United States Court of Appeals
For the First Circuit
No. 19-1516
NOVA ANTHONY LEE,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.
Susan M. Pires on brief for petitioner.
Vanessa M. Otero, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Joseph H. Hunt, Assistant
Attorney General, Civil Division, and Anthony P. Nicastro,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.
September 22, 2020
KAYATTA, Circuit Judge. Petitioner Nova Anthony Lee is
a Jamaican national who entered the United States on a B2 visa in
June 2014 and failed to leave when the visa expired in December of
that year. Lee petitions for review of determinations by the
immigration judge and Board of Immigration Appeals ("BIA") denying
his withholding of removal claim and his bid for voluntary
departure. He also seeks review of denials of his motions for a
continuance and for a remand. For the reasons explained below, we
deny Lee's petition for review.
I.
Petitioner Lee was born into a moderately wealthy family
in Jamaica and operated a retail business there. At some point in
early 2014, while he was still in Jamaica, Lee and his cousin were
involved in an altercation with an individual referred to as
"Mr. Wright." Lee was detained by police as a result of the fight,
but the charges against him were ultimately dismissed. Wright
then sued Lee for medical expenses resulting from the fight and
threatened Lee in some way, which Lee reported to the police.
Lee traveled to the United States on a B2 visa in June
2014 and failed to return to Jamaica. Over the next few years he
married a United States citizen, Ronjel Lee, and started a family
in the United States. He has largely been employed since he
arrived.
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In August 2018, Lee was arrested in Connecticut on
charges of assault on a pregnant person, disorderly conduct, and
risk of injury to a child based on alleged conduct involving his
wife and her fourteen-year-old daughter. When subsequently served
with a notice to appear in immigration court, Lee requested
withholding of removal and voluntary departure. On his behalf,
his wife filed an I-130 petition (a visa petition that a U.S.
citizen or legal permanent resident may file on behalf of an alien
relative as the first step in that relative's application for a
green card through adjustment of status).1 The immigration judge
ruled against Lee on his withholding of removal and voluntary
departure claims and denied his motion for a continuance to seek
adjustment of status. Lee appealed to the BIA. While his appeal
was pending, Lee's August 2018 charges in Connecticut were dropped,
and his I-130 petition was approved. He moved to remand his case
to the immigration judge based on these new developments. The BIA
rejected Lee's appeal and his motion to remand.
II.
Generally speaking, when the BIA affirms the immigration
judge's holdings but adds its own analysis -- as it did here -- we
1 U.S. Citizenship & Immigr. Servs., I-130, Petition for
Alien Relative, https://www.uscis.gov/i-130 (last visited
September 18, 2020).
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review both decisions as a unit. Ang v. Holder, 723 F.3d 6, 10
(1st Cir. 2013).
A.
Lee first challenges the denial of his request for
withholding of removal. An alien is eligible for withholding of
removal to a country "if the Attorney General decides that the
alien's life or freedom would be threatened in that country because
of the alien's race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§ 1231(b)(3)(A); Lopez Perez v. Holder,
587 F.3d 456, 463 (1st
Cir. 2009) ("To prevail on a claim for withholding of removal, an
alien must show that, if returned to her native land, she will
more likely than not face persecution on account of a statutorily
protected ground."). We review the agency's factual findings on
a withholding of removal claim under the substantial evidence
standard. Agustin v. Whitaker, 914 F.3d 43, 45 (1st Cir. 2019).
Lee identifies the particular social group to which he
claims to belong as "wealthy immigrants returning to the country
of Jamaica." He claims that because of his membership in that
group, he will be targeted and at risk of assault and murder should
he return to Jamaica. The BIA dismissed this argument for several
independent reasons. First, it maintained that Lee's proposed
social group was waived, because he had argued to the immigration
judge only that his group was "returning resident[s] with an upper
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middleclass social status." See Matter of W-Y-C- & H-O-B-, 27 I&N
Dec. 189, 191 (BIA 2018) (explaining that the BIA generally does
not address a new social group not raised in front of the
immigration judge). Second, the BIA reasoned that even if Lee had
not waived his belatedly identified social group, it would fail
for two additional reasons: Returning wealthy individuals do not
usually constitute a protected social group, see Agustin,
914 F.3d
at 46, and the evidence showed not that Lee would be targeted based
on his wealth but instead based on a personal vendetta by Wright.
We need not determine whether Lee waived his proposed
social group -- it may be that "upper middleclass" and "wealthy"
are functionally equivalent in this context, though we note that
Lee has not marshaled any argument to us as to why the categories
are the same. Nor need we parse the evidence to determine whether
Lee's adversarial relationship with Wright is based in part on his
wealth or if it is instead the pure result of a personal dispute.
Instead, we affirm based on the BIA's holding that wealthy
immigrants returning to their country of origin do not form a
cognizable social group except perhaps in unusual situations such
as, for example, presented in Stalin-era Russia or Mao's China.
See Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011)
(explaining that groups who are "viewed as class enemies to be
liquidated on account of their immutable heritage" might more
obviously qualify as persecuted social groups). Lee makes no claim
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to fit into such an exception. Rather, he leaves his claim as
indistinguishable from a claim that he will be murdered or robbed
because criminals want what he may have (in order to thereby
themselves become wealthy Jamaicans). See id. ("In a poorly
policed country, rich and poor are all prey to criminals who care
about nothing more than taking it for themselves. Indeed, wealth
likely provides some extra protection against crime: the poor and
near poor in such countries have less but it can more easily be
taken from them.").2 Lee's withholding of removal claim
accordingly fails.
B.
Lee next argues that the immigration judge erred in
denying his application for voluntary departure, "a discretionary
form of relief." Hakim v. Holder, 611 F.3d 73, 78 (1st Cir. 2010);
see 8 U.S.C. § 1229c(a)(1) ("The Attorney General may permit an
alien voluntarily to depart the United States at the alien's own
expense under this subsection [under certain circumstances].").
2
We have given similar explanations in various other
decisions over the past several years. See Agustin, 914 F.3d at
46 ("[A] consistent line of our precedent supports the conclusion
that wealthy Guatemalans returning to Guatemala do not constitute
a protected social group."); Alvizures-Gomes v. Lynch, 830 F.3d
49, 53–54 (1st Cir. 2016); Sam v. Holder,
752 F.3d 97, 100 (1st
Cir. 2014); Garcia-Callejas v. Holder,
666 F.3d 828, 830 (1st Cir.
2012) (in the case of an El Salvadoran immigrant, explaining that
"[w]e have also rejected social groups based solely on perceived
wealth, even if signaling an increased vulnerability to crime");
Beltrand-Alas v. Holder,
689 F.3d 90, 94 (1st Cir. 2012).
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The immigration judge found that Lee was statutorily eligible for
voluntary departure (and the government does not argue to the
contrary), but denied his request based on discretionary factors,
including the previous Jamaican charges against him and the events
leading to his 2018 Connecticut arrest. The BIA affirmed.
We cannot review the "denial of a request for an order
of voluntary departure," 8 U.S.C. § 1229c(f), unless the petition
involves "constitutional claims or questions of law," 8 U.S.C.
§ 1252(a)(2)(D); Cruz-Orellana v. Sessions,
878 F.3d 1, 4 (1st
Cir. 2017). Lee raises no such claim or question but instead only
asks us to review the immigration judge's balancing of several of
the factors that might have justified an exercise of discretion in
this case. To the extent Lee argues that it was legal error for
the immigration judge to consider his foreign arrest, Lee develops
no argument that the law categorically precludes an immigration
court from taking such a fact into account. The bottom line is
that we cannot recalibrate the immigration judge's weighing of
facts in deciding whether to grant voluntary departure.
C.
Lee next argues that the immigration judge erred in
denying his motion to continue his immigration proceedings in order
to await a result on his application for adjustment of status. An
immigration judge can order a continuance of immigration
proceedings for "good cause shown." 8 C.F.R. § 1003.29. In
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determining whether to grant "a motion for continuance to await
the resolution of a collateral matter," the immigration judge must
consider: "(1) the likelihood that the alien will receive the
collateral relief, and (2) whether the relief will materially
affect the outcome of the removal proceedings." Matter of
L-A-B-R-, 27 I&N Dec. 405, 413 (A.G. 2018). Additionally, the
judge should consider "whether the alien has exercised reasonable
diligence in pursuing that relief, DHS's position on the motion,
the length of the requested continuance, and the procedural history
of the case."
Id.
In denying Lee's motion, the immigration judge noted the
DHS's opposition. The judge also reasoned that even if Lee's I-
130 petition were approved (as it eventually was), his adjustment
of status would likely not be successful due to his conduct as
reported by the police in Connecticut. The BIA affirmed that
decision. We review the denial of the motion to continue for abuse
of discretion. Sheikh v. Holder, 696 F.3d 147, 149 (1st Cir.
2012).
We find no abuse of discretion or error of law here.
The immigration judge was required to consider the likelihood of
Lee's ultimately gaining adjustment of status in deciding whether
to continue proceedings. Matter of L-A-B-R-, 27 I&N Dec. at 413.
In determining that Lee was unlikely to be granted adjustment of
status, the immigration judge primarily considered allegations
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that Lee had assaulted his wife and her fourteen-year-old child.
According to the Connecticut police report, police were dispatched
to Lee's home and arrived to find his eight-months-pregnant wife
upstairs with her dress ripped and with scratches and swelling on
her arms. Lee's wife allegedly told police that Lee had assaulted
her with three children in the room, including a fourteen-year-
old, an eleven-year-old, and a one-year-old. The eleven-year-old
said that Lee had struck his wife with a shoe, and the fourteen-
year-old stated that Lee had assaulted the fourteen-year-old two
weeks prior. It was no stretch for the immigration judge to
conclude that these allegations, if true, would jeopardize Lee's
application for adjustment of status. See Matter of Hashmi, 24
I&N Dec. 785, 793 (BIA 2009) (explaining that "[a] respondent's
criminal history" is appropriate for the immigration judge to
consider when determining whether "the respondent warrants
adjustment of status in the exercise of discretion").
Lee suggests that neither the BIA nor the immigration
judge should have relied on allegations contained in a police
report in the absence of a conviction. The law is more nuanced:
it allows immigration judges deciding motions for discretionary
relief to rely on information contained in police reports even
absent a conviction as long as the report is determined to be
reliable, and its use is not fundamentally unfair. See Arias-
Minaya v. Holder, 779 F.3d 49, 54 (1st Cir. 2015). Here, the
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immigration judge found the police report "fundamentally reliable"
because the report contained "the percipient observations of the
police officers including the [wife's] ripped shirt and the
injuries observed, and [consisted of] the statements of both
[Lee's] wife and the 14-year-old child that [Lee] has physically
assaulted them." In finding the report reliable, the immigration
judge also observed that Lee did not produce an affidavit or
testimony from his wife denying what was in the report (though the
immigration judge did also note that Lee's wife had filed the I-
130 on his behalf). And that opportunity to rebut a report bearing
such indicia of reliability allows us to say in this context that
use of the report was not fundamentally unfair. Id. (explaining
that use of a report determined to be reliable "was not
fundamentally unfair since the petitioner was given an opportunity
to challenge its veracity and refute its contents").
Lee also argues that despite the discretionary nature of a
decision to adjust an alien's status, he is entitled to the
opportunity to seek such an adjustment even if he may not
ultimately succeed. That is certainly true in the abstract. See
Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003). But our
precedent does not require the immigration tribunals to always
give aliens additional time to seek collateral relief. It was
well within the immigration judge's discretion to deny Lee's motion
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for a continuance and to consider his likelihood of success in
gaining an adjustment of status in doing so.
D.
Finally, Lee contends that the BIA should have remanded
his case to the immigration judge based on new facts, namely, the
dismissal of his Connecticut charges and the approval of his I-
130 petition. Motions to remand to the immigration judge are
treated as motions to reopen. Falae v. Gonzáles, 411 F.3d 11, 14
(1st Cir. 2005). "The BIA may only grant a motion to reopen based
on new facts if the 'evidence sought to be offered is material and
was not available and could not have been discovered or presented
at the former hearing.'" Canaveral Toban v. Ashcroft,
385 F.3d
40, 45 (1st Cir. 2004) (quoting
8 C.F.R. § 1003.2(c)(1)). We will
only overturn a denial of a motion to reopen 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." Falae,
411 F.3d at 14.
Here, the BIA denied Lee's motion to remand because it
reasoned that the dismissal of the Connecticut charges was not a
material change in the facts, i.e., it would not make a difference
either to Lee's request for voluntary departure or to his
application for adjustment of status, as even charges that do not
result in a conviction can form the basis for denial of relief, as
explained above. In particular, the BIA noted that the bare
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dismissal of the charges did not show that the underlying police
report was unreliable or otherwise undermine the immigration
judge's reliance on it in concluding that it would jeopardize Lee's
chance at adjustment. Having reviewed the immigration judge's
opinion, we agree. The immigration judge relied on the detailed
substance of the report, including the officer's recitation of
what he observed, plus the absence of any credible rebuttal, noting
especially the absence of any testimony by Lee's wife refuting the
police report. While a prosecution -- and certainly a conviction
-- would have further buttressed reliance on the report, the
dropping of charges in this context did not undercut the
immigration judge's reliance on the ineffectively rebutted,
partially first-hand report. The BIA therefore did not abuse its
discretion by finding no indication that the mere fact that charges
were dropped, without more, would have altered that reliance.
As for the approval of Lee's I-130 petition, the
immigration judge did assume that the I-130 would be granted and
reasoned that adjustment of status would not be merited even if it
were. As a result, the approval of the petition cannot have
constituted a material change as required to warrant a remand.
The BIA thus could not have abused its discretion in denying Lee's
motion to remand on that basis.
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III.
For the reasons explained above, Lee's petition is
denied.
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