Lima v. Lynch , 826 F.3d 606 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2119
MOISÉS ENRIQUE LIMA,
Petitioner,
v.
LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Thompson,
Circuit Judges.
Jeffrey B. Rubin and Rubin Pomerleau P.C., on brief for
petitioner.
Jennifer R. Khouri, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Jennifer P. Levings, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for
respondent.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch is substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
June 21, 2016
TORRUELLA, Circuit Judge. Moisés Enrique Lima ("Lima")
petitioned this court for review of a final removal order entered
by the Board of Immigration Appeals ("BIA"). As Lima's challenge
to the underlying discretionary denial of relief under Section 203
of the Nicaraguan Adjustment and Central American Relief Act
("NACARA"), Pub. L. No. 105–100, §§ 201–204, 111 Stat. 2160, 2193–
2201, as amended by Pub. L. No. 106–386, § 1510(b), 114 Stat. 1464,
1531 (2000), fails to raise a colorable legal or constitutional
claim, we dismiss for lack of jurisdiction.
I.
A native of El Salvador now fifty years old, Lima entered
the United States via California on or about either September 25,
1989, or October 10, 1989. He filed an application for asylum
with the Immigration and Naturalization Service ("INS") in 1992,
which he subsequently withdrew. Lima was arrested on various
charges in 1992, 1993, 2002, 2003, and 2005. A 1993 arrest led
to charges of armed burglary, indecent assault and battery, and
attempted rape and resulted in a conviction for assault and battery
following a bench trial. After his 2003 arrest, Lima was charged
with assault with intent to commit murder, assault and battery
with a dangerous weapon, assault and battery, and threat to commit
a crime; he pleaded guilty to the latter three charges, receiving
probation, which terminated in June 2005.
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Lima applied to the United States Citizenship and
Immigration Services ("USCIS"), successor to the INS, for
permanent residence in December 2005 under the special rule
cancellation of removal provision of Section 203 of NACARA. In
2006, USCIS denied his application on the basis of his criminal
record.
Lima was placed in removal proceedings in 2007 via a
Notice to Appear charging him as removable under the Immigration
and Nationality Act, § 212(a)(6)(A)(i), 8 U.S.C. § 1182. An
immigration judge ("IJ") rejected his application for NACARA
special rule cancellation of removal in October 2009, citing his
2003 conviction for assault and battery with a dangerous weapon,1
and the BIA dismissed Lima's appeal in October 2010. In November
2010, Lima filed a petition for review and request for stay of
removal with this court and a motion to vacate convictions with
the Framingham District Court in Massachusetts, arguing that his
2003 counsel did not adequately advise him as to the immigration
consequences of his guilty plea and thus claiming ineffective
1 Assault and battery under Mass. Gen. Laws ch. 265, § 15A(b)
constitutes a crime of moral turpitude under 8 U.S.C. § 1182(a)(2)
and 8 C.F.R. § 1240.66(b). See Thomas v. INS, 976 F.2d 786, 787
(1st Cir. 1992); In the Matter of N-----, 2 I. & N. Dec. 201, 204
(BIA 1944). Such a conviction makes a perpetrator ineligible for
special rule cancellation of removal under NACARA. See Mejía v.
Holder, 756 F.3d 64, 67 (1st Cir. 2014).
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assistance of counsel under Padilla v. Kentucky, 559 U.S. 356(2010). The state court vacated his convictions, and in February
2011 the charges were dismissed for failure to prosecute. Lima
then filed a motion to voluntarily dismiss his case before this
court, and we dismissed his initial petition in March 2011.
A February 2011 motion to reopen BIA proceedings was
rejected as untimely and, regarding the evidence of the
convictions' vacation, inadequate. A subsequent June 2011 motion
for reconsideration that included Lima's motion to vacate the 2003
convictions, however, succeeded in persuading the BIA to vacate
its prior decision and remand Lima's case to the IJ for
reconsideration. After two continuances, Lima testified before
the IJ in August 2013. At the hearing, Lima's account of the
events leading to the subsequently vacated 2003 conviction for
assault with a deadly weapon differed substantially from police
reports from that night. For example, Lima testified that he was
not intoxicated, had not been drinking any alcohol, and could not
think of a reason that he would have smelled of alcohol or acted
intoxicated. In contrast, the police reports indicated that Lima
was "highly intoxicated" and that the victim of his assault,
Rosaura González, his then-estranged partner and the mother of his
then-eight-year-old daughter, told an officer that he was "drunk."
Lima offered no explanation for why police would have
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misrepresented his state of sobriety. Lima also denied holding a
knife to González's throat or making contact with her, further
contradicting the police reports and next-day interview with Lima.
The IJ acknowledged, as the parties had agreed, that
Lima was eligible for relief from removal under Section 203 of
NACARA, but noted that such relief is discretionary and that, under
the REAL ID Act of 2005, Pub. L. No. 109–13, § 101(d)(2), 119 Stat.
231, 304, Lima had to show he merited a favorable exercise of
discretion. The IJ found the 2003 police reports to be "probative
and reliable." He discounted an affidavit2 from González stating
that she would not testify to the facts contained in the 2003
police reports because González did not appear in person, nor offer
an explanation for why she did not appear, and the police reports
contradicted her affidavit. The IJ found Lima testified
incredibly in several respects, most significantly regarding the
2003 incident, undermining his credibility altogether. The IJ
reviewed both positive and negative factors at length, noting that
Lima has one child who is a lawful permanent resident and another
who is a citizen; that neither child testified for Lima; the length
of Lima's residence in the United States; his lack of credibility
2 The affidavit was signed November 11, 2010, and submitted as
part of Lima's second motion to reopen proceedings along with his
motion to vacate convictions.
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as a witness; discrete instances of negative conduct, contacts
with law enforcement, and criminal history, as well as recidivism
and refusal to admit culpability; his age at the time of entry and
at the time he committed negative conduct; and that one of his
children, then eight years old, was nearby during the conduct
leading to Lima's 2003 conviction for assault and battery.
Finding that the "positive factors" for Lima were "limited" by his
lack of credibility and that the "negative factors . . . far
outweigh[ed] the positive," the IJ declined to grant Lima relief.
The BIA reviewed the IJ's "factual findings for clear
error and all other issues de novo." It found no clear error in
the IJ's credibility determination, a factual finding, based on
the inconsistencies between the 2003 police reports and Lima's
testimony, and affirmed the IJ's decision not to grant
discretionary relief.
II.
"When the BIA adopts the IJ's opinion and discusses some
of the bases for the IJ's decision, we . . . review both the IJ's
and the BIA's opinions." Ouk v. Gonzales, 464 F.3d 108, 110 (1st
Cir. 2006). However, "[r]eview of a decision invoking special
rule cancellation of removal under NACARA is subject to the
jurisdiction-stripping provision codified at 8 U.S.C. § 1252."
González-Ruano v. Holder, 662 F.3d 59, 63 (1st Cir. 2011). Under
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that provision, we may not "review 'any judgment regarding the
granting of relief' relative to cancellation of removal," id.(citing 8 U.S.C. § 1229b), but only "constitutional claims and
questions of law raised in the petition." Id. (citing 8 U.S.C.
§ 1252(a)(2)(D)); see also Ramírez-Matías v. Holder, 778 F.3d 322,
326 (1st Cir. 2015); Castro v. Holder, 727 F.3d 125, 128 (1st Cir.
2013). Thus, "we cannot review discretionary determinations
regarding requests for special rule cancellation of removal under
NACARA, absent legal or constitutional error." González-Ruano,
662 F.3d at 63.
"The traditional rules of evidence do not apply in
immigration hearings, and arrest reports historically have been
admissible in such proceedings." Henry v. INS, 74 F.3d 1, 6 (1st
Cir. 1996) (citations omitted). "[W]hile an arrest, without more,
is simply an unproven charge, the fact of the arrest, and its
attendant circumstances, often have probative value in immigration
proceedings." Id. There is no "black-letter" rule as to the
relative probative value of arrest records based on their age.
Cf. id. at 6-8. An IJ may determine an applicant's credibility
on the basis of the "totality of the circumstances," including
"the consistency of [the applicant's] statements with other
evidence of record . . . and any inaccuracies or falsehoods in
such statements, without regard to whether an inconsistency,
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inaccuracy, or falsehood goes to the heart of the applicant's
claim, or any other relevant factor." 8 U.S.C. § 1229a(c)(4)(C).
Determinations of credibility, and relative credibility, are
factual in nature. Ramírez-Matías, 778 F.3d at 326.
III.
The case before us rings familiar: an apparent successor
to Ramírez-Matías, in which the petitioner argued "that the IJ
bungled the decision on special rule cancellation of removal by
relying on hearsay evidence (particularly the police reports) to
determine that the petitioner did not deserve a favorable exercise
of discretion," giving the reports "too much weight" and "fail[ing]
to assess the 'probative value' of the police reports properly" in
light of testimony contradicting the reports. 778 F.3d at 326.
We labeled his challenge "hopelessly factbound" and sans any "hint
of any cognizable constitutional claim or question of law." Id.
It is no less true here that "a challenge to the way in which the
agency weighed the evidence and balanced negative and positive
factors is not a claim that raises a legal question." Id. (citing
Santana-Medina v. Holder, 616 F.3d 49, 52-53 (1st Cir. 2010);
Elysee v. Gonzales, 437 F.3d 221, 223-24 (1st Cir. 2006)). And
that is all that Lima claims here: He argues that the IJ should
not have found the 2003 police reports credible and should instead
have credited his own testimony and González's affidavit, as a
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result of which, presumably, the IJ would have found more positive
factors favoring Lima and granted him relief. There is, of course,
no problem with the IJ's reliance on police reports, Henry, 74
F.3d at 6, nor the BIA's adoption of the IJ's reasoning. Gonzales,
464 F.3d at 110. Lima himself concedes that Ramírez-Matías is "on
point."3 We find Lima's challenge to the IJ's determination of
the reports' probative value and the BIA's affirmance does not
constitute a legal challenge, thus we do not have jurisdiction.
IV.
We dismiss this petition for lack of jurisdiction.
Dismissed.
3 Lima asks us to "reconsider" Ramírez-Matías. Of course, one
panel cannot overrule another panel's decision "absent supervening
authority or some other singular event," United States v. DePierre,
599 F.3d 25, 31 (1st Cir. 2010), and Lima identifies no such
"supervening authority" or "singular event" here.
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