975 F.3d 69
1st Cir.2020Background
- Petitioner Nova Anthony Lee, a Jamaican national, entered the U.S. on a B2 visa in June 2014 and overstayed.
- In Jamaica Lee had a prior altercation with a man called Wright; criminal charges there were ultimately dismissed.
- In August 2018 Lee was arrested in Connecticut on allegations of assault (including against a pregnant wife and a 14‑year‑old); those charges were later dropped.
- Lee sought withholding of removal and voluntary departure; his U.S. citizen wife filed an I-130 on his behalf and that petition was later approved.
- The immigration judge denied withholding, denied voluntary departure, and denied a continuance to await adjustment of status; the BIA affirmed and denied Lee’s motion to remand/reopen based on the subsequently dismissed charges and I-130 approval.
- The First Circuit denied Lee’s petition for review, affirming the BIA/IJ rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Withholding of removal — social group | Lee: member of "wealthy immigrants returning to Jamaica," so likely persecuted | BIA/IJ: returning wealthy persons not a cognizable social group; this is personal vendetta/criminal targeting | Denied — group not cognizable; withholding claim fails under substantial evidence review |
| Voluntary departure (discretionary) | Lee: IJ erred in denying voluntary departure | Government: discretionary denial justified by criminal allegations and discretionary factors | Denied review on merits — court lacks jurisdiction over discretionary denials absent legal/constitutional claim; BIA/IJ affirmed |
| Motion to continue to await adjustment of status | Lee: should have continuance while I-130/potential adjustment pending | DHS/BIA/IJ: low likelihood of successful adjustment given reliable police report and DHS opposition | Denied — no abuse of discretion; IJ properly weighed likelihood of success and relied on reliable police report |
| Motion to remand/reopen (new evidence: charges dismissed, I-130 approved) | Lee: dismissal of charges and I-130 approval are material new facts requiring remand | BIA: dismissal not material (police report still reliable absent rebuttal); I-130 approval immaterial because IJ assumed it would be approved | Denied — BIA did not abuse discretion; new facts not material to change outcome |
Key Cases Cited
- Lopez Perez v. Holder, 587 F.3d 456 (1st Cir.) (withholding standard—more likely than not to face persecution)
- Agustin v. Whitaker, 914 F.3d 43 (1st Cir.) (wealthy returnees generally not a protected social group)
- Sicaju-Diaz v. Holder, 663 F.3d 1 (1st Cir.) (examples of groups that might qualify as persecuted class enemies)
- Arias-Minaya v. Holder, 779 F.3d 49 (1st Cir.) (immigration tribunals may rely on police reports if reliable and use is not fundamentally unfair)
- Canaveral Toban v. Ashcroft, 385 F.3d 40 (1st Cir.) (motion to reopen requires new, material evidence not available at prior hearing)
- Falae v. Gonzáles, 411 F.3d 11 (1st Cir.) (standard for overturning denial of motion to reopen)