Dorce v. Garland

50 F.4th 207

• Court: Court of Appeals for the First Circuit
• Decided: October 3, 2022
• Docket: 21-1336P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 21-1336

RITCH CARDY DORCE,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Lynch and Lipez, Circuit Judges.

Kristin Macleod-Ball, with whom Jennifer Klein, the Committee for Public Counsel Services, Trina Realmuto, and the National Immigration Litigation Alliance were on brief, for petitioner. Aric A. Anderson, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, and Leslie McKay, Senior Litigation Counsel, were on brief, for respondent.

October 3, 2022 LYNCH, Circuit Judge. Ritch Cardy Dorce petitions for

review of the Board of Immigration Appeals ("BIA") decision of

April 7, 2021, affirming the denial of his application for

cancellation of removal. The BIA both rejected Dorce's argument

that he had not received proper notice as required under the Due

Process Clause of the Fifth Amendment, the Immigration and

Nationality Act ("INA"), and regulations governing his hearing

before the Immigration Judge ("IJ"), and held that Dorce had not

shown, as he was required to, that not receiving proper notice

prejudiced the outcome of his case. Because substantial evidence

supports the BIA's determination that Dorce had not shown prejudice

and the BIA committed no errors of law in that ruling, we deny

Dorce's petition for review.

I.

Dorce was born in Haiti in 1996 and moved to the United

States as a lawful permanent resident in 2000. He lived in Florida

with his grandmother for many years before moving to Massachusetts

to live with his father around 2011. After periods of

homelessness, Dorce eventually moved in with Stacey Fragile, his

(now former) girlfriend with whom he now has two U.S.-citizen

children.

Shortly after turning 18, Dorce committed serious

criminal acts. On July 27, 2018, Dorce was convicted following a

jury trial in the Brockton, Massachusetts District Court of

- 2 - carrying a firearm without a license, in violation of Mass. Gen.

Laws ch. 269, § 10(a).1 Dorce, then aged 20, had posted a video

on social media of himself brandishing a firearm and claiming to

have shot at an occupied residence on New Year's Eve 2016 after he

was involved in a fight at that residence. Someone had, in fact,

shot at the residence a couple hours before Dorce posted the video

on social media. Dorce was sentenced to two years in prison.

In April 2019, Dorce was served a Notice to Appear

("NTA") that charged him as removable under 8 U.S.C.

§ 1227(a)(2)(C) based on his firearm conviction. He was

transferred to the custody of the Department of Homeland Security

and detained at the Plymouth House of Corrections in Massachusetts

for the duration of his removal proceedings.

In August 2019, Dorce admitted the factual allegations

in the NTA, and the IJ sustained the charge of removability against

1 Dorce initially was charged with seven counts: (1) carrying a firearm without a license, Mass. Gen. Laws ch. 269, § 10(a); (2) possessing ammunition without a FID card, id. § 10(h)(1); (3) carrying a loaded firearm without a license, id. § 10(n); (4) assault with a dangerous weapon, Mass. Gen. Laws ch. 265, § 15B(b); (5) malicious destruction of property, Mass. Gen. Laws ch. 266, § 127; (6) malicious damage to a motor vehicle, id. § 28(a); and (7) discharging a firearm within 500 feet of a building, Mass. Gen. Laws ch. 269, § 12E. He was acquitted of counts two, four, five, and six, and counts three and seven were dismissed.

- 3 - him.2 The IJ also found Dorce may be prima facie eligible for

various forms of relief from removal, including asylum and

cancellation of removal for lawful permanent residents. Dorce,

who was pro se before the IJ, filed applications for asylum, 8

U.S.C. § 1158, withholding of removal, id. § 1231(b)(3),

protection under the Convention Against Torture, 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1), and cancellation of removal, 8

U.S.C. § 1229b(a), at a September 30, 2019 hearing.3

The IJ told Dorce at the September 30 hearing that his

merits hearing would be held on December 4, 2019. The IJ also

informed Dorce that he "can have anybody come in and speak on [his]

behalf for either one of [his] applications." The IJ explained:

[T]he cancellation application is, like, a scale. . . . On one side's going to be all the positive factors in your case, such as your length of time, how old you were when you first came to the United States, what family members you have here, things you may have done for your community, against the negative side, which would be the seriousness of your criminal history, how recent it is, whether you've shown rehabilitation. . . . [B]asically, whichever way that scale tips, is the way the Court rules . . . .

2 Dorce had at least two earlier appearances by videoconference before the IJ, where the IJ continued Dorce's proceedings to give him time to obtain counsel.

3 Dorce's petition concerns only the cancellation of removal application.

- 4 - The same day, the immigration court mailed written

notice of the December 4 hearing to Dorce at his Plymouth address.

Dorce admits he received that notice.

The record shows that on November 27, 2019, the

immigration court mailed another notice to Dorce at the same

address, stating that his merits hearing was now scheduled for

December 19, 2019.

A. Merits Hearing

Dorce was present at his December 19 hearing. He never

stated to the IJ that he had not received prior notice of that

hearing, nor did he lodge an objection on that basis. Dorce also

did not ask for additional time to gather witnesses to testify on

his behalf. He told the IJ that "[his] father was supposed to

come, and [his] uncle," and that he did not know where they were.

The IJ asked Dorce why Fragile, the mother of his children, was

not present and Dorce responded: "She was supposed to be. I don't

know what happened. She told me she would come."

Dorce relied on his own testimony (and a few exhibits),

which was developed through questioning by the IJ and government

counsel. Dorce testified primarily about his U.S.-citizen

children, his history with unemployment and homelessness, his

community service, the circumstances of his firearm conviction,

and the classes he took in prison.

- 5 - After hearing Dorce's testimony, the IJ rendered an oral

decision denying Dorce's application for cancellation of removal

as a matter of discretion and his other applications on the merits.

The IJ found Dorce generally credible with one critical exception:

the IJ had "issue and concern regarding [Dorce's] truthfulness and

candor regarding his criminal conduct and the circumstances

surrounding his criminal offense." The IJ denied his cancellation

of removal application because she found that Dorce's negative

factors outweighed the positive.

The IJ acknowledged that Dorce had "positive factors" in

his case, including his community service, his residence in the

United States for many years, and his two U.S.-citizen children.

She found these factors "undercut by the fact that [Dorce is] not

on the birth certificate for the children, the children are

receiving Government benefits, [and Dorce has] not provid[ed] for

the . . . children." Further, the IJ found Dorce's "conviction

for possession of a firearm without a proper license to be a very

serious offense, and weigh[ed] this as a very significant adverse

factor." This was based on the IJ's finding that Dorce,

at minimum, took a video in which he brandished a firearm, portrayed that he had gone back to a party after having an altercation at the party, and shot the residence with the firearm. . . . [Dorce] had a nine-millimeter handgun in the video. He took the magazine out of the handgun, tipped the camera down to video that the magazine was empty, and indicated that it did

- 6 - not matter that he had run out of bullets while shooting, that he was going to get some more and go back.

The IJ also pointed to evidence in the record that Dorce

had been associated with a gang, specifically the Zoe Pound Gang.

Dorce made a Facebook post stating "Zoe Gang or no gang," which

was "interestingly deleted shortly after the criminal

investigation occurred after the shooting on New Year's Eve." The

IJ ordered Dorce removed to Haiti. He was deported in 2021.

B. Appeal to the Board of Immigration Appeals

Dorce filed a pro se appeal to the BIA in December 2019.

He again did not make any assertion of the alleged lack of notice

of his rescheduled notice hearing or present any arguments on that

basis. Dorce did not raise his lack-of-notice claims until his

counseled brief to the BIA, which was submitted with declarations

from himself, his father, his uncle, his sister, and Fragile.

Dorce stated in his declaration that "[f]our witnesses

planned to testify for [him] at [his] deportation hearing on

December 4, 2019" and that he "was really confused when [his]

hearing never happened that day." He said his father and uncle

went to the court on December 4 and were told that Dorce "wasn't

there and that the hearing wasn't going to happen."

Dorce asserted in his declaration that about a week after

December 4, he had an undocumented, ex-parte videocall with his

IJ, during which the IJ allegedly told Dorce that his December 4

- 7 - hearing was postponed due to a scheduling error and that she

"didn't know yet when [his] hearing would be, but that the

[Immigration and Customs Enforcement] officers would bring [Dorce]

a paper to let [him] know." Dorce stated in the declaration that

he did not receive written notice after that videocall, so he

called the immigration court on or around December 16 for his new

hearing date, which was December 19. Dorce stated that he then

called his sister to have her arrange for his witnesses to come to

the immigration court to testify on December 19, but none of his

witnesses did so.

The declarations of his family and Fragile set forth the

testimony the declarants allegedly would have given had they

attended Dorce's merits hearing.4

4 The witness testimonies that Dorce would have presented, according to the declarations he submitted, are as follows: Dorce's father would have testified that Dorce "is a good guy. A quiet guy. He's not a trouble guy." Dorce's father provided no examples or explanation for why he believed that was so. Dorce's uncle would have testified that he lived with Dorce in Florida when Dorce was young and that Dorce "was always a good kid. . . . He didn't get into a lot of trouble at school." Dorce's uncle also would have testified that Dorce "has been in trouble with the law once in his life . . . because he was trying to show that he was tough to other some other [sic] kids." Dorce's uncle would have said Dorce "deserves a second chance." The declaration does not give specific details to explain why he believes that was so. Fragile would have testified that Dorce "has really created a bond with [her] family," and that his children miss him. She would have told the judge "why [she] know[s] that [Dorce] isn't dangerous." The declaration does not elaborate as to why Fragile believed that was so.

- 8 - The BIA "reviewed the declarations submitted" and

rejected Dorce's lack-of-notice claims.5 It determined that Dorce

failed to rebut the presumption of notice:

The record reflects that the notice for the December 19th hearing was mailed to the respondent. There is no indication in the record of proceeding that it was undeliverable or that the respondent notified the Immigration Judge at the hearing that he had not received the notice and that he was unprepared to proceed with his case. Moreover, the hearing notice was dated November 27, 2019, more than a week before the alleged video call with the Immigration Judge. Thus, if such video call had taken place, it is not credible that the Immigration Judge was not aware that the hearing had been rescheduled. The respondent has therefore not established any procedural error by the Immigration Judge.

The BIA also rejected Dorce's claim that he was

prejudiced by the alleged lack of notice, stating it was "not

persuaded of any prejudice likely affecting the outcome of these

proceedings." The BIA stated it had "reviewed the declarations

submitted by [Dorce's] father and uncle on appeal and [did] not

find that they offer[ed] any additional or meaningful information

Dorce's sister never intended to testify, though she submitted a declaration describing her efforts to coordinate witnesses to testify at Dorce's hearing and the effect of the change of date. Dorce did not proffer any declaration by his sister at his merits hearing.

5 Although Dorce failed to raise the lack-of-notice issue with the IJ, the BIA reached the merits of that claim. There is no jurisdictional bar to our reviewing the BIA's denial of it. See Peulic v. Garland, 22 F.4th 340, 352 n.9 (1st Cir. 2022).

- 9 - that was not already considered by the Immigration Judge or that

would offset the negative factors in [Dorce's] case to merit

relief." Rather, the BIA found those declarations "merely

offer[ed] generalized statements that [Dorce] is a 'good guy' and

request[ed] that he be given a second chance . . . ." And as to

Fragile's declaration, the BIA found that it did not "offer any

specific details that [would] contravene[] the Immigration Judge's

finding" or would add to the discussion of Dorce's criminal

conviction.

The BIA held that, in light of "the deficiencies with

the declarations," the proposed witness testimonies would not

likely have changed the outcome of Dorce's proceedings. The agency

added that the IJ's discretionary denial of Dorce's application

for cancellation of removal was correct because Dorce's

"undesirability as a permanent resident outweigh[ed] the favorable

factors and the social and humane considerations presented on his

behalf."

Dorce has petitioned this court for review of the BIA's

affirmance of the denial of cancellation of removal.

II.

Here, our "focus[ is] on the decision of the BIA as

opposed to that of the IJ." Pulisir v. Mukasey, 524 F.3d 302, 307

(1st Cir. 2008). We review the legal and constitutional issues de

novo, "but with some deference to the agency's reasonable

- 10 - interpretation of statutes and regulations that fall within its

sphere of authority." Jianli Chen v. Holder, 703 F.3d 17, 21 (1st

Cir. 2012). And we review the BIA's factual findings for

substantial evidence. See Mazariegos-Paiz v. Holder, 734 F.3d 57,

64 (1st Cir. 2013). The substantial evidence standard "requires

us to accept the agency's factual findings . . . unless the record

is such as to compel a reasonable factfinder to reach a contrary

conclusion." Id. (emphasis added).

We turn directly to the BIA's lack of prejudice holding

because it is dispositive of all Dorce's constitutional,

statutory, and regulatory claims in his petition.6 Dorce has

conceded that a showing of prejudice is necessary for all those

claims, as that is what he argued to the BIA. See, e.g.,

Gomez-Abrego v. Garland, 26 F.4th 39, 47 (1st Cir. 2022) (noting

that "arguments not made before the BIA may not make their debut

in a petition for judicial review of the BIA's final order"

(quoting Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir. 2010))).

Dorce raises several claims of legal error as to the

BIA's no-prejudice holding. None has any merit.

Dorce first argues the BIA failed to consider the entire

record in determining that Dorce had not shown prejudice. We

6 Dorce's argument that the BIA improperly overlooked his statutory and regulatory claims lacks merit. His due process claim overlaps with his statutory and regulatory arguments, and all turn on the BIA's no-prejudice finding.

- 11 - review this claim de novo and, even under this standard, we

conclude the BIA opinion did not ignore anything of relevance. To

the contrary, the BIA decision was explicit that it considered the

proffered declarations, as it expressly said so. In fact, the BIA

even expressly stated that it considered their contents, such as

the representation that one declarant would testify about how Dorce

"is a 'good guy,'" while another would testify to the events

surrounding Dorce's firearm offense (albeit not as an eyewitness

to them).

The BIA "is not required to dissect in minute detail

every contention that a complaining party advances." Raza v.

Gonzales, 484 F.3d 125, 128 (1st Cir. 2007). Rather, the agency

need only "articulate[] its decision in terms adequate to allow a

reviewing court to conclude that the agency has thought about the

evidence and the issues and reached a reasoned conclusion." Id.

Here, the BIA has done just that, and nothing more was required of

it.7 There is no legal requirement that the BIA also evaluate or

presume that Dorce's proposed witnesses would have testified to

matters beyond what their declarations said they would.

7 Unlike in Dor v. Garland, 46 F.4th 38 (1st Cir. 2022), which dealt with the unrelated issue of whether the Board applied the relevant legal factors in coming to a particularly-serious- crime conclusion, here the Board applied the law to the facts in a manner that provides a "sufficiently rational explanation" for this Court to review. Id. at 49.

- 12 - Further, there is no merit to Dorce's argument that the

BIA committed legal error by using an incorrect prejudice standard.

The BIA correctly identified the prejudice inquiry as asking

whether the alleged lack of notice was "likely to have affected

the outcome of the proceedings," citing Zhou Zheng v. Holder, 570

F.3d 438, 442 (1st Cir. 2009). Dorce argues the BIA nonetheless

applied a heightened standard, pointing to the BIA's statement

that it could not "determine that the additional testimonies of

[Dorce]'s family members would have been sufficient to offset the

serious, negative factors in this case" (emphasis added). This

argument fails.

The BIA stated it reviewed Dorce's proffered

declarations and did not see them as providing the kind of evidence

"likely to have affected the outcome of the proceedings." Pulisir,

524 F.3d at 311. It explicitly concluded that the declarations

failed to "offer any additional or meaningful information that was

not already considered by the Immigration Judge or that would

offset the negative factors in [Dorce's] case to merit relief"

(emphasis added), without thereby assuming the witnesses would

only repeat the words in their declarations rather than testify to

the substance of them.

This leaves Dorce's argument that the record compels a

conclusion as to prejudice contrary to the one the BIA reached.

Dorce accepts that he has the burden to make the case that he was

- 13 - prejudiced. The declarations he proffered to the BIA fail, on our

deferential review of the BIA's no-prejudice finding, to meet this

burden. The generalized statements by the declarants about what

they would testify do not suffice to compel the conclusion that

the alleged notice violation was likely to have affected the

outcome of his removal proceedings.

The record supports the BIA's conclusion that the

declarations failed to "offer any additional or meaningful

information" that could suggest Dorce's negative factors --

including his very serious firearms conviction -- were not as

concerning as they otherwise appeared to be. The declarations

merely repeat, broadly, Dorce's testimony and state generally that

he is a "good guy."

Finally, Dorce has not met his burden to show prejudice

as to his more particularized claim that the agency should have

documented his purported ex-parte videocall with his IJ. Dorce

accepts that he must show prejudice from this alleged violation,

if it even occurred, as he did not argue that he was not required

to show such prejudice in presenting the claim to the BIA. He is

unable to make such a showing.

The prejudice Dorce identifies solely is his ability to

prove he was deprived of notice, as he contends that if he could

show that the ex-parte hearing occurred (which he could do if the

agency had put the hearing in the record), then he could show that

- 14 - he could rebut the presumption of delivery of notice. That line

of reasoning misses the point. The notice claim, as Dorce

presented it to the BIA, has merit only if he can show prejudice

following from the denial of notice. Nothing about the alleged

ex-parte hearing with the IJ as described by Dorce (if placed on

the record) would have enhanced Dorce's ability to show that even

with his prior conviction, he was deserving of cancellation of

removal.

III.

The petition for review is denied.

-Dissenting Opinion Follows-

- 15 - LIPEZ, Circuit Judge, dissenting. Petitioner Ritch

Cardy Dorce, a citizen and native of Haiti, claims that he was

denied a full and fair opportunity to prove that he is entitled to

relief from removal because he did not receive written notice of

his rescheduled immigration hearing, in violation of his

statutory, regulatory, and constitutional rights. Based primarily

on the lack of timely notice, he argues that he is entitled to

reconsideration of his request for cancellation of removal. In

denying Dorce's petition, the majority disregards a significant

legal error by the Board of Immigration Appeals ("BIA") -- its

failure to apply the proper analysis to Dorce's notice claim. My

colleagues then accept the BIA's inadequately reasoned conclusion

that Dorce suffered no prejudice from his asserted lack of notice.

Based on my review of the record and the applicable law, I believe

this panel should grant Dorce's petition for relief and remand the

case to the BIA for further proceedings. I therefore dissent from

my colleagues' refusal to do so.

A. Factual Background

Dorce arrived in the United States at age four and was

a lawful permanent resident for sixteen years before the incident

that led to his removal proceedings. On December 31, 2016, when

Dorce was twenty, someone fired a handgun at a house where a New

Year's Eve party was taking place. Dorce admitted attending the

- 16 - party with a friend but claimed that he left after he was involved

in a fight and was not present when the shots were fired at the

house. Later that night, however, Dorce posted a video of himself

on social media (Snapchat) in which he was holding the gun

supposedly used in the shooting and claimed to be the individual

who had fired at the house. Dorce later testified that this claim

was untrue, that his friend had given him the gun,8 and that he

was simply "trying to get brownie points for something [he] didn't

do." He also testified -- when questioned about his contention

that the gun was unloaded -- that he knew how to remove the gun's

magazine and check the chamber because he had seen it done in

movies.

Dorce was charged with seven offenses stemming from the

New Year's Eve incident. Two charges were dismissed, and the jury

acquitted him on four others: possessing ammunition without a

license, assault with a dangerous weapon, malicious destruction of

property, and malicious damage to a vehicle. On the single count

of conviction, carrying a firearm without a license, Dorce was

sentenced to a two-year term of imprisonment.

The record indicates that, before his arrest, Dorce led

a difficult but lawful life in the United States. Dorce spent his

Dorce testified that his friend came to his home after Dorce 8

had left the party, showed him the gun, and claimed that he "had taken care of" the situation for Dorce, an apparent reference to Dorce's involvement in the fight at the party.

- 17 - early years with his grandmother in Florida before moving to

Massachusetts at fifteen to live with his father. According to

Dorce, he stayed with his father and his father's girlfriend only

a short time before he moved out because they fought often and he

was afraid to be in their home.9 He became homeless, at times

staying outdoors and at times staying in shelters or with friends.

Despite his own housing challenges, he volunteered to assist senior

citizens at a housing complex and helped at local homeless

shelters. During this period, he began a long-term relationship

with a U.S. citizen, Stacey Fragile, with whom he had two children,

the first when he was eighteen and the second when he was twenty-

one. Although Dorce did not provide financial support to his

children because he had little employment, he claims to have a

close relationship with them. During his incarceration, Dorce

completed a variety of rehabilitation programs, earned his high

school equivalency diploma, and participated in a parents' support

group.

Immediately upon his release from state custody in July

2019, Dorce was detained by Immigration and Customs Enforcement

("ICE") and charged with removability for having been convicted of

a firearms offense. See 8 U.S.C. § 1227(a)(2)(C).

At his merits hearing, Dorce testified that his father's 9

girlfriend asked him to leave because he was not "getting along with her."

- 18 - B. Preliminary Immigration Proceedings

Through the summer and fall of 2019, Dorce appeared

multiple times before an Immigration Judge ("IJ"). At his first

two appearances, on July 25 and August 14, both by videoconference,

the proceedings were continued so that Dorce could obtain counsel.

On August 29, even though the attorney whom Dorce expected did not

appear, the IJ went forward with the proceedings, sustained the

charge of removability, and reset Dorce's case for September 19 so

that he could file applications for cancellation of removal and

relief based on his fear of returning to Haiti.

On September 19, the IJ again reset the matter because,

she explained, "some sort of scheduling error" had resulted in

Dorce's appearance by videoconference instead of in person. On

September 30, Dorce appeared in person and submitted his

applications for relief. The IJ advised him that his final hearing

would be held on December 4 and that he would have the opportunity

at that hearing to present witnesses "who can talk about positive

things you've done or any testimony from anyone that you want me

to hear."

Dorce claims that he expected four witnesses to appear

on his behalf on December 4: his father, uncle, cousin, and

Fragile, his former girlfriend and mother of his children. His

father and uncle later submitted declarations stating that they

went to the immigration court that day, but no hearing occurred.

- 19 - As it turns out, a notice was mailed to Dorce on November 27

rescheduling his hearing to December 19. Dorce maintains that he

never received that notice.10 Rather, he claims that sometime

between December 10 and 12 (or roughly in that timeframe) he met

via videoconference with the IJ, who explained that he had not

been brought to court on December 4 because of a scheduling error.

According to Dorce, the IJ told him that she did not know his next

hearing date, but that he would receive written notice from ICE.

No evidence of this conversation, other than Dorce's report,

appears in the administrative record.

Dorce claims that he first learned that his hearing had

been rescheduled to December 19 when he called the immigration

court's 1-800 number on December 16, having not received written

notice. He says that he then called his sister, who had

coordinated the witnesses for December 4, but she stated in her

later declaration that three days was not enough time for the

witnesses to make arrangements to attend the rescheduled hearing.

C. Merits Hearing

On December 19, still pro se, Dorce appeared in person

for his final hearing. When the IJ asked if he had any additional

10 A copy of the notice in the record indicates that it was "SERVED BY[] MAIL" to Dorce "c/o Custodial Officer" at the Plymouth County Correctional Facility. In his brief, Dorce states that he saw the notice for the first time when the administrative record was submitted to this court.

- 20 - documents for the court, he responded, "Oh, my father was supposed

to come, and my uncle, but I don't know if they're here yet." The

IJ instructed the court officer to check the hallway, and when the

officer indicated that no one was there, the IJ proceeded with the

hearing. Dorce said nothing about a lack of adequate notice or

that the rescheduling might have affected his witnesses' ability

to attend.

The IJ questioned Dorce about his personal background

and family relationships in the United States, his fear of

returning to Haiti, and the firearms incident. She then turned

the questioning over to government counsel, who further delved

into Dorce's actions at the New Year's Eve party and pressed him

on his seeming familiarity with the handgun he held in the video.

The government also questioned Dorce about his relationship with

Fragile and asked why she was not at the hearing. Dorce responded

that "[s]he was supposed to be here."

When the government completed its questioning, the IJ

asked the court officer to check the hallway again "to see if

anybody is outside for Mr. Dorce's case," but, again, no one was

there. The IJ asked Dorce if he had anything to add to his

testimony before she took his case under advisement, and he

emphasized that he had matured since the New Year's Eve incident.

He stated that both he and his children had been hurt by the

separation while he served his sentence and then was detained by

- 21 - ICE. The IJ asked if Dorce remained in touch with Fragile, and

when he responded affirmatively, the IJ asked why she had not

attended the hearing. Dorce again responded: "She was supposed to

be [here]. I don't know what happened. She told me she would

come." Prompted by the IJ, Dorce elaborated on his relationship

with Fragile and his children and concluded with the explanation

that he was presently "trying to . . . prove to my family and

Stac[e]y that I'm a changed person. That I'm not the same person

that was doing and thinking stupid things."

D. The IJ's Decision

In an oral ruling rejecting Dorce's requests for relief,

the IJ emphasized her skepticism concerning Dorce's account of the

New Year's Eve incident. Although the IJ found that Dorce was

overall a credible witness who "answered questions responsively

and candidly for the most part," she found "implausible" his

testimony that he "handled a firearm for basically the first time"

that night and was able to remove the magazine and check the

chamber for a bullet "simply because he watched it done in movies."

The IJ explained that, because of her "finding that [Dorce] gave

implausible testimony and minimized some of his criminal conduct

concerning [the firearms] offense," she would give less weight to

"certain testimony of [Dorce] concerning . . . that offense."

The IJ then considered each of Dorce's requests for

relief. In rejecting his application for cancellation of removal

- 22 - as a matter of discretion, the only ruling Dorce challenges on

appeal, the IJ reviewed "the positive factors present against the

negative factors." The IJ noted the positive factors of Dorce's

community work and family support, but she weighed his firearms

offense "as a very significant adverse factor." Although the IJ

considered his two U.S.-citizen children as "positive equities,"

she pointed out that Dorce is not listed on their birth

certificates and had not contributed financially to their support.

The IJ also noted a Facebook post by Dorce as "some evidence" of

gang association.11 The IJ concluded, on balance, that the adverse

factors outweighed the positive factors.

E. The BIA's Decision

In his appeal to the BIA, Dorce, now represented by

counsel, primarily argued that he was denied a fair hearing on his

applications for relief because he was not given proper notice of

The post stated "Zoe life, Zoe gang or no gang." When asked by 11

government counsel, "Why'd you write that if you're not a Zoe Pound gang member," Dorce responded that "[i]t means Haitian over everything." There is some support for Dorce's response in current usage. See Zoe Pound, Urban Dictionary, https://www.urbandictionary.com/define.php?term=Zoe%20Pound (last visited Sept. 20, 2022) (noting that Zoe Pound is "[a] very ruthless gang that originates with Haitian[] immigrants," but that "[t]he word Zoe by itself means somebody that is of Haitian de[s]cent" and that "[m]any Zoe Pound members do not view themselves as gang members, but view themselves as a group standing up for their Haitian people"). However, the IJ "d[id] not credit" Dorce's explanation that the comment did not indicate an association with the gang. The record contains no other evidence of gang involvement by Dorce.

- 23 - his December 19 hearing and learned of the date only three days in

advance, when he took the initiative to call the immigration

court's 1-800 number. The lack of adequate notice was prejudicial,

he asserted, because none of his witnesses could arrange to attend

his hearing on such short notice. Accordingly, Dorce argued, his

removal proceedings were "fundamentally unfair, in violation of

his statutory and due process rights, because [the notice error]

essentially prevented him from presenting evidence in support of

his claims."

Along with his brief and his own declaration, Dorce

submitted declarations from his father, sister, uncle, and Fragile

that generally described the testimony they would have provided in

support of his applications for relief. In various ways, each

emphasized that Dorce's criminal conviction did not reflect his

true character. His uncle noted that "[h]e made a bad choice once"

and "deserves a second chance." His sister and father described

him as "a good guy" who wanted to remain in the United States so

that he could support and care for his children. Fragile stated

that she planned to testify about his relationship with his family,

including "how important it is that he gets to be here for our

children," and about "all the steps that [Dorce] has made to obtain

his education and to learn to be able to earn an income." She

also stated that she "would have been able to testify about his

- 24 - criminal conviction" and "could have explained to the judge why

[she] knew that [Dorce] isn't dangerous."

Dorce's sister and Fragile also emphasized that the late

notice of the changed hearing date was problematic. Fragile

explained that she needed more than three days "to take time off

from work and school and find childcare," and Dorce's sister stated

that "[e]verybody works -- there was no way for them to get time

off from their jobs in time for them to make it to that hearing."

Dorce's sister also stated that her brother had told her about the

"video court hearing" that took place "[a] few days" after December

4, when Dorce said he had "talked to the judge" but still did not

know when his next hearing would be.

In rejecting Dorce's lack-of-notice claim, the BIA

described as "inconsistent to the evidence in the record" both his

assertion that he did not learn the date of his rescheduled hearing

until he called the immigration court and his description of the

video call with the IJ. The BIA pointed out that Dorce had not

notified the IJ at the December 19 hearing "that he had not

received the [mailed] notice and that he was unprepared to proceed

with his case." The BIA further noted that the hearing notice had

been sent more than a week before Dorce claimed to have spoken

with the IJ and, hence, "if such video call had taken place, it is

not credible that the Immigration Judge was not aware" of his next

- 25 - hearing date. The BIA thus concluded that Dorce had not shown

that a procedural error occurred.

Despite finding no error, the BIA went on to cursorily

suggest that even if he was denied the opportunity to present

witness testimony at the hearing, he suffered no prejudice. The

BIA stated that the declarations from Dorce's father and uncle

failed to provide "any additional or meaningful information that

was not already considered by the Immigration Judge or that would

offset the negative factors" in his case. It discounted Fragile's

declaration because she provided no details concerning the

information she would have offered on the criminal conviction and

Dorce's relationship with his children. Given these

"deficiencies" in the declarations, the BIA found no basis for

concluding that the testimony of Dorce's potential witnesses would

have offset "the serious, negative factors in this case."

Dorce argues that a lack of notice that his merits

hearing had been changed from December 4 to December 19 -- until

he called to inquire -- prevented him from presenting witness

testimony that was likely to have made a difference in the IJ's

balancing of the equities in his case. I begin with the notice

issue before turning to the question of prejudice. Although Dorce

frames his notice argument in constitutional, statutory, and

regulatory terms, and the BIA expressly addressed the claims as a

- 26 - matter of due process, I anchor my analysis solely in the

requirements of the Immigration and Nationality Act ("INA"). See

Aponte v. Holder, 610 F.3d 1, 5 (1st Cir. 2010) (noting that

"courts should not decide constitutional issues when this can be

avoided" (quoting United States v. Vilches-Navarrete, 523 F.3d 1,

9 n.6 (1st Cir. 2008))).

A. Legal Background

The INA provides noncitizens with certain procedural

protections in their removal proceedings. They are entitled to

written notice of "[t]he time and place at which the proceedings

will be held," 8 U.S.C. § 1229(a)(1)(G)(i), and written notice of

a change or postponement of a scheduled proceeding, see id.

§ 1229(a)(2)(A)(i). The INA specifies that these notices be given

in person, but "if personal service is not practicable," notice

may be given "through service by mail" to either the noncitizen or

his counsel of record. See id. §§ 1229(a)(1), 1229(a)(2)(A). The

INA also grants a noncitizen "a reasonable opportunity . . . to

present evidence on [his] own behalf." Id. § 1229a(b)(4)(B).

Of particular relevance to this case, there is a

presumption, established through judicial and administrative

caselaw, "that, in the absence of evidence to the contrary, a

notice provided by a government agency is deemed to have been

placed in the mail on the date shown on the notice and received

within a reasonable time thereafter." Loubriel v. Fondo del Seguro

- 27 - del Estado, 694 F.3d 139, 143 (1st Cir. 2012); see also Matter of

M-R-A-, 24 I. & N. Dec. 665, 671 (BIA 2008) ("We have recognized

that '[a] letter properly addressed, stamped and mailed is presumed

to have been duly delivered to the addressee.'" (alteration in

original) (quoting Matter of M-D-, 23 I. & N. Dec. 540, 546 (BIA

2002))). For items sent via certified mail -- a service that

provides proof of delivery or attempted delivery -- there is "a

'strong presumption' of effective service," and rebutting the

presumption requires "substantial and probative evidence." Matter

of M-R-A-, 24 I. & N. Dec. at 672 (quoting Matter of Grijalva, 21

I. & N. Dec. 27, 37 (BIA 1995)).12 A weaker presumption attaches

when items are sent by regular mail. See id. at 673; see also

Kozak v. Gonzáles, 502 F.3d 34, 36 (1st Cir. 2007) (explaining

that the stronger presumption of effective service that applies to

certified mail does not apply to regular mail).

In Matter of M-R-A-, the BIA concluded that "when a

respondent seeks to reopen proceedings based on a claim of lack of

receipt of notice" sent by regular mail, "the question to be

determined is whether the respondent has provided sufficient

evidence to overcome the weaker presumption of delivery." 24 I.

12Before 1997, the INA required that hearing notices be served in person or sent by certified mail. See Kozak v. Gonzáles, 502 F.3d 34, 36 (1st Cir. 2007). Under current law, notices may be served by regular mail. See id. (citing 8 U.S.C. § 1229(a)(1)).

- 28 - & N. Dec. at 673.13 Drawing from the precedent of multiple

circuits, including our court's decision in Kozak, the BIA went on

to hold that "all relevant evidence submitted to overcome the

weaker presumption of delivery must be considered." Id. at 674.

The BIA cautioned against "[a]n inflexible and rigid application

of the presumption of delivery . . . when regular mail is the

method of service of a Notice to Appear or Notice of Hearing," and

it provided a list of non-exclusive factors to be considered:

(1) the respondent's affidavit; (2) affidavits from family members or other individuals who are knowledgeable about the facts relevant to whether notice was received; (3) the respondent's actions upon learning of the in absentia order, and whether due diligence was exercised in seeking to redress the situation; (4) any prior affirmative application for relief, indicating that the respondent had an incentive to appear; (5) any prior application for relief filed with the Immigration Court or any prima facie evidence in the record or the respondent's motion of statutory eligibility for relief, indicating that the respondent had an incentive to appear; (6) the respondent's previous attendance at Immigration Court hearings, if applicable; and (7) any other circumstances or evidence indicating possible nonreceipt of notice.

13In both Matter of M-R-A- and Kozak, the specific issue was the showing required of a noncitizen who seeks to reopen proceedings based on lack of notice after having failed to appear for an immigration hearing in which the IJ ordered removal in absentia. See Matter of M-R-A, 24 I. & N. Dec. at 666-77, 673- 74; Kozak, 502 F.3d at 35-36. With respect to the presumption afforded to the agency's mailings, I see no reason to limit the principle to the precise factual situation of in absentia removal. Here, as in the context of in absentia removal, the question is whether the noncitizen received a mailing from immigration authorities.

- 29 - Id. The BIA emphasized that these factors are merely illustrative

and that "[e]ach case must be evaluated based on its own particular

circumstances and evidence." Id.

B. Notice to Dorce

As described above, the BIA rejected Dorce's notice

claim on the ground that his account of what happened was

"inconsistent to the evidence in the record." The BIA cited three

factors to demonstrate the inconsistency: (1) the absence of

evidence that the written notice of the rescheduled hearing, which

the record indicated had been mailed to Dorce on November 27, was

undeliverable; (2) Dorce's failure to tell the IJ "that he had not

received the notice and that he was unprepared to proceed with his

case," and (3) the implausibility of Dorce's report that the IJ

did not know the new hearing date at the time of the claimed video

call.

I focus primarily on the first of these rationales,

albeit briefly addressing the other two as well. In citing the

lack of evidence that Dorce's rescheduling notice was

undeliverable, I understand the BIA to be invoking the presumption

that a properly addressed mailing reaches the addressee in due

course. See supra. Apparently to support relying on the

presumption, the BIA noted that Dorce did not raise the notice

issue at his hearing. However, there is no indication in its

opinion that the BIA complied with the directive in Matter of M-

- 30 - R-A- to evaluate "all relevant evidence" to determine whether the

presumption of mail delivery has been rebutted. 24 I. & N. Dec.

at 674. Multiple facts unremarked upon by the BIA warranted

attention in its analysis. See Sihotang v. Sessions, 900 F.3d 46,

51 (1st Cir. 2018) ("While it remains true that the BIA need not

'dissect in minute detail every contention that a complaining party

advances,' it cannot turn a blind eye to salient facts." (citation

omitted) (quoting Xiao He Chen v. Lynch, 825 F.3d 83, 88 (1st Cir.

2016))).

First, the BIA did not acknowledge that the IJ found

Dorce to be generally a credible witness who "answered questions

responsively and candidly for the most part," the exception being

his account of "his criminal conduct and the circumstances

surrounding his criminal offense." Indeed, the IJ stated that

"this record would not support an adverse credibility finding."

Further, the record is consistent with Dorce's assertion that he

did not see the November 27 notice until his attorney obtained the

administrative record to prepare his petition for review. Unlike

the record copy of the notice for the December 4 hearing -- which

is stamped as an exhibit dated December 19 -- the copy of the

November 27 notice does not contain a date stamp. Although that

difference obviously does not prove that the rescheduling notice

- 31 - never reached Dorce via mail delivery,14 it is a relevant factor

in assessing the credibility of his assertion.

Second, the BIA did not address the evidence showing

Dorce's diligence in preparing for the December 4 hearing --

arranging, through his sister, for witness testimony -- or the

eagerness of his supporters to appear on his behalf. According to

their declarations, Dorce's father and uncle stayed at the

immigration court all day on December 4, and Fragile made an on-

the-record appearance at the proceeding held on September 19.

Dorce presumably was highly motivated to ensure his witnesses'

attendance at his hearing because he had been told expressly that

it would help his case to offer testimony from "anybody who can

talk about positive things you've done."15 Dorce's diligence and

14 Most of the documents in the record are not individually stamped, including multiple prior notices of Dorce's scheduled appearances in immigration court (among them, another copy of the notice for December 4). However, the stamped December 4 notice, with a mailing date of September 30, is chronologically the latest notice that Dorce reports having received. The fact that it was stamped could indicate that it was the latest one in his file at the time of his merits hearing.

15On September 30, the IJ told Dorce that his merits hearing would be held on December 4, explained the nature of that hearing, and told him that he "can have anybody come and speak on [his] behalf." The IJ explained, inter alia, that the considerations for cancellation of removal were "like[] a scale," and then elaborated:

On one side's going to be all the positive factors in your case, such as your length of time [in the United States], how old you were when you first came to the United States, what

- 32 - motivation, and that of his family members, is relevant in

evaluating whether their failure to appear on December 19 was

attributable to a lack of proper notice -- and thus relevant to

whether Dorce rebutted the presumption that the rescheduling

notice was "mail[ed] on the date shown on the notice and received

within a reasonable time thereafter." Loubriel, 694 F.3d at 143;

cf. Matter of M-R-A-, 24 I. & N. Dec. at 674 (giving significance

to indicia of the noncitizen's "incentive to appear").

Third, the BIA did not address Dorce's sister's

declaration, which corroborated his account of not having received

written notice of the rescheduled hearing. In her declaration,

she described two relevant phone calls with her brother: the first

when Dorce told her about his videoconference with the IJ, and the

family members you have here, things you may have done for your community, against the negative side, which would be the seriousness of your criminal history, how recent it is, whether you've shown rehabilitation. Rehabilitation could go -- could go, really, in either column, so if you've shown good rehabilitation, that goes on the positive side. If you show lack of rehabilitation, well, that's going to go on the negative side. And the cancellation case, basically, whichever way that scale tips, is the way the [c]ourt rules, so it's like a balancing of the positives against the negatives. Okay? So anybody who can talk about positive things you've done or any testimony from anyone that you want me to hear, I will hear on December 4th. Okay?

- 33 - second "on about December 16," when he told her he had just learned

his new hearing date. Whatever its weight given the sibling

relationship, this corroboration should have been part of the BIA's

calculus in assessing the credibility of Dorce's contention that

he never received the written notice. See Matter of M-R-A-, 24 I.

& N. Dec. at 674 (including as factors relevant to whether the

presumption of mail delivery has been rebutted "the respondent's

affidavit [and] affidavits from family members or other

individuals who are knowledgeable about the facts relevant to

whether notice was received")16; cf. 8 U.S.C. § 1158(b)(1)(B)(iii)

(providing that, in making a credibility determination under the

INA, the factfinder must "consider[] the totality of the

circumstances, and all relevant factors").

Finally, the BIA did not address the evidence that Dorce

had previously experienced a significant delay in receiving

immigration documents while detained. At a hearing in August 2019,

Dorce told the IJ that documents sent to him at the Plymouth County

Although Dorce's and his family's statements are unsworn 16

declarations rather than sworn affidavits, each states that it is "[s]igned under the pains and penalties of perjury" and, regardless of their weight, the documents are certainly "relevant evidence" that "must be considered." Matter of M-R-A-, 24 I. & N. Dec. at 674; cf. Lopes v. Gonzales, 468 F.3d 81, 85-86 (2d Cir. 2006) (per curiam) ("Although an affidavit of non-receipt might be insufficient by itself to rebut the presumption [of receipt], it does raise a factual issue that the BIA must resolve by taking account of all relevant evidence . . . .").

- 34 - Correctional Facility, in a mailing dated July 3, were not given

to him until July 16 -- nearly two weeks later. Given this prior

issue with timely receiving mail, there is nothing implausible

about the November 27 notice -- presumably mailed on the day before

Thanksgiving -- having gone entirely astray in the mail-processing

system at the same detention facility. As our court previously

has observed, "[a]though most mail reaches its intended

destination, it is commonsensical that at least some does not."

Kozak, 502 F.3d at 36.17

To be sure, the BIA reasonably considered the fact that

Dorce did not tell the IJ that late notice of the new hearing date

could explain his witnesses' nonappearance. The agency's error

was, rather, to focus on that omission without also considering

the other relevant evidence in the record. In context, even

Dorce's failure to raise the notice problem permits a different

17The government notes that Dorce did not mention this previous mail delay in his brief to the BIA and asserts that the agency therefore cannot be faulted for failing to consider it. According to Dorce, however, he had no knowledge of the November 27 mailing at the time he submitted his appeal to the BIA. If that assertion is truthful, he would have had no reason to discuss the mailing presumption. In other words, because Dorce claims that he saw the November 27 notice for the first time when the administrative record was filed in this case in response to his petition for review, his argument before the BIA could not have focused on the mailing. The agency, on the other hand, had access to the full record and, in choosing to rely on the presumption of delivery, was obliged to consider "all relevant evidence" in assessing its applicability. Matter of M-R-A-, 24 I. & N. Dec. at 674.

- 35 - inference than that drawn by the BIA. The record indicates that

Dorce believed at the outset of the hearing that his witnesses

would be arriving. Once the hearing was underway, Dorce could

have assumed that he had no choice but to proceed and that it would

not help his cause to make excuses for his witnesses'

nonappearance. The fact that he was brought to the hearing from

the detention facility -- i.e., that the government needed to make

the arrangements for him to appear -- could have added to his

reticence about interrupting the proceedings. Dorce had

previously experienced a glitch when he was mistakenly not brought

to court for a scheduled in-person proceeding, see Section I.B

supra, which could have given him reason to believe that such

appearances were difficult to arrange and that he might not be

given another opportunity to present his case.

Moreover, the BIA's third rationale for rejecting

Dorce's notice claim as "inconsistent to the evidence" -- that the

IJ would have known about the changed hearing date at the time of

the purported video call around December 10 -- is presented as an

assumption based solely on the fact that the rescheduling notice

was dated November 27.18 Although the BIA indicated some skepticism

18This gap concerning the IJ's knowledge easily could have been filled by means of a limited remand to the IJ, who could have either refuted or confirmed Dorce's account of the videoconference.

- 36 - about whether the conversation had in fact occurred -- with its

comment "if such video call had taken place" -- it did not reject

that portion of Dorce's account as incredible and instead focused

on the IJ's likely knowledge of the new date. But the BIA did not

identify any support for its assumption that once the hearing was

rescheduled, the IJ would have known the new hearing date more

than a week in advance. See Jabri v. Holder, 675 F.3d 20, 24 (1st

Cir. 2012) (noting the need for "specific and cogent reasons why

an inconsistency, or a series of inconsistencies, render the

alien's testimony not credible" (quoting Stanciu v. Holder, 659

F.3d 203, 206 (1st Cir. 2011))). For example, the BIA did not

point to any immigration court norms suggesting that, despite a

heavy caseload, the IJ would necessarily have had Dorce's new

hearing date at hand. See, e.g., Valarezo-Tirado v. Att'y Gen.,

21 F.4th 256, 263 (3d Cir. 2021) (recognizing that "the IJ and BIA

have a tremendous caseload and very crowded dockets"); Cui v.

Mukasey, 538 F.3d 1289, 1295 (9th Cir. 2008) (noting "the crowded

docket of the immigration courts").

In sum, the BIA committed legal error in failing to

consider "all relevant evidence" concerning Dorce's claim that he

did not receive the rescheduling notice. Matter of M-R-A-, 24 I.

& N. Dec. at 674. Accordingly, given that the BIA's prejudice

assessment also was flawed, as I explain below, the BIA should

have to reconsider Dorce's notice claim on remand. See Dakaj v.

- 37 - Holder, 580 F.3d 479, 484 (7th Cir. 2009) (stating that the lack-

of-notice "determination is within the Board's province, at least

in the first instance," but that "the Board was required to

consider the[] relevant factors . . . and to explain its decision

in light of them"); see generally Aponte, 610 F.3d at 8 (observing

that "the BIA must . . . make certain that [the petitioner]

receives the full benefit of the administrative process that

Congress has elected to provide for [him]").

C. Prejudice19

In reviewing the BIA's prejudice finding, I presume --

as do my colleagues -- that the pertinent prejudice inquiry is

whether any notice violation was "likely to have affected the

Dorce argues that if he successfully rebuts the presumption 19

of properly delivered notice, he is entitled to a new hearing on cancellation of removal without regard for whether the notice violation was prejudicial. As the government points out, however, Dorce presumed in his appeal to the BIA that a showing of prejudice is necessary. The government thus argues that Dorce failed to exhaust his contention that prejudice is not required for his notice claim. I agree that Dorce's position before the BIA precludes us from considering his argument that a prejudice inquiry is unnecessary. See, e.g., Gomez-Abrego v. Garland, 26 F.4th 39, 47 (1st Cir. 2022) (noting that "arguments not made before the BIA may not make their debut in a petition for judicial review of the BIA's final order" (quoting Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir. 2010))). I therefore assume that Dorce was obligated to show prejudice. However, because I believe the BIA should have been required to revisit the question of prejudice on remand, see infra, I also believe Dorce should have been given the opportunity to re- assert his contention that a prejudice showing is not a prerequisite for the new hearing he seeks.

- 38 - outcome of the proceedings." Pulisir v. Mukasey, 524 F.3d 302,

311 (1st Cir. 2008).

As the majority recognizes, the BIA assessed prejudice

based solely on the substance of the declarations that Dorce

submitted, without considering how in-person testimony by those

witnesses -- i.e., the "evidence on [his] own behalf" that he

claims he would have presented if he had received proper written

notice, 8 U.S.C. § 1229a(b)(4)(B) -- might have affected the IJ's

weighing of factors. Declarations, however, do not capture the

benefits of live, interactive testimony by witnesses at a hearing.

There is inherent value in live testimony -- particularly such

testimony in support of a pro se litigant who has no one else

present to speak on his behalf. Indeed, it is a fundamental

premise of our adversarial legal system that in-person testimony

is the most effective way of getting at the truth of a matter --

including through a factfinder's assessment of witness

credibility.

Moreover, the value of in-person testimony is

highlighted by the facts of this case. The IJ took an active role

in questioning Dorce -- presumably because he was unrepresented at

his hearing -- and she showed a particular interest in the details

of the New Year's Eve incident and his relationship with Fragile.

Fragile's declaration clearly reveals that she had relevant

testimony to offer about Dorce's support of her and their children,

- 39 - and she also stated that she "could have explained to the judge

why [she] knew that [Dorce] isn't dangerous." I have no doubt

that the IJ would have pressed Fragile -- as well as Dorce's other

witnesses -- on those topics.20 Indeed, the IJ had an obligation

to fully explore those highly relevant facts, particularly when

faced with a pro se applicant for relief. See Mekhoukh v.

Ashcroft, 358 F.3d 118, 129 n.14 (1st Cir. 2004) (noting that the

IJ, "unlike an Article III judge, is not merely the fact finder

and adjudicator but also has an obligation to establish the record"

(quoting Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002))); see

also Quintero v. Garland, 998 F.3d 612, 623 (4th Cir. 2021) (noting

that "every circuit to have considered the issue as well as the

[BIA]" has recognized "immigration judges' duty to develop the

record"); id. at 622 (holding that "immigration judges have a legal

duty to develop the record, which takes on particular importance

in pro se cases").21

20 Their testimony also may have reinforced Dorce's explanation that the Facebook post noted by the IJ did not, in fact, reflect gang membership. See supra note 11.

21 In its lengthy discussion in Quintero, the Fourth Circuit noted that the courts and the BIA have grounded the IJ's obligation to develop the record "principally" in 8 U.S.C. § 1229a(b)(1), which directs IJs to "'administer oaths, receive evidence, and interrogate, examine, and cross-examine the [non-citizen] and any witnesses' in removal proceedings." Quintero, 998 F.3d at 623 (alteration in original) (quoting 8 U.S.C. § 1229a(b)(1)). The court in Quintero also reported two other rationales for that obligation. First, it observed that other circuits "have held that immigration judges' duty to develop the record is an essential

- 40 - It also is likely that the IJ would have elicited

elaboration from these witnesses that would have been favorable to

Dorce. This prediction is based squarely on the record. For

example, the IJ gave minimal credit to Dorce for his role as a

parent because he had not provided financial support to his

children. According to Fragile's declaration, she would have

explained the importance of his collaboration in parenting,

including providing childcare when she returned to school, and his

efforts "to obtain his education and to learn to be able to earn

an income."

The BIA also did not consider that the mere appearance

of supporting family members, even absent new information, was

likely to have advanced Dorce's position in the "balancing of the

positives against the negatives" that the IJ explained she would

be performing. As previously noted, in telling Dorce what the

merits hearing would entail, the IJ had explained the importance

of securing witnesses "who can talk about positive things you've

requirement of a full and fair hearing to which noncitizens in removal proceedings are entitled under the Due Process Clause of the Fifth Amendment." Id. at 623-24; see also id. at 624 (noting that the First Circuit in Mekhoukh, 358 F.3d at 129-30, "consider[ed] whether the petitioner's 'hearing was fundamentally unfair because the immigration judge failed to fully develop the record'"). Second, the Quintero panel noted that "the earliest and most influential circuit-court decisions establishing immigration judges' duty to develop the record [had] relied on an analogy to the Social Security disability context, where administrative law judges have a similar obligation." Id. at 624.

- 41 - done." Assurances by others that the New Year's Eve incident was

aberrant behavior and that he had matured while in custody would

have corroborated Dorce's credibility on those points. As we have

previously observed in a different immigration context, "evidence

[that] is cumulative of preexisting record evidence . . . may

nonetheless be material." Perez v. Holder, 740 F.3d 57, 62 n.1

(1st Cir. 2014); cf. Amouri v. Holder, 572 F.3d 29, 36-37 (1st

Cir. 2009) (rejecting a prejudice claim where the petitioner relied

only on "vague assertions" about additional witnesses and

documents without "concrete demonstration that such witnesses and

documents existed, were not available at the hearing, and would

have supported his story").

The majority is therefore entirely mistaken when they

assert that "the BIA opinion did not ignore anything of relevance"

on the issue of prejudice. Quite to the contrary, there is no

indication in the BIA's opinion that it considered the potential

impact of in-person testimony, particularly the fact that the

presence of Dorce's family members at the hearing would have

allowed the IJ to draw them out and assess their credibility. Nor

is there any basis for reading into the BIA's opinion a

determination that in-person testimony would have made no

difference to the IJ's balancing of factors.22

22 To the extent the BIA was performing its own assessment of the competing factors, it could not properly do so without

- 42 - By failing to consider the impact of in-person

testimony, the BIA performed an incomplete and, hence, fatally

flawed prejudice analysis. See Dor v. Garland, 46 F.4th 38, 44

(1st Cir. 2022) (quoting Berhe v. Gonzales, 464 F.3d 74, 87 (1st

Cir. 2006)), for the proposition that "the adequacy of the Board's

reasoning is a legal question that we may review"); Rodríguez-

Villar v. Barr, 930 F.3d 24, 28 (1st Cir. 2019) ("Although the

agency is not required to discuss every piece of evidence, it must,

at a minimum, 'fairly appraise the record' and 'cannot turn a blind

eye to salient facts.'" (quoting Sihotang, 900 F.3d at 51)). Of

course, because the BIA found no notice error, it is unsurprising

that its prejudice analysis was cursory. Now, it is my

colleagues -- not the BIA -- who definitively conclude that in-

person testimony would have made no difference to the IJ in

balancing Dorce's positive and negative factors. What is more,

with that definitive conclusion, my colleagues are saying, in

effect, that in-person character testimony by people who know a

petitioner best is irrelevant to immigration proceedings. I cannot

overstate my dismay at this misguided and damaging suggestion.

Put simply, given the omissions in the BIA's analysis,

my colleagues are wrong to uphold the BIA's rejection of Dorce's

notice claim on the ground that he failed to show the requisite

considering whether elaborated, in-person testimony would strengthen the factors in favor of Dorce's claim for relief.

- 43 - prejudice. The proper disposition is a remand. See Ali v.

Garland, 33 F.4th 47, 62-63 (1st Cir. 2022) (concluding that "the

prudent course is to vacate and remand for the BIA to address the

aspects of the record that have not been given their proper

consideration" where the record would permit a finding for the

petitioner if the omitted evidence had been addressed).23

In concluding that a remand is necessary for the BIA to

reconsider Dorce's application for cancellation of removal, I am

not suggesting, as the majority intimates, that the BIA must

"dissect in minute detail every contention that a complaining party

advances." Raza v. Gonzalez, 484 F.3d 125, 128 (1st Cir. 2007).

In this case, however, the BIA not only committed legal error in

addressing Dorce's notice claim, but it also neglected to fully

consider the harm Dorce suffered in consequence of that error --

including, most significantly, the deprivation of in-person

23 Dorce asserts that the BIA also committed legal error by using an incorrect prejudice standard, pointing to the passage in the BIA's decision that summarizes its assessment of prejudice for the cancellation-of-removal claim. The BIA stated that it could not "determine that the additional testimonies of [Dorce]'s family members would have been sufficient to offset the serious, negative factors in this case." The government appears to acknowledge that the "sufficient to offset" formulation could suggest a higher level of certainty than the applicable standard of "likely to have affected the outcome." However, as the government emphasizes, the BIA articulated the correct standard in two other places in its decision. I therefore view "sufficient to offset" simply as careless language, not use of an improper standard.

- 44 - testimony on his behalf. Where the BIA's decision fails to show

that it considered important aspects of the record, we can -- and

should -- demand that it do so. See Sihotang, 900 F.3d at 51

(observing that the BIA "cannot turn a blind eye to salient

facts").

Accordingly, we should be granting Dorce's petition for

review and remanding to the BIA for reconsideration of Dorce's

claim that he did not receive written notification of his

rescheduled merits hearing and, hence, was denied his right to "a

reasonable opportunity . . . to present evidence on [his] own

behalf." 8 U.S.C. § 1229a(b)(4)(B). And, if the BIA determined

on remand that Dorce had rebutted the presumption that the

rescheduling notice was delivered, it should also be required to

revisit its incomplete prejudice determination.

Because my colleagues instead deny Dorce's petition,

improperly preventing him from fully presenting his case for

relief, I respectfully dissent.

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