John Waldron v. Eric H. Holder, Jr.
688 F.3d 354
| 8th Cir. | 2012Background
- Waldron, a UK citizen, had his conditional permanent resident status terminated due to a felony second degree assault under Missouri law.
- He sought adjustment of status and a waiver of inadmissibility under INA §212(h) while his son Samuel was a US citizen and age two.
- An immigration judge granted both the adjustment of status and the §212(h) waiver, noting an extreme hardship standard and the heightened exceptional and extremely unusual hardship standard for violent or dangerous crimes.
- DHS appealed, and the BIA reversed, applying the heightened standard and ordering Waldron removed to the UK.
- Waldron petitioned for review, challenging (i) the BIA’s application of the heightened hardship standard and (ii) the BIA’s review of the IJ’s factual findings, alleging improper factfinding.
- The court remands to the BIA to review the IJ’s factual findings for clear error and determine de novo whether the facts suffice for the hardship standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA properly applied the heightened standard | Waldron contends the BIA misapplied the exceptional standard | DHS/Board argues the standard correctly applies to violent or dangerous crimes | Yes; the BIA properly applied the heightened standard to Waldron's waiver claim. |
| Whether the BIA correctly reviewed IJ findings for clear error | BIA failed to review IJ findings for clear error and engaged in new factfinding | BIA may weigh evidence differently and review de novo on legal questions | No; the BIA erred by substituting its own factual conclusions for the IJ’s without clear error review; remand required. |
| Whether the BIA’s factual determinations about Waldron’s job skills and family health were improper | BIA impermissibly asserted transferable skills and downplayed Samuel’s medical history | BIA appropriately weighed evidence and did not err in its factual conclusions | Remand to address whether those factual findings were clearly erroneous. |
Key Cases Cited
- Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007) (review of BIA classification of crimes as violent or dangerous under §1212.7(d))
- Ramirez-Peyro v. Gonzales, 477 F.3d 637 (8th Cir. 2007) (BIA may review IJ findings for clear error; de novo on law)
- Nabulwala v. Gonzales, 481 F.3d 1115 (8th Cir. 2007) (BIA may not engage in factfinding beyond notice facts)
- In re Jean, 23 I. & N. Dec. 373 (A.G. 2002) (heightened hardship standard for violent or dangerous crimes)
- Gomez-Perez v. Holder, 569 F.3d 370 (8th Cir. 2009) (jurisdictional bar limitations and review scope for hardship determinations)