47 F.4th 51
1st Cir.2022Background
- Petitioner Jeremias Domingo-Mendez, a native of Guatemala, entered the U.S. without inspection circa 2009, conceded removability, and has two U.S.-citizen children under age 10.
- He applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1), which requires showing that removal would cause "exceptional and extremely unusual hardship" to a qualifying relative.
- At a 2020 hearing the IJ found Domingo-Mendezs presence in the U.S. an "absolute necessity" for his childrens safety and well-being (citing pandemic-related travel restrictions and poverty risks) and granted cancellation.
- The BIA reviewed for clear error, disagreed with the IJs ultimate hardship conclusion, and vacated relief, concluding the economic and emotional effects did not meet the statutory exceptional-and-extremely-unusual standard.
- Domingo-Mendez argued the BIA (1) failed to say whether it adopted the IJs factual findings, (2) engaged in impermissible factfinding by recasting his testimony about work prospects in Guatemala, and (3) omitted consideration of certain key facts (acute financial hardship during detention and likely long-term separation due to COVID-19).
- The First Circuit affirmed the BIA, holding the Board applied the correct standard, did not commit reversible factfinding, any minor discrepancies were harmless, and the BIA need not discuss every piece of evidence to show it considered the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA was required to explicitly state acceptance or rejection of the IJ's factual findings | BIA must explicitly indicate whether it accepts IJ findings; omission is error | Regulation does not require an explicit adoption statement; BIA cited proper clear-error standard and gave no sign of applying a different one | Court: No explicit statement required; BIA cited correct standard and did not apply a different one |
| Whether the BIA impermissibly engaged in factfinding by describing Domingo-Mendez as believing he would obtain restaurant work in Guatemala | BIAs description overstated testimony and amounted to independent factfinding | BIAs phrasing is consistent with the transcript and IJ decision; any difference was immaterial | Court: No reversible factfinding; description supported by record and any discrepancy was harmless |
| Whether the BIA failed to consider key evidence (financial hardship during detention; effectively permanent separation due to COVID) | BIA ignored or minimized crucial facts that the IJ relied on | BIA acknowledged likely economic diminution and emotional hardship; agency not required to mention every piece of evidence | Court: BIA considered the evidence implicitly; no misconstruction or omission requiring remand |
| Jurisdictional scope to review BIAs hardship determination post-Patel | Petitioner contends legal errors allow review of BIA decision | Government notes Patel limits review of factual determinations but did not press lack of jurisdiction here | Court: Avoided definitive jurisdictional ruling; proceeded to merits and affirmed BIA |
Key Cases Cited
- Samayoa Cabrera v. Barr, 939 F.3d 379 (1st Cir. 2019) (agency not required to spell out standard absent evidence it applied wrong standard)
- Barros v. Garland, 31 F.4th 51 (1st Cir. 2022) (IJ predictive findings are factual and reviewed for clear error)
- Patel v. Garland, 142 S. Ct. 1614 (U.S. 2022) (limits federal-court review of certain agency discretionary factual determinations)
- Lin v. Mukasey, 521 F.3d 22 (1st Cir. 2008) (BIA must consider all relevant evidence but need not discuss every item)
- Chen v. Holder, 675 F.3d 100 (1st Cir. 2012) (BIA decision need not reference each piece of evidence to show consideration)
- Guta-Tolossa v. Holder, 674 F.3d 57 (1st Cir. 2012) (harmless-error doctrine where misreading of evidence does not affect outcome)
- Tacuri-Tacuri v. Garland, 998 F.3d 466 (1st Cir. 2021) (clarifies review principles for BIA factfinding)