Mele v. Lynch
798 F.3d 30
1st Cir.2015Background
- Marwan Mele, a Jordanian national, entered the U.S. in 1992 on a short-term nonimmigrant visa and remained after it expired; removal proceedings began in 1993 and an in-absentia deportation order was entered when he missed an asylum hearing.
- Mele married a U.S. citizen in 2002; an I-130 petition was filed and not approved until November 2009.
- The immigration judge (IJ) reopened Mele's proceedings and multiple continuances were granted while the I-130 was pending; after approval, Mele applied for adjustment of status under 8 U.S.C. § 1255(a).
- During a continuance in October 2010 Mele was arrested on multiple state charges related to illegal prescription drug sales; charges remained pending at the time of the adjustment hearing.
- At the September 2, 2011 hearing the IJ found Mele statutorily eligible for adjustment but denied it as a discretionary matter, citing the police report and circumstances of the arrest; the Board of Immigration Appeals (BIA) affirmed.
- Mele appealed to the First Circuit challenging the discretionary denial; he argued the police report (hearsay) was unfairly weighted against him and that the IJ ignored his and his wife’s testimony.
Issues
| Issue | Mele's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review denial of adjustment of status under 8 U.S.C. § 1255(a) | Mele sought review of the denial and contended the IJ improperly relied on the police report over testimonial evidence | § 1255(a) discretionary decisions are unreviewable by courts under 8 U.S.C. § 1252(a)(2)(B)(i) | Court lacks jurisdiction to review the discretionary denial and dismissed the petition |
| Whether use of a police report containing hearsay raises a colorable legal or constitutional claim | The police report was hearsay and its use was fundamentally unfair, violating due process | Admission/use of police reports is generally permissible and does not present a cognizable legal/constitutional challenge here | Court rejects this as a colorable legal/constitutional claim and treats it as an attempt to reweigh discretionary factors |
| Whether the IJ found Mele statutorily ineligible because of pending charges | Mele implied the IJ treated pending charges as rendering him ineligible | Government (and record) show IJ found statutory eligibility but denied relief in the exercise of discretion | Court clarifies IJ found statutory eligibility; denial was discretionary |
| Whether the BIA/IJ should have continued proceedings to await criminal case resolution | Mele argued a continuation could have changed the outcome | Agency discretion governs continuances and denial of adjustment; absence of criminal-update does not foreclose consideration of police reports | Court notes no jurisdiction to review such discretionary scheduling/weighting decisions |
Key Cases Cited
- Lopez v. Holder, 740 F.3d 207 (1st Cir. 2014) (jurisdictional inquiry for immigration appeals)
- Hasan v. Holder, 673 F.3d 26 (1st Cir. 2012) (no jurisdiction over discretionary cancellation decisions)
- Jaquez v. Holder, 758 F.3d 434 (1st Cir. 2014) (treatment of discretionary immigration relief claims)
- Hadwani v. Gonzales, 445 F.3d 798 (5th Cir. 2006) (adjustment of status under § 1255 is discretionary and unreviewable)
- Boykov v. Ashcroft, 383 F.3d 526 (7th Cir. 2004) (same)
- Urizar-Carrascoza v. Holder, 727 F.3d 27 (1st Cir. 2013) (courts cannot reweigh discretionary factors)
- Ortega v. Holder, 736 F.3d 637 (1st Cir. 2013) (purely discretionary decisions fall beyond appellate review)
- Ramirez-Matias v. Holder, 778 F.3d 322 (1st Cir. 2015) (distinguishing legal/constitutional claims from discretionary determinations)
- Henry v. I.N.S., 74 F.3d 1 (1st Cir. 1996) (police reports admissible as probative on character despite hearsay)
- Arias-Minaya v. Holder, 779 F.3d 49 (1st Cir. 2015) (police reports may be considered even if no conviction)