Thomas v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-2144
AKEIM LE ANDREW THOMAS,
Petitioner,
v.
MERRICK B. GARLAND,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Selya, and Gelpí,
Circuit Judges.
Glenn L. Formica, with whom Formica, P.C. was on brief, for
petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, with whom Brian M.
Boynton, Acting Assistant Attorney General, Civil Division, and
Sabatino F. Leo, Assistant Director, Office of Immigration
Litigation, Civil Division, were on brief, for respondent.
February 8, 2022
BARRON, Circuit Judge. Akeim Le Andrew Thomas is a
native and citizen of Jamaica. He petitions for review of a
decision by the Board of Immigration Appeals (BIA) that affirmed
the denial of his application for adjustment of status on statutory
and federal constitutional grounds. The petition is denied.
I.
Thomas traveled to the United States on a temporary
nonimmigrant visa in June 2016 but remained in this country for
years after the visa had expired. Then, on August 30, 2019, he
was arrested by the Bridgeport, Connecticut Police Department on
charges of possession of marijuana in violation of Connecticut
General Statutes § 21a-279(a)(1), possession of a controlled
substance with intent to sell in violation of Connecticut General
Statutes § 21a-277(b), and possession of a controlled substance
within 1500 feet of a school in violation of Connecticut General
Statutes § 21a-278a(b).
The Department of Homeland Security (the government)
initiated removal proceedings against Thomas thereafter, and
Thomas conceded in those proceedings that he was removable under
8 U.S.C. § 1227(a)(1)(B). He nonetheless sought to remain in the
country by applying for adjustment of status under 8 U.S.C.
§ 1255(a).
Adjustment of status is a process by which "aliens
physically present in the United States may obtain [lawful]
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permanent resident status without leaving" the country to apply
for a visa via consular processing. De Acosta v. Holder, 556 F.3d
16, 18 (1st Cir. 2009) (citation omitted). An individual can seek
adjustment of status in a removal proceeding as a form of relief
from removal, as Thomas did here. See id. The burden is on the
applicant to establish both that he "satisfies the applicable
eligibility requirements" and "that [he] merits a favorable
exercise of discretion." 8 U.S.C. § 1229a(c)(4)(A).
A hearing on Thomas's application for adjustment of
status was held on February 7, 2020. Thomas gave sworn testimony
about the circumstances of his 2019 arrest in Connecticut.
Specifically, he testified that he "wasn't aware that the marijuana
[he was found with] was in the car" and that the plastic bags, a
heat-sealer for those bags, and a scale that the police discovered
while searching his home after his 2019 arrest were used by his
wife to prepare and freeze meat -- rather than used by him to
package drugs for sale as the state contends those items were used
in the criminal charges against him.
The police report from the 2019 arrest was introduced as
evidence at the hearing. Thomas did not object to the admission
of the police report into the record, and he did not otherwise
dispute the statements in the police report.
In an oral decision delivered on the same day as the
hearing, the Immigration Judge (IJ) denied Thomas's application
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for adjustment of status. The IJ's decision first determined that
Thomas "was a credible witness, with the exception . . . that he
was not credible about his criminal history" because his testimony
about his 2019 arrest was "directly in contradiction with the
[police] report." The IJ credited the police report's description
of the arrest, which stated that "when [Thomas] was pulled over,
he told the police that he had two pounds of marijuana in the car."
As a consequence, the IJ found, based on Thomas's testimony
"denying the knowledge of marijuana in the car at the time of the
traffic stop," that Thomas "was not candid about his criminal
history."
The IJ explained that Thomas's relatively recent date of
entry, his U.S. citizen spouse and child, the hardship his wife
and child faced after Thomas was detained by immigration
authorities, and his other family members in the United States,
two of whom are U.S. citizens and two of whom are lawfully admitted
residents, all weighed in favor of granting his application for
adjustment of status. But, the IJ determined that Thomas's
sporadic work history in the United States, his failure to pay
taxes or seek work authorization prior to the 2019 arrest, and the
circumstances of his 2019 arrest all weighed against granting the
application.
As to that last factor, the IJ noted that Thomas's
criminal charges in Connecticut were "open" and had "not led
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to . . . conviction." The IJ explained, however, that it "is
entitled and does indeed review the criminal behavior in this case
to determine whether [Thomas] is entitled to a favorable exercise
of discretion."
After reviewing the substance of the police report and
Thomas's testimony about the 2019 events, the IJ made the following
findings of fact regarding both the events themselves and Thomas's
truthfulness regarding them:
First of all, [Thomas] admitted to the police
that he had two pounds of mari[j]uana in his
car. Though [Thomas] claims on cross
examination that he didn't know the drugs were
there, he did tell the police that the drugs
were there. And, indeed, the police report
indicates that the drugs were located
contained within a white large plastic
bucket . . . in the rear passenger seat of a
black Lexus. The court finds that its
implausible that [Thomas] would not know that
two pounds of mari[j]uana in a large white
plastic bucket sitting in a rear passenger
seat in an SUV were not there.
Further, the court will note that, also in his
car, the respondent was found with $1,600 cash
in his wallet, and the total amount of money
seized from the respondent was approximately
$2,500. The court finds that this is
consistent with someone who is conducting
street-level marijuana sales.
Next, police conducted a consensual search of
the respondent's house. In there, they found
a white Ziploc heat sealer used to package
drugs. The respondent's claim that his wife
uses this to seal meat is implausible, and the
court does not credit it. Next, they found a
digital scale, also recognized by the officers
as a device for packaging narcotics.
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Respondent's claim that this is used by his
wife to weigh meat is not plausible, and the
court does not credit it. Next, in a dresser,
the officers found a .38 caliber Colt
revolver, and they found an assortment of 9
millimeter, .38 caliber ammunition. The
digital scale, the heat sealer, and the gun,
and the ammunition are all consistent with
drug dealing and go to discredit the
respondent's testimony he was not selling
drugs.
The IJ also noted that the 2019 arrest "was not a case
in which the respondent was pulled over by normal patrol officers
for a motor vehicle violation," as Thomas "was surveilled after an
intensive investigation" and after the Bridgeport, Connecticut
Police Department had received a tip from a confidential informant
that "an individual meeting the respondent's description was
selling large quantities of marijuana from a black Lexus SUV
bearing Connecticut registration AS27017," which was the license
plate on the vehicle Thomas was stopped in. The IJ found that
Thomas "was openly selling drugs, marijuana[,] in the
Bridgeport[,] Connecticut area[,] [a]nd, for those reasons, [it]
[concluded that] Thomas [was] not entitled to a favorable exercise
of discretion."
Ultimately, the IJ determined, after weighing the
factors in favor and against granting Thomas's application for
adjustment of status, that Thomas had not met his burden of showing
that he merited a favorable exercise of discretion. Thomas then
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appealed the IJ's decision to the BIA, which affirmed the IJ's
ruling on July 7, 2020.
The BIA explained that the IJ's "adverse credibility
finding regarding [Thomas]'s testimony was not clearly erroneous"
and that the IJ "properly considered the respondent's positive and
negative factors, [finding] that the seriousness, recency and
extensiveness of the respondent's criminal behavior were negative
factors that outweighed any positive factors." The BIA also
rejected Thomas's contention that the IJ's reliance on the police
report was in error. The BIA explained that:
[An IJ] may consider police reports in
deciding whether a grant of discretionary
relief is warranted. The facts of the arrest
and attendant circumstances often have
probative value in assessing whether an alien
warrants a grant of discretionary relief, even
if there was not a conviction. Therefore, the
[IJ] did not err in relying on the police
reports. Moreover, contrary to the
respondent's argument, there was no indication
that reliance on the police report was
unreliable or fundamentally unfair,
particularly in light of the confidential
informant and the narcotics division's
involvement. (citations omitted).
Thomas then filed this petition for review.
II.
Thomas first challenges the BIA's ruling on the ground
that the use of the police report in denying his application for
adjustment of status was "fundamentally unfair," Lee v. Barr, 975
F.3d 69, 75 (1st Cir. 2020), because he "has not been convicted of
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a crime."1 As Thomas raised the challenge below, and it presents
a question of law, we have jurisdiction to consider it. See
Tacuri-Tacuri v. Garland, 998 F.3d 466, 471 (1st Cir. 2021). But,
reviewing de novo, see id., we see no merit to it given that we
have repeatedly held that "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 v. Lynch, 798 F.3d 30, 32 (1st Cir. 2015);
see also Perez v. Barr, 927 F.3d 17, 20 (1st Cir. 2019); Henry v.
INS, 74 F.3d 1, 6 (1st Cir. 1996).2
1 To the extent that Thomas could be seen as challenging the
IJ's adverse credibility finding against him, as the government
suggests in its briefing to us, Thomas disavows that he is bringing
such a challenge in this petition for review.
2 Thomas's petition for review can also reasonably be
understood to contend that the BIA's reliance on his "criminal
history" in affirming the IJ's denial of his application for
adjustment of status was in error because 8 U.S.C. § 1255(a), which
gives the Attorney General discretionary authority to adjust an
individual's status, does not allow for consideration of that
history. Thomas, however, did not advance this argument to the
BIA, and thus has not exhausted it, depriving us of jurisdiction
to consider it. See Sanabria Morales v. Barr, 967 F.3d 15, 19
(1st Cir. 2020) ("Although 'we review the agency's legal
interpretations de novo,' . . . we may not entertain arguments not
made to the BIA, which 'fail[] for lack of exhaustion.'" (second
alteration in original) (quoting Molina De Massenet v. Gonzales,
485 F.3d 661, 664 (1st Cir. 2007))); García-Cruz v. Sessions, 858
F.3d 1, 7 (1st Cir. 2017) (holding that non-exhaustion in
immigration context is jurisdictional and therefore court of
appeals may consider that issue sua sponte)".
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Thomas's remaining challenge to the BIA's ruling, which
we also review de novo, see Tacuri-Tacuri, 998 F.3d at 471, is
premised on his Fifth Amendment right to due process under the
U.S. Constitution. He contends that his due process rights were
violated in the removal proceedings because those proceedings were
held while he faced pending criminal charges in Connecticut state
court and the government relied on the police report underlying
those charges in the removal proceedings.
In pressing this argument, Thomas acknowledges that he
agreed to testify about the circumstances of his 2019 arrest at
his removal proceedings and that he did so without objecting at
that time to the proceedings being held. Nor does he dispute that
he made no objection at that time to the admission of evidence
concerning that arrest, including the police report discussed
above. He nonetheless contends that his due process challenge
remains viable, simply because the removal proceedings were held
while the state criminal proceedings were pending, given that
evidence about the 2019 arrest was relied on in the removal
proceedings.
But, even assuming that Thomas did not waive this due
process claim through his conduct in the removal proceedings and
that (as the government contends) he raised it before the BIA,
Thomas fails to explain how he had a protected liberty interest in
the discretionary form of relief from removal that he voluntarily
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sought -- adjustment of status. See Naeem v. Gonzales, 469 F.3d
33, 38–39 (1st Cir. 2006).3 It thus follows that he cannot meet
his burden to show that he was deprived of such an interest without
due process of law when he was denied that relief based in part on
the evidence relating to his 2019 arrest.
III.
For the foregoing reasons, the petition for review is
denied.
3 The several cases that Thomas invokes involving
requests for bail in criminal proceedings do not support his cause,
see, e.g., United States v. Santos-Flores, 794 F.3d 1088 (9th Cir.
2015); United States v. Boutin, 269 F. Supp. 3d 24 (E.D.N.Y. 2017);
United States v. Galitsa, No. 17-00324, 2016 WL 11658188 (S.D.N.Y.
July 28, 2016); United States v. Trujillo-Alvarez, 900 F. Supp. 2d
1167 (D. Or. 2012), given that Thomas concedes he is not detained
and is not seeking release from detention.
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