Dorce v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1336
RITCH CARDY DORCE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Chief Judge,
Lynch and Lipez, Circuit Judges.
Kristin Macleod-Ball, with whom Jennifer Klein, the Committee
for Public Counsel Services, Trina Realmuto, and the National
Immigration Litigation Alliance were on brief, for petitioner.
Aric A. Anderson, Trial Attorney, Office of Immigration
Litigation, with whom Brian Boynton, Acting Assistant Attorney
General, and Leslie McKay, Senior Litigation Counsel, were on
brief, for respondent.
October 3, 2022
LYNCH, Circuit Judge. Ritch Cardy Dorce petitions for
review of the Board of Immigration Appeals ("BIA") decision of
April 7, 2021, affirming the denial of his application for
cancellation of removal. The BIA both rejected Dorce's argument
that he had not received proper notice as required under the Due
Process Clause of the Fifth Amendment, the Immigration and
Nationality Act ("INA"), and regulations governing his hearing
before the Immigration Judge ("IJ"), and held that Dorce had not
shown, as he was required to, that not receiving proper notice
prejudiced the outcome of his case. Because substantial evidence
supports the BIA's determination that Dorce had not shown prejudice
and the BIA committed no errors of law in that ruling, we deny
Dorce's petition for review.
I.
Dorce was born in Haiti in 1996 and moved to the United
States as a lawful permanent resident in 2000. He lived in Florida
with his grandmother for many years before moving to Massachusetts
to live with his father around 2011. After periods of
homelessness, Dorce eventually moved in with Stacey Fragile, his
(now former) girlfriend with whom he now has two U.S.-citizen
children.
Shortly after turning 18, Dorce committed serious
criminal acts. On July 27, 2018, Dorce was convicted following a
jury trial in the Brockton, Massachusetts District Court of
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carrying a firearm without a license, in violation of Mass. Gen.
Laws ch. 269, § 10(a).1 Dorce, then aged 20, had posted a video
on social media of himself brandishing a firearm and claiming to
have shot at an occupied residence on New Year's Eve 2016 after he
was involved in a fight at that residence. Someone had, in fact,
shot at the residence a couple hours before Dorce posted the video
on social media. Dorce was sentenced to two years in prison.
In April 2019, Dorce was served a Notice to Appear
("NTA") that charged him as removable under 8 U.S.C.
§ 1227(a)(2)(C) based on his firearm conviction. He was
transferred to the custody of the Department of Homeland Security
and detained at the Plymouth House of Corrections in Massachusetts
for the duration of his removal proceedings.
In August 2019, Dorce admitted the factual allegations
in the NTA, and the IJ sustained the charge of removability against
1 Dorce initially was charged with seven counts:
(1) carrying a firearm without a license, Mass. Gen. Laws ch. 269,
§ 10(a); (2) possessing ammunition without a FID card, id.§ 10(h)(1); (3) carrying a loaded firearm without a license, id.
§ 10(n); (4) assault with a dangerous weapon, Mass. Gen. Laws ch.
265, § 15B(b); (5) malicious destruction of property, Mass. Gen.
Laws ch. 266, § 127; (6) malicious damage to a motor vehicle, id.§ 28(a); and (7) discharging a firearm within 500 feet of a
building, Mass. Gen. Laws ch. 269, § 12E. He was acquitted of
counts two, four, five, and six, and counts three and seven were
dismissed.
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him.2 The IJ also found Dorce may be prima facie eligible for
various forms of relief from removal, including asylum and
cancellation of removal for lawful permanent residents. Dorce,
who was pro se before the IJ, filed applications for asylum, 8
U.S.C. § 1158, withholding of removal, id. § 1231(b)(3),
protection under the Convention Against Torture, 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(1), and cancellation of removal, 8
U.S.C. § 1229b(a), at a September 30, 2019 hearing.3
The IJ told Dorce at the September 30 hearing that his
merits hearing would be held on December 4, 2019. The IJ also
informed Dorce that he "can have anybody come in and speak on [his]
behalf for either one of [his] applications." The IJ explained:
[T]he cancellation application is, like, a
scale. . . . On one side's going to be all
the positive factors in your case, such as
your length of time, how old you were when you
first came to the United States, what family
members you have here, things you may have
done for your community, against the negative
side, which would be the seriousness of your
criminal history, how recent it is, whether
you've shown rehabilitation. . . .
[B]asically, whichever way that scale tips, is
the way the Court rules . . . .
2 Dorce had at least two earlier appearances by
videoconference before the IJ, where the IJ continued Dorce's
proceedings to give him time to obtain counsel.
3 Dorce's petition concerns only the cancellation of
removal application.
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The same day, the immigration court mailed written
notice of the December 4 hearing to Dorce at his Plymouth address.
Dorce admits he received that notice.
The record shows that on November 27, 2019, the
immigration court mailed another notice to Dorce at the same
address, stating that his merits hearing was now scheduled for
December 19, 2019.
A. Merits Hearing
Dorce was present at his December 19 hearing. He never
stated to the IJ that he had not received prior notice of that
hearing, nor did he lodge an objection on that basis. Dorce also
did not ask for additional time to gather witnesses to testify on
his behalf. He told the IJ that "[his] father was supposed to
come, and [his] uncle," and that he did not know where they were.
The IJ asked Dorce why Fragile, the mother of his children, was
not present and Dorce responded: "She was supposed to be. I don't
know what happened. She told me she would come."
Dorce relied on his own testimony (and a few exhibits),
which was developed through questioning by the IJ and government
counsel. Dorce testified primarily about his U.S.-citizen
children, his history with unemployment and homelessness, his
community service, the circumstances of his firearm conviction,
and the classes he took in prison.
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After hearing Dorce's testimony, the IJ rendered an oral
decision denying Dorce's application for cancellation of removal
as a matter of discretion and his other applications on the merits.
The IJ found Dorce generally credible with one critical exception:
the IJ had "issue and concern regarding [Dorce's] truthfulness and
candor regarding his criminal conduct and the circumstances
surrounding his criminal offense." The IJ denied his cancellation
of removal application because she found that Dorce's negative
factors outweighed the positive.
The IJ acknowledged that Dorce had "positive factors" in
his case, including his community service, his residence in the
United States for many years, and his two U.S.-citizen children.
She found these factors "undercut by the fact that [Dorce is] not
on the birth certificate for the children, the children are
receiving Government benefits, [and Dorce has] not provid[ed] for
the . . . children." Further, the IJ found Dorce's "conviction
for possession of a firearm without a proper license to be a very
serious offense, and weigh[ed] this as a very significant adverse
factor." This was based on the IJ's finding that Dorce,
at minimum, took a video in which he
brandished a firearm, portrayed that he had
gone back to a party after having an
altercation at the party, and shot the
residence with the firearm. . . . [Dorce]
had a nine-millimeter handgun in the video.
He took the magazine out of the handgun,
tipped the camera down to video that the
magazine was empty, and indicated that it did
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not matter that he had run out of bullets while
shooting, that he was going to get some more
and go back.
The IJ also pointed to evidence in the record that Dorce
had been associated with a gang, specifically the Zoe Pound Gang.
Dorce made a Facebook post stating "Zoe Gang or no gang," which
was "interestingly deleted shortly after the criminal
investigation occurred after the shooting on New Year's Eve." The
IJ ordered Dorce removed to Haiti. He was deported in 2021.
B. Appeal to the Board of Immigration Appeals
Dorce filed a pro se appeal to the BIA in December 2019.
He again did not make any assertion of the alleged lack of notice
of his rescheduled notice hearing or present any arguments on that
basis. Dorce did not raise his lack-of-notice claims until his
counseled brief to the BIA, which was submitted with declarations
from himself, his father, his uncle, his sister, and Fragile.
Dorce stated in his declaration that "[f]our witnesses
planned to testify for [him] at [his] deportation hearing on
December 4, 2019" and that he "was really confused when [his]
hearing never happened that day." He said his father and uncle
went to the court on December 4 and were told that Dorce "wasn't
there and that the hearing wasn't going to happen."
Dorce asserted in his declaration that about a week after
December 4, he had an undocumented, ex-parte videocall with his
IJ, during which the IJ allegedly told Dorce that his December 4
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hearing was postponed due to a scheduling error and that she
"didn't know yet when [his] hearing would be, but that the
[Immigration and Customs Enforcement] officers would bring [Dorce]
a paper to let [him] know." Dorce stated in the declaration that
he did not receive written notice after that videocall, so he
called the immigration court on or around December 16 for his new
hearing date, which was December 19. Dorce stated that he then
called his sister to have her arrange for his witnesses to come to
the immigration court to testify on December 19, but none of his
witnesses did so.
The declarations of his family and Fragile set forth the
testimony the declarants allegedly would have given had they
attended Dorce's merits hearing.4
4 The witness testimonies that Dorce would have presented,
according to the declarations he submitted, are as follows:
Dorce's father would have testified that Dorce "is a
good guy. A quiet guy. He's not a trouble guy." Dorce's father
provided no examples or explanation for why he believed that was
so.
Dorce's uncle would have testified that he lived with
Dorce in Florida when Dorce was young and that Dorce "was always
a good kid. . . . He didn't get into a lot of trouble at school."
Dorce's uncle also would have testified that Dorce "has been in
trouble with the law once in his life . . . because he was trying
to show that he was tough to other some other [sic] kids." Dorce's
uncle would have said Dorce "deserves a second chance." The
declaration does not give specific details to explain why he
believes that was so.
Fragile would have testified that Dorce "has really
created a bond with [her] family," and that his children miss him.
She would have told the judge "why [she] know[s] that [Dorce] isn't
dangerous." The declaration does not elaborate as to why Fragile
believed that was so.
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The BIA "reviewed the declarations submitted" and
rejected Dorce's lack-of-notice claims.5 It determined that Dorce
failed to rebut the presumption of notice:
The record reflects that the notice for the
December 19th hearing was mailed to the
respondent. There is no indication in the
record of proceeding that it was undeliverable
or that the respondent notified the
Immigration Judge at the hearing that he had
not received the notice and that he was
unprepared to proceed with his case.
Moreover, the hearing notice was dated
November 27, 2019, more than a week before the
alleged video call with the Immigration Judge.
Thus, if such video call had taken place, it
is not credible that the Immigration Judge was
not aware that the hearing had been
rescheduled. The respondent has therefore not
established any procedural error by the
Immigration Judge.
The BIA also rejected Dorce's claim that he was
prejudiced by the alleged lack of notice, stating it was "not
persuaded of any prejudice likely affecting the outcome of these
proceedings." The BIA stated it had "reviewed the declarations
submitted by [Dorce's] father and uncle on appeal and [did] not
find that they offer[ed] any additional or meaningful information
Dorce's sister never intended to testify, though she
submitted a declaration describing her efforts to coordinate
witnesses to testify at Dorce's hearing and the effect of the
change of date. Dorce did not proffer any declaration by his
sister at his merits hearing.
5 Although Dorce failed to raise the lack-of-notice issue
with the IJ, the BIA reached the merits of that claim. There is
no jurisdictional bar to our reviewing the BIA's denial of it.
See Peulic v. Garland, 22 F.4th 340, 352 n.9 (1st Cir. 2022).
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that was not already considered by the Immigration Judge or that
would offset the negative factors in [Dorce's] case to merit
relief." Rather, the BIA found those declarations "merely
offer[ed] generalized statements that [Dorce] is a 'good guy' and
request[ed] that he be given a second chance . . . ." And as to
Fragile's declaration, the BIA found that it did not "offer any
specific details that [would] contravene[] the Immigration Judge's
finding" or would add to the discussion of Dorce's criminal
conviction.
The BIA held that, in light of "the deficiencies with
the declarations," the proposed witness testimonies would not
likely have changed the outcome of Dorce's proceedings. The agency
added that the IJ's discretionary denial of Dorce's application
for cancellation of removal was correct because Dorce's
"undesirability as a permanent resident outweigh[ed] the favorable
factors and the social and humane considerations presented on his
behalf."
Dorce has petitioned this court for review of the BIA's
affirmance of the denial of cancellation of removal.
II.
Here, our "focus[ is] on the decision of the BIA as
opposed to that of the IJ." Pulisir v. Mukasey, 524 F.3d 302, 307
(1st Cir. 2008). We review the legal and constitutional issues de
novo, "but with some deference to the agency's reasonable
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interpretation of statutes and regulations that fall within its
sphere of authority." Jianli Chen v. Holder, 703 F.3d 17, 21 (1st
Cir. 2012). And we review the BIA's factual findings for
substantial evidence. See Mazariegos-Paiz v. Holder, 734 F.3d 57,
64 (1st Cir. 2013). The substantial evidence standard "requires
us to accept the agency's factual findings . . . unless the record
is such as to compel a reasonable factfinder to reach a contrary
conclusion." Id. (emphasis added).
We turn directly to the BIA's lack of prejudice holding
because it is dispositive of all Dorce's constitutional,
statutory, and regulatory claims in his petition.6 Dorce has
conceded that a showing of prejudice is necessary for all those
claims, as that is what he argued to the BIA. See, e.g.,
Gomez-Abrego v. Garland, 26 F.4th 39, 47 (1st Cir. 2022) (noting
that "arguments not made before the BIA may not make their debut
in a petition for judicial review of the BIA's final order"
(quoting Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir. 2010))).
Dorce raises several claims of legal error as to the
BIA's no-prejudice holding. None has any merit.
Dorce first argues the BIA failed to consider the entire
record in determining that Dorce had not shown prejudice. We
6 Dorce's argument that the BIA improperly overlooked his
statutory and regulatory claims lacks merit. His due process claim
overlaps with his statutory and regulatory arguments, and all turn
on the BIA's no-prejudice finding.
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review this claim de novo and, even under this standard, we
conclude the BIA opinion did not ignore anything of relevance. To
the contrary, the BIA decision was explicit that it considered the
proffered declarations, as it expressly said so. In fact, the BIA
even expressly stated that it considered their contents, such as
the representation that one declarant would testify about how Dorce
"is a 'good guy,'" while another would testify to the events
surrounding Dorce's firearm offense (albeit not as an eyewitness
to them).
The BIA "is not required to dissect in minute detail
every contention that a complaining party advances." Raza v.
Gonzales, 484 F.3d 125, 128 (1st Cir. 2007). Rather, the agency
need only "articulate[] its decision in terms adequate to allow a
reviewing court to conclude that the agency has thought about the
evidence and the issues and reached a reasoned conclusion." Id.Here, the BIA has done just that, and nothing more was required of
it.7 There is no legal requirement that the BIA also evaluate or
presume that Dorce's proposed witnesses would have testified to
matters beyond what their declarations said they would.
7 Unlike in Dor v. Garland, 46 F.4th 38 (1st Cir. 2022),
which dealt with the unrelated issue of whether the Board applied
the relevant legal factors in coming to a particularly-serious-
crime conclusion, here the Board applied the law to the facts in
a manner that provides a "sufficiently rational explanation" for
this Court to review. Id. at 49.
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Further, there is no merit to Dorce's argument that the
BIA committed legal error by using an incorrect prejudice standard.
The BIA correctly identified the prejudice inquiry as asking
whether the alleged lack of notice was "likely to have affected
the outcome of the proceedings," citing Zhou Zheng v. Holder, 570
F.3d 438, 442 (1st Cir. 2009). Dorce argues the BIA nonetheless
applied a heightened standard, pointing to the BIA's statement
that it could not "determine that the additional testimonies of
[Dorce]'s family members would have been sufficient to offset the
serious, negative factors in this case" (emphasis added). This
argument fails.
The BIA stated it reviewed Dorce's proffered
declarations and did not see them as providing the kind of evidence
"likely to have affected the outcome of the proceedings." Pulisir,
524 F.3d at 311. It explicitly concluded that the declarations
failed to "offer any additional or meaningful information that was
not already considered by the Immigration Judge or that would
offset the negative factors in [Dorce's] case to merit relief"
(emphasis added), without thereby assuming the witnesses would
only repeat the words in their declarations rather than testify to
the substance of them.
This leaves Dorce's argument that the record compels a
conclusion as to prejudice contrary to the one the BIA reached.
Dorce accepts that he has the burden to make the case that he was
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prejudiced. The declarations he proffered to the BIA fail, on our
deferential review of the BIA's no-prejudice finding, to meet this
burden. The generalized statements by the declarants about what
they would testify do not suffice to compel the conclusion that
the alleged notice violation was likely to have affected the
outcome of his removal proceedings.
The record supports the BIA's conclusion that the
declarations failed to "offer any additional or meaningful
information" that could suggest Dorce's negative factors --
including his very serious firearms conviction -- were not as
concerning as they otherwise appeared to be. The declarations
merely repeat, broadly, Dorce's testimony and state generally that
he is a "good guy."
Finally, Dorce has not met his burden to show prejudice
as to his more particularized claim that the agency should have
documented his purported ex-parte videocall with his IJ. Dorce
accepts that he must show prejudice from this alleged violation,
if it even occurred, as he did not argue that he was not required
to show such prejudice in presenting the claim to the BIA. He is
unable to make such a showing.
The prejudice Dorce identifies solely is his ability to
prove he was deprived of notice, as he contends that if he could
show that the ex-parte hearing occurred (which he could do if the
agency had put the hearing in the record), then he could show that
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he could rebut the presumption of delivery of notice. That line
of reasoning misses the point. The notice claim, as Dorce
presented it to the BIA, has merit only if he can show prejudice
following from the denial of notice. Nothing about the alleged
ex-parte hearing with the IJ as described by Dorce (if placed on
the record) would have enhanced Dorce's ability to show that even
with his prior conviction, he was deserving of cancellation of
removal.
III.
The petition for review is denied.
-Dissenting Opinion Follows-
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LIPEZ, Circuit Judge, dissenting. Petitioner Ritch
Cardy Dorce, a citizen and native of Haiti, claims that he was
denied a full and fair opportunity to prove that he is entitled to
relief from removal because he did not receive written notice of
his rescheduled immigration hearing, in violation of his
statutory, regulatory, and constitutional rights. Based primarily
on the lack of timely notice, he argues that he is entitled to
reconsideration of his request for cancellation of removal. In
denying Dorce's petition, the majority disregards a significant
legal error by the Board of Immigration Appeals ("BIA") -- its
failure to apply the proper analysis to Dorce's notice claim. My
colleagues then accept the BIA's inadequately reasoned conclusion
that Dorce suffered no prejudice from his asserted lack of notice.
Based on my review of the record and the applicable law, I believe
this panel should grant Dorce's petition for relief and remand the
case to the BIA for further proceedings. I therefore dissent from
my colleagues' refusal to do so.
I.
A. Factual Background
Dorce arrived in the United States at age four and was
a lawful permanent resident for sixteen years before the incident
that led to his removal proceedings. On December 31, 2016, when
Dorce was twenty, someone fired a handgun at a house where a New
Year's Eve party was taking place. Dorce admitted attending the
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party with a friend but claimed that he left after he was involved
in a fight and was not present when the shots were fired at the
house. Later that night, however, Dorce posted a video of himself
on social media (Snapchat) in which he was holding the gun
supposedly used in the shooting and claimed to be the individual
who had fired at the house. Dorce later testified that this claim
was untrue, that his friend had given him the gun,8 and that he
was simply "trying to get brownie points for something [he] didn't
do." He also testified -- when questioned about his contention
that the gun was unloaded -- that he knew how to remove the gun's
magazine and check the chamber because he had seen it done in
movies.
Dorce was charged with seven offenses stemming from the
New Year's Eve incident. Two charges were dismissed, and the jury
acquitted him on four others: possessing ammunition without a
license, assault with a dangerous weapon, malicious destruction of
property, and malicious damage to a vehicle. On the single count
of conviction, carrying a firearm without a license, Dorce was
sentenced to a two-year term of imprisonment.
The record indicates that, before his arrest, Dorce led
a difficult but lawful life in the United States. Dorce spent his
Dorce testified that his friend came to his home after Dorce
8
had left the party, showed him the gun, and claimed that he "had
taken care of" the situation for Dorce, an apparent reference to
Dorce's involvement in the fight at the party.
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early years with his grandmother in Florida before moving to
Massachusetts at fifteen to live with his father. According to
Dorce, he stayed with his father and his father's girlfriend only
a short time before he moved out because they fought often and he
was afraid to be in their home.9 He became homeless, at times
staying outdoors and at times staying in shelters or with friends.
Despite his own housing challenges, he volunteered to assist senior
citizens at a housing complex and helped at local homeless
shelters. During this period, he began a long-term relationship
with a U.S. citizen, Stacey Fragile, with whom he had two children,
the first when he was eighteen and the second when he was twenty-
one. Although Dorce did not provide financial support to his
children because he had little employment, he claims to have a
close relationship with them. During his incarceration, Dorce
completed a variety of rehabilitation programs, earned his high
school equivalency diploma, and participated in a parents' support
group.
Immediately upon his release from state custody in July
2019, Dorce was detained by Immigration and Customs Enforcement
("ICE") and charged with removability for having been convicted of
a firearms offense. See 8 U.S.C. § 1227(a)(2)(C).
At his merits hearing, Dorce testified that his father's
9
girlfriend asked him to leave because he was not "getting along
with her."
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B. Preliminary Immigration Proceedings
Through the summer and fall of 2019, Dorce appeared
multiple times before an Immigration Judge ("IJ"). At his first
two appearances, on July 25 and August 14, both by videoconference,
the proceedings were continued so that Dorce could obtain counsel.
On August 29, even though the attorney whom Dorce expected did not
appear, the IJ went forward with the proceedings, sustained the
charge of removability, and reset Dorce's case for September 19 so
that he could file applications for cancellation of removal and
relief based on his fear of returning to Haiti.
On September 19, the IJ again reset the matter because,
she explained, "some sort of scheduling error" had resulted in
Dorce's appearance by videoconference instead of in person. On
September 30, Dorce appeared in person and submitted his
applications for relief. The IJ advised him that his final hearing
would be held on December 4 and that he would have the opportunity
at that hearing to present witnesses "who can talk about positive
things you've done or any testimony from anyone that you want me
to hear."
Dorce claims that he expected four witnesses to appear
on his behalf on December 4: his father, uncle, cousin, and
Fragile, his former girlfriend and mother of his children. His
father and uncle later submitted declarations stating that they
went to the immigration court that day, but no hearing occurred.
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As it turns out, a notice was mailed to Dorce on November 27
rescheduling his hearing to December 19. Dorce maintains that he
never received that notice.10 Rather, he claims that sometime
between December 10 and 12 (or roughly in that timeframe) he met
via videoconference with the IJ, who explained that he had not
been brought to court on December 4 because of a scheduling error.
According to Dorce, the IJ told him that she did not know his next
hearing date, but that he would receive written notice from ICE.
No evidence of this conversation, other than Dorce's report,
appears in the administrative record.
Dorce claims that he first learned that his hearing had
been rescheduled to December 19 when he called the immigration
court's 1-800 number on December 16, having not received written
notice. He says that he then called his sister, who had
coordinated the witnesses for December 4, but she stated in her
later declaration that three days was not enough time for the
witnesses to make arrangements to attend the rescheduled hearing.
C. Merits Hearing
On December 19, still pro se, Dorce appeared in person
for his final hearing. When the IJ asked if he had any additional
10 A copy of the notice in the record indicates that it was
"SERVED BY[] MAIL" to Dorce "c/o Custodial Officer" at the Plymouth
County Correctional Facility. In his brief, Dorce states that he
saw the notice for the first time when the administrative record
was submitted to this court.
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documents for the court, he responded, "Oh, my father was supposed
to come, and my uncle, but I don't know if they're here yet." The
IJ instructed the court officer to check the hallway, and when the
officer indicated that no one was there, the IJ proceeded with the
hearing. Dorce said nothing about a lack of adequate notice or
that the rescheduling might have affected his witnesses' ability
to attend.
The IJ questioned Dorce about his personal background
and family relationships in the United States, his fear of
returning to Haiti, and the firearms incident. She then turned
the questioning over to government counsel, who further delved
into Dorce's actions at the New Year's Eve party and pressed him
on his seeming familiarity with the handgun he held in the video.
The government also questioned Dorce about his relationship with
Fragile and asked why she was not at the hearing. Dorce responded
that "[s]he was supposed to be here."
When the government completed its questioning, the IJ
asked the court officer to check the hallway again "to see if
anybody is outside for Mr. Dorce's case," but, again, no one was
there. The IJ asked Dorce if he had anything to add to his
testimony before she took his case under advisement, and he
emphasized that he had matured since the New Year's Eve incident.
He stated that both he and his children had been hurt by the
separation while he served his sentence and then was detained by
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ICE. The IJ asked if Dorce remained in touch with Fragile, and
when he responded affirmatively, the IJ asked why she had not
attended the hearing. Dorce again responded: "She was supposed to
be [here]. I don't know what happened. She told me she would
come." Prompted by the IJ, Dorce elaborated on his relationship
with Fragile and his children and concluded with the explanation
that he was presently "trying to . . . prove to my family and
Stac[e]y that I'm a changed person. That I'm not the same person
that was doing and thinking stupid things."
D. The IJ's Decision
In an oral ruling rejecting Dorce's requests for relief,
the IJ emphasized her skepticism concerning Dorce's account of the
New Year's Eve incident. Although the IJ found that Dorce was
overall a credible witness who "answered questions responsively
and candidly for the most part," she found "implausible" his
testimony that he "handled a firearm for basically the first time"
that night and was able to remove the magazine and check the
chamber for a bullet "simply because he watched it done in movies."
The IJ explained that, because of her "finding that [Dorce] gave
implausible testimony and minimized some of his criminal conduct
concerning [the firearms] offense," she would give less weight to
"certain testimony of [Dorce] concerning . . . that offense."
The IJ then considered each of Dorce's requests for
relief. In rejecting his application for cancellation of removal
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as a matter of discretion, the only ruling Dorce challenges on
appeal, the IJ reviewed "the positive factors present against the
negative factors." The IJ noted the positive factors of Dorce's
community work and family support, but she weighed his firearms
offense "as a very significant adverse factor." Although the IJ
considered his two U.S.-citizen children as "positive equities,"
she pointed out that Dorce is not listed on their birth
certificates and had not contributed financially to their support.
The IJ also noted a Facebook post by Dorce as "some evidence" of
gang association.11 The IJ concluded, on balance, that the adverse
factors outweighed the positive factors.
E. The BIA's Decision
In his appeal to the BIA, Dorce, now represented by
counsel, primarily argued that he was denied a fair hearing on his
applications for relief because he was not given proper notice of
The post stated "Zoe life, Zoe gang or no gang." When asked by
11
government counsel, "Why'd you write that if you're not a Zoe Pound gang
member," Dorce responded that "[i]t means Haitian over everything." There
is some support for Dorce's response in current usage. See Zoe Pound, Urban
Dictionary, https://www.urbandictionary.com/define.php?term=Zoe%20Pound
(last visited Sept. 20, 2022) (noting that Zoe Pound is "[a] very ruthless
gang that originates with Haitian[] immigrants," but that "[t]he word Zoe by
itself means somebody that is of Haitian de[s]cent" and that "[m]any Zoe
Pound members do not view themselves as gang members, but view themselves as
a group standing up for their Haitian people"). However, the IJ "d[id] not
credit" Dorce's explanation that the comment did not indicate an association
with the gang. The record contains no other evidence of gang involvement by
Dorce.
- 23 -
his December 19 hearing and learned of the date only three days in
advance, when he took the initiative to call the immigration
court's 1-800 number. The lack of adequate notice was prejudicial,
he asserted, because none of his witnesses could arrange to attend
his hearing on such short notice. Accordingly, Dorce argued, his
removal proceedings were "fundamentally unfair, in violation of
his statutory and due process rights, because [the notice error]
essentially prevented him from presenting evidence in support of
his claims."
Along with his brief and his own declaration, Dorce
submitted declarations from his father, sister, uncle, and Fragile
that generally described the testimony they would have provided in
support of his applications for relief. In various ways, each
emphasized that Dorce's criminal conviction did not reflect his
true character. His uncle noted that "[h]e made a bad choice once"
and "deserves a second chance." His sister and father described
him as "a good guy" who wanted to remain in the United States so
that he could support and care for his children. Fragile stated
that she planned to testify about his relationship with his family,
including "how important it is that he gets to be here for our
children," and about "all the steps that [Dorce] has made to obtain
his education and to learn to be able to earn an income." She
also stated that she "would have been able to testify about his
- 24 -
criminal conviction" and "could have explained to the judge why
[she] knew that [Dorce] isn't dangerous."
Dorce's sister and Fragile also emphasized that the late
notice of the changed hearing date was problematic. Fragile
explained that she needed more than three days "to take time off
from work and school and find childcare," and Dorce's sister stated
that "[e]verybody works -- there was no way for them to get time
off from their jobs in time for them to make it to that hearing."
Dorce's sister also stated that her brother had told her about the
"video court hearing" that took place "[a] few days" after December
4, when Dorce said he had "talked to the judge" but still did not
know when his next hearing would be.
In rejecting Dorce's lack-of-notice claim, the BIA
described as "inconsistent to the evidence in the record" both his
assertion that he did not learn the date of his rescheduled hearing
until he called the immigration court and his description of the
video call with the IJ. The BIA pointed out that Dorce had not
notified the IJ at the December 19 hearing "that he had not
received the [mailed] notice and that he was unprepared to proceed
with his case." The BIA further noted that the hearing notice had
been sent more than a week before Dorce claimed to have spoken
with the IJ and, hence, "if such video call had taken place, it is
not credible that the Immigration Judge was not aware" of his next
- 25 -
hearing date. The BIA thus concluded that Dorce had not shown
that a procedural error occurred.
Despite finding no error, the BIA went on to cursorily
suggest that even if he was denied the opportunity to present
witness testimony at the hearing, he suffered no prejudice. The
BIA stated that the declarations from Dorce's father and uncle
failed to provide "any additional or meaningful information that
was not already considered by the Immigration Judge or that would
offset the negative factors" in his case. It discounted Fragile's
declaration because she provided no details concerning the
information she would have offered on the criminal conviction and
Dorce's relationship with his children. Given these
"deficiencies" in the declarations, the BIA found no basis for
concluding that the testimony of Dorce's potential witnesses would
have offset "the serious, negative factors in this case."
II.
Dorce argues that a lack of notice that his merits
hearing had been changed from December 4 to December 19 -- until
he called to inquire -- prevented him from presenting witness
testimony that was likely to have made a difference in the IJ's
balancing of the equities in his case. I begin with the notice
issue before turning to the question of prejudice. Although Dorce
frames his notice argument in constitutional, statutory, and
regulatory terms, and the BIA expressly addressed the claims as a
- 26 -
matter of due process, I anchor my analysis solely in the
requirements of the Immigration and Nationality Act ("INA"). See
Aponte v. Holder, 610 F.3d 1, 5 (1st Cir. 2010) (noting that
"courts should not decide constitutional issues when this can be
avoided" (quoting United States v. Vilches-Navarrete, 523 F.3d 1,
9 n.6 (1st Cir. 2008))).
A. Legal Background
The INA provides noncitizens with certain procedural
protections in their removal proceedings. They are entitled to
written notice of "[t]he time and place at which the proceedings
will be held," 8 U.S.C. § 1229(a)(1)(G)(i), and written notice of
a change or postponement of a scheduled proceeding, see id.§ 1229(a)(2)(A)(i). The INA specifies that these notices be given
in person, but "if personal service is not practicable," notice
may be given "through service by mail" to either the noncitizen or
his counsel of record. See id. §§ 1229(a)(1), 1229(a)(2)(A). The
INA also grants a noncitizen "a reasonable opportunity . . . to
present evidence on [his] own behalf." Id. § 1229a(b)(4)(B).
Of particular relevance to this case, there is a
presumption, established through judicial and administrative
caselaw, "that, in the absence of evidence to the contrary, a
notice provided by a government agency is deemed to have been
placed in the mail on the date shown on the notice and received
within a reasonable time thereafter." Loubriel v. Fondo del Seguro
- 27 -
del Estado, 694 F.3d 139, 143 (1st Cir. 2012); see also Matter of
M-R-A-, 24 I. & N. Dec. 665, 671 (BIA 2008) ("We have recognized
that '[a] letter properly addressed, stamped and mailed is presumed
to have been duly delivered to the addressee.'" (alteration in
original) (quoting Matter of M-D-, 23 I. & N. Dec. 540, 546 (BIA
2002))). For items sent via certified mail -- a service that
provides proof of delivery or attempted delivery -- there is "a
'strong presumption' of effective service," and rebutting the
presumption requires "substantial and probative evidence." Matter
of M-R-A-, 24 I. & N. Dec. at 672 (quoting Matter of Grijalva, 21
I. & N. Dec. 27, 37 (BIA 1995)).12 A weaker presumption attaches
when items are sent by regular mail. See id. at 673; see also
Kozak v. Gonzáles, 502 F.3d 34, 36 (1st Cir. 2007) (explaining
that the stronger presumption of effective service that applies to
certified mail does not apply to regular mail).
In Matter of M-R-A-, the BIA concluded that "when a
respondent seeks to reopen proceedings based on a claim of lack of
receipt of notice" sent by regular mail, "the question to be
determined is whether the respondent has provided sufficient
evidence to overcome the weaker presumption of delivery." 24 I.
12Before 1997, the INA required that hearing notices be served
in person or sent by certified mail. See Kozak v. Gonzáles, 502
F.3d 34, 36 (1st Cir. 2007). Under current law, notices may be
served by regular mail. See id. (citing 8 U.S.C. § 1229(a)(1)).
- 28 -
& N. Dec. at 673.13 Drawing from the precedent of multiple
circuits, including our court's decision in Kozak, the BIA went on
to hold that "all relevant evidence submitted to overcome the
weaker presumption of delivery must be considered." Id. at 674.
The BIA cautioned against "[a]n inflexible and rigid application
of the presumption of delivery . . . when regular mail is the
method of service of a Notice to Appear or Notice of Hearing," and
it provided a list of non-exclusive factors to be considered:
(1) the respondent's affidavit; (2) affidavits
from family members or other individuals who
are knowledgeable about the facts relevant to
whether notice was received; (3) the
respondent's actions upon learning of the in
absentia order, and whether due diligence was
exercised in seeking to redress the situation;
(4) any prior affirmative application for
relief, indicating that the respondent had an
incentive to appear; (5) any prior application
for relief filed with the Immigration Court or
any prima facie evidence in the record or the
respondent's motion of statutory eligibility
for relief, indicating that the respondent had
an incentive to appear; (6) the respondent's
previous attendance at Immigration Court
hearings, if applicable; and (7) any other
circumstances or evidence indicating possible
nonreceipt of notice.
13In both Matter of M-R-A- and Kozak, the specific issue was
the showing required of a noncitizen who seeks to reopen
proceedings based on lack of notice after having failed to appear
for an immigration hearing in which the IJ ordered removal in
absentia. See Matter of M-R-A, 24 I. & N. Dec. at 666-77, 673-
74; Kozak, 502 F.3d at 35-36. With respect to the presumption
afforded to the agency's mailings, I see no reason to limit the
principle to the precise factual situation of in absentia removal.
Here, as in the context of in absentia removal, the question is
whether the noncitizen received a mailing from immigration
authorities.
- 29 -
Id. The BIA emphasized that these factors are merely illustrative
and that "[e]ach case must be evaluated based on its own particular
circumstances and evidence." Id.
B. Notice to Dorce
As described above, the BIA rejected Dorce's notice
claim on the ground that his account of what happened was
"inconsistent to the evidence in the record." The BIA cited three
factors to demonstrate the inconsistency: (1) the absence of
evidence that the written notice of the rescheduled hearing, which
the record indicated had been mailed to Dorce on November 27, was
undeliverable; (2) Dorce's failure to tell the IJ "that he had not
received the notice and that he was unprepared to proceed with his
case," and (3) the implausibility of Dorce's report that the IJ
did not know the new hearing date at the time of the claimed video
call.
I focus primarily on the first of these rationales,
albeit briefly addressing the other two as well. In citing the
lack of evidence that Dorce's rescheduling notice was
undeliverable, I understand the BIA to be invoking the presumption
that a properly addressed mailing reaches the addressee in due
course. See supra. Apparently to support relying on the
presumption, the BIA noted that Dorce did not raise the notice
issue at his hearing. However, there is no indication in its
opinion that the BIA complied with the directive in Matter of M-
- 30 -
R-A- to evaluate "all relevant evidence" to determine whether the
presumption of mail delivery has been rebutted. 24 I. & N. Dec.
at 674. Multiple facts unremarked upon by the BIA warranted
attention in its analysis. See Sihotang v. Sessions, 900 F.3d 46,
51 (1st Cir. 2018) ("While it remains true that the BIA need not
'dissect in minute detail every contention that a complaining party
advances,' it cannot turn a blind eye to salient facts." (citation
omitted) (quoting Xiao He Chen v. Lynch, 825 F.3d 83, 88 (1st Cir.
2016))).
First, the BIA did not acknowledge that the IJ found
Dorce to be generally a credible witness who "answered questions
responsively and candidly for the most part," the exception being
his account of "his criminal conduct and the circumstances
surrounding his criminal offense." Indeed, the IJ stated that
"this record would not support an adverse credibility finding."
Further, the record is consistent with Dorce's assertion that he
did not see the November 27 notice until his attorney obtained the
administrative record to prepare his petition for review. Unlike
the record copy of the notice for the December 4 hearing -- which
is stamped as an exhibit dated December 19 -- the copy of the
November 27 notice does not contain a date stamp. Although that
difference obviously does not prove that the rescheduling notice
- 31 -
never reached Dorce via mail delivery,14 it is a relevant factor
in assessing the credibility of his assertion.
Second, the BIA did not address the evidence showing
Dorce's diligence in preparing for the December 4 hearing --
arranging, through his sister, for witness testimony -- or the
eagerness of his supporters to appear on his behalf. According to
their declarations, Dorce's father and uncle stayed at the
immigration court all day on December 4, and Fragile made an on-
the-record appearance at the proceeding held on September 19.
Dorce presumably was highly motivated to ensure his witnesses'
attendance at his hearing because he had been told expressly that
it would help his case to offer testimony from "anybody who can
talk about positive things you've done."15 Dorce's diligence and
14 Most of the documents in the record are not individually
stamped, including multiple prior notices of Dorce's scheduled
appearances in immigration court (among them, another copy of the
notice for December 4). However, the stamped December 4 notice,
with a mailing date of September 30, is chronologically the latest
notice that Dorce reports having received. The fact that it was
stamped could indicate that it was the latest one in his file at
the time of his merits hearing.
15On September 30, the IJ told Dorce that his merits hearing
would be held on December 4, explained the nature of that hearing,
and told him that he "can have anybody come and speak on [his]
behalf." The IJ explained, inter alia, that the considerations
for cancellation of removal were "like[] a scale," and then
elaborated:
On one side's going to be all the positive
factors in your case, such as your length of
time [in the United States], how old you were
when you first came to the United States, what
- 32 -
motivation, and that of his family members, is relevant in
evaluating whether their failure to appear on December 19 was
attributable to a lack of proper notice -- and thus relevant to
whether Dorce rebutted the presumption that the rescheduling
notice was "mail[ed] on the date shown on the notice and received
within a reasonable time thereafter." Loubriel, 694 F.3d at 143;
cf. Matter of M-R-A-, 24 I. & N. Dec. at 674 (giving significance
to indicia of the noncitizen's "incentive to appear").
Third, the BIA did not address Dorce's sister's
declaration, which corroborated his account of not having received
written notice of the rescheduled hearing. In her declaration,
she described two relevant phone calls with her brother: the first
when Dorce told her about his videoconference with the IJ, and the
family members you have here, things you may
have done for your community, against the
negative side, which would be the seriousness
of your criminal history, how recent it is,
whether you've shown rehabilitation.
Rehabilitation could go -- could go, really,
in either column, so if you've shown good
rehabilitation, that goes on the positive
side. If you show lack of rehabilitation,
well, that's going to go on the negative side.
And the cancellation case, basically,
whichever way that scale tips, is the way the
[c]ourt rules, so it's like a balancing of the
positives against the negatives. Okay? So
anybody who can talk about positive things
you've done or any testimony from anyone that
you want me to hear, I will hear on December
4th. Okay?
- 33 -
second "on about December 16," when he told her he had just learned
his new hearing date. Whatever its weight given the sibling
relationship, this corroboration should have been part of the BIA's
calculus in assessing the credibility of Dorce's contention that
he never received the written notice. See Matter of M-R-A-, 24 I.
& N. Dec. at 674 (including as factors relevant to whether the
presumption of mail delivery has been rebutted "the respondent's
affidavit [and] affidavits from family members or other
individuals who are knowledgeable about the facts relevant to
whether notice was received")16; cf. 8 U.S.C. § 1158(b)(1)(B)(iii)
(providing that, in making a credibility determination under the
INA, the factfinder must "consider[] the totality of the
circumstances, and all relevant factors").
Finally, the BIA did not address the evidence that Dorce
had previously experienced a significant delay in receiving
immigration documents while detained. At a hearing in August 2019,
Dorce told the IJ that documents sent to him at the Plymouth County
Although Dorce's and his family's statements are unsworn
16
declarations rather than sworn affidavits, each states that it is
"[s]igned under the pains and penalties of perjury" and, regardless
of their weight, the documents are certainly "relevant evidence"
that "must be considered." Matter of M-R-A-, 24 I. & N. Dec. at
674; cf. Lopes v. Gonzales, 468 F.3d 81, 85-86 (2d Cir. 2006) (per
curiam) ("Although an affidavit of non-receipt might be
insufficient by itself to rebut the presumption [of receipt], it
does raise a factual issue that the BIA must resolve by taking
account of all relevant evidence . . . .").
- 34 -
Correctional Facility, in a mailing dated July 3, were not given
to him until July 16 -- nearly two weeks later. Given this prior
issue with timely receiving mail, there is nothing implausible
about the November 27 notice -- presumably mailed on the day before
Thanksgiving -- having gone entirely astray in the mail-processing
system at the same detention facility. As our court previously
has observed, "[a]though most mail reaches its intended
destination, it is commonsensical that at least some does not."
Kozak, 502 F.3d at 36.17
To be sure, the BIA reasonably considered the fact that
Dorce did not tell the IJ that late notice of the new hearing date
could explain his witnesses' nonappearance. The agency's error
was, rather, to focus on that omission without also considering
the other relevant evidence in the record. In context, even
Dorce's failure to raise the notice problem permits a different
17The government notes that Dorce did not mention this
previous mail delay in his brief to the BIA and asserts that the
agency therefore cannot be faulted for failing to consider it.
According to Dorce, however, he had no knowledge of the November
27 mailing at the time he submitted his appeal to the BIA. If
that assertion is truthful, he would have had no reason to discuss
the mailing presumption. In other words, because Dorce claims
that he saw the November 27 notice for the first time when the
administrative record was filed in this case in response to his
petition for review, his argument before the BIA could not have
focused on the mailing. The agency, on the other hand, had access
to the full record and, in choosing to rely on the presumption of
delivery, was obliged to consider "all relevant evidence" in
assessing its applicability. Matter of M-R-A-, 24 I. & N. Dec. at
674.
- 35 -
inference than that drawn by the BIA. The record indicates that
Dorce believed at the outset of the hearing that his witnesses
would be arriving. Once the hearing was underway, Dorce could
have assumed that he had no choice but to proceed and that it would
not help his cause to make excuses for his witnesses'
nonappearance. The fact that he was brought to the hearing from
the detention facility -- i.e., that the government needed to make
the arrangements for him to appear -- could have added to his
reticence about interrupting the proceedings. Dorce had
previously experienced a glitch when he was mistakenly not brought
to court for a scheduled in-person proceeding, see Section I.B
supra, which could have given him reason to believe that such
appearances were difficult to arrange and that he might not be
given another opportunity to present his case.
Moreover, the BIA's third rationale for rejecting
Dorce's notice claim as "inconsistent to the evidence" -- that the
IJ would have known about the changed hearing date at the time of
the purported video call around December 10 -- is presented as an
assumption based solely on the fact that the rescheduling notice
was dated November 27.18 Although the BIA indicated some skepticism
18This gap concerning the IJ's knowledge easily could have
been filled by means of a limited remand to the IJ, who could have
either refuted or confirmed Dorce's account of the
videoconference.
- 36 -
about whether the conversation had in fact occurred -- with its
comment "if such video call had taken place" -- it did not reject
that portion of Dorce's account as incredible and instead focused
on the IJ's likely knowledge of the new date. But the BIA did not
identify any support for its assumption that once the hearing was
rescheduled, the IJ would have known the new hearing date more
than a week in advance. See Jabri v. Holder, 675 F.3d 20, 24 (1st
Cir. 2012) (noting the need for "specific and cogent reasons why
an inconsistency, or a series of inconsistencies, render the
alien's testimony not credible" (quoting Stanciu v. Holder, 659
F.3d 203, 206 (1st Cir. 2011))). For example, the BIA did not
point to any immigration court norms suggesting that, despite a
heavy caseload, the IJ would necessarily have had Dorce's new
hearing date at hand. See, e.g., Valarezo-Tirado v. Att'y Gen.,
21 F.4th 256, 263 (3d Cir. 2021) (recognizing that "the IJ and BIA
have a tremendous caseload and very crowded dockets"); Cui v.
Mukasey, 538 F.3d 1289, 1295 (9th Cir. 2008) (noting "the crowded
docket of the immigration courts").
In sum, the BIA committed legal error in failing to
consider "all relevant evidence" concerning Dorce's claim that he
did not receive the rescheduling notice. Matter of M-R-A-, 24 I.
& N. Dec. at 674. Accordingly, given that the BIA's prejudice
assessment also was flawed, as I explain below, the BIA should
have to reconsider Dorce's notice claim on remand. See Dakaj v.
- 37 -
Holder, 580 F.3d 479, 484 (7th Cir. 2009) (stating that the lack-
of-notice "determination is within the Board's province, at least
in the first instance," but that "the Board was required to
consider the[] relevant factors . . . and to explain its decision
in light of them"); see generally Aponte, 610 F.3d at 8 (observing
that "the BIA must . . . make certain that [the petitioner]
receives the full benefit of the administrative process that
Congress has elected to provide for [him]").
C. Prejudice19
In reviewing the BIA's prejudice finding, I presume --
as do my colleagues -- that the pertinent prejudice inquiry is
whether any notice violation was "likely to have affected the
Dorce argues that if he successfully rebuts the presumption
19
of properly delivered notice, he is entitled to a new hearing on
cancellation of removal without regard for whether the notice
violation was prejudicial. As the government points out, however,
Dorce presumed in his appeal to the BIA that a showing of prejudice
is necessary. The government thus argues that Dorce failed to
exhaust his contention that prejudice is not required for his
notice claim. I agree that Dorce's position before the BIA
precludes us from considering his argument that a prejudice inquiry
is unnecessary. See, e.g., Gomez-Abrego v. Garland, 26 F.4th 39,
47 (1st Cir. 2022) (noting that "arguments not made before the BIA
may not make their debut in a petition for judicial review of the
BIA's final order" (quoting Ahmed v. Holder, 611 F.3d 90, 97 (1st
Cir. 2010))). I therefore assume that Dorce was obligated to show
prejudice. However, because I believe the BIA should have been
required to revisit the question of prejudice on remand, see infra,
I also believe Dorce should have been given the opportunity to re-
assert his contention that a prejudice showing is not a
prerequisite for the new hearing he seeks.
- 38 -
outcome of the proceedings." Pulisir v. Mukasey, 524 F.3d 302,
311 (1st Cir. 2008).
As the majority recognizes, the BIA assessed prejudice
based solely on the substance of the declarations that Dorce
submitted, without considering how in-person testimony by those
witnesses -- i.e., the "evidence on [his] own behalf" that he
claims he would have presented if he had received proper written
notice, 8 U.S.C. § 1229a(b)(4)(B) -- might have affected the IJ's
weighing of factors. Declarations, however, do not capture the
benefits of live, interactive testimony by witnesses at a hearing.
There is inherent value in live testimony -- particularly such
testimony in support of a pro se litigant who has no one else
present to speak on his behalf. Indeed, it is a fundamental
premise of our adversarial legal system that in-person testimony
is the most effective way of getting at the truth of a matter --
including through a factfinder's assessment of witness
credibility.
Moreover, the value of in-person testimony is
highlighted by the facts of this case. The IJ took an active role
in questioning Dorce -- presumably because he was unrepresented at
his hearing -- and she showed a particular interest in the details
of the New Year's Eve incident and his relationship with Fragile.
Fragile's declaration clearly reveals that she had relevant
testimony to offer about Dorce's support of her and their children,
- 39 -
and she also stated that she "could have explained to the judge
why [she] knew that [Dorce] isn't dangerous." I have no doubt
that the IJ would have pressed Fragile -- as well as Dorce's other
witnesses -- on those topics.20 Indeed, the IJ had an obligation
to fully explore those highly relevant facts, particularly when
faced with a pro se applicant for relief. See Mekhoukh v.
Ashcroft, 358 F.3d 118, 129 n.14 (1st Cir. 2004) (noting that the
IJ, "unlike an Article III judge, is not merely the fact finder
and adjudicator but also has an obligation to establish the record"
(quoting Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002))); see
also Quintero v. Garland, 998 F.3d 612, 623 (4th Cir. 2021) (noting
that "every circuit to have considered the issue as well as the
[BIA]" has recognized "immigration judges' duty to develop the
record"); id. at 622 (holding that "immigration judges have a legal
duty to develop the record, which takes on particular importance
in pro se cases").21
20 Their testimony also may have reinforced Dorce's
explanation that the Facebook post noted by the IJ did not, in
fact, reflect gang membership. See supra note 11.
21 In its lengthy discussion in Quintero, the Fourth Circuit
noted that the courts and the BIA have grounded the IJ's obligation
to develop the record "principally" in 8 U.S.C. § 1229a(b)(1),
which directs IJs to "'administer oaths, receive evidence, and
interrogate, examine, and cross-examine the [non-citizen] and any
witnesses' in removal proceedings." Quintero, 998 F.3d at 623
(alteration in original) (quoting 8 U.S.C. § 1229a(b)(1)). The
court in Quintero also reported two other rationales for that
obligation. First, it observed that other circuits "have held
that immigration judges' duty to develop the record is an essential
- 40 -
It also is likely that the IJ would have elicited
elaboration from these witnesses that would have been favorable to
Dorce. This prediction is based squarely on the record. For
example, the IJ gave minimal credit to Dorce for his role as a
parent because he had not provided financial support to his
children. According to Fragile's declaration, she would have
explained the importance of his collaboration in parenting,
including providing childcare when she returned to school, and his
efforts "to obtain his education and to learn to be able to earn
an income."
The BIA also did not consider that the mere appearance
of supporting family members, even absent new information, was
likely to have advanced Dorce's position in the "balancing of the
positives against the negatives" that the IJ explained she would
be performing. As previously noted, in telling Dorce what the
merits hearing would entail, the IJ had explained the importance
of securing witnesses "who can talk about positive things you've
requirement of a full and fair hearing to which noncitizens in
removal proceedings are entitled under the Due Process Clause of
the Fifth Amendment." Id. at 623-24; see also id. at 624 (noting
that the First Circuit in Mekhoukh, 358 F.3d at 129-30,
"consider[ed] whether the petitioner's 'hearing was fundamentally
unfair because the immigration judge failed to fully develop the
record'"). Second, the Quintero panel noted that "the earliest
and most influential circuit-court decisions establishing
immigration judges' duty to develop the record [had] relied on an
analogy to the Social Security disability context, where
administrative law judges have a similar obligation." Id. at 624.
- 41 -
done." Assurances by others that the New Year's Eve incident was
aberrant behavior and that he had matured while in custody would
have corroborated Dorce's credibility on those points. As we have
previously observed in a different immigration context, "evidence
[that] is cumulative of preexisting record evidence . . . may
nonetheless be material." Perez v. Holder, 740 F.3d 57, 62 n.1
(1st Cir. 2014); cf. Amouri v. Holder, 572 F.3d 29, 36-37 (1st
Cir. 2009) (rejecting a prejudice claim where the petitioner relied
only on "vague assertions" about additional witnesses and
documents without "concrete demonstration that such witnesses and
documents existed, were not available at the hearing, and would
have supported his story").
The majority is therefore entirely mistaken when they
assert that "the BIA opinion did not ignore anything of relevance"
on the issue of prejudice. Quite to the contrary, there is no
indication in the BIA's opinion that it considered the potential
impact of in-person testimony, particularly the fact that the
presence of Dorce's family members at the hearing would have
allowed the IJ to draw them out and assess their credibility. Nor
is there any basis for reading into the BIA's opinion a
determination that in-person testimony would have made no
difference to the IJ's balancing of factors.22
22 To the extent the BIA was performing its own assessment of
the competing factors, it could not properly do so without
- 42 -
By failing to consider the impact of in-person
testimony, the BIA performed an incomplete and, hence, fatally
flawed prejudice analysis. See Dor v. Garland, 46 F.4th 38, 44
(1st Cir. 2022) (quoting Berhe v. Gonzales, 464 F.3d 74, 87 (1st
Cir. 2006)), for the proposition that "the adequacy of the Board's
reasoning is a legal question that we may review"); Rodríguez-
Villar v. Barr, 930 F.3d 24, 28 (1st Cir. 2019) ("Although the
agency is not required to discuss every piece of evidence, it must,
at a minimum, 'fairly appraise the record' and 'cannot turn a blind
eye to salient facts.'" (quoting Sihotang, 900 F.3d at 51)). Of
course, because the BIA found no notice error, it is unsurprising
that its prejudice analysis was cursory. Now, it is my
colleagues -- not the BIA -- who definitively conclude that in-
person testimony would have made no difference to the IJ in
balancing Dorce's positive and negative factors. What is more,
with that definitive conclusion, my colleagues are saying, in
effect, that in-person character testimony by people who know a
petitioner best is irrelevant to immigration proceedings. I cannot
overstate my dismay at this misguided and damaging suggestion.
Put simply, given the omissions in the BIA's analysis,
my colleagues are wrong to uphold the BIA's rejection of Dorce's
notice claim on the ground that he failed to show the requisite
considering whether elaborated, in-person testimony would
strengthen the factors in favor of Dorce's claim for relief.
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prejudice. The proper disposition is a remand. See Ali v.
Garland, 33 F.4th 47, 62-63 (1st Cir. 2022) (concluding that "the
prudent course is to vacate and remand for the BIA to address the
aspects of the record that have not been given their proper
consideration" where the record would permit a finding for the
petitioner if the omitted evidence had been addressed).23
III.
In concluding that a remand is necessary for the BIA to
reconsider Dorce's application for cancellation of removal, I am
not suggesting, as the majority intimates, that the BIA must
"dissect in minute detail every contention that a complaining party
advances." Raza v. Gonzalez, 484 F.3d 125, 128 (1st Cir. 2007).
In this case, however, the BIA not only committed legal error in
addressing Dorce's notice claim, but it also neglected to fully
consider the harm Dorce suffered in consequence of that error --
including, most significantly, the deprivation of in-person
23 Dorce asserts that the BIA also committed legal error by
using an incorrect prejudice standard, pointing to the passage in
the BIA's decision that summarizes its assessment of prejudice for
the cancellation-of-removal claim. The BIA stated that it could
not "determine that the additional testimonies of [Dorce]'s family
members would have been sufficient to offset the serious, negative
factors in this case." The government appears to acknowledge that
the "sufficient to offset" formulation could suggest a higher level
of certainty than the applicable standard of "likely to have
affected the outcome." However, as the government emphasizes, the
BIA articulated the correct standard in two other places in its
decision. I therefore view "sufficient to offset" simply as
careless language, not use of an improper standard.
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testimony on his behalf. Where the BIA's decision fails to show
that it considered important aspects of the record, we can -- and
should -- demand that it do so. See Sihotang, 900 F.3d at 51
(observing that the BIA "cannot turn a blind eye to salient
facts").
Accordingly, we should be granting Dorce's petition for
review and remanding to the BIA for reconsideration of Dorce's
claim that he did not receive written notification of his
rescheduled merits hearing and, hence, was denied his right to "a
reasonable opportunity . . . to present evidence on [his] own
behalf." 8 U.S.C. § 1229a(b)(4)(B). And, if the BIA determined
on remand that Dorce had rebutted the presumption that the
rescheduling notice was delivered, it should also be required to
revisit its incomplete prejudice determination.
Because my colleagues instead deny Dorce's petition,
improperly preventing him from fully presenting his case for
relief, I respectfully dissent.
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