31 F.4th 51
1st Cir.2022Background
- Petitioner Jose Pedro Santos Faria Barros is a lawful permanent resident who entered the U.S. at age 5 and has lived here his whole life; his immediate family (including his father) remains in the U.S.
- Barros has long-standing mental-health and substance-abuse problems, multiple treatment attempts, and a significant criminal history (drug-possession convictions, breaking-and-entering, assaults on family members, and other arrests).
- In late 2019 Barros was detained on immigration charges; while detained his mother died. The IJ found Barros credible, noted his family ties, rehabilitation efforts, and that removal would cause "extreme hardship" to his father, which "ever so slightly tips the scales," and granted cancellation of removal (and alternatively voluntary departure).
- DHS appealed; the BIA reviewed the IJ’s decision, characterized the family hardship as family members "may suffer some hardship," concluded the adverse factors (particularly criminal history) outweighed the positives, reversed and denied relief.
- Barros petitioned for review, arguing the BIA misapplied the clear-error standard by changing the IJ's predictive factual finding about the father's hardship; the First Circuit examined jurisdictional and exhaustion arguments before reaching the merits.
Issues
| Issue | Plaintiff's Argument (Barros) | Defendant's Argument (DHS/BIA) | Held |
|---|---|---|---|
| Whether the BIA applied the required clear-error standard to the IJ's factual finding that removal "is extreme hardship" to Barros's father | BIA impermissibly changed an IJ factfinding (from "is" to "may"), failing to review that factual/predictive finding only for clear error | BIA merely used different language while reweighing discretionary factors; it did not alter a factual finding | Court held BIA changed the IJ's predictive factual finding without applying clear-error review and therefore erred; petition granted and case remanded |
| Jurisdiction / exhaustion: whether the court may review Barros' claim that the BIA misapplied the standard of review and whether he had to file a BIA motion to reconsider first | Barros argued the claim raises a legal question (misapplication of clear-error review) so §1252(a)(2)(D) permits review; no motion to reconsider was required here | Government argued §1252(a)(2)(B) bars review of discretionary denials and that Wan requires a motion to reconsider | Court concluded it had jurisdiction under §1252(a)(2)(D) to decide the legal question and read Wan narrowly — no motion to reconsider was required for this challenge |
Key Cases Cited
- Chen v. Holder, 703 F.3d 17 (1st Cir. 2012) (IJ has front-line duty to find facts; BIA limited to clear-error review of IJ factual findings)
- Adeyanju v. Garland, 27 F.4th 25 (1st Cir. 2022) (explains clear-error standard and "stinks like a 5 week old, unrefrigerated, dead fish" formulation)
- Wan v. Holder, 776 F.3d 52 (1st Cir. 2015) (exhaustion rule for BIA "impermissible factfinding" claims; court limits scope where IJ made no findings)
- DeCarvalho v. Garland, 18 F.4th 66 (1st Cir. 2021) (review of claim that BIA misapplied clear-error review)
- Samayoa Cabrera v. Barr, 939 F.3d 379 (1st Cir. 2019) (predictive findings about future hardship are factual findings reviewed for clear error)
- Tacuri-Tacuri v. Garland, 998 F.3d 466 (1st Cir. 2021) (jurisdictional limits on reviewing BIA discretionary denials under §1252)
- Kaplun v. Att'y Gen., 602 F.3d 260 (3d Cir. 2010) (distinguishes factual predictions about hardship from the legal question whether those facts meet the statutory hardship standard)