United States Court of Appeals
For the First Circuit
No. 22-1523
EDSON PIRES ROSA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Montecalvo, Lipez, and Rikelman,
Circuit Judges.
Tara Djukanovic, Supervised Law Student, with whom Tiffany J.
Lieu, Harvard Law School Crimmigration Clinic, Carlos E. Estrada,
and Estrada Law Office were on brief, for petitioner.
Tim Ramnitz, Senior Litigation Counsel Office of Immigration
Litigation, with whom Brian Boynton, Assistant Attorney General,
Office of Immigration Litigation, and Shelley R. Goad, Assistant
Director, Office of Immigration Litigation were on brief, for
respondent.
August 16, 2024
MONTECALVO, Circuit Judge. Petitioner Edson Pires Rosa
("Rosa") sought to become a lawful permanent resident ("LPR")
through an adjustment-of-status process after his visitor visa
expired. Rosa now seeks review of a decision of the Board of
Immigration Appeals ("BIA") affirming the immigration judge's
("IJ's") denial of his application for adjustment of status under
8 U.S.C. § 1255 and deeming waived any challenge to the IJ's denial
of his request for voluntary departure. The BIA affirmed the IJ's
denial of Rosa's application for adjustment of status as a matter
of discretion based solely on its finding that a police report and
pending charge against Rosa for alleged rape of a minor outweighed
several positive factors that supported Rosa's application for
discretionary relief. The BIA also ruled that Rosa did not
challenge the IJ's denial of his request for voluntary departure,
and he thus waived BIA review of that issue. Before us, Rosa
asserts that the BIA committed at least four different errors of
law that necessitate remand. For the reasons that follow, we grant
the petition for review, vacate the order of the BIA as to
adjustment of status and voluntary departure, and remand to the
BIA for further consideration in accordance with this opinion.
I. Background
Rosa, a citizen of Cape Verde, entered the United States
on a visitor visa on April 3, 2015, when he was fourteen years
old. While living in this country, Rosa finished high school and
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worked to contribute to his family's household expenses. His
visitor visa expired on October 2, 2015, but, on November 2, 2015,
Rosa's mother, who had recently become an LPR, filed an I-130
"Petition for [Noncitizen] Relative" for Rosa. United States
Citizenship and Immigration Services ("USCIS") approved that
petition on March 9, 2016, but Rosa's subsequent application for
adjustment of status was denied on August 17, 2018.
In June 2019, police officers responded to a report by
J.P., a fifteen-year-old high school student who accused Rosa of
participating in a sexual assault she endured. The officers
compiled a police report with several narratives describing the
interviews of individuals involved in the alleged incident,
including J.P., Rosa, and Rosa's brother. J.P.'s narrative
recounts her statements in a Sexual Abuse Intervention Network
interview conducted by a forensic interviewer. In her interview,
J.P. alleged that on June 4, 2019, she walked home from school to
Rosa's house with Rosa, who was her classmate at the same high
school. After arriving at Rosa's house, she accompanied Rosa to
his bedroom, where she watched television while Rosa was on his
phone. At some time thereafter, she alleged that two males she
did not know walked into Rosa's room. Rosa and one of the other
males walked out of the room and closed the door behind them,
leaving her with the third male. But, when she tried to leave,
Rosa and the second man reentered the room. J.P. alleged that
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Rosa helped the other two individuals take her clothes off and
hold her down while those individuals sexually assaulted her.
After they had finished, J.P. left. She explained that, while she
did not initially tell anyone about the incident, she was later
prompted to tell her cousin about what happened after hearing
rumors of a video of the alleged assault.
The police report also includes narratives covering
police interviews of Rosa and one of his brothers, whom J.P.
alleged was one of the other two men involved in the assault.
According to those narratives, in their separate interviews, Rosa
and his brother denied J.P.'s allegations. They did not deny,
however, that J.P. had been at their house that day, but they
asserted that J.P. initiated and performed consensual sexual acts
(of a different type than those that J.P. alleged occurred) on the
two of them and a third individual, and that there was no force
involved.
On September 17, 2019, the state of Massachusetts filed
a criminal complaint against Rosa. Rosa was subsequently arrested
and indicted for rape of a minor, and a state court in
Massachusetts released Rosa on bond. Rosa does not have any prior
criminal history.
On December 21, 2020, the Department of Homeland
Security ("DHS") issued Rosa a Notice to Appear, charging him with
removability under 8 U.S.C. § 1227(a)(1)(B) for overstaying his
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visa and placing him in removal proceedings. DHS detained Rosa in
immigration detention.
Rosa applied for asylum and withholding of removal and
requested voluntary departure in the alternative, in February
2021. The IJ assigned to the case at the time, IJ Todd A. Masters,
denied Rosa's applications for asylum and withholding of removal
a few months later. However, IJ Masters granted Rosa's request
for voluntary departure as a matter of discretion, finding that
the positive equities in Rosa's case outweighed the single negative
equity of his pending criminal charge.
Rosa appealed IJ Masters's denial of asylum and
withholding of removal; neither party appealed the grant of
voluntary departure. While his appeal was pending before the BIA,
Rosa's mother became a U.S. citizen, making him potentially
eligible for adjustment of status as an immediate relative of a
U.S. citizen. Accordingly, Rosa filed with the BIA a motion to
remand his case to the IJ so that he could pursue adjustment of
status. Over DHS's opposition, the BIA granted Rosa's motion to
remand on October 18, 2021, finding that the IJ should consider
the application to adjust status in the first instance and
declining to reach the issues of asylum and withholding of removal.
Rosa subsequently submitted an application for adjustment of
status.
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Rosa's case was assigned to a new IJ on remand: IJ Shelly
W. Schools. IJ Schools held a hearing in January 2022, at which
she confirmed that the parties agreed that Rosa had prima facie
eligibility for adjustment of status and that the primary issue
before the court was whether the application to adjust status
should be granted as a matter of discretion. Rosa's counsel
indicated that the criminal case against him remained pending,
and, when IJ Schools asked, after confirming and marking all
evidence in the record, whether there were any objections that
needed to be addressed, neither side raised any issue.
Rosa testified in support of his application to adjust
status at the hearing, stating that he came to the United States
as a teenager, attended and graduated from high school, had a job
during and after high school, and contributed to household
expenses. When asked about the pending criminal charge, however,
Rosa elected to exercise his Fifth Amendment right not to testify,
noting that he "was advised not to discuss [the charge] without
[his] criminal lawyer being present." In response to a question
by the government, he confirmed that the pending charge was for
rape of a minor, but he did not discuss the charge or the alleged
events supporting the charge. Counsel for the government asked
the IJ to "take a negative inference" from Rosa's failure to
testify about the criminal matter because it was relevant to his
application and the IJ's exercise of discretion. Rosa's counsel
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averred that he had explained to Rosa that the IJ could draw a
negative inference and consider that inference in her exercise of
discretion and Rosa confirmed that he understood that his failure
to answer questions about the criminal case could have consequences
in his immigration case. Rosa's counsel also stated that Rosa
"absolutely denies all the charges . . . and all the allegations
made in the police report."
In a January 11, 2022, oral decision, IJ Schools stated
that she was interpreting the BIA's remand order as a directive to
address the adjustment of status application and to consider anew
the applications for asylum, withholding of removal, and voluntary
departure. IJ Schools then adopted IJ Masters's oral decision and
reasoning as to IJ Masters's denial of Rosa's applications for
asylum and withholding of removal. She also found Rosa "credible
on the limited testimony that he did provide."
Turning next to the adjustment of status application, IJ
Schools found that Rosa was statutorily eligible for adjustment of
status and that the issue before the court was whether the court
should grant the application to adjust status as a matter of
discretion. IJ Schools first named several "positive factors
weighing in [Rosa's] favor" in determining whether to exercise
discretion: his significant family ties to the United States
including his mother and siblings, his high school degree, his
employment history, his contributions to his household including
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financial support, and his residence in this country since he was
a minor, for approximately six years. She then pointed to one
"negative factor weighing against [Rosa]": the "current criminal
indictment that is pending in Massachusetts for rape of a child."
She noted that "[t]he details of the criminal case can be found in
Exhibit 2 . . . where there is a narrative of the named victim's
complaint and allegations against [Rosa]. There is also a
narrative of an interview with [Rosa] and other information about
the pending criminal case." She proceeded to summarize the
complainant's allegations against Rosa in the police report before
stating the following concerning Rosa's decision to invoke his
Fifth Amendment right against self-incrimination:
Although [Rosa] may deny these allegations, he
declined to answer any questions today about
the pending criminal complaint. The Court
certainly understands why he would not want to
address the merits of such serious allegations
while they are still pending. However, the
Court can consider and should consider his
refusal to provide any information about the
circumstances of this complaint in deciding
discretionary matters including whether to
grant his adjustment of status application.
So basically[,] the Court does not have his
side of the story other than what is contained
in Exhibit 2 [(the police report)]. The Court
also has this very serious criminal complaint
from this minor victim who describes in pretty
good detail not only what happened to her, but
information about his residence and his
bedroom, where things were placed[,] and a
description of the other men who were there on
that day.
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IJ Schools then concluded, "[t]he Court finds that these
allegations are so serious as to be the basis for denying favorable
discretion in [Rosa's] case."
Before moving on to the next issue, IJ Schools
distinguished Rosa's case from an en banc decision of the First
Circuit that had issued the day before the hearing and oral
decision by IJ Schools: Diaz Ortiz v. Garland, 23 F.4th 1 (1st
Cir. 2022) (en banc) (reviewing the IJ and BIA's reliance on a
"Gang Assessment Database," which included a "collection of law
enforcement field reports" and which petitioner argued was not
reliable). IJ Schools distinguished Diaz Ortiz on the basis that
in Rosa's case,
[t]here is nothing really in the record that
causes this Court to question the reliability
of the criminal complaint. Again, the Court
does not have [Rosa's] side of the story other
than what he told the police back in June 2019
or back in 2019 when he was interviewed. What
the Court does have is a very detailed
complaint from the victim, and the Court does
find that the information is sufficiently
reliable where the Court can rely on it in
making a discretionary decision in this case.
IJ Schools then denied Rosa's application for adjustment of status
because she found that Rosa "does not merit favorable discretion."
Finally, IJ Schools "disagree[d] with the decision of
[IJ Masters]" on how to balance the equities for purposes of the
discretionary determination as to the voluntary departure request.
She found that, for the reasons described under the adjustment of
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status analysis, "the negative equity of th[e] serious pending
complaint outweigh[ed] the positive[]" equities in Rosa's case,
and she thus "denie[d] [Rosa's] request for voluntary departure as
a matter of discretion."
Rosa subsequently appealed IJ Schools's decision to the
BIA. His brief to the BIA alleged that IJ Schools "erred in
multiple respects," including by denying adjustment of status and
"by not accepting the previous favorable exercise of discretion
from IJ Masters in granting [Rosa's] request for voluntary
departure."
The BIA upheld IJ Schools's denials of relief and
dismissed Rosa's appeal in a single-judge decision issued on June
3, 2022. It first noted that Rosa had not challenged IJ Schools's
denials of asylum, withholding of removal, and voluntary
departure, and it thus deemed those issues waived. The BIA then
turned its focus to the appeal of IJ Schools's discretionary denial
of Rosa's application for adjustment of status. It cited its
precedential decision in Matter of Thomas, 21 I. & N. Dec. 20 (BIA
1995), to support the propriety of the agency's reliance on
evidence of criminal conduct "which did not result in a conviction"
in making a discretionary determination. It then concluded:
The weight to be accorded such conduct
necessarily varies depending upon the facts of
each individual case, but in this instance we
find no error in the [IJ's] assessment that
[Rosa's] criminal history is a significant
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negative factor militating against a favorable
exercise of discretion. . . . Upon de novo
review, we agree with the [IJ] that the
significant negative factor of [Rosa's]
criminal indictment for rape of a child, which
remains pending, including the information
found in the victim's complaint regarding the
alleged incident, outweigh[s] the favorable
factors she set forth.
The BIA then addressed Rosa's argument concerning IJ
Schools's treatment of his decision not to testify. It stated:
While [Rosa] argues that it was error for the
[IJ] to "hold against" [Rosa] the fact that he
chose not to testify as to the pending
criminal matter, we do not find that she did
so. [Rosa] was free to invoke the privilege
against self-incrimination under the Fifth
Amendment to the United States Constitution.
However, the [IJ] properly found that the lack
of any testimony refuting the version of
events portrayed in the victim's complaint and
other documentary evidence pertaining to the
criminal indictment seriously diminished
[Rosa's] ability to meet his burden of
demonstrating that he warranted a favorable
exercise of discretion.
The BIA also agreed with IJ Schools's finding that Rosa's case was
distinguishable from this court's en banc decision in Diaz Ortiz,
explaining that it would not extend Diaz Ortiz to find that the
"victim's complaint" against Rosa was "similarly unreliable" to
the "Gang Assessment Database" at issue in Diaz Ortiz. Finally,
the BIA rejected Rosa's contention that IJ Schools was required to
favorably exercise discretion on adjustment of status because IJ
Masters had previously determined that Rosa warranted a favorable
exercise of discretion as to voluntary departure.
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Rosa timely filed a petition for review of the BIA's
decision and sought a stay of removal. In response, the government
filed an opposition to the stay request as well as a motion to
dismiss the petition for lack of jurisdiction. A different panel
of this court denied the request for a stay, and the government
subsequently deported Rosa to Cape Verde. We now address both the
government's motion to dismiss the petition for lack of
jurisdiction and the merits of Rosa's petition.
II. Standard of Review
"In immigration cases, our review 'typically focuses on
the final decision of the BIA.'" Khalil v. Garland, 97 F.4th 54,
61 (1st Cir. 2024) (quoting Loja-Tene v. Barr,
975 F.3d 58, 60
(1st Cir. 2020)). But "to the extent that the BIA deferred to or
adopted the IJ's reasoning, we review those portions of the IJ's
decision" as well. Chavez v. Garland,
51 F.4th 424, 429 (1st Cir.
2022); see also Singh v. Garland,
87 F.4th 52, 57 (1st Cir. 2023).
Our jurisdiction to review the agency's discretionary
decision-making in an immigration case is limited by statute. See
8 U.S.C. § 1252(a)(2)(B). As a general principle, a federal court
lacks jurisdiction to review the agency's discretionary denial of
an application for adjustment of status. Moreno v. Garland,
51
F.4th 40, 44-45 (1st Cir. 2022) (citing § 1252(a)(2)(B)). However,
"an exception lies 'where the petition raises claims premised on
constitutional claims or questions of law.'" Id. at 45 (quoting
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Jaquez v. Holder, 758 F.3d 434, 435 (1st Cir. 2014)); accord
§ 1252(a)(2)(D). "Mixed questions of law and fact, even when they
are primarily factual, fall within the statutory definition of
'questions of law' in § 1252(a)(2)(D) and are therefore
reviewable." Wilkinson v. Garland,
601 U.S. 209, 225 (2024).
III. Discussion
Rosa raises four specific challenges to the BIA's
decision, which we consider in turn.
A. Required Findings Under Arias-Minaya
Rosa first argues that the BIA committed legal error
when it failed to make two threshold findings that our precedent
requires before the agency may rely on a police report. In
Arias-Minaya v. Holder, we held that limits on the agency's
consideration of police reports "are generally satisfied as long
as the trier first determines that the report is reliable and that
its use would not be fundamentally unfair." 779 F.3d 49, 54 (1st
Cir. 2015). Rosa's challenge under Arias-Minaya presents a legal
question, which we have jurisdiction to consider, because he does
not challenge "whether the police report was in fact reliable or
its use fundamentally fair; but rather whether the [agency] made
such . . . threshold determination[s] in the first instance." We
have exercised jurisdiction to review such a question in past
cases. See Lee v. Barr,
975 F.3d 69, 75 (1st Cir. 2020) (reviewing
whether the agency made sufficient findings on reliability and
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fundamental fairness under Arias-Minaya prior to relying on a
police report); Miranda-Bojorquez v. Barr, 937 F.3d 1, 7 (1st Cir.
2019) (same).
IJ Schools made a sufficient reliability finding when
she stated in her oral decision:
[T]here is nothing really in the record that
causes this Court to question the reliability
of the criminal complaint. . . . What the
Court does have is a very detailed complaint
from the victim, and the Court does find that
the information is sufficiently reliable where
the Court can rely on it in making a
discretionary decision in this case.
Rosa asserts that, because this statement referred to the "criminal
complaint" and not the police report explicitly, it did not
constitute a reliability finding as to the police report. As Rosa
acknowledges elsewhere in his briefing, however, the record makes
clear that the document that the IJ referred to throughout the
hearing as a "complaint" is in fact the victim's narrative
contained in the police report. For instance, the IJ's oral
decision states, "[t]he Court also has this very serious criminal
complaint from this minor victim who describes in pretty good
detail not only what happened to her, but information" about the
setting of and people involved in the alleged assault. The
victim's narrative in the police report is the only document in
the record that the IJ could be referring to in this passage of
the oral decision. Thus, Rosa's contention that the statements
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about reliability quoted above pertained to a document other than
the police report lacks merit.1
We find no error with respect to the BIA's reliability
finding because the BIA referred to and affirmed the IJ's
conclusion on the report's reliability. The BIA decision states:
"Upon de novo review, we agree with the [IJ] that the significant
negative factor of the respondent's criminal indictment for rape
of a child, which remains pending, including the information found
in the victim's complaint regarding the alleged incident,
outweigh[s] the favorable factors she set forth." The BIA then
cited both the police report and the pages of the IJ's decision
that included the reliability finding. The BIA also cited and
agreed with the IJ's finding that the report here is
distinguishable from the "Gang Assessment Database" deemed
1 At oral argument, Rosa's counsel briefly suggested that the
IJ's reliability finding was insufficient even if we interpret
"criminal complaint" to refer to the victim's narrative in the
police report, because, at most, the IJ made a reliability finding
as to that portion of the report (the victim's complaint) but not
the police report as a whole. However, Rosa did not present this
argument in his briefing, nor did he develop any argument for the
notion that a reliability finding on only part of the report would
be legally insufficient in this case, where the finding pertained
to the only portion of the police report on which the IJ relied as
the "basis for denying favorable discretion." Thus, we deem this
argument waived. See Bernardo ex rel. M & K Eng'g, Inc. v. Johnson,
814 F.3d 481, 492 n.17 (1st Cir. 2016) (noting that an argument
"raised . . . for the first time at oral argument . . . is
waived"); United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
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unreliable in Diaz Ortiz, 23 F.4th 1.2 The BIA explicitly declined
to find the victim's narrative in the police report to be
"similarly unreliable" to the "Gang Assessment Database" and cited
the pages of the IJ's decision on which the IJ acknowledged the
Diaz Ortiz case but explained why it found the victim's narrative
in the police report here to be "sufficiently reliable."
Rosa asserts that such a reference is insufficient
because the BIA had an independent obligation, when conducting de
novo review, to conduct its own analysis and make findings on
reliability and fundamental fairness. But none of the cases that
Rosa cites supports finding the BIA's reference to and adoption of
the IJ's reliability finding to be insufficient in this case. In
Arias-Minaya, we noted that "the IJ determined (and the BIA
confirmed) that the police report was reliable," and,
"[s]imilarly, both the IJ and the BIA determined that use of the
police report was not fundamentally unfair." 779 F.3d at 54.
However, we did not address whether the BIA's reference to the
2We reject Rosa's assertion that the BIA's discussion of the
police report's reliability in the context of distinguishing
Rosa's case from Diaz Ortiz "pertain[ed] to a separate inquiry
entirely and thus d[id] not count as a reliability finding under
Arias-Minaya." Diaz Ortiz "contend[ed] that, unlike in"
Arias-Minaya and Miranda-Bojorquez, a case applying Arias-Minaya,
the agency failed to make a "threshold determination of
reliability," as required by binding BIA precedent. Diaz Ortiz,
23 F.4th 1, 16 (1st Cir. 2022) (en banc). Therefore, Diaz Ortiz
involved, in part, the same threshold reliability determination
issue under Arias-Minaya that is at issue here.
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IJ's reliability finding and its affirmance of the IJ's reliance
on the police report constituted a sufficient finding by the BIA.
Rosa also points to Aguilar-Escoto v. Garland to suggest
that "the BIA cannot here rely on the IJ's decision to fill holes
in its own reasoning" because the BIA itself is "required to
consider all evidence relevant to" the reliability determination.
59 F.4th 510, 517 (1st Cir. 2023). But there, "the BIA's decision
[gave] strong reason to believe the BIA turned a blind eye to key
relevant evidence" because the BIA erroneously emphasized that the
petitioner provided only two complaints, when in actuality, the
petitioner had provided three.
Id. at 515-16. In contrast, here,
there is no "reason to believe the BIA was unaware of" relevant
evidence, and thus "we have no reason to doubt that the agency
considered the evidence."
Id. at 515 (quoting Domingo-Mendez v.
Garland,
47 F.4th 51, 58 (1st Cir. 2022)). Additionally, in the
context of the discretionary determination at issue here, we lack
jurisdiction to review any fact-bound challenge to the agency's
weighing of the evidence -- including the weight it gave to the
victim's narrative relative to Rosa's narrative or other evidence
in the record -- in determining the police report's reliability.
See Mele v. Lynch,
798 F.3d 30, 32 (1st Cir. 2015) ("Where Congress
has enacted a jurisdictional wall, a noncitizen cannot scale it
simply by 'relitigating whether the factors relevant to the
discretionary relief were appropriately weighed by the IJ and the
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BIA.'" (cleaned up) (quoting Urizar-Carrascoza v. Holder, 727 F.3d
27, 32 (1st Cir. 2013))). We hold that the agency made a sufficient
finding of the police report's reliability, as required under
Arias-Minaya.
We also find no error with respect to the fundamental
fairness requirement imposed by Arias-Minaya. On this issue, the
parties disagree over what constitutes an adequate fundamental
fairness determination under the law. Rosa argues that both the
IJ and the BIA were required to explicitly state a finding on the
fundamental fairness of their respective reliance on the police
report. In contrast, the government asserts that Arias-Minaya and
its progeny merely require the agency to provide the petitioner an
opportunity to be heard on the reliability of the police report.
Put differently, so long as the agency provides the petitioner an
opportunity to be heard, it satisfies the required fundamental
fairness finding even without making an explicit finding or doing
anything more on the matter.
The government's view on this requirement is correct.
In Arias-Minaya, we explained that "[t]here are, of course, limits"
on immigration courts' consideration of police reports, "but those
limits are generally satisfied as long as the trier first
determines that the report is reliable and that its use would not
be fundamentally unfair." 779 F.3d at 54 (emphasis added). This
language might, on its own, be read to require an explicit and
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distinct finding of fundamental fairness by the agency prior to
relying on a police report. And the Arias-Minaya court concluded
that there was no error in the agency's reliance on the police
report in part because "both the IJ and the BIA determined that
use of the police report was not fundamentally unfair since the
petitioner was given an opportunity to challenge its veracity and
refute its contents." Id. Accordingly, we take Rosa's point that
this portion of Arias-Minaya could be read as imposing a burden on
both the IJ and the BIA to make explicit fundamental fairness
findings, and the stated basis for those findings in Arias-Minaya's
case was the opportunity to "challenge [the report's] veracity and
refute its contents."
Id.
A deeper look at our caselaw, however, demonstrates that
we have not required the type of explicit finding on fundamental
fairness that Rosa demands. In Lee, the IJ did not make an explicit
fundamental fairness finding but did "observe[] that [the
petitioner] did not produce an affidavit or testimony from his
wife denying what was in the report." 975 F.3d at 75. Applying
Arias-Minaya, we found "that opportunity to rebut a report bearing
. . . indicia of reliability allows us to say in this context that
use of the report was not fundamentally unfair." Id. (citing
Arias-Minaya, 779 F.3d at 54). We then denied Lee's petition for
review, in part because we saw no issue with the agency's reliance
on the police report in that context.
Id. at 75-76.
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Moreover, consistent with the Lee court's interpretation
of Arias-Minaya, we do not see any requirement of an explicit
fundamental fairness finding in the BIA decisions that
Arias-Minaya cites as support for the reliability and fundamental
fairness requirements. See Matter of Teixeira, 21 I. & N. Dec.
316, 321 (BIA 1996); Matter of Grijalva,
19 I. & N. Dec. 713,
721-22 (BIA 1988); Arias-Minaya,
779 F.3d at 54. Though the BIA
stated in Matter of Grijalva that the use of documentary evidence
must be fundamentally fair for the evidence to be admissible in
immigration proceedings, the BIA did not mandate that the IJ or
BIA state an explicit finding of fundamental fairness on the record
prior to admitting and relying on police reports.
19 I. & N. Dec.
at 722.
Nonetheless, Rosa points to Miranda-Bojorquez v. Barr,
937 F.3d 1 (1st Cir. 2019), a decision published before Lee, in
support of his argument that Arias-Minaya requires an explicit
fundamental fairness determination by the agency. There, we
explained that "not only did the IJ find the reports reliable and
that their use would not be fundamentally unfair, but he also gave
[the petitioner] an opportunity to rebut their reliability. This
is exactly what our precedents required the IJ to do."
Id. at 7.
The Miranda-Bojorquez court described Arias-Minaya as "upholding
[the] admissibility of [a] police report after the agency
determined its reliability and fairness and offered [the]
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petitioner 'an opportunity to challenge its veracity and refute
its contents.'" Id. (emphasis added) (quoting Arias-Minaya,
779
F.3d at 54). Standing alone, Miranda-Bojorquez appears to suggest
that Arias-Minaya requires the agency to both make a fundamental
fairness determination and, separately, give the petitioner an
opportunity to rebut the reliability of the report. See
id.
But because the IJ there provided the petitioner an
opportunity to rebut the reports and also made an explicit
fundamental fairness determination, the Miranda-Bojorquez panel
did not confront the question of whether an opportunity to be heard
alone was itself a sufficient fundamental fairness finding. See
id. Meanwhile, in Lee, we confronted the exact question of whether
providing an opportunity to rebut the evidence alone constitutes
an adequate fundamental fairness finding, and we answered in the
affirmative. See Lee,
975 F.3d at 75. Lee is the binding law of
the circuit on this issue, and it requires us to conclude that the
agency satisfied Arias-Minaya's fundamental fairness requirement
by providing Rosa the "opportunity to rebut [the] report." Id.;
see also Bogle v. Garland,
21 F.4th 637, 649 (9th Cir. 2021)
(holding that "the BIA's reliance on the police report along with
other evidence and testimony was not fundamentally unfair" where
the petitioner "had a fair opportunity (actually several such
opportunities) to dispute" the information contained in the report
but "chose not to do so" (first citing Matter of Grijalva, 19 I.
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& N. Dec. at 722; then citing Nijhawan v. Holder, 557 U.S. 29, 41
(2009); and then citing Arias-Minaya,
779 F.3d at 54)).
Accordingly, we find no error regarding the Arias-Minaya
reliability and fundamental fairness requirements in the BIA's
decision.
B. Alleged Mischaracterization of Material Evidence
Rosa next argues that the BIA erred by mischaracterizing
material evidence when it (1) relied on an "indictment" and
"complaint" where neither exists in the record, and (2) stated
that the record lacked "any testimony" refuting allegations in the
case. We reject both arguments.
First, we find no error in the BIA's references to an
"indictment" or "complaint" in full context of the BIA's decision
and Rosa's case. Even though the indictment itself was not filed
anywhere in the record, Rosa confirmed the fact that he had a
pending charge against him for rape of a minor in his testimony
before IJ Schools and in his application to adjust status.
Additionally, DHS's "Record of Deportable/Excludable [Noncitizen]"
Form I-213 -- which is also included in the administrative record
-- notes that Rosa was indicted for rape of a minor. Because the
fact of Rosa's indictment was reflected in the administrative
record, we see no error in the BIA's reference to that fact in its
decision.
- 22 -
Rosa's argument that the BIA improperly referenced a
"complaint" also lacks merit. The BIA referred several times to
"the victim's complaint," which, in context, clearly means the
portion of the police report containing the "narrative"
summarizing the interview with the complainant about her alleged
assault. There is no basis to read the BIA's references to "the
victim's complaint" as describing a formal criminal complaint (in
the sense of a charging document) that is absent from the record.
Thus, we reject Rosa's contention that references to the
"complaint" suggest that the BIA mischaracterized the record and
relied on "documents that simply do not exist in this closed
record."
Finally, we again find no error in the BIA's statement
that the record lacked "any testimony" refuting the allegations
against Rosa. The BIA used this phrase in its discussion of Rosa's
decision to "invoke the privilege against self-incrimination under
the Fifth Amendment." It stated, "[T]he Immigration Judge properly
found that the lack of any testimony refuting the version of events
portrayed in the victim's complaint and other documentary evidence
pertaining to the criminal indictment seriously diminished his
ability to meet his burden of demonstrating that he warranted a
favorable exercise of discretion." Immediately thereafter, the
BIA cited the page of IJ Schools's decision discussing Rosa's
decision to "decline[] to answer any questions today about the
- 23 -
pending criminal complaint" and acknowledging the existence of
Rosa's narrative in the police report by noting that "the Court
does not have his side of the story other than what is contained
in [the police report]." Read in context, the BIA's reference to
the lack of "any testimony" refuting the victim's allegations
refers to the lack of any live testimony by Rosa at the hearing
before IJ Schools concerning the criminal allegations against him.
The citation to the IJ's discussion of Rosa's decision not to
"answer any questions today" supports this reading of the BIA's
use of the word "testimony" as referring to in-court testimony
before the agency. And there is no reason to believe the BIA was
unaware of the existence of Rosa's narrative in the police report,
especially given that the BIA cited the portion of the IJ opinion
in which the IJ referenced his narrative in the same paragraph of
the BIA opinion regarding the "victim's complaint." Cf.
Aguilar-Escoto, 59 F.4th at 515 ("When the BIA's decision is
neither inconsistent with [the evidence at issue] nor gives reason
to believe the BIA was unaware of it, we have no reason to doubt
that the agency considered the evidence." (alteration in original)
(quoting Domingo-Mendez v. Garland, 47 F.4th 51, 58 (1st Cir.
2022))); Domingo-Mendez,
47 F.4th at 58 (noting that "each piece
of evidence need not be discussed in a [BIA] decision" and
concluding that there was "'no reason to surmise that the BIA
overlooked' the evidence in question" (alteration in original)
- 24 -
(first quoting Chen v. Holder, 675 F.3d 100, 106 (1st Cir. 2012);
and then quoting Lin v. Mukasey,
521 F.3d 22, 28 (1st Cir. 2008))).3
For the reasons described above, we reject Rosa's
assertion that the BIA erred by mischaracterizing material
evidence in its references to an "indictment" or "complaint" or in
its statement that the record lacked "any testimony" refuting the
allegations against Rosa.
C. Alleged Failure to Follow Matter of Thomas and Arreguin
Rosa's third argument is that the BIA legally erred when
it failed to follow its own binding precedent in Matter of Thomas,
21 I. & N. Dec. 20 (BIA 1995), and In Re Arreguin De Rodriguez
(Arreguin),
21 I. & N. Dec. 38, 42 (BIA 1995), in concluding that
the police report and pending criminal charge alone were sufficient
to warrant the denial of discretionary relief. Rosa acknowledges
that Matter of Thomas permits the agency to consider non-final
criminal charges in making discretionary determinations, but he
3 Rosa likens the BIA's treatment of the evidence here to that
in Aguilar-Escoto, where we held that the BIA's decision "[gave]
strong reason to believe the BIA turned a blind eye to key relevant
evidence." 59 F.4th 510, 515 (1st Cir. 2023). But Aguilar-Escoto
is easily distinguishable. There, the BIA had incorrectly stated
that the noncitizen had "provided only two complaints" when in
fact, the record contained a third complaint that was highly
relevant to a key issue.
Id. And on appeal, the government
conceded the BIA's mistake as to the number of complaints.
Id. at
517. In Rosa's case, there is no comparable statement by the BIA
or other evidence to "strongly suggest[] [the BIA] 'completely
overlooked critical evidence.'"
Id. at 517 (quoting Sihotang v.
Sessions,
900 F.3d 46, 51 (1st Cir. 2018)).
- 25 -
argues that the BIA departed from Matter of Thomas and Arreguin
insofar as it relied exclusively on the pending charge and
"uncorroborated" police report as the bases for denying
discretionary relief.
By regulation, the BIA is required to follow its own
binding precedent when issuing a non-binding decision. See
8 C.F.R. § 1003.1(g)(1) ("Except as [BIA] decisions may be
modified or overruled by the [BIA] or the Attorney General,
decisions of the [BIA] . . . are binding on all officers and
employees of DHS or immigration judges in the administration of
the immigration laws of the United States."); id.
§ 1003.1(g)(2)-(3) (explaining that certain BIA decisions "will be
published and serve as precedents in all proceedings involving the
same issue or issues"). Rosa's argument that the BIA exceeded the
scope of its binding precedent in Matter of Thomas and Arreguin is
a legal question that we have jurisdiction to review under
8 U.S.C.
§ 1252(a)(2)(D). See, e.g., Arias-Minaya,
779 F.3d at 54
(reviewing the question of whether Arreguin precluded the agency's
reliance on the police report in that case); Avila-Ramirez v.
Holder,
764 F.3d 717, 722 (7th Cir. 2014) (stating that the
question of whether the BIA ignored Arreguin and misread Matter of
Thomas was "a question of law that [the circuit court] ha[d]
jurisdiction to review"); see also Lumataw v. Holder,
582 F.3d 78,
85 (1st Cir. 2009) ("[A] reviewable 'question of law' is raised
- 26 -
where the agency is charged with misconstruing its own regulations
in reaching a decision.").4 Here, contrary to the government's
position, Rosa's challenge is not merely an attack on the agency's
weighing of positive and negative factors in its discretionary
fact-finding -- a claim that would be beyond our jurisdiction.
Cf. Mele, 798 F.3d at 32-33 (dismissing for lack of jurisdiction
a challenge to the agency's reliance on a police report where the
petitioner challenged the weight the agency assigned to the police
report and did not raise any question of law regarding whether the
agency abided by binding precedent).
1. Matter of Thomas
Turning to the merits of Rosa's argument, we can quickly
dispense with Rosa's assertion that Matter of Thomas forecloses
the agency's reliance on the police report here. Consistent with
4 Conversely, in Umana v. Garland, the Second Circuit
concluded that it lacked jurisdiction to review a petitioner's
challenge to the BIA's use of arrest reports under Arreguin. See
No. 21-6096, 2023 WL 2250441, at *2 (2d Cir. Feb. 28, 2023). But
the Second Circuit explicitly ruled in that manner because the BIA
there had cited multiple other negative factors as bases for its
denial of discretionary relief, and thus in that court's view it
was impossible in the context of that case to determine if the BIA
had placed "substantial weight" on the arrest reports without
impermissibly reviewing the weight of the evidence. See id.; see
also
id. at *2 n.1 (reserving the question of whether the court
ever has jurisdiction to review petitions for review of
discretionary decisions based on non-exclusive reliance on police
reports). Here, as we will explain, the BIA exclusively relied
upon the police report and accompanying indictment to deny relief,
and so even under the view expressed in Umana our jurisdiction is
sound.
- 27 -
other BIA and circuit precedent, Matter of Thomas permits
adjudicators to "consider evidence of unfavorable conduct,
including criminal conduct which has not culminated in a final
conviction," when deciding applications for discretionary relief.
21 I. & N. Dec. at 23. It directs that "the nature of those
contacts [with the criminal law system] and the stage to which
those proceedings have progressed should be taken into account and
weighed accordingly." Id. at 24. And it specifies that this
process of weighing the evidence is case-specific, such that "the
probative value of and corresponding weight, if any, assigned to
evidence of criminality will vary according to the facts and
circumstances of each case and the nature and strength of the
evidence presented." Id. Rosa correctly points out that Matter
of Thomas almost exclusively relied upon cases involving other
negative factors or additional evidence of the petitioners' guilt
corroborating the police report and charge. See id. at 24-25. As
the Seventh Circuit has explained:
[Of] the cases the BIA cited [in Matter of
Thomas] in support of th[e] proposition [that
it is appropriate to consider evidence of
criminal conduct which has not culminated in
a final conviction,] . . . none involved only
uncorroborated police reports. Some, for
example, involved guilty pleas or other
admissions. Others concerned convictions with
a judicial recommendation against
deportation. Another case involved a
conviction that had been expunged. In short,
all of the cases the BIA discussed in Matter
of Thomas involved some corroboration beyond
- 28 -
a mere arrest report. Save one, that is, and
it is the one most relevant to our
circumstances. Matter of Thomas cited
favorably to Sierra–Reyes v. I.N.S., 585 F.2d
762, 764 n.3 (5th Cir. 1978), which the BIA
described as "stating that police reports
implicating respondent in criminal activity
but which never resulted in prosecution due to
a lack of sufficient evidence were not
probative."
Avila-Ramirez, 764 F.3d at 723-24 (citations omitted).
We agree that Matter of Thomas does not definitively
authorize sole reliance on a police report lacking any further
corroboration to deny discretionary relief. But Rosa urges us to
read Matter of Thomas as establishing the broader rule that "in
considering alleged criminal conduct that has not resulted in a
conviction in discretionary determinations, that alleged conduct
must be corroborated by some additional evidence of guilt or the
record must contain additional [negative] factors" in order for
the agency to properly rely on the report to deny discretionary
relief. (Emphases added.) We do not agree that Matter of Thomas
pronounces such a sweeping principle. While Matter of Thomas does
not necessarily permit sole reliance on a police report to deny
discretionary relief, it does not forbid such sole reliance either.
Therefore, we do not see any conflict between the agency's use of
the police report in Rosa's case and Matter of Thomas.
- 29 -
2. Arreguin
The question of whether the agency's use of the police
report here contravened the BIA's binding precedent in Arreguin
presents a closer question. Arreguin concerned an application for
a waiver of inadmissibility under former section 212(c) of the
Immigration and Nationality Act -- which, like an adjustment of
status, is another form of discretionary relief. See Arreguin, 21
I. & N. Dec. at 39. In balancing the positive and negative factors
relevant to the section 212(c) discretionary decision, the IJ
considered an arrest report detailing the applicant's prior arrest
for allegations of smuggling undocumented persons from near the
border further into the United States. Id. at 42. The applicant
denied any wrongdoing as to the conduct described in the arrest
report, and prosecution for that conduct was declined. Id. The
IJ found the arrest report to be a negative factor and denied the
applicant's request for discretionary relief. Id. On appeal,
however, the BIA stated:
Just as we will not go behind a record of
conviction to determine the guilt or innocence
of a[] [noncitizen], so we are hesitant to
give substantial weight to an arrest report,
absent a conviction or corroborating evidence
of the allegations contained therein. Here,
the applicant conceded that the arrest took
place but admitted to no wrongdoing.
Considering that prosecution was declined and
that there is no corroboration, from the
applicant or otherwise, we give the
apprehension report little weight.
- 30 -
Id. The BIA then reversed the IJ's decision and granted
discretionary relief under section 212(c). Id. at 42-43.
As Rosa seems to concede, Arreguin certainly does not
generally proscribe consideration of police reports without a
subsequent conviction in the agency's discretionary
decision-making. See Henry v. I.N.S., 74 F.3d 1, 5-7 (1st Cir.
1996); Arias-Minaya,
779 F.3d at 54. As we have already
emphasized, "an immigration court 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,
798 F.3d at 32; see also Perez v. Barr,
927 F.3d 17, 20 (1st Cir.
2019); Henry,
74 F.3d at 6; Thomas v. Garland,
25 F.4th 50, 54
(1st Cir. 2022). But First Circuit precedent does not answer the
more nuanced question of whether the agency's decision in this
case -- denying discretionary relief based solely on information
in a police report and the fact of a pending indictment, without
other negative factors or independent corroboration -- contravened
Arreguin.
True, in Arias-Minaya, we broadly affirmed that neither
our caselaw nor Arreguin "categorically preclude[s] the agency
from considering a police report." 779 F.3d at 54 (recognizing
that there is no "per se bar to the agency's consideration of"
uncorroborated police reports lacking a conviction). After all,
"in the context of determining whether a [noncitizen] warrants
- 31 -
discretionary relief from removal, the fact of an arrest and its
attendant circumstances, without more, may have probative value in
assessing [the noncitizen's] character (and, thus, his suitability
for discretionary relief)." Id. But our recognition that Arreguin
"surely does not create an ironclad rule that an arrest without a
subsequent conviction may never be considered in the discretionary
relief context,"
id., and that "[p]roperly read, Arreguin
implicates matters of degree, explaining the relative weight that
should be given to arrest records," Henry,
74 F.3d at 6, is a
separate matter from whether the agency may rely solely on a police
report and pending indictment, without corroborating evidence or
additional negative factors, to deny discretionary relief. The
latter issue is one we have not previously considered.
In every case where we permitted reliance on a police
report that did not culminate in a conviction to deny discretionary
relief, the police report was accompanied by an admission of guilt,
other corroborating evidence of guilt, and/or other negative
factors that weighed against granting discretionary relief. See,
e.g., Thomas, 25 F.4th at 52, 54 (allowing reliance on police
report without conviction where IJ had determined other negative
factors of sporadic work history and failure to pay taxes or seek
work authorization prior to arrest weighed against granting
relief); Perez,
927 F.3d at 19 (allowing reliance on police report
and other negative factors such as inconsistencies between
- 32 -
petitioner's and his wife's testimony and IJ's conclusion that
petitioner showed a "lack of remorse" where record also contained
evidence of prior felony convictions); Lima v. Lynch, 826 F.3d
606, 610 (1st Cir. 2016) (allowing reliance on police report and
other negative factors, including prior convictions); Henry,
74
F.3d at 2-3, 6-7 (allowing reliance on police report and other
convictions). Similarly, in Arias-Minaya, we approved of the
agency's reliance on several negative factors
"principally . . . related to the events described in [a] police
report" concerning a domestic disturbance to deny discretionary
relief.
779 F.3d at 51. These factors included not only the
report itself but also the lack of any denial of the facts alleged
in the police report by the petitioner or his counsel before the
IJ,5 as well as the fact that a state court had granted the
complaining witness a restraining order against the petitioner.
See
id. at 51.
On the other hand, in Mele, we left undisturbed an agency
decision that seemed to rely solely on a police report in denying
discretionary relief. See 798 F.3d at 31-33. However, the
petitioner in that case challenged only the agency's weighing of
the police report against other evidence, which we held to be a
5 Here, in contrast, Rosa's counsel made clear before the IJ
that Rosa denied the allegations in the police report, and Rosa
also denied wrongdoing in his statements to the police as recounted
in the police report.
- 33 -
jurisdictional bar to our review. Id. at 32-33. In dismissing
the petition for lack of jurisdiction, we did not evaluate the
propriety of the agency's sole reliance on the police report under
Arreguin or other precedent. See
id. Rosa's Arreguin challenge
thus presents an issue of first impression in this Circuit.
We hold that Arreguin stands for the principle that when
exercising its discretion, the agency may not give "substantial
weight" to a police report in the absence of "a conviction or
corroborating evidence of the allegations contained" in the
report. 21 I. & N. Dec. at 42. We further find that here, the
agency gave "substantial weight" to the police report in its denial
of Rosa's request for discretionary relief. However, we remand to
the BIA the question of whether there was "corroborating evidence"
in this record of the allegations contained within the police
report such that the agency's action in Rosa's case did not
contravene Arreguin. See id.
To explain these conclusions, we begin by clarifying
Arreguin's scope. Arreguin's holding regarding the proper
assignment of weight to a police report applies to discretionary
decision-making by the agency broadly, including in the
adjustment-of-status context at issue here. While Arreguin
involved a discretionary decision in the section 212(c) waiver
context, the BIA directed its reasoning as to the proper assignment
of weight to a police report absent a conviction or corroborating
- 34 -
evidence to the broad context of balancing the equities in
discretionary decision-making. See id. Indeed, there is no
indication that the portion of the Arreguin decision concerning
the proper assignment of weight to a police report was unique to
or directly linked to the section 212(c) decision in particular,
rather than discretionary decision-making broadly. See id.
In short, Arreguin's holding as to reliance on police
reports is germane to the agency's consideration of positive and
negative factors in any discretionary decision-making process and
is not limited to the section 212(c) context alone.6 See
6Our decision in Henry v. I.N.S. does not preclude us from
interpreting Arreguin in this manner. There, we concluded that
the BIA abided by Arreguin when it considered an arrest report "in
a limited way, without giving excessive weight to it." 74 F.3d 1,
7 (1st Cir. 1996). The BIA there denied discretionary relief based
on the petitioner's criminal record, which included not just the
allegations described in the police report but also guilty pleas
to multiple prior charges.
Id. at 2-4. After holding that the
BIA complied with Arreguin, we indicated in a footnote that the
"[p]etitioner's reliance on Arreguin [was] misplaced for other
reasons as well."
Id. at 7 n.7. We remarked that, "[f]or one
thing, Arreguin is a section 212(c) waiver case, and there is no
requirement that the Board treat section 245(a) status adjustment
cases like waiver cases."
Id. We have no trouble concluding that
this language is non-binding dicta. For example, the footnote
appears only after the court itself applied Arreguin in the section
245(a) context and concluded that the BIA did not violate Arreguin.
Id. at 5-7. Given that analysis, the footnote statement was not
"necessary to the result," Arcam Pharm. Corp. v. Faría,
513 F.3d
1, 3 (1st Cir. 2007), nor the "determination of the legal questions
then before the court,"
id. (quoting Municipality of San Juan v.
Rullán,
318 F.3d 26, 29 n.3 (1st Cir. 2003)). Therefore, as a
passing reference without substantive reasoning, the Henry
footnote does not give us pause in applying Arreguin to a nonsection 212(c) case.
- 35 -
Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 712-13 (6th Cir. 2004)
(rejecting government's argument that Arreguin did not apply
because Arreguin was a section 212(c) waiver case, whereas
petitioner in Billeke-Tolosa sought discretionary grant of
adjustment of status, and finding that the agency erred by failing
to follow Arreguin); see also Garcia Rogel v. Garland, No. 21-1163,
2022 WL 4244508, at *1 (4th Cir. Sept. 15, 2022) (per curiam)
(finding violation of Arreguin in a cancellation of removal
decision, not under section 212(c)); Doyduk v. Att'y Gen. U.S.,
66
F.4th 132, 137 (3d Cir. 2023) (analyzing Arreguin in
adjustment-of-status case and distinguishing it on other grounds);
Souleman v. Att'y Gen. of U.S.,
472 F. App'x 120, 123 (3d Cir.
2012) (per curiam) (same); Lanzas-Ramirez v. U.S. Att'y Gen.,
508
F. App'x 885, 889 (11th Cir. 2013) (per curiam) (same). We agree
with Rosa that Arreguin applies in adjustment-of-status cases,
like Rosa's.
We turn next to Arreguin's text to explain our
understanding of its significance. Arreguin's central finding
relevant to the police report issue in Rosa's case comes from the
opinion's statement that "[j]ust as we will not go behind a record
of conviction to determine the guilt or innocence of [a
noncitizen], so we are hesitant to give substantial weight to an
arrest report, absent a conviction or corroborating evidence of
the allegations contained therein." 21 I. & N. Dec. at 42. We do
- 36 -
not understand the use of the word "hesitant" to suggest that the
sentence does not establish a firm principle. Indeed, in that
sentence, the BIA analogizes the principle about giving
substantial weight to a police report absent a conviction or
corroboration to the clearly stated rule that it will not
second-guess a record of conviction. Accordingly, we find that
Arreguin stands for the firm principle that when exercising its
discretion, the agency may not give "substantial weight" to a
police report in the absence of "a conviction or corroborating
evidence of the allegations contained" in the report. Id.; see
Avila-Ramirez, 764 F.3d at 719, 725; Garcia Rogel,
2022 WL 4244508,
at *4; Billeke-Tolosa,
385 F.3d at 712-13.
Decisions from several of our sister circuits both
support our interpretation of Arreguin as standing for the firm
principle described above and are relevant to the application of
Arreguin in Rosa's case. In some cases that are factually similar
to Rosa's -- including cases also arising outside of the section
212(c) context and where the petitioners faced charges for conduct
described in the police reports at issue -- our sister circuits
have vacated and remanded agency decisions that failed to follow
Arreguin's strictures. In Billeke-Tolosa, the Sixth Circuit
addressed Arreguin in an adjustment-of-status case where the
petitioner was accused of and criminally charged for sexual
misconduct involving young girls. 385 F.3d at 709-10, 712-13.
- 37 -
The petitioner, Billeke-Tolosa, pled guilty to lesser charges of
misdemeanor assault and disorderly conduct and was never convicted
for the sexual misconduct charges. Id. at 709-10. The Sixth
Circuit found that the agency contravened Arreguin by considering
the allegations of sexual misconduct and relying on the allegations
as "the driving force behind the denial of [Billeke-Tolosa's]
petition for adjusted status" where Billeke-Tolosa "was not
convicted of any such crime, denied committing such a crime, and
was confronted with no independent evidence suggesting otherwise."
Id. at 712-13. The decision specifically rejected the government's
attempt to distinguish Billeke-Tolosa's case from Arreguin on the
basis that the noncitizen in Arreguin "was not prosecuted for the
conduct alleged in the arrest report," whereas Billeke-Tolosa "was
prosecuted and pled guilty."
Id. at 712. The Sixth Circuit
explained:
This would certainly be relevant if
Billeke-Tolosa had pled guilty to the sex
crimes with which he was initially charged.
But Billeke-Tolosa pled to simple assault in
one case and disorderly conduct in the other;
the IJ denied relief due to his concern that
Billeke-Tolosa was a sexual deviant. That he
was convicted of lesser crimes is beside the
point.
Id. On the basis of the agency's failure to follow Arreguin, the
Sixth Circuit vacated and remanded to the BIA for additional
consideration.
Id. at 713.
- 38 -
More recently, the Fourth Circuit similarly held that
the agency failed to comply with Arreguin when it gave a police
report detailing sexual abuse allegations "dispositive weight" in
its determination that the petitioner lacked "good moral
character," which led it to deny the petitioner's request for
cancellation of removal. Garcia Rogel, 2022 WL 4244508, at *1,
*4. Following an investigation into the allegations, the
petitioner was arrested and "charged with two counts of aggravated
sexual battery . . . and two counts of penetration of the mouth of
a child with lascivious intent" in violation of state law.
Id. at
*2. When the petitioner's accusers recanted their accusations,
the prosecution dismissed the charges "nolle prosequi," which is
a form of dismissal in Virginia that constitutes "neither a
declaration of innocence nor an acquittal," and permits "the
prosecution . . . to bring the same charges at a later date."
Id.
at *2 & n.3. The Fourth Circuit interpreted Arreguin as
"limit[ing] the weight an IJ should give to a police report that
did not result in a conviction or is not otherwise corroborated."
Id. at *4. Accordingly, it held that "Arreguin did not permit the
IJ to rely exclusively on the police report in the absence of other
evidence to support the information therein."
Id. Because the
agency did not offer a "reasoned explanation" for its "clear
departure from Arreguin," the Fourth Circuit "grant[ed] the
petition for review so that the [agency could] reconsider the
- 39 -
police report in light of . . . Arreguin." Id. at *4-6 (quoting
De Leon v. Holder,
761 F.3d 336, 344 (4th Cir. 2014)).7
The Seventh Circuit has also ruled on this issue, though
in a context somewhat more distinguishable from Rosa's compared to
the Sixth and Fourth Circuit decisions above. See Avila-Ramirez,
764 F.3d at 719, 724-25. In a section 212(c) case in which the
petitioner was never prosecuted for the conduct described in the
police reports at issue, the Seventh Circuit held that "the BIA
commit[s] legal error by failing to follow its own binding
precedent" in Arreguin when it "giv[es] substantial weight to an
arrest report absent a conviction or corroborating evidence of the
allegations contained therein."
Id. at 719.
Finally, the Third and Eleventh Circuits have analyzed
Arreguin in adjustment-of-status cases and distinguished it from
the cases before them on grounds consistent with our
interpretation. Specifically, these courts have treated Arreguin
as generally applicable in the adjustment-of-status context but
7In an unpublished decision, the Tenth Circuit took a
different approach, rejecting the argument that the BIA had
contravened Arreguin after distinguishing that precedent on the
ground that prosecution had been declined in Arreguin but not in
the instant case. See Zamarripa-Castaneda v. Barr, 831 F. App'x
910, 917 (10th Cir. 2020). However, the Tenth Circuit also
observed that the agency relied on "several negative factors" in
rendering its discretionary decision, not the police report and
pending charges alone.
Id. at 914. Zamarripa-Castaneda is thus
distinguishable from Rosa's case based on the other negative
factors weighing against an exercise of discretion there beyond a
police report and pending charge alone.
- 40 -
found Arreguin distinguishable because the police report
allegations in their cases, unlike in Arreguin, were corroborated
by independent evidence in the record. See Doyduk, 66 F.4th at
137 (concluding that "Arreguin lacks force here because the
allegations in the police report are corroborated by" several other
specific pieces of independent evidence contained in the
administrative record); Souleman,
472 F. App'x at 123
(distinguishing Arreguin on the basis that "in contrast [to
Arreguin], the IJ [in Souleman's case] considered not only arrest
reports, but also" testimony and other evidence corroborating the
allegations contained in the reports); Lanzas-Ramirez,
508 F.
App'x at 889 ("Here, unlike in Arreguin . . . , the IJ considered
not only the 1989 arrest report, but also the deposition of the
arresting police officer . . . . Thus, allegations in the 1989
arrest report were corroborated by other evidence, and the IJ and
the BIA did not contravene Arreguin."). These circuits' decisions
distinguishing their cases from Arreguin based on corroborating
evidence of the police report allegations, rather than the
adjustment-of-status context or some other differentiating factor,
are consistent with our interpretation of Arreguin described
above.
With this body of caselaw and our interpretation of
Arreguin's firm principle in mind, we proceed to consider whether
the agency contravened Arreguin in Rosa's case. First, we find
- 41 -
that it is clear that the agency gave the police report
"substantial weight" in denying Rosa discretionary relief.
Arreguin, 21 I. & N. Dec. at 42. Specifically, the IJ and BIA did
not identify any negative factors in their discretionary analysis
other than the police report and the fact of the pending indictment
based on the police report. Consequently, the agency explicitly
denied discretionary relief on that basis alone: the BIA ruled
that it "agree[d] with the [IJ]" that the negative factor of the
pending indictment and victim's complaint within the police report
"outweigh[ed] the favorable factors [the IJ] set forth."
The agency's reliance on the fact of the pending
indictment against Rosa does not undermine our conclusion that the
agency placed "substantial weight" on the police report.8
Arreguin, 21 I. & N. Dec. at 42. The indictment, so far as the
record reveals, adds no substance to the allegations against Rosa
and thus is not an independent negative factor that could indicate
that the agency gave less than substantial weight to the police
report. The record also lacks evidence that the indictment was
based on anything other than the police report alone. Thus, the
8Rosa's indictment was not filed anywhere in the record
before the agency or before us. As we previously concluded,
despite the absence of the indictment in the record, the agency
appropriately referenced the fact that Rosa was indicted, as Rosa
confirmed the fact that he had a pending charge against him in his
testimony before IJ Schools and in his application to adjust
status.
- 42 -
agency's reliance on the fact of the indictment here is simply
additional reliance on the police report.
The record also does not suggest that the agency
considered Rosa's invocation of his Fifth Amendment right to be a
separate negative factor in its discretionary decision-making. In
fact, the BIA explicitly rejected the notion that Rosa's refusal
to testify was a negative factor when it explained that the IJ did
not "hold against" Rosa the fact that he chose not to testify.
Instead, the BIA explained, the IJ "properly found that the lack
of any testimony refuting the version of events portrayed in the
victim's complaint and other documentary evidence pertaining to
the criminal indictment seriously diminished [Rosa's] ability to
meet his burden of demonstrating that he warranted a favorable
exercise of discretion." In other words, while Rosa's decision
not to testify at the hearing was not a negative factor that
weighed against him in the IJ's discretionary balancing, his
refusal to provide live testimony refuting the police report
allegations made it more difficult for him to overcome the police
report and fact of the pending indictment to demonstrate that he
warranted a favorable exercise of discretion. Because the agency
did not treat Rosa's invocation of the Fifth Amendment as an
independent negative factor, the agency's discussion of Rosa's
invocation of the Fifth Amendment is not a basis to conclude that
the agency gave less than substantial weight to the police report.
- 43 -
So, just like in Arreguin, the BIA here reviewed an IJ
decision that gave "substantial weight" to a police report in
denying relief. See 21 I. & N. Dec. at 42. But the ultimate
question of whether the agency contravened Arreguin requires a
determination of whether the agency gave substantial weight to the
report "absent a conviction or corroborating evidence of the
allegations contained therein." Id. It is undisputed that Rosa
was not convicted, so the only remaining question is whether this
record contains the type of "corroborating evidence" referenced in
Arreguin. Id.
The fact of the indictment here alone falls short of the
"corroborating evidence" of the allegations that Arreguin says is
necessary to support substantial reliance on a police report absent
a conviction. Id.; see Billeke-Tolosa, 385 F.3d at 712. After
articulating the firm principle we discussed above, the BIA applied
the principle to the Arreguin facts, noting that "the applicant
conceded that the arrest took place but admitted to no wrongdoing,"
and concluding, "[c]onsidering that prosecution was declined and
that there is no corroboration, from the applicant or otherwise,
we give the apprehension report little weight." Arreguin, 21 I.
& N. Dec. at 42 (emphasis added). By separately identifying the
fact that prosecution was declined, the Arreguin court made clear
that the lack of prosecution is not simply part-and-parcel of
whether there is corroborating evidence. See id. In other words,
- 44 -
the fact of a prosecution does not itself constitute corroboration.
See id.
Beyond distinguishing "prosecution" from
"corroboration" and stating that "corroboration" could be "from
the applicant or otherwise," the Arreguin decision gives little
explanation of what qualifies as sufficient "corroboration" and
whether that corroboration could come from within the police report
itself. Id. The BIA's decision on Rosa's application does not
address the meaning of "corroboration" under Arreguin or whether
such corroboration exists in the record here. Accordingly, we
vacate the BIA's decision as to Rosa's application for adjustment
of status and remand to the BIA to consider these questions of
"corroboration" under Arreguin, the answers to which will
elucidate whether denying Rosa discretionary relief after giving
the police report substantial weight is permissible under
Arreguin.9
9Rosa alleges that the agency's sole reliance on the police
report and pending charge is particularly problematic in this case
because "Rosa has not had a fair opportunity to rebut the
allegation against him in court in the nearly four years that he
was detained, largely because [Immigration and Customs Enforcement
("ICE")] repeatedly refused to allow him to attend his own criminal
proceedings." Rosa's counsel raised this concern at the hearing
before IJ Masters and in Rosa's brief to the BIA, but there does
not appear to be any evidence in the administrative record of ICE's
purported refusal to allow Rosa to appear. Though we do not base
any part of our decision on this allegation, the agency may
consider this allegation on remand and determine what, if any,
significance to give it in its discretionary analysis of Rosa's
application for adjustment of status.
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D. BIA's Finding of Waiver of Voluntary Departure Claim
Rosa's final challenge is to the BIA's ruling in its
June 2022 decision that Rosa had waived any challenge to the IJ's
decision on his voluntary departure claim. The procedural history
of the voluntary departure claim, which we briefly review here,
provides important context for this argument. IJ Masters
originally granted Rosa's request for voluntary departure as a
matter of discretion, finding that the positive equities in Rosa's
case outweighed the single negative equity of his pending criminal
charge. IJ Masters's decision notes that the government did not
oppose a grant of voluntary departure under safeguards. Although
Rosa subsequently appealed IJ Masters's decisions on asylum and
withholding of removal to the BIA, no party appealed IJ Masters's
ruling on voluntary departure.
While the asylum and withholding appeal was pending
before the BIA, Rosa's mother became a U.S. Citizen, making Rosa
statutorily eligible for adjustment of status and prompting him to
move the BIA to remand the case to the IJ to consider his
application for adjustment of status. The BIA granted that motion
to remand. In its opinion granting remand, the BIA noted that on
appeal, Rosa "contest[ed] the denial of both forms of relief and
protection" -- referring to the denial of asylum and withholding
of removal, not the grant of voluntary departure. (Emphasis
added.) It also characterized Rosa's motion to remand as "a motion
- 46 -
to remand in order to pursue adjustment of status." Then,
discussing the government's argument that the application to
adjust status would be denied in the exercise of discretion if the
case were remanded, the BIA "f[ound] it appropriate to remand to
allow the [IJ] to make the discretionary assessment in the first
instance." It concluded that, "[g]iven [its] instant remand," the
BIA would "not reach the additional issues of asylum and
withholding of removal," and remanded "for further proceedings
consistent with the foregoing opinion and for the entry of a new
decision."
On remand, the case was reassigned from IJ Masters to IJ
Schools. In her subsequent oral decision after a hearing, IJ
Schools explained that "[a]lthough it [was] not completely clear,"
she "interpret[ed] the BIA remand as a directive to [the IJ on
remand] to issue a whole new decision in the case including
readdressing [Rosa's] prior I-589 application [for asylum and
withholding of removal], his request for voluntary departure, and
his new adjustment of status application." (Emphasis added.) In
explaining the necessity of reviewing Rosa's request for voluntary
departure, IJ Schools pointed out that the BIA "did not address
the merits of [Rosa's] previous voluntary departure request" and
that the BIA remanded the case for "entry of a new decision." IJ
Schools then proceeded to consider anew and ultimately deny Rosa's
request for voluntary departure as a matter of discretion because
- 47 -
she "disagree[d] with the decision of the prior [IJ] on how to
balance th[e] equities."
Rosa then appealed IJ Schools's decision to the BIA, and
his briefing before the BIA largely dictates the issues now before
us. Rosa argues that his brief to the BIA challenged not only IJ
Schools's denial of Rosa's application for adjustment of status,
but also her denial of voluntary departure. Accordingly, he
asserts that the BIA erred when it ruled that Rosa did not
challenge, and thus waived, appeal of the IJ's adverse voluntary
departure ruling. The government disputes Rosa's characterization
of his brief to the BIA, asserting that the brief "never asked for
review of, and never contested, [IJ Schools's] denial of voluntary
departure." All references to voluntary departure in Rosa's brief
to the BIA, in the government's view, were solely related to his
appeal of the adjustment of status decision. Specifically, the
government maintains that Rosa sought to bind IJ Schools to
exercise discretion favorably in the adjustment-of-status context
based on IJ Masters's previous favorable exercise of discretion on
the issue of voluntary departure. Thus, the government asserts
there was no error in the BIA's decision to deem waived any
challenge to IJ Schools's denial of voluntary departure, and Rosa
may not now challenge IJ Schools's voluntary departure denial
before us because he failed to exhaust that issue before the BIA.
- 48 -
This court "may review a final order of removal only
if . . . the [noncitizen] has exhausted all administrative
remedies available to the [noncitizen] as of right," 8 U.S.C.
§ 1252(d)(1), and "[a] petitioner's 'failure to present developed
argumentation to the BIA on a particular theory amounts to a
failure to exhaust administrative remedies as to that theory.'"
Yong Gao v. Barr,
950 F.3d 147, 153 (1st Cir. 2020) (quoting Avelar
Gonzalez v. Whitaker,
908 F.3d 820, 828 (1st Cir. 2018)).10
We agree with Rosa that his brief to the BIA sufficiently
raised a challenge to IJ Schools's voluntary departure denial and
that the BIA erred in deeming that challenge waived. Rosa's brief
to the BIA began by identifying three errors in IJ Schools's
decision, the first of which was "not accepting the previous
favorable exercise of discretion from IJ Masters in granting
[Rosa's] request for voluntary departure after examining the same
negative factors." The first subsection within the argument
section of his brief then focuses on IJ Schools's "err[or] in not
10 The government does not challenge our jurisdiction
generally to review a question concerning whether the BIA erred in
deeming appeal of a voluntary departure denial waived, and we find
that we have jurisdiction over this matter. See Gurrola-Perez v.
Garland, No. 21-9504, 2021 WL 6101472, at *2-4 (10th Cir. Dec. 22,
2021) (reviewing a challenge to the BIA's ruling that petitioner
had waived a voluntary departure claim); Sica Ixcoy v. Holder,
439
F. App'x 524, 531-32 (6th Cir. 2011) (same). We also note that
the exhaustion requirement under
8 U.S.C. § 1252(d)(1) is not
jurisdictional. Santos-Zacaria v. Garland,
598 U.S. 411, 416-17
(2023).
- 49 -
accepting IJ Masters'[s] favorable discretionary finding in the
context of voluntary departure, where DHS did not oppose the grant
of voluntary departure." There, Rosa argues that "IJ Schools
grossly and flagrantly abused her discretion in upending the proper
weighing of equities in [Rosa's] case originally determined by IJ
Masters." Rosa concludes by requesting that the BIA "either
reverse the erroneous decision of IJ Schools and grant [Rosa's]
application for adjustment of status, or remand his case to IJ
Masters, or a different IJ, in order to allow [Rosa] to have his
case reconsidered." Rosa's requests for relief are consistent
with his intent to appeal both the adjustment of status and
voluntary departure decisions: a grant of his application for
adjustment of status at that time (before his deportation, which
did not occur until after the BIA issued its decision) would have
obviated the need for a ruling on his appeal of IJ Schools's
voluntary departure decision, and the alternative request for
"remand . . . to have his case reconsidered" encompasses
reconsideration of both decisions. In making the above-described
arguments and seeking these forms of relief, Rosa sufficiently
raised a challenge to IJ Schools's voluntary departure denial
before the BIA, and the BIA erred in deeming that challenge waived.
See Benitez v. Wilkinson, 987 F.3d 46, 56 (1st Cir. 2021) (finding
that "[t]here was no failure to exhaust" where petitioner's
arguments were "clear from his motion" such that "[t]he [BIA] had
- 50 -
a full opportunity to consider" them); Sunoto v. Gonzales, 504
F.3d 56, 59 (1st Cir. 2007) (stating that the exhaustion doctrine
extends to claims omitted from an appeal as well as those
"insufficiently developed before the BIA," and opting to apply the
"insufficiently developed" standard "generously" (quoting Silva v.
Gonzales,
463 F.3d 68, 72 (1st Cir. 2006))).
We also reject the government's alternative argument
that Rosa's challenge to the voluntary departure denial is moot
under 8 C.F.R. § 1240.26(i). That regulation provides that "[i]f,
prior to departing the United States, the [noncitizen] files a
petition for review . . . [of] the administratively final order,
any grant of voluntary departure shall terminate automatically
upon the filing of the petition or other judicial challenge and
the alternate order of removal . . . shall immediately take
effect."
8 C.F.R. § 1240.26(i) (emphasis added). The government
asserts that Rosa's challenge to the ruling on voluntary departure
is moot because "voluntary departure would have, in any event,
terminated when Mr. Rosa filed his petition for review challenging
the agency's discretionary denial of adjustment of status." But
at the time Rosa filed the instant petition for review, Rosa had
no "grant of voluntary departure" that could be terminated under
8
C.F.R. § 1240.26(i), because IJ Schools had
"readdress[ed] . . . anew" Rosa's application for voluntary
departure and denied that form of relief. If Rosa had a grant of
- 51 -
voluntary departure following IJ Schools's decision on remand
and/or the BIA's review of IJ Schools's decision, he may well have
elected to exercise that option and voluntarily departed rather
than filing a petition for review before us on the
adjustment-of-status issue. We decline to speculate on how he
would have proceeded under that counterfactual and reject the
notion that the challenge to voluntary departure is moot on this
basis.
Though the parties' briefs before us argue the merits of
the challenge to IJ Schools's voluntary departure decision
(including whether it was proper for her to reconsider that issue
at all following IJ Masters's earlier ruling), we decline to reach
that issue before the BIA has ruled on it in the first instance.
Accordingly, we vacate the BIA's decision as to waiver of Rosa's
challenge to the voluntary departure decision and remand to the
BIA to consider, in the first instance, whether IJ Schools erred
in reversing IJ Masters's prior grant of voluntary departure.
IV. Conclusion
For the reasons stated above, we grant the petition for
review, vacate the BIA's decision as to adjustment of status and
- 52 -
voluntary departure, and remand for further consideration of these
issues in accordance with this decision.11
11We also deny the government's motion to dismiss for lack
of jurisdiction because we find that we have jurisdiction to
consider the legal questions presented in Rosa's petition to the
extent described above. See 8 U.S.C. § 1252(a)(2)(D).
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