Moreno v. Garland, 51 F.4th 40

Moreno, a native of Cape Verde, entered the U.S. in 1989 on a B-2 visa; his U.S.-citizen son’s I-130 for him was approved in 2019.
Removal proceedings began in 1995 for overstaying; the BIA administratively closed the case in 2001 but reinstated proceedings in 2018 after DHS moved to reinstate following Moreno’s later criminal conviction and detention.
Moreno has a lengthy criminal history, including multiple OUI convictions; a 2016 OUI with his minor daughter as a passenger resulted in jail time and his transfer to ICE custody in December 2018.
At a 2020 merits hearing Moreno applied for adjustment of status under 8 U.S.C. § 1255(a); the IJ found statutory eligibility but denied adjustment as a discretionary matter given his serious criminal history, lack of persuasive rehabilitation, lack of candor, and weak concrete plans for future sobriety, despite family and hardship equities.
The BIA affirmed the IJ’s discretionary denial and rejected Moreno’s motion to remand to present new evidence (his partner’s low-grade astrocytoma), concluding the new evidence would not likely change the result.
Moreno petitioned for review; the First Circuit denied the petition, holding it lacked jurisdiction to review the discretionary denial of adjustment and that the BIA did not abuse its discretion in denying remand for new evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether court has jurisdiction to review BIA/IJ denial of adjustment of status	Moreno: BIA/IJ ignored or mischaracterized record evidence, raising legal error permitting review	Government: Denial was discretionary and not reviewable; Moreno’s claims are factual/repackage of discretionary challenge	Court: No jurisdiction to review discretionary denial; Moreno’s arguments are factual/discretionary and not legally colorable
Whether BIA abused its discretion by denying motion to remand to present partner’s cancer diagnosis	Moreno: New, material evidence (partner’s astrocytoma and treatment) was previously unavailable and would likely change the discretionary outcome	Government: Even if new, the evidence would not likely change result given seriousness of criminal history; motion to remand treated as motion to reopen requiring materiality and likelihood of change	Court: Reviewed for abuse of discretion and found no legal error; BIA permissibly concluded new evidence would not likely change result

Mele v. Lynch, 798 F.3d 30 (1st Cir. 2015) (court lacks jurisdiction to review discretionary denials of adjustment of status)
Jaquez v. Holder, 758 F.3d 434 (1st Cir. 2014) (exception for review where colorable question of law or constitutional claim exists)
Ramirez-Matías v. Holder, 778 F.3d 322 (1st Cir. 2015) (substance-over-form test for whether a claim raises a colorable legal question)
Patel v. Garland, 142 S. Ct. 1614 (U.S. 2022) (challenges to factual findings underlying discretionary decisions generally not reviewable)
Lee v. Barr, 975 F.3d 69 (1st Cir. 2020) (motion to remand is treated as motion to reopen and is reviewable)
Mata v. Lynch, 576 U.S. 143 (U.S. 2015) (jurisdictional principles regarding review of motions to reopen)
Falae v. Gonzáles, 411 F.3d 11 (1st Cir. 2005) (standard for overturning denial of a motion to reopen is abuse of discretion)