually a qualifying relative, will be reviewed by the Board only to determine if the immigration judge's determination was clearly erroneous. Whether those facts, as determined by the immigration judge and found not to be clearly erroneous, amount to "exceptional and extremely unusual hardship" under the Act may be reviewed by the Board de novo.
BIA Reforms, 67 Fed. Reg. at 54890.9 Similarly, the rulemaking
draws the same distinction for discretionary determinations,
9 It is important to remember that the specific form of cancellation of removal for which Barros applied did not require
- 21 - noting that de novo review applies to the discretionary weight
applied to the underlying facts as found by the IJ, with those
underlying facts reviewed only for clear error. Id.
Indeed, many of the factors considered under Matter of
C-V-T- include the application of discretionary weight to findings
of fact. For example, the IJ and BIA consider "family ties within
the United States, residence of long duration in this country,
. . . [and] service in this country's armed forces." 22 I. & N.
Dec. at 11. Yet whether Barros has family in the United States is
surely a factual finding. As are the questions of how long he has
resided here and whether he served in the U.S. Armed Forces. It
is when those raw facts -- reviewed for clear error -- are plugged
into the discretionary calculus that the BIA may choose to give
more or less weight to these factors. And so it is too with the
factor at issue here, the likelihood that Barros's removal would
him to establish the statutory requirement of exceptional or extreme hardship, as other forms of cancellation of removal do. Compare 8 U.S.C. § 1229b(a) (Barros's form), with id. § 1229b(b)(1)(D) (cancellation for nonpermanent residents, requiring a showing that "removal would result in exceptional and extremely unusual hardship to the [immigrant]'s spouse, parent, or child," if the relative is a U.S. citizen or lawful permanent resident), and id. § 1229b(b)(2)(A)(v) (cancellation for battered spouses or children, which requires showing that "removal would result in extreme hardship to the [immigrant], the [immigrant]'s child, or the [immigrant]'s parent"). In those circumstances, we have no jurisdiction to review the weighing involved in the BIA's conclusion about whether the hardship is exceptional or extreme. Tacuri-Tacuri, 998 F.3d at 471; Alvarado, 743 F.3d at 275.
- 22 - harm his family, particularly his father -- that is, the likelihood
the removal would cause hardship.
Thus, the BIA here could not have changed the IJ's
factual finding (from a finding that Barros's removal "is"
hardship, or would cause harm, to his father to one that it "may"
be hardship, or only may cause harm) without applying clear-error
review. And the BIA's decision makes no attempt to explain why
the IJ's predictive finding "stinks like a 5 week old,
unrefrigerated, dead fish." Adeyanju, 27 F.4th at 33 (quoting
Baptiste, 8 F.4th at 42).
To be clear, we do not address the relative weight the
BIA applied to the hardship in the discretionary analysis. The
BIA could have given less weight to the IJ's finding that Barros's
father would suffer hardship. In exercising its discretion, it
could have discounted the extent of the hardship given other facts
found by the IJ, including Barros's history of violence towards
family members. But what the BIA could not do was change the raw
factual finding by the IJ -- that Barros's removal "is" hardship
to his father -- without applying clear-error review.
Wrapping Up
For the reasons we just explained, we grant Barros's
petition for review and remand for further proceedings consistent
with this opinion.
- 23 -