Perez v. Barr , 927 F.3d 17 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-2026
ARNULFO PEREZ,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Carlos E. Estrada, Ashley M. Barkoudah, and Estrada Law
Office, on brief for petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
Kiley Kane, Senior Litigation Counsel, Office of Immigration
Litigation, and Katherine A. Smith, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
June 12, 2019
BARRON, Circuit Judge. Arnulfo Perez, a citizen of
Mexico who entered the United States without admission or parole,
petitions for review of the denial of his application for
cancellation of removal under 8 U.S.C. § 1229b(b). We dismiss the
petition for lack of jurisdiction.
I.
On April 17, 2012, the Department of Homeland Security
served Perez with a Notice to Appear and charged him with
removability under 8 U.S.C. § 1182(a)(6)(A)(i). Perez conceded
removability but filed an application for cancellation of removal
under 8 U.S.C. § 1229b(b). Perez claimed in his application that
he had lived in the United States since 1986 and that his removal
would cause undue hardship to his children, who are United States
citizens.
An Immigration Judge ("IJ") held a hearing on Perez's
application on August 29, 2016. Perez and his wife, Jennifer
Lavalley, testified at the hearing in support of his application
and submitted numerous documents. The government, for its part,
also submitted documents. Those documents showed that Perez had
two prior felony convictions -- one in 1994 for drunk driving and
one in 2000 for assault -- as well as four prior arrests. The
documents included a 2006 police report that showed that Perez had
been arrested on charges of, among other things, aggravated assault
and battery for allegedly assaulting Lavalley and a 2012 police
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report that showed that Perez had been arrested on charges of,
among other things, assault and attempted murder for allegedly
attempting to strangle Lavalley.
On September 6, 2017, the IJ issued a 32-page written
decision denying Perez's application. The IJ "assum[ed] arguendo"
that Perez met the statutory requirements for cancellation of
removal, see 8 U.S.C. § 1229b(b)(1), but found "that [Perez] has
not met his burden of proving that he merits this form of relief
as a matter of discretion." The IJ concluded that Perez's
"positive equities" -- most significantly, hardship to his
family -- "are outweighed by significant adverse
factors" -- specifically, "his history of physical abuse against
his wife" as well as "the inconsistencies in [Perez's] and
[Lavalley's] testimony[] and [his] lack of remorse or
rehabilitation." The IJ also concluded that Perez "failed to
provide adequate evidence to meet his burden of proof" in part
because the Lavalley family, whom both police reports showed "ha[d]
played an important role in fully reporting [Perez's] abusive
behavior to the police," "have been largely absent from these
proceedings." Perez timely appealed the IJ's denial of his
application for cancellation of removal to the Board of Immigration
Appeals ("BIA").
On September 20, 2018, the BIA "adopt[ed] and affirm[ed]
the decision of the Immigration Judge for the reasons stated
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therein." The BIA also rejected Perez's argument that "the
Immigration Judge improperly relied on the police reports as they
are unreliable and their use was fundamentally unfair." The BIA
concluded that "the evidence is probative, as it is relevant to
the issue of the respondent's discretionary application for
relief, and its admission is fundamentally fair as the documents
were created by government officials and there is no indication of
bias or that their contents are unreliable." Perez then filed
this petition for review.
II.
We lack jurisdiction to review "any judgment regarding
the granting of relief under [8 U.S.C. § 1229b]." 8 U.S.C.
§ 1252(a)(2)(B)(i); see also Rivera v. Sessions, 903 F.3d 147, 150
(1st Cir. 2018); Cruz-Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir.
2007). But, although we may not review the discretionary decision
that an applicant does not merit the requested relief, we retain
jurisdiction with respect to a denial of such relief to
"review . . . constitutional claims or questions of law raised
upon a petition for review." 8 U.S.C. § 1252(a)(2)(D); see also
Castro v. Holder, 727 F.3d 125, 128 (1st Cir. 2013); Santana-
Medina v. Holder, 616 F.3d 49, 52 (1st Cir. 2010). "[T]o confer
jurisdiction," however, the petitioner's "'claim of constitutional
or legal error must at least be colorable.'" Rivera, 903 F.3d at
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150 (emphasis added) (quoting Ayeni v. Holder, 617 F.3d 67, 71
(1st Cir. 2010)).
Perez's sole legal claim to us is that the BIA erred in
adopting and affirming the IJ's decision because the IJ "relied
almost exclusively on hearsay police reports in determining that
[Perez] did not warrant a favorable exercise of discretion." To
the extent that Perez means to contend that the BIA erred because
the IJ's findings gave too much weight to the police reports and
not enough weight to his and Lavalley's testimony, "well settled
First Circuit precedent" is clear that such a "challenge[] [to] a
determination about the sufficiency of the evidence to meet [the
applicant's] burden of proof" is not a "colorable legal or
constitutional claim." Fabian-Soriano v. Barr, No. 18-2052, 2019
WL 2314383, at *3 (1st Cir. May 31, 2019) (citing Ayeni, 617 F.3d
at 70-71; Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006);
Elysee v. Gonzales, 437 F.3d 221, 223–24 (1st Cir. 2006); Rashad
v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009)); see also Lima v. Lynch,
826 F.3d 606, 610 (1st Cir. 2016) (finding no colorable claim in
the applicant's contention that "the IJ should not have
found . . . police reports credible and should instead have
credited his own testimony").
To the extent that Perez means to argue that it was
legal error for the BIA to adopt the IJ's findings because the
police reports on which they were based constituted hearsay, that
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argument also fails to raise a colorable claim under our
established precedent. See Arias-Minaya v. Holder, 779 F.3d 49,
54 (1st Cir. 2015) ("[I]n reviewing requests for discretionary
relief, immigration courts may consider police reports even when
they rest largely on hearsay." (citing Henry v. I.N.S., 74 F.3d 1,
6 (1st Cir. 1996))); Matter of Grijalva, 19 I. & N. Dec. 713, 721
(B.I.A. 1988) ("Although . . . police reports here are hearsay in
nature, this does not mean that they are inadmissible in the
respondent's deportation proceedings."); Matter of Velasquez, 19
I. & N. Dec. 377, 380 (B.I.A. 1986) ("[D]ocumentary evidence in
deportation proceedings need not comport with the strict judicial
rules of evidence.").
Perez does contend that the police reports should not
have been relied upon because they documented arrests that did not
result in convictions, and he points to Sierra-Reyes v. I.N.S.,
585 F.2d 762 (5th Cir. 1978), in support of that contention. See
id. at 764 n.3 (noting in dicta that certain "police reports were
not probative of anything and should not have been considered as
'adverse factors'" where the "Petitioner was never prosecuted for
these alleged crimes, apparently because the prosecuting
authorities decided that they had insufficient evidence to
prosecute"). But, we have "previously held that an immigration
court may generally consider a police report containing hearsay
when making a discretionary immigration decision, even if an arrest
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did not result in a charge or conviction, because the report casts
probative light on an alien's character." Mele v. Lynch, 798 F.3d
30, 32 (1st Cir. 2015) (emphasis added) (citing Henry, 74 F.3d at
6; Arias-Minaya, 779 F.3d at 54). Here, too, Perez fails to make
out any colorable legal claim.
Finally, Perez notes, rightly, that an immigration judge
should generally "take[] into account and weigh[]" "the nature of
[the applicant's] contacts [with the criminal justice system] and
the stage to which those proceedings have progressed." Matter of
Thomas, 21 I. & N. Dec. 20, 24 (B.I.A. 1995). But, Perez points
to nothing in the record that would indicate that the IJ did not
do so here, such that we could conclude that Perez has made a
colorable claim that it was error for the BIA to have adopted the
IJ's findings.
III.
For the foregoing reasons, the petition for review is
dismissed.
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