United States Court of Appeals For the First Circuit
No. 21-1237
FELIX MORENO,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge, Lipez and Gelpí, Circuit Judges.
Randy Olen for petitioner. Jessica R. Lesnau, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Brian M. Boynton, Assistant Attorney General, and Anna Juarez, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
October 14, 2022 GELPÍ, Circuit Judge. Petitioner Felix Moreno ("Moreno"
or "Petitioner") seeks review of a final removal order upheld by
the Board of Immigration Appeals ("BIA"). He sought adjustment of
status under 8 U.S.C. § 1255(a), which the Immigration Judge ("IJ")
denied. He then appealed the denial of his status adjustment
application to the BIA, while also moving to remand based on new
evidence. The BIA dismissed Moreno's appeal and denied his motion
to remand. Petitioner contends before us that the BIA committed
legal error and abused its discretion in failing to adequately
address new evidence. We deny Moreno's petition for review.
I. BACKGROUND
A. MORENO'S ENTRY AND IMMIGRATION STATUS
Moreno, a 54-year-old native and citizen of Cape Verde,
entered the United States on April 11, 1989, with a B-2 visitor
visa with authorization to stay until June 1, 1989, under former
section 101(a)(15) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 101(a)(15).
In 2015, his U.S.-citizen son, Felix Samedo Sequeira
Jr., petitioned for an I-130 immigrant visa,1 available to
immediate relatives of U.S. citizens, on Moreno's behalf. This
was a necessary step for Moreno to become eligible for adjustment
An I-130 petition allows a U.S. citizen or lawful permanent 1
resident to sponsor an alien relative's application for permanent resident status.
- 2 - of status. The I-130 immigrant visa was approved by U.S.
Citizenship and Immigration Services on May 6, 2019.
B. MORENO'S INITIAL REMOVAL PROCEEDINGS
In 1995, the Immigration and Naturalization Service
("INS") initiated removal proceedings charging Moreno with
overstaying his visa by remaining in the United States for a time
longer than permitted after being admitted as a nonimmigrant
visitor, and thus, he was subject to removal under former INA
section 241(a)(1)(B).2 At the initial hearing held on June 7,
1995, Moreno denied the factual allegations, contested the charges
of removability, and declined to designate a country of removal.
However, the IJ designated Cape Verde as the country of removal.
In lieu of deportation, Moreno sought voluntary departure. At a
continued hearing held on December 29, 1995, Petitioner was found
removable and was granted voluntary departure to take place by
April 29, 1996.
On April 30, 1996, Moreno filed a motion to reopen
seeking suspension of deportation.3 At a hearing held on March
2Moreno was also charged with seeking to procure entry into the United States via fraud or misrepresentation under section 212(a)(6)(C)(i) of the INA. This ground was later withdrawn. 3 Suspension of deportation was the predecessor to the current, and more limited, relief of cancellation of removal. See Cortez-Felipe v. INS, 245 F.3d 1054, 1056 (9th Cir. 2001) (noting that on April 1, 1997, section 304(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 repealed
- 3 - 12, 1997, the IJ pretermitted Moreno's application for suspension
of deportation because the IJ determined that he had not
demonstrated eligibility for such relief. Instead, Moreno was
granted voluntary departure for a second time. That decision was
appealed to the BIA. On November 16, 2001, the BIA
administratively closed the case, finding that, at that time,
Moreno may have been eligible for cancellation of removal under
section 240A(b).
C. MORENO'S CRIMINAL HISTORY
Moreno had multiple run-ins with the law, accruing a
lengthy and serious criminal history. Among these incidents, four
involved drunk driving. In 1996, Moreno was arrested for operating
under the influence of alcohol ("OUI") and a marked lanes
violation. Moreno was sentenced to probation. In 2003, Moreno
was convicted of OUI and sentenced to a fourteen-day inpatient
treatment program, forty hours of community service, a bar program,
and suspension of his driver's license for two years. In 2009, he
was again arrested for a marked lanes violation, OUI, and negligent
operation of a motor vehicle. After a bench trial, he was found
not guilty of the OUI and guilty as to the other charges. Moreno
was placed on probation, ordered to attend a highway safety
suspension of deportation and replaced it with cancellation relief).
- 4 - program, and ordered to thirty days' home confinement and to
refrain from using alcohol or drugs.
In 2016, Moreno was again arrested for OUI when his
vehicle collided with another vehicle while his minor daughter was
on board. He was charged with third offense OUI and child
endangerment while OUI. He went to trial and was found guilty by
a jury on both charges. On October 3, 2018, he was sentenced to
ninety days' imprisonment for the child endangerment while OUI
violation and two-and-a-half years for the OUI charge.
On or about December 5, 2018, after serving his state
criminal sentence, Moreno was transferred to the custody of U.S.
Immigration and Customs Enforcement.
D. REINSTATEMENT OF REMOVAL PROCEEDINGS AGAINST MORENO
On December 14, 2018, the U.S. Department of Homeland
Security ("DHS") moved to reinstate proceedings before the BIA.
The BIA granted the DHS's motion. Accordingly, the BIA vacated
its November 2001 order administratively closing the case and
reinstated proceedings, remanding the case for further
proceedings.
1) PROCEEDINGS BEFORE THE IJ
In early 2020, Petitioner appeared at his merits hearing
solely seeking relief under former section 245(a) of the INA, 8
- 5 - U.S.C. § 1255(a)4, for adjustment of status through his
U.S.-citizen son. The IJ concluded that he was statutorily
eligible for adjustment and proceeded to address the merits of
such discretionary relief.
The IJ at the outset noted that "[Moreno]'s lengthy and
serious criminal history" weighed against a favorable exercise of
discretion. The IJ pointed to Moreno's numerous arrests and
convictions for driving under the influence, including the one in
2016, in which he hit another vehicle while his minor daughter was
on board.
The IJ further considered that Petitioner: 1) completed
an alcohol program in jail; 2) claimed to have quit consuming
alcohol after the 2016 incident; 3) vowed not to drive without a
license; 4) stated he would attend Alcoholics Anonymous meetings
if given the chance; 5) noted that his family fully supported his
recovery; and 6) stated that he had a job waiting and a plan to
get to and from work. The IJ, however, was troubled because
Petitioner admitted to drinking when stressed but "[h]e could
articulate no coping mechanisms or specific plans for what he will
do when he becomes worried or stressed again and wants to drink."
4 Section 1255(a) provides, in relevant part: "The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence . . . ."
- 6 - The IJ moreover highlighted Moreno's lack of candor when asked if
there had been occasions when he had driven drunk without getting
caught. He initially denied ever having done so but eventually
admitted he had done so "on two, three, or four other occasions."
The IJ also took into account Moreno's extenuating
circumstances: 1) he had lived in the United States for over thirty
years; 2) he has three U.S.-citizen children, then-aged
twenty-five, thirteen, and five; 3) he had been employed by the
same employer for twenty-five years, who indicated that he is "a
dependable and hard worker"; 4) he had sporadically paid taxes;
5) his life-partner and mother of two of his children, Carmen
Lafleur ("Lafleur") "has a number of health problems including
Type 2 diabetes, carpal tunnel syndrome, severe obesity,
neuropathy, a mood disorder, and memory loss"; 6) Moreno's
detention "ha[d] been devastating" to his life-partner and family,
with her having to shoulder the full load in terms of familial and
financial obligations; 7) his twenty-five-year-old son, who
suffers from "'poorly controlled' Type 1 diabetes" and other health
issues and has been unemployed, considers Moreno "his role model
and best friend"; 8) his absence would be financially and
emotionally deleterious for the family; 9) the mother of
Petitioner's other child called Petitioner a "devoted father who
always paid child support before being incarcerated" and who used
to spend "weekends and some weekdays" with his thirteen-year-old
- 7 - child, who has been seeing a psychologist to deal with emotional
problems as a result of his father's absence.
The IJ ultimately weighed all of the evidence, noting
that "[b]ecause of [Petitioner's] significant criminal history, he
needed to present unusual or outstanding countervailing equities
to merit a favorable exercise of discretion" and that "[t]he
positive equities in this case simply cannot outweigh the adverse
factors." In doing so, the IJ afforded heavier weight to Moreno's
multiple drunk-driving arrests in which he repeatedly failed
sobriety tests, including that with his minor daughter as a
passenger, in comparison to his extenuating circumstances. The IJ
also gave adverse weight to Petitioner's lack of candor regarding
other incidents of drunk driving and his lack of a concrete plan
to fight the urge to drink in the future. Ultimately, the IJ
denied Moreno's application for adjustment of status.
2) APPEAL TO THE BIA
Petitioner appealed to the BIA, which, in turn,
thoroughly reviewed, recited, and agreed with the IJ's balancing
of factors. The BIA specifically commented that Petitioner "ha[d]
not persuasively presented evidence of genuine rehabilitation" and
that he "could not articulate his plan for rehabilitation with
specificity, aside from reading a book or spending time with his
child."
- 8 - Next, the BIA addressed Petitioner's motion to remand
the matter to the IJ so that he might present new, previously
unavailable evidence that his life-partner had been diagnosed with
a low-grade astrocytoma -- a form of brain cancer -- and was
undergoing treatment. The BIA held that it "do[es] not consider
new evidence on appeal" and that, even if it did, petitioner had
not shown that the new "evidence would likely change the result in
the case, especially in light of the seriousness of his criminal
history and dangerous behavior." The BIA cited to agency precedent
"providing that a motion to remand for the purpose of presenting
additional evidence must conform to the same standards as a motion
to reopen and will only be granted if the evidence was previously
unavailable, material, and new evidence that would likely change
the result of the case." See Matter of Coelho, 20 I. & N. Dec.
464, 471-72 (BIA 1992).
II. DISCUSSION
A. ADJUSTMENT OF STATUS
As a general principle, this court lacks jurisdiction to
review the BIA's discretionary denial of Petitioner's application
for adjustment of his immigration status. 8 U.S.C.
§ 1252(a)(2)(B); see Mele v. Lynch, 798 F.3d 30, 31-32 (1st Cir.
2015); DaCosta v. Gonzales, 449 F.3d 45, 49 (1st Cir. 2006). As
we have recognized for some time, an exception lies "where the
petition raises claims premised on constitutional claims or
- 9 - questions of law." Jaquez v. Holder, 758 F.3d 434, 435 (1st Cir.
2014) (citing 8 U.S.C. § 1252(a)(2)(D)). However, we have
explained that "[i]n determining whether a petitioner has raised
a colorable constitutional claim or question of law, substance
must triumph over form." Ramirez-Matías v. Holder, 778 F.3d 322,
326 (1st Cir. 2015). "An alien cannot 'transform an unreviewable
issue of fact into a reviewable issue of law' by the simple
expedient of cloaking what is essentially a factual claim in the
raiment of constitutional or legal error." Id. (quoting Alvarado
v. Holder, 743 F.3d 271, 275 (1st Cir. 2014)). Simply put, "we
must look to the meat of the petitioner's arguments, not to the
packaging in which they are wrapped." Id. (citing Ayeni v. Holder,
617 F.3d 67, 70-71 (1st Cir. 2010)).
Petitioner acknowledges that this court lacks
jurisdiction to review the way that the BIA exercised its
discretion in denying his adjustment of status application. He
also does not contend that we have jurisdiction to review whether
there is enough support in the record for a finding of fact on
which that exercise of discretion depends. However, Moreno argues
that the BIA "both ignored important facts in the record, and
clearly mischaracterized others" and that the IJ and BIA's failure
to properly consider evidence constitutes a question of law that
confers jurisdiction for us to review. We disagree with
Petitioner.
- 10 - Insofar as Moreno's contention is that the BIA ignored
evidence in the record or mischaracterized factual findings by the
IJ in affirming the IJ's ruling, and that it is an error of law
for the BIA to have proceeded in that way, see Domingo-Mendez v.
Garland, 47 F.4th 51, 56 (1st Cir. 2022), we see no basis for
overturning the BIA's ruling. A review of the BIA's opinion
reveals that it did consider the evidence that Moreno contends
that it ignored and that it did not purport to be deciding the
matter based on any facts other than those found by the IJ. Thus,
even assuming that there is no jurisdictional bar to Moreno's
contention, his challenge fails. See id. And, insofar as Moreno
is merely taking issue with the sufficiency of record support for
the facts on which the BIA relied in ruling as it did, the challenge
is not one that we may consider. See Patel v. Garland, 142 S. Ct.
1614, 1627 (2022).
In particular, Moreno contends that the IJ erred by
"rely[ing] on the abject speculation -- despite voluminous
evidence to the contrary -- that if the adjustment application
were granted, and Moreno was ever [convicted] in the future of
[OUI], the government would be unable to deport him." We are not
convinced. As the IJ emphasized in her decision, "[Moreno's]
criminal history shows a pattern of dangerous behavior, and the
[IJ] is not satisfied that he will change his ways if given another
chance." The BIA emphasized that Moreno's "assurances and the
- 11 - record evidence are not sufficient to overcome the [IJ]'s concerns
or establish genuine rehabilitation on Moreno's part, especially
given his past conduct."
The arguments and challenges Moreno advances as to the
denial of his application for adjustment of status are neither
constitutionally cognizable nor legally colorable. His arguments
are nothing more than a dispute with the BIA's discretionary
analysis repackaged as a legal question. See Jaquez, 758 F.3d at
435. Accordingly, we lack jurisdiction to review such a ruling,
which constitutes a purely discretionary decision denying
Petitioner's application for adjustment of status. We now turn to
Petitioner's second issue.
B. MOTION TO REMAND
Petitioner contests the BIA's refusal to remand the
matter to the IJ for consideration of new evidence -- his
"long-term partner['s]" cancer diagnosis (low-grade astrocytoma)
and treatment. Moreno presented the new evidence to the BIA in
his motion to remand.
Requests that the BIA remand to the IJ for consideration
of new evidence "are treated as motions to reopen." Lee v. Barr,
975 F.3d 69, 75 (1st Cir. 2020). This court has jurisdiction to
review denials of motions to reopen, even where the petitioner's
ultimate goal before the agency was to garner some form of
discretionary relief as to which this court's jurisdiction has
- 12 - been substantially curtailed by statute. See Pandit v. Lynch, 824
F.3d 1, 4 n.3 (1st Cir. 2016) (citing Mazariegos v. Lynch, 790
F.3d 280, 285 (1st Cir. 2015) and Mata v. Lynch, 576 U.S. 143, 148
(2015) ("Under the INA, as under our century-old practice, the
reason for the BIA's denial [of a motion to reopen] makes no
difference to the jurisdictional issue.") (alteration in
original)).
We review the BIA's denial of Moreno's motion to remand
"under the 'highly deferential abuse-of-discretion standard.'"
Adeyanju v. Garland, 27 F.4th 25, 51 (1st Cir. 2022) (quoting
Tay-Chan v. Barr, 918 F.3d 209, 212 (1st Cir. 2019)). Within the
abuse-of-discretion rubric, we examine the BIA's legal conclusions
de novo. Id. "Where the BIA's explanation is too thin to allow
us to evaluate the claims of error, we may find an abuse of
discretion and remand to the BIA for further explanation." Id.
However, we "will only overturn a denial of a motion to
reopen[/remand] when 'the petitioner can establish that the BIA
made an error of law or acted in a manner that is fairly
characterizable as arbitrary and capricious.'" Lee, 975 F.3d at
76 (quoting Falae v. Gonzáles, 411 F.3d 11, 14 (1st Cir. 2005)).
To prevail, Petitioner must make three showings. First,
he must demonstrate that the "evidence sought to be offered [on
remand] is material and was not available and could not have been
discovered or presented at the former hearing." Matter of Coelho,
- 13 - 20 I. & N. Dec. at 471 n.3; Rivera-Medrano v. Garland, 47 F.4th
29, 35 (1st Cir. 2022). Second, the petitioner must show that
"the new evidence [offered] would likely change the result in the
case." Matter of Coelho, 20 I. & N. Dec. at 473. Lastly, the
petitioner "must make a showing of prima facie eligibility for the
relief [sought]." Rivera-Medrano, 47 F.4th at 35 (quoting Falae,
411 F.3d at 14); see also Matter of Coelho, 20 I. & N. Dec. at 472
(noting that a motion to reopen may be denied based on failure to
establish prima facie eligibility for the relief sought).
Petitioner claims that the BIA's decision is legally
insufficient, and constitutes an abuse of discretion, because it
does not provide a reasonable explanation or analysis in support
of its conclusion. He further posits that the BIA's decision
ignores Lafleur's dramatically changed circumstances as a result
of her brain cancer, which is "likely to change the result" in the
matter. He adds that at the time of the removal hearing, Lafleur
"was capable of caring for her children, albeit by way of herculean
effort, given her pre-existing disabling health conditions." Now,
those circumstances have dramatically changed given she "can no
longer work and is unable to properly care for her two children."
In sum, Petitioner argues that the BIA committed an error of law
in concluding that the new evidence would not change the outcome
of the case.
- 14 - In declining to remand, the BIA concluded that the
addition of the new evidence would not likely change the result in
the case. Simply put, the BIA determined that this new evidence
was not likely to make a difference to the exercise of discretion
that resulted in the outcome that the BIA reached. Matter of
Coelho, 20 I. & N. Dec. at 473 ("[I]f we conclude that our decision
on the appeal would be the same even if the proffered evidence
were already part of the record on appeal, we will deny the
remand."). While we recognize the severity of this outcome,
because we cannot discern any error of law in the BIA's explanation
of its conclusion, we have no authority to review the BIA's
exercise of discretion. Thus, we have no basis to overturn the
BIA's decision to deny the motion to remand.
III. CONCLUSION
For the reasons explained above, Moreno's petition is
DENIED.
- 15 -