United States Court of Appeals For the First Circuit No. 21-1395 ROOBENS MAURICE,
Petitioner,
v.
PAMELA J. BONDI, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, Gelpí and Aframe, Circuit Judges.
Melanie Chaput, with whom Chaput Law Office was on brief, for petitioner. Allison Frayer, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Jennifer Levings, Assistant Director, Office of Immigration Litigation, United States Department of Justice, were on brief, for respondent.
October 2, 2025 AFRAME, Circuit Judge. Roobens Maurice, a native and
citizen of Haiti, petitions for review of the administrative denial
of his applications for adjustment of status and cancellation of
removal. Maurice argues that the Board of Immigration Appeals
("BIA") erred in affirming the Immigration Judge's ("IJ") decision
because the BIA (1) improperly relied on police reports arising
from his 2018 and 2020 arrests in denying him adjustment of status
and (2) incorrectly determined that he was ineligible for
cancellation of removal. We grant the petition, vacate the BIA
order insofar as it pertains to adjustment of status, and remand
for further proceedings in accord with this decision.
I.
Maurice entered the United States on a temporary visa in
April 2010. Less than two years later, on February 28, 2012,
Maurice received a "notice to appear," see 8 U.S.C. § 1229(a)(1),
charging him with removability for overstaying his visa. The
notice to appear contained the date, time, and location of
Maurice's scheduled removal hearing. In May 2012, an IJ
administratively closed Maurice's case as Maurice had obtained
temporary protected status. The Department of Homeland Security
periodically extended Maurice's temporary protected status for the
next five years until July 2017.
In November 2018, the Department of Homeland Security
denied for cause Maurice's application to further extend his
- 2 - protected status. The next month, on December 10, 2018, Maurice
was arrested in New Hampshire and charged with stalking and
domestic violence for entering his estranged wife's home through
a window in violation of a bail order that prohibited contact with
his wife. The case was ultimately dropped. Roughly a year and a
half later, on May 15, 2020, New Hampshire police arrested Maurice
for simple assault domestic violence arising from a dispute with
his wife. During the dispute, Maurice hit his wife in the jaw
with a drill. She was subsequently hospitalized for minor
injuries. Almost two months after, on July 7, 2020, Maurice was
arrested again in New Hampshire for simple assault domestic
violence and resisting arrest outside his home after an argument
with another woman with whom he was intimate. On that occasion,
Maurice was arrested after being located by a police dog near his
property.
Following this last arrest, the Department of Homeland
Security detained Maurice and initiated removal proceedings. On
October 2, 2020, the IJ convened a hearing during which he
determined that Maurice had overstayed his visa and was removable
from the United States. Maurice sought adjustment of status
through his wife. Maurice also applied for cancellation of
removal, asylum, withholding of removal, protection under the
Convention Against Torture ("CAT"), and voluntary departure.
- 3 - Following testimony from Maurice, his wife, mother, and
sister, the IJ issued an oral decision denying Maurice relief.
The IJ began by assessing the credibility of Maurice and his wife.
The IJ found their testimonies about their personal stories
credible. However, the IJ found inconsistencies in their
statements about Maurice's arrests. Because of these
inconsistencies, as well as the fact that the police reports were
drafted closer in time to the events at issue, the IJ "g[a]ve more
weight" to the police reports that involved Maurice's wife.
Turning to Maurice's request for adjustment of status,
the IJ denied the request as a matter of discretion. The IJ noted
Maurice's positive factors, including his familial ties to the
United States, his extended time in the country, his letters of
support, and the hardship his removal would pose for his immediate
family. The IJ also considered Maurice's negative factors,
focusing specifically on three of Maurice's arrests.
Regarding Maurice's prior arrests, the IJ first
referenced the May 2020 incident during which Maurice struck his
wife in the jaw with a drill. The IJ noted that Maurice admitted
to accidentally striking his wife, while Maurice's wife testified
"she was not struck with anything." Considering the inconsistent
testimony and giving "strong weight to [representations in] the
police report," the IJ concluded that Maurice had struck his wife
with the drill and that she had been taken to the hospital.
- 4 - The IJ next addressed the July 2020 arrest where police
had been called after Maurice had gotten into a dispute with a
woman who was not his wife. Relying on Maurice's testimony, the
IJ determined that Maurice had seen law enforcement arrive at the
premises, had left the premises, and had ultimately been
apprehended with the assistance of a police dog.
Finally, the IJ made a brief reference to Maurice's 2018
arrest. On this occasion, Maurice was arrested for entering his
wife's home in violation of a bail order prohibiting contact with
his wife, an incident the IJ described loosely as "the information
with regard to the stalking."
The IJ acknowledged the recency of these three incidents
and stated that he gave the events "great weight." The IJ added
that Maurice had taken "no responsibility for his actions" and had
failed to participate in counseling with his wife. The IJ
concluded that, because the negative factors outweighed the
positive ones, he would exercise his discretion to deny Maurice
adjustment of status.
The IJ similarly denied Maurice's application for
cancellation of removal. The IJ found that Maurice failed to
establish continuous physical presence in the United States for
the requisite ten years. See 8 U.S.C. § 1229b(b)(1). The IJ
determined Maurice had been served a notice to appear less than
two years after arriving in the United States that stopped the
- 5 - clock as to the physical presence requirement, making Maurice
ineligible for cancellation of removal under
section 1229b(d)(1)(A). The IJ likewise denied Maurice's asylum,
withholding of removal, CAT protection, and voluntary departure
claims. The IJ ordered Maurice removed to Haiti.
Maurice appealed to the BIA. He claimed that the IJ
erroneously denied his requests for adjustment of status,
cancellation of removal, asylum, and withholding of removal.1
Relevant for present purposes, Maurice challenged the IJ's denial
of his adjustment-of-status application on the basis that the IJ
gave undue weight to the police reports, which Maurice
characterized as unreliable. Maurice asserted that relying on the
reports was fundamentally unfair. He argued that the reports were
contradicted by other testimony, that they contained
uncorroborated hearsay, that the officers who drafted the reports
did not testify, and that the arrests described in the reports did
not result in convictions. Maurice separately asserted, on largely
the same grounds, that the agency did not afford him adequate
process, thereby violating the Due Process Clause of the Fifth
Amendment.
1 Although Maurice made passing references to CAT protection, the BIA ultimately determined that Maurice on appeal "d[id] not challenge the [IJ]'s findings" as to CAT protection and accordingly deemed any CAT argument waived. Additionally, because Maurice does not challenge the BIA's denial of his asylum and withholding of removal claims, we do not discuss them further.
- 6 - Maurice also challenged the IJ's denial of his
application for cancellation of removal. Maurice argued that
because his notice to appear did not contain the time and place of
his removal proceedings as required by Pereira v. Sessions, 585
U.S. 198, 202 (2018), the IJ should have found that Maurice was
continuously physically present in the United States for the
requisite ten years and thus was eligible for cancellation of
removal.
The BIA denied Maurice's appeal. Concerning Maurice's
adjustment-of-status challenge, the BIA noted that the IJ had
"determined that the [police] reports were reliable and probative
of [Maurice]'s character, particularly because [Maurice] ha[d] not
demonstrated that their contents were prepared with bias or [were]
otherwise unreliable." The BIA stressed that "hearsay is
admissible if it is reliable and probative" and that the officers
who drafted the reports did not need to testify because "direct
evidence is not required in immigration proceedings." The BIA
similarly concluded that because Maurice "was given an opportunity
to challenge the veracity and refute the contents of the police
reports," it was "not persuaded that the use of such reports was
fundamentally unfair."
As for the IJ's substantial reliance on the police
reports, the BIA held that the IJ was permitted to "consider
evidence of criminal conduct that ha[d] not culminated in a final
- 7 - conviction when adjudicating an application for discretionary
relief." The BIA acknowledged that Maurice "testified that he
[had] struck [his wife] accidentally," whereas "his wife testified
that she was not struck at all." Acknowledging the "discrepant
testimony" and the fact that the police reports were composed
"closer in time to the events," the BIA determined that it was
"not persuaded that the [IJ] erred in [giving] greater weight to
the version of events contained in the police documents."
Satisfied that the IJ had appropriately relied on the
police reports, the BIA affirmed the IJ's denial of adjustment of
status as a matter of discretion. The BIA specifically pointed to
Maurice's "history of violence and criminal behavior." In addition
to the incident with the drill, the BIA noted Maurice's "2020
arrest for domestic assault and resisting arrest, and his 2018
arrest for stalking, which shows that he made prohibited contact
with his wife in violation of his bail order for a previous arrest
for domestic violence."
The BIA also affirmed the IJ's denial of Maurice's
application for cancellation of removal. The BIA held, contrary
to Maurice's assertion, that the notice to appear served on Maurice
in February 2012 did provide a specific time and place for his
removal hearing. And because Maurice's notice to appear was served
roughly two years after his arrival in the United States, the BIA
affirmed the IJ's determination that Maurice was statutorily
- 8 - ineligible for cancellation of removal. Maurice timely petitioned
this Court for review.
II.
Maurice challenges the BIA's affirmance of the IJ's
denial of his applications for adjustment of status and
cancellation of removal. We begin with adjustment of status.
A.
We focus our review on the BIA's final decision except
where the BIA has "deferred to or adopted the IJ's reasoning," in
which case we review the BIA and IJ's decisions as a unit. See
Rosa v. Garland, 114 F.4th 1, 8-9 (1st Cir. 2024) (quoting Chavez
v. Garland, 51 F.4th 424, 429 (1st Cir. 2022)). We generally lack
jurisdiction to review the agency's "discretionary denial of
[p]etitioner's application for adjustment of his immigration
status." Moreno v. Garland, 51 F.4th 40, 44 (1st Cir. 2022)
(emphasis omitted) (citing 8 U.S.C. § 1252(a)(2)(B)). We do,
however, retain jurisdiction where a petitioner raises "colorable
constitutional claims or questions of law." See Arias-Minaya v.
Holder, 779 F.3d 49, 52 (1st Cir. 2015) (citing 8 U.S.C.
§ 1252(a)(2)(D)).
Maurice makes two primary arguments over which we have
jurisdiction to challenge the denial of his adjustment-of-status
petition. He first argues that the agency failed to make a pair
of necessary findings before relying on the police reports:
- 9 - (1) that the reports were reliable and (2) that their use was not
fundamentally unfair. Maurice separately contends that the agency
violated BIA precedent in giving substantial weight to
uncorroborated police reports that did not result in convictions.
We consider the arguments in turn, starting with the police
reports' reliability.
The agency may consider a police report "as long as the
trier first determines that the report is reliable and that its
use would not be fundamentally unfair." Arias-Minaya, 779 F.3d at
54; see also Rosa, 114 F.4th at 9. For this Court to consider
Maurice's argument that the agency failed to make an express
reliability finding, Maurice first had to raise that claim with
the agency. See 8 U.S.C. § 1252(d)(1) (stating that "[a] court
may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of
right"). He did not. While Maurice claimed in his appeal to the
BIA that the police reports were, in fact, unreliable, he did not
assert the distinct argument that the IJ failed to make an express
reliability finding. Because Maurice did not properly exhaust
this argument with the BIA, we cannot consider it here. See
Paiz-Morales v. Lynch, 795 F.3d 238, 241 n.1 (1st Cir. 2015)
("Because [petitioner] did not raise this claim before the BIA, we
do not have jurisdiction to review it here.").
- 10 - Turning to the fundamental fairness requirement, Maurice
contends that the IJ erred in not making a finding as to whether
the use of the police reports was fair. While Maurice properly
preserved this argument, the argument nonetheless fails on the
merits. There is no requirement for the agency to make such an
express fairness finding prior to relying on a police report.
Rosa, 114 F.4th at 11-12. "[S]o long as the agency provides the
petitioner an opportunity to be heard, it satisfies the required
fundamental fairness finding." Id. at 11; see also Arias-Minaya,
779 F.3d at 54 (finding that the use of a police report was not
fundamentally unfair "since the petitioner was given an
opportunity to challenge its veracity and refute its contents").
Here, Maurice had ample opportunity to challenge the veracity of
the police reports. Lee v. Barr, 975 F.3d 69, 75 (1st Cir. 2020)
("[The] opportunity to rebut a report bearing such indicia of
reliability allows us to say in this context that use of the report
was not fundamentally unfair."). And Maurice took advantage of
that opportunity by testifying himself and calling other witnesses
to testify as to the circumstances represented in the reports. We
therefore conclude the agency satisfied the fundamental fairness
requirement.
We next address Maurice's challenge to the IJ's decision
to give substantial weight to police reports that had not resulted
in convictions and for which, he contends, there was no
- 11 - corroborating evidence. Maurice claims that in giving the police
reports substantial weight, the agency violated its own precedent,
In re Arreguin De Rodriguez (Arreguin), 21 I. & N. Dec. 38, 42
(BIA 1995), thereby warranting remand.
Whether the agency has "exceeded the scope of its binding
precedent . . . is a legal question that we have jurisdiction to
review under 8 U.S.C. § 1252(a)(2)(D)." Rosa, 114 F.4th at 14.
The agency may "generally consider a police report . . . when
making a discretionary immigration decision, even if an arrest did
not result in a charge or conviction." Mele v. Lynch, 798 F.3d
30, 32 (1st Cir. 2015). However, Arreguin requires that to give
such reports "substantial weight," there must be "corroborating
evidence of the [report's] allegations." Rosa, 114 F.4th at 17
(quoting Arreguin, 21 I. & N. Dec. at 42).
Here, it is undisputed that Maurice was not convicted in
connection with the conduct alleged in the 2018 and 2020 police
reports. It is also clear that the agency gave these police
reports substantial weight -- the denial of Maurice's application
for adjustment of status principally relied on the misconduct
described in the police reports as well as derivative
considerations, such as Maurice's absence of remorse and his
failure to engage in rehabilitation following the alleged
incidents described in the reports. Thus, "the only remaining
question [for the BIA was] whether this record contains"
- 12 - corroborating evidence such that it was permissible for it to give
substantial weight to the police reports in affirming the denial
of adjustment-of-status relief. Rosa, 114 F.4th at 22 (citing
Arreguin, 21 I. & N. Dec. at 42).
The government acknowledged at oral argument that
neither the IJ nor the BIA made an express corroboration finding.
It nevertheless contends that the BIA satisfied the corroboration
requirement because the record contains information, coming from
Maurice's own testimony, that corroborates the police reports. In
particular, the government argues that Maurice testified to the
events represented in the December 2018 stalking report insofar as
he admitted that despite being subject to a stay-away order from
his estranged wife, he nonetheless entered her apartment
unannounced through a window. The government likewise points to
Maurice's testimony confirming aspects of the May 2020 arrest,
where he admitted to striking his wife in the jaw with a drill,
albeit accidentally. And finally, the government notes Maurice's
testimony regarding the July 2020 arrest where, following an
argument with a separate woman, he was arrested near his property.
The government accurately recounts Maurice's testimony
during his removal hearing before the IJ. The problem, however,
is that there is no indication from the BIA's decision that it
viewed Maurice's testimony as corroborating the police reports.
In fact, nothing in the BIA's decision indicates that it
- 13 - appreciated the additional corroboration requirement that under
Arreguin is necessary, absent a conviction, to give substantial
weight to a police report when making a discretionary immigration
decision. See Rosa, 114 F.4th at 18 (citing Arreguin, 21 I. & N.
Dec. at 42).
Here, the BIA first addressed whether the police reports
were reliable and their use was fundamentally fair such that it was
permissible to rely on the hearsay contained in them. These
considerations are distinct from the additional requirement that
a police report, absent a conviction, must be corroborated before
the agency may give the report substantial weight in denying
adjustment of status as a matter of discretion. See Rosa, 114
F.4th at 18 (citing Arreguin, 21 I. & N. Dec. at 42).
The BIA then addressed whether the IJ erred in giving
greater weight to the police reports than Maurice's and his wife's
testimony. The BIA stated that the IJ relied on the police reports
because he "found that [Maurice's] and his wife's testimony
regarding the domestic violence incidents differed from the
details contained in the police reports." The BIA concluded that
in light of "the discrepant testimony," it was "not persuaded that
the [IJ] erred in according greater weight to the version of events
contained in the police documents."
Notwithstanding the government's present reliance on
Maurice's testimony as evidence of corroboration, the BIA's actual
- 14 - discussion of Maurice's hearing testimony does not suggest that
the BIA considered the testimony for its corroborative nature.
Rather, the BIA appears to have determined that the IJ permissibly
relied on the police reports as a basis for resolving
inconsistencies between Maurice's and his wife's hearing
testimony.
On this record, we cannot conclude that the BIA
considered whether the police reports were corroborated before
giving those reports substantial weight in denying Maurice
adjustment of status. See Rosa, 114 F.4th at 21-22 (citing
Arreguin, 21 I. & N. Dec. at 42). Nor does the government ask us
to deem any such error harmless. In accordance with the ordinary
remand rule, Martinez v. Bondi, 132 F.4th 74, 84-85 (1st Cir.
2025), we therefore vacate the order denying Maurice's application
for adjustment of status and remand for the BIA to consider whether
the administrative record contains corroboration for the police
reports relied on to deny Maurice relief.2 See Rosa, 114 F.4th at
2 Maurice makes a related argument that the agency violated his due process rights under the Fifth Amendment by giving significant weight to police reports without providing him a meaningful opportunity to challenge their reliability. Maurice has not shown that he has a protected property or liberty interest in such relief and thus, "cannot meet his burden to show that he was deprived of such an interest without due process of law." Thomas v. Garland, 25 F.4th 50, 55 (1st Cir. 2022); see also Naeem v. Gonzales, 469 F.3d 33, 38–39 (1st Cir. 2006) (finding petitioner "ha[d] no protected property or liberty interest in reopening proceedings, adjustment of status, or voluntary departure" and thus "may not base a due process claim on a denial thereof").
- 15 - 22 (remanding for the agency to determine whether the
administrative record contains corroboration).
B.
Finally, we address Maurice's challenge to his
application for cancellation of removal. To be eligible for
cancellation of removal, an applicant must demonstrate continuous
physical presence in the United States for at least ten years.
See 8 U.S.C. § 1229b(b)(1)(A). However, the clock stops on the
ten-year requirement when an individual is served a notice to
appear that includes, among other details, the date, time, and
place of an initial removal hearing. See Pereira, 585 U.S. at
201-02 (stating that the "period of continuous physical presence
is 'deemed to end'" when the nonpermanent resident is served with
a notice to appear (quoting 8 U.S.C. § 1229b(d)(1)(A))).
It is undisputed that Maurice was admitted to the United
States on April 6, 2010. Less than two years later, on February
28, 2012, he was served with a notice to appear. The clock on
Maurice's physical presence in the United States thus stopped
roughly two years after he entered the country. See 8 U.S.C.
§ 1229b(d)(1)(A). The agency in turn concluded that Maurice did
not meet the ten-year requirement and was thus not eligible for
cancellation of removal.
Maurice nonetheless argues that his notice to appear was
defective and did not stop the accrual of time for purposes of his
- 16 - cancellation of removal. On appeal to this Court, Maurice claims
three defects: he was "a minor at the time" he was served; "the
absence of pleadings by the original IJ" assigned to his matter;
and his case originally had been "administrative[ly] clos[ed]
based on his eligibility for [t]emporary [p]rotected [s]tatus."
Maurice did not raise these arguments with the BIA.
Maurice merely asserted that his notice to appear was deficient
and cited Pereira, where the Supreme Court held that notices to
appear that omitted the time and place of a removal proceeding do
not satisfy section 1229(a) and thus do not stop the clock on any
period of continuous physical presence in the United States under
section 1229b(d)(1)(A). See 585 U.S. at 201-02. The BIA naturally
understood Maurice to be arguing that his notice to appear failed
to designate the precise time and place of his removal proceeding
as required by Pereira, and the BIA rejected that contention.
Maurice did not present to the BIA any of the arguments that he
now makes. He therefore did not administratively exhaust these
arguments, which in turn precludes us from considering them. See,
e.g., Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir. 2006) ("[W]e
may review a final order of the BIA only if 'the alien has exhausted
all administrative remedies available to the alien as of right.'
Under the exhaustion of remedies doctrine, theories insufficiently
developed before the BIA may not be raised before this court."
- 17 - (quoting 8 U.S.C. § 1252(d)(1))); Garcia Sarmiento v. Garland, 45
F.4th 560, 564-65 (1st Cir. 2022).
III.
For the foregoing reasons, we grant the petition for
review, vacate the agency's decision insofar as it pertains to
adjustment of status, and remand to the BIA for further proceedings
consistent with this opinion.
- 18 -