Peulic v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-1587
IGOR PEULIC,
Petitioner,
v.
MERRICK B. GARLAND,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron and Selya, Circuit Judges,
and Delgado-Hernández, ƚ District Judge.
Stephanie E.Y. Marzouk for petitioner.
Jennifer A. Singer, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
John V. Coghland, Deputy Assistant Attorney General and Shelley R.
Goad, Assistant Director, Office of Immigration Litigation, were
on brief, for respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the respondent.
 Of the District of Puerto Rico, sitting by designation.
January 11, 2022
DELGADO-HERNÁNDEZ, District Judge. Igor Peulic
petitions for review of a final order of the Board of Immigration
Appeals ("BIA"), which affirmed an immigration judge's decision
finding him removable and denying his application for adjustment
of immigration status, waiver of inadmissibility, asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"), and ordered him removed from the United
States. After careful consideration, we deny the petition in part
and dismiss it in part for want of jurisdiction.
I.
A. Background
Mr. Peulic is a 38-year-old native and citizen of Bosnia-
Herzegovina. In July 1992, he was admitted to the United States
as a refugee. In April 2016, he was convicted by a jury in
Massachusetts of: (1) assault with a dangerous weapon ("ADW"), a
firearm, see Mass. Gen. Laws ch. 265, § 15B(b), for which he was
sentenced to a term of imprisonment of four to five years;
(2) carrying a firearm, a .357 revolver, without a license, see
Mass. Gen. Laws ch. 269, § 10(a), for which he was sentenced to a
concurrent term of imprisonment of four to five years; (3) carrying
a loaded firearm without a license, see id. § 10(n), for which he
was sentenced to a consecutive but suspended term of imprisonment
of two and a half years; and (4) discharging a firearm within 500
-3-
feet of a dwelling, see id. § 12E, for which he was sentenced to
a concurrent term of imprisonment of three months.
The convictions stemmed from an incident that occurred
in the early morning hours of February 1, 2015, when a police
officer on patrol in the Bellingham Square section of Chelsea,
Massachusetts –- a typically busy area -– heard three gunshots and
observed a muzzle flash coming from a crosswalk. As the officer
approached, he observed a man, later identified as Mr. Peulic,
with a firearm in his hand.1 Mr. Peulic ignored the officer's
order to stop and fled on foot. He encountered a second officer,
who ordered Mr. Peulic to drop the gun several times. Mr. Peulic
ignored the officer's commands, advanced toward the officer, and
pointed the gun in the direction of the officer. Believing he was
in immediate danger, the officer fired his service weapon three
times, striking Mr. Peulic once. After being shot, Mr. Peulic
dropped the gun but tried to reach it until being ordered by police
not to touch the gun. Mr. Peulic appealed his conviction for ADW.
In April 2018, the Massachusetts Appeals Court affirmed the
conviction. See Commonwealth v. Peulic, 103 N.E.3d 771 (Mass.
App. Ct. 2018) (unpublished table decision). In June 2018, the
Massachusetts Supreme Judicial Court denied further appellate
1 The firearm was unregistered and identified as a loaded
.357 long-barrel Magnum.
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review. See Commonwealth v. Peulic, 113 N.E.3d 838 (Mass. 2018)
(unpublished table decision).
B. Removal Proceedings
On October 9, 2018, the Department of Homeland Security
served Mr. Peulic with a Notice to Appear, charging him with
removability under Section 237(a)(2)(A) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for having
been convicted of an aggravated felony in connection with ADW, and
Section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C), for the
firearm offense.2 On April 25, 2019, Mr. Peulic appeared with
counsel for a preliminary hearing before an Immigration Judge
("IJ"), conceding the firearms charge of removability while
denying the aggravated felony charge of removability. After
reviewing the conviction documents, the IJ sustained both charges
of removability.
On June 4, 2019, Mr. Peulic submitted applications for
adjustment of status and a concurrent waiver of inadmissibility to
the IJ. In addition, he sought asylum, withholding of removal,
and CAT protection. On June 26, 2019, he appeared for a merits
hearing, and testified in support of his applications for relief,
2 The INA defines "aggravated felony" as including a crime of
violence (as defined in 18 U.S.C. § 16 but not including a purely
political offense), for which the term of imprisonment is at least
one year. See 8 U.S.C. § 1101(a)(43)(F).
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as did two of his three siblings, Bojan Peulic and Tatjana Peulic.
The testimony reflects that their mother has schizophrenia, breast
cancer, and diabetes. Prior to his February 2015 arrest,
Mr. Peulic was the mother's primary caregiver because his siblings
and father worked fulltime, whereas Mr. Peulic did not. Since
that date, Mr. Peulic's sister, who lives with her parents and two
other brothers, took over responsibility for their mother's care,
albeit the father helps when he can. She expressed that taking
care of her mother is "very hard," particularly because she also
has a young child. Tatjana said that she expects Mr. Peulic to
resume caretaking duties once he is released from custody, though
the record reflects that as a condition of his probation, Mr.
Peulic is required to maintain full-time employment or school.
The family has discussed placing the mother in a nursing home, but
they worry that she would not be treated well there.
Mr. Peulic has family ties in Bosnia-Herzegovina, and
his father traveled there as recently as 2018 without incident,
despite his military service during that country's war, and being
Orthodox Christian in a predominantly Muslim part of Bosnia-
Herzegovina. Mr. Peulic's siblings declared that if he had to
return to Bosnia-Herzegovina, circumstances would be "much harder
for them" and that his family "need[ed] [him] here." As for his
crimes, Mr. Peulic stated he did not recall what happened because
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he was "black[ed] out" from consuming too much alcohol. Even
though the incident was characterized as isolated, he admitted to
a history of struggles with alcohol. He remarked that he realized
he "[made] a big mistake," and attended AA meetings and a violence
prevention class while in state custody.
On July 25, 2019, Mr. Peulic sought to adjust his status
from refugee to that of a lawful permanent resident under 8 U.S.C.
§ 1159(a) with the United States Citizenship and Immigration
Services ("USCIS") and applied for a concurrent waiver of
inadmissibility under 8 U.S.C. § 1159(c). On September 12, 2019,
the USCIS denied Mr. Peulic's applications for adjustment of status
and waiver. It concluded that, because Mr. Peulic's crime was
"violent or dangerous," pursuant to Matter of Jean, 23 I. & N.
Dec. 373 (A.G. 2002), he was required to show "exceptional and
extremely unusual hardship" to overcome his criminal history, and
neither his mother's illness nor the difficulties he would face in
Bosnia-Herzegovina met this standard.
C. IJ's and BIA's Decisions
On October 17, 2019, the IJ issued a written decision,
finding that Mr. Peulic's conviction for ADW was a "crime involving
moral turpitude" that rendered him inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), and thus ineligible for adjustment of
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status under 8 U.S.C. § 1159(a). 3 Considering Mr. Peulic's
application for a waiver of inadmissibility, the IJ determined
that Mr. Peulic's crime was "violent and dangerous." As a result,
the Matter of Jean heightened standard applied to his request for
a waiver. Applying this standard, the IJ concluded that Mr. Peulic
failed to establish that his removal would cause "exceptional and
extremely unusual hardship" to himself or his family.
Alternatively, the IJ determined that, even if Mr. Peulic had
established the requisite hardship, he did not merit a waiver as
a matter of discretion. She explained that Mr. Peulic engaged in
an extremely serious and dangerous incident that had the potential
to cause the death of a police officer in the line of duty and put
others in the area in great danger as well. Furthermore, she
found Mr. Peulic ineligible for asylum and withholding of removal,
and denied the application for CAT protection, concluding that Mr.
Peulic had not shown he would more likely than not suffer torture
upon return to Bosnia-Herzegovina. Thus, she ordered him removed
from the United States to Bosnia-Herzegovina.
3 The IJ found that the conviction for assault with a
dangerous weapon is categorically a crime involving moral
turpitude. Mr. Peulic does not dispute that ADW is such a crime
under Massachusetts law.
-8-
The BIA affirmed the IJ's decision to deny Mr. Peulic's
application to adjust his status in conjunction with a waiver of
inadmissibility.
II.
A. Jurisdiction
Because Mr. Peulic claims that the agency relied on a
wrong legal standard -- the heightened standard set in Matter of
Jean –- and wrongfully applied the standard here, he raises
questions of law over which we have jurisdiction. See Ayeni v.
Holder, 617 F.3d 67, 71 (1st Cir. 2010) (court has jurisdiction to
hear and determine petitioner's claim that the BIA applied an
incorrect legal standard); Mustafic v. U.S. Att'y Gen., 591 F.
App'x 726, 729 (11th Cir. 2014) (application of heightened standard
to deny petitioner's application for a waiver of inadmissibility
raises question of law over which court has jurisdiction).
B. Waiver of Inadmissibility Standard
Mr. Peulic alleges that, in Matter of Jean, the Attorney
General exceeded the scope of his discretionary authority by
adopting a heightened waiver standard. An alien who is found to
have committed "a crime of moral turpitude" generally may be deemed
inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). If a refugee
alien is inadmissible, he may request a waiver of inadmissibility.
See 8 U.S.C. § 1159(c). The Attorney General may, in his
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discretion, waive certain grounds of inadmissibility for
"humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest." See 8 U.S.C. § 1159(c).
Applying this precept, in Matter of Jean, the Attorney General
overturned the BIA, which had granted an inadmissibility waiver to
a refugee convicted of second-degree manslaughter for beating and
shaking a baby to death. 23 I. & N. Dec. at 374-75. Doing so,
the Attorney General articulated a heightened standard for waiving
the inadmissibility of refugees who have been convicted of violent
or dangerous crimes.
To this end, the Attorney General expressed that, "[i]t
would not be a prudent exercise of the discretion afforded . . . by
[8 U.S.C. § 1159(c)] to grant favorable" relief to such aliens
"except in extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases in
which an alien clearly demonstrates that the denial of status
adjustment would result in exceptional and extremely unusual
hardship." Id. at 383. Thus, the Attorney General directed the
agency to consider the "nature of the criminal offense that
rendered an alien inadmissible in the first place" and balance the
"claims of hardship to the [alien's] family against the gravity of
[the] criminal offense." Id.-10-
The Attorney General acted within statutory boundaries
in adopting this framework. Congress plainly intended for the
Attorney General to have broad discretion when deciding to grant
or deny a request for an inadmissibility waiver under 8 U.S.C.
§ 1159(c). See INS v. Yang, 519 U.S. 26, 30 (1996) (describing
the Attorney General's power to grant a discretionary waiver of
deportation as "'an act of grace' which is accorded pursuant to
[the Attorney General's] 'unfettered discretion'" and likening it
to "'a judge's power to suspend the execution of a sentence, or
the President's to pardon a convict'" (citations omitted)). That
discretion carries the power to establish reasonable standards for
how that discretion should be exercised. See Torres-Valdivias v.
Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015) (pointing out that the
Attorney General has discretion to grant or deny adjustments of
status and may establish standards for the exercise of that
discretion).4
As for the Attorney General's exercise of that
discretion to adopt a heightened standard in Matter of Jean, it
fell within permissible bounds, as other sister circuits have held.
4 See also Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir.
1991) (The Attorney General has discretion to grant or deny waivers
of deportation, and inherent in this discretion is his authority
to establish general standards to govern the exercise of such
discretion).
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See Ali v. Achim, 468 F.3d 462, 467 (7th Cir. 2006) (holding that
the Attorney General did not exceed statutory authority in adopting
heightened standard set in Matter of Jean); Jean, 452 F.3d at 397-
98 (holding that the Attorney General did not exceed the
discretionary authority afforded to him by Congress when deciding
Matter of Jean); Togbahv. Ashcroft, 104 F. App'x 788, 794 (3d Cir.
2004) (holding that the Attorney General's decision in Matter of
Jean "is a permissible exercise of his statutory discretion in
enhancing the waiver standards for . . . those convicted of
'dangerous and violent' crimes"). At the end of the day, it is
both rational and facially legitimate, not arbitrary or
capricious, for the Attorney General to require a heightened
showing of equities by an alien who has committed a violent or
dangerous offense in light of the "national immigration policy of
not admitting aliens who [c]ould be a danger to society." Rivas-
Gomez v. González, 225 F. App'x 680, 683 (9th Cir. 2007).
Mr. Peulic argues that Matter of Jean is not a reasonable
interpretation of the INA because 8 U.S.C. § 1159(c) allows the
Attorney General to waive inadmissibility for humanitarian
reasons, to assure family unity, or when it is otherwise in the
public interest, but does not require a showing of hardship for
refugee adjustment even though Congress has explicitly delineated
in the INA the level of hardship required for other forms of
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discretionary relief. That Congress did not provide a standard
for the exercise of discretion under 8 U.S.C. § 1159(c) does not
mean that by adopting a heightened standard the Attorney General
failed to take up a permissible construction of the statute. See
Mejia v. Gonzales, 499 F.3d 991, 994-97 (9th Cir. 2007).
The court in Mejia examined a waiver of admissibility
setup under 8 U.S.C. § 1182(h)(1)(B), a provision similar to
8 U.S.C. § 1159(c), pursuant to which the Attorney General has
discretion to waive the inadmissibility of certain criminal aliens
if the alien's denial of admission would result in extreme hardship
to the United States citizen or lawfully resident spouse, parent,
son, or daughter of such alien. See id. at 995 (describing
statutory and regulatory background). 5 The Attorney General
expressed that he would not favorably exercise discretion in cases
involving violent or dangerous crimes except in extraordinary
circumstances, such as in cases where the alien clearly
demonstrates that denial of relief would result in exceptional and
extremely unusual hardship. Id.5 The Attorney General promulgated a regulation, 8 C.F.R.
§ 212.7(d), to establish the heightened standard dealt with in
Mejia.
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The court found that the INA had not addressed what
standard should be used to exercise discretion under 8 U.S.C.
§ 1182(h)(1)(B) after statutory requirements are met, and held
that under those circumstances, the exceptional and extremely
unusual hardship standard that the Attorney General adopted
supplemented and gave definition to the standard to be applied to
individuals who have committed violent or dangerous crimes. Id.
at 996. As important, the court recognized that given Congress's
broad grant of discretion, the Attorney General's decision was a
permissible construction of the statue. Id. So too here. The
Attorney General's rationale may not persuade all readers, but the
construction he opted for in Matter of Jean "[need not be] the
only one [he] permissibly could have adopted." Id. (first
alteration in original) (quoting Chevron U.S.A. v. Natural Res.
Def. Council, 467 U.S. 837, 843 n.11 (1984)). There is nothing
infirm with that construction.
Mr. Peulic asserts that Congress intended to react to
international humanitarian needs in a flexible and thoughtful way,
and Matter of Jean restricts refugee status adjustment in a manner
that Congress never intended. The Attorney General did not,
however, add a class of aliens to those who are statutorily
ineligible for waiver or instruct the agency to ignore statutory
considerations of family unity, humanitarian concerns, and public
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interest. See Jean, 452 F.3d at 397. To the contrary, he left
open the possibility that even the most violent and dangerous
immigrants could be granted relief in an appropriate case. Id.
This is not the situation we encountered in Succar v. Ashcroft,
394 F.3d 8, 28 (1st Cir. 2015), where we struck down a regulation
that categorically eliminated eligibility for a type of relief for
certain aliens despite the fact that the statute did not give the
Attorney General discretion to decide who could apply for
adjustment.
Mr. Peulic contends that Matter of Jean's heightened
standard is unreasonable because it places no bounds on the term
"violent or dangerous," which, to his way of thinking, becomes so
broad as to be meaningless in violation of the Fifth Amendment's
right to due process of law. The void-for-vagueness doctrine
ensures that individuals have fair notice of the consequences of
their conduct, including certain immigration consequences, and can
comport themselves accordingly. See Jordan v. De George, 341 U.S.
223, 230-32 (1951). Assuming without deciding that the void-for-
vagueness doctrine under the Fifth Amendment can apply in the
context of discretionary adjustment of status relief under §
1159(c), we conclude that the term "violent or dangerous crime" is
not unconstitutionally vague.
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The phrase "violent or dangerous" is not
unconstitutionally vague because under Matter of Jean the relevant
inquiry is based on real-world facts, not some idealized crime,
and in this sense, does not face the problem that the Supreme Court
identified in Sessions v. Dimaya, 138 S. Ct. 1204, 1215-16 (2018),
where it found that 18 U.S.C. § 16(b), which defines a "crime of
violence," is unconstitutionally vague. Section 16(b) defines a
"crime of violence" to include "a felony . . . that, by its nature,
involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the
offense." 18 U.S.C. § 16(b). The Supreme Court held that two
features of this definition combine to create "'hopeless
indeterminacy,' inconsistent with due process." Dimaya, 138 S.
Ct. at 1213 (quoting Johnson v. United States, 576 U.S. 591, 598
(2015)).
First, the Supreme Court explained that the definition
"calls for a court to identify a crime's 'ordinary case' in order
to measure the crime's risk." Id. at 1215. This "ordinary case"
is "an excessively 'speculative,' essentially inscrutable thing."
Id. (quoting Johnson, 576 U.S. at 597). Second, the Supreme Court
noted that the "substantial risk" standard is uncertain. Id. But
the uncertainty alone does not make the definition vague. Rather,
"[t]he difficulty comes . . . from applying such a standard to
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. . . 'an idealized ordinary case of the crime.'" Id. at 1216
(quoting Johnson, 576 U.S. at 597). Otherwise, the definition
may be applied to "real-world conduct." Id. at 1215. As the
Supreme Court observed, "'we do not doubt' the constitutionality
of applying § 16(b)'s 'substantial risk [standard] to real-world
conduct.'" Id. (alteration in original) (quoting Johnson, 576
U.S. at 603-04).
Matter of Jean clears this hurdle, for it uses the term
"violent or dangerous" in line with the facts of each case. See
Miramontes v. Barr, 830 F. App'x 840, 841 (9th Cir. 2020)
(concluding that term "violent or dangerous" is not
unconstitutionally vague because it requires a determination of
whether a particular crime is "violent or dangerous" based on the
facts of the case). By the same token, applying it to the facts
leading to Mr. Peulic's conviction poses no vagueness problem.
See, e.g., Torres-Valdivias, 786 F.3d at 1150 (applying the term
to sexual battery on the alien's step-sister); Ali, 468 F.3d at
464-65 (applying it to substantial battery where the alien used a
box-cutter to cut another man about the face and body, threatening
to kill him); Matter of Jean, 23 I. & N. Dec. at 374-75 (applying
it to manslaughter, where the alien beat and shook a baby to
death).
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Mr. Peulic maintains that if Matter of Jean's heightened
standard were permissible, in order to ensure uniformity and
structure, a categorical approach should apply for determining
whether a crime is "violent or dangerous." He faults the IJ for
only considering the facts and not an "articulable legal standard,"
an approach that, in his view, leads to analytical problems. We
see it differently.
Requiring the use of the categorical approach is at odds
with Matter of Jean, where the Attorney General appeared to take
a facts-and-circumstances-based approach, describing the crime in
some detail. See 23 I. & N. Dec. at 375, 383 (looking at the
facts underlying the alien's conviction, including those outside
the record of conviction).
C. Application of Standard
Mr. Peulic posits that in any event, the BIA erred when
it applied Matter of Jean to his case. He argues that the IJ
failed to consider the hardship factors in the aggregate;
overlooked "voluminous evidence of hardship"; mischaracterized the
hardship evidence; and, rather than conducting a de novo inquiry,
"rubber-stamped" the USCIS's denial of his waiver request. The
Government counters that this is an impermissible challenge to the
manner in which the BIA exercised its discretion, which falls
outside the jurisdiction of the courts of appeals.
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In general, federal courts lack jurisdiction to review
the "agency's discretionary decisionmaking in an immigration
case." Arias-Minaya v. Holder, 779 F.3d 49, 52 (1st Cir. 2015).
By exception, the court may review those decisions and orders to
the extent that "the assigned errors raise colorable
constitutional claims or questions of law," Arias-Minaya, 779 F.3d
at 52, but may not re-weigh evidence of hardship,see Perez-Trujillo
v. Garland, 3 F.4th 10, 24 (1st Cir. 2021) ("[T]he government is
right that we have no jurisdiction to re-weigh the evidence of
hardship.").
On this foundation, we review the agency's "legal
conclusions de novo and the underlying factual findings under the
deferential substantial evidence standard." Pojoy-De León v.
Barr, 984 F.3d 11, 16 (1st Cir. 2020). In line with the standard,
we ask whether the decision "is supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)
(quoting Sunarto Ang v. Holder, 723 F.3d 6, 10 (1st Cir. 2013)).
That the record supports a conclusion contrary to that reached by
the agency "is not enough to warrant" upsetting its view of the
matter. Lopez de Hincapie v. Gonzales, 494 F.3d 213, 218 (1st
Cir. 2007). For that to occur, the record must compel the contrary
conclusion. Id. When the BIA affirms the IJ's opinion and
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examines some of the bases of that decision, "we review both the
IJ's and the BIA's opinions." Matovu v. Holder, 577 F.3d 383, 386
(1st Cir. 2009). With this backdrop in place, we turn to those
decisions.
Both the IJ and the BIA examined the record and there is
no indication that either one acted on mistaken views about the
correct legal standard applying to their exercise of discretion.
They applied the correct standard to the undisputed facts and,
based on those facts, concluded that Mr. Peulic did not establish
exceptional and extremely unusual hardship justifying a waiver of
inadmissibility.
On that account, the IJ expressed that she "considered
the documentary evidence and testimony of [Mr. Peulic] and his
witnesses in their entirety, whether or not specifically
summarized or referenced" in her written decision. Based on that
documentary and testimonial evidence, she made her own factual
findings. Although she noted those of the USCIS and ultimately
agreed with them, a fair reading of her decision reflects that she
conducted a de novo inquiry into Mr. Peulic's hardship claims.
Moreover, she went a step further, assumed that Mr. Peulic had
demonstrated the requisite hardship and/or humanitarian concerns,
yet in her discretion, denied the inadmissibility waiver.
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To that end, the IJ observed that Mr. Peulic committed
an extremely serious crime that had the potential to cause the
death of a police officer in the line of duty and put others in
the area in great danger. Mr. Peulic pointed a firearm at a police
officer and began to move forward in a threatening manner. The
officer, fearing imminent harm, shot Mr. Peulic. Even after being
shot and lying on the ground, Mr. Peulic tried to reach for the
firearm. He had already shot several rounds of ammunition in the
air by the time police arrived.
The IJ indicated that Mr. Peulic could not recall the
event due to his own intoxication, albeit he conceded that he was
familiar with the allegations against him. The IJ alluded to the
fact that Mr. Peulic's blackout was not isolated but indicative of
an ongoing problem, for he acknowledged having had at least one
prior blackout, and even though he may not present violent
tendencies when sober, these tendencies may emerge when he consumes
alcohol, particularly to the point when he blacks out and cannot
recall what events have transpired. And in the absence of any
evidence demonstrating genuine rehabilitation beyond participation
in a handful of AA meetings and a violence prevention program while
incarcerated, the IJ concluded that Mr. Peulic's potential for
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danger outweighed any hardship or humanitarian factors that he put
forth in the case.6
In turn, the BIA reviewed the IJ's factual findings under
a clearly erroneous standard, and questions of law, discretion,
and judgment de novo, finding no error in the IJ's determinations.
The BIA considered all of the evidence before it, acknowledging
the illness and mental problems of Mr. Peulic's mother; the role
that Mr. Peulic had played as her primary caretaker; the caretaking
role that Mr. Peulic's sister assumed during his incarceration and
the negative implications it had on her life, as well as the fact
that Mr. Peulic's conditions of probation would restrict him from
assisting his mother in the same capacity as he had prior to his
incarceration.
The BIA recognized as a very significant factor
Mr. Peulic's separation from his family, and expressed sympathy to
the unfortunate consequences that such a separation would entail,
but agreed with the IJ that Mr. Peulic did not show that he or his
family would suffer exceptional and unusual hardship if he were
removed from the United States. And as for where the removal
would lead, that is, Bosnia-Herzegovina, the BIA reached the same
6 The IJ expressed that while Mr. Peulic's application for
waiver solely requested a waiver to ensure family unity, she also
considered the humanitarian factors at play in the present matter.
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conclusion as the IJ, given Mr. Peulic's family ties in Bosnia-
Herzegovina, his familiarity with the culture and language of
Bosnia-Herzegovina, and his father's recent safe travel to Bosnia-
Herzegovina despite the latter's military service during the armed
conflict in Bosnia-Herzegovina.
Finally, the BIA agreed with the IJ's alternative ruling
that even if Mr. Peulic had demonstrated exceptional and extremely
unusual hardship, as a matter of discretion the waiver of
inadmissibility should be denied. It remarked that where, as
here, a violent or dangerous crime is involved, the seriousness
and injury or risk of injury tied to the underlying crime may be
so severe that this and any other negative considerations may
outweigh even equities constituting extraordinary circumstances.
And upon review of the record, the BIA concluded that the IJ
properly weighed the favorable factors against the adverse factors
to conclude that, in her discretion, the waiver of inadmissibility
should not be granted.
Substantial evidence supports the IJ's and BIA's
conclusions. The record does not compel or require a contrary
determination. This is not a case like Perez-Trujillo, in which
we reversed the BIA for having erred as a matter of law in ignoring
altogether – in the hardship inquiry – whether the petitioner's
country of origin would be particularly dangerous to him, given
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the special risk that he faced of being severely harmed due to his
past gang membership (even though the record contained substantial
evidence to that effect). 3 F.4th at 22-23.
Mr. Peulic submits that the BIA did not conduct a de
novo review of the record because its decision cites only to the
IJ's decision and pages of the hearing transcript despite the fact
that the record contains hundreds of pages of medical record,
affidavits and a social worker's evaluation. Examination of the
BIA's decision shows the BIA considered all of the evidence in the
record.7 The BIA did not have to cite every document and page to
meaningfully account for its decision. See Larita-Martínez v.
INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000) (rejecting argument
that because the BIA did not specifically mention particular
evidence, it did not consider it, for the BIA stated that it had
reviewed the record, and in the absence of evidence to the
contrary, this meant the contentions on appeal and the documents
submitted in support of the appeal); Man v. INS, 69 F.3d 835, 838
(7th Cir. 1995) (assuming that the BIA reviewed the IJ's specific
findings in light of the record and agreed with them, given that
7 Not only does the decision refer to evidence; it includes
language such as "upon review of the record," "the record
reflects," "the record shows," and "considering all of the evidence
before us."
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in issuing its decision, it approvingly referenced the IJ's
decision).8
Mr. Peulic claims the BIA overlooked testimony from his
brother and sister concerning their potential hardships, and from
his father regarding Mr. Peulic's aunts in Bosnia-Herzegovina, who
are struggling and would not be able to assist him. We have seen
that the BIA reviewed the record. For Mr. Peulic, however, a
different weighing of the evidence is in order. Yet, as mentioned
above, we lack jurisdiction to reweigh evidence. See Arias-
Minaya, 779 F.3d at 52.
Mr. Peulic contends that the BIA failed to consider
whether "extraordinary circumstances," other than hardship,
existed here. He argues that Matter of Jean did not establish an
exhaustive list of the extraordinary circumstances that may
warrant a waiver of inadmissibility. Therefore, in his view, the
IJ and BIA should have analyzed whether "'extraordinary
8 See also Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.
2002) ("The B[IA] 'is not required to write an exegesis on every
contention,' but only to show that it has reviewed the record and
grasped the movant's claims." (quoting Mansour v. INS, 230 F.3d
902, 908 (7th Cir. 2000))); Green v. Att'y Gen., 694 F.3d 503, 509
(3d Cir. 2012) ("[A]lthough the IJ's opinion did not specifically
discuss every individual piece of evidence, the IJ made clear that
she had '[c]onsider[ed] all of the evidence of record.' This is
all that is required . . . ."(second and third alterations in
original)).
-25-
circumstances' other than hardship or national security concerns
exist" in this case.9 We are not persuaded.
The IJ alluded to the hardship factors mentioned earlier
as well as to the other elements that Mr. Peulic identifies as
"extraordinary circumstances." Specifically, the IJ referred to
the traumatic nature of events in Mr. Peulic's childhood in the
former Yugoslavia, his flight therefrom, and conditions in Bosnia-
Herzegovina, and also to the lack of evidence demonstrating genuine
rehabilitation by Mr. Peulic, all of which led her to conclude
that Mr. Peulic did not demonstrate extraordinary circumstances
such that she could overlook the severity and dangerousness of his
criminal activity.
The BIA agreed with the IJ's determination. To repeat,
the BIA found that the IJ properly weighed favorable factors
against adverse factors to determine that as a matter of
discretion, the waiver of inadmissibility should be denied. In
cases involving violent or dangerous crimes, the seriousness and
9 The Government asserts that Mr. Peulic did not raise this
argument to the BIA, thereby failing to exhaust it, and that for
that reason, we lack jurisdiction to consider it in the first
instance. There is no jurisdictional bar because the BIA
addressed it in finding absence of extraordinary circumstances
justifying relief; Mr. Peulic raised the point in his opening
brief; and the government had a full opportunity to respond to the
claim in its own brief. See Perez-Trujillo, 3 F.4th at 18 n.4
(applying same reasoning to reject government's "failure-to-raise"
argument).
-26-
injury or risk of injury tied to the underlying crime may be so
severe that it, and any other negative considerations, may outweigh
even equities constituting extraordinary circumstances. And that
was the case with Mr. Peulic's criminal conduct, which in light of
the evidence, for the BIA merited a "negative discretionary
consideration."
Viewing the record as a whole, we are satisfied that the
BIA adequately considered the question of extraordinary
circumstances called for in Matter of Jean. This said, the
relative weight it accorded to the evidence in the record to deny
the waiver of inadmissibility is off limits here, for lack of
jurisdiction.
III.
We need go no further. For the reasons elucidated
above, the petition for review is denied in part and dismissed in
part.10
10 Mr. Peulic does not contest the allegations of
removability and makes no arguments in support of his application
for asylum or CAT protection. Thus, claims regarding those
matters have been waived. See Sok v. Mukasey, 526 F.3d 48, 52 &
n.1 (1st Cir. 2008) (deeming asylum and CAT claims waived where
petitioner made no argument with respect to those claims).
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