Pedro Camacho v. Matthew G. Whitaker, 910 F.3d 378

Background

Pedro Olea Camacho, a Mexican national who entered without inspection in 1987, became an LPR in 2000 based on his first marriage; he failed to disclose a 1993 Iowa theft conviction in that process.
In 2015 Camacho pled guilty to two counts of indecent contact with a child (alleged misconduct from 1999–2002); DHS initiated removal proceedings charging aggravated felony, crimes of domestic violence/moral turpitude, and fraud in admission.
At the adjustment-hearing IJ, Camacho denied the underlying sexual conduct, said he pled to avoid a long sentence, and witnesses attested to his good character; the IJ found the conviction’s basis "dubious" and granted discretionary adjustment, giving the conviction less than full adverse weight.
The IJ nevertheless considered testimony referencing an "apparent suicide attempt" by one alleged victim and noted potential suicide by Camacho’s wife if separated; DHS appealed and the BIA reversed, finding the IJ impermissibly reassessed guilt and treating Camacho’s denial as a negative factor; the BIA viewed the alleged suicide attempt as significant.
Camacho moved the BIA to reconsider, arguing the BIA misstated the record and failed to apply the clear-error standard to IJ factfindings; the BIA denied the motion and Camacho petitioned for review of that denial.
The panel majority held it had jurisdiction to review denial of the motion to reconsider for abuse of discretion and found the BIA provided a rational explanation and did not impermissibly engage in factfinding; the dissent would have granted relief for BIA’s improper factual finding about the suicide attempt.

Issues

Issue	Camacho's Argument	DHS/BIA Argument	Held
Jurisdiction to review BIA denial of motion to reconsider	Court lacks jurisdiction over discretionary denial of adjustment, but motion denial is reviewable	Court has jurisdiction to review BIA denial of reconsideration for abuse of discretion	Court: jurisdiction exists to review denial of motion to reconsider
Standard of review for BIA reversal of IJ factfindings	BIA violated clear-error rule by making/findings beyond record; must remand if additional factfinding required	BIA reviewed IJ credibility for clear error and law/discretion de novo and did not engage in new factfinding	Court: BIA’s explanation shows it complied with clear-error limit and de novo review powers
Alleged suicide attempt evidence	BIA misstated record and made an unsupported factual finding that a victim attempted suicide; limited, hearsay testimony did not support that finding	BIA relied on IJ’s acknowledgment that testimony mentioned an apparent suicide attempt and properly weighed that in de novo review	Court: BIA’s reliance on record testimony and its brief explanation were rational; not an abuse of discretion
Abuse of discretion in denying reconsideration	BIA departed from policy by engaging in improper factfinding and failed to consider all factors	BIA gave a rational explanation, cited record, and did not inexplicably depart from policy	Court: no abuse of discretion; denial affirmed (dissent would reverse)

Key Cases Cited

Hailemichael v. Gonzales, 454 F.3d 878 (8th Cir. 2006) (jurisdictional limits on reviewing discretionary adjustment denials)
Averianova v. Holder, 592 F.3d 931 (8th Cir. 2010) (jurisdiction to review BIA denials of motions to reconsider)
Al Milaji v. Mukasey, 551 F.3d 768 (8th Cir. 2008) (abuse-of-discretion review of BIA motion denials)
Aneyoue v. Gonzales, 478 F.3d 905 (8th Cir. 2007) (scope of appellate review of BIA decisions)
Camarillo-Jose v. Holder, 676 F.3d 1140 (8th Cir. 2012) (BIA must give explanation sufficient to show it considered issues raised)
Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012) (BIA may not engage in new factfinding; remand required if it does)
Trench v. INS, 783 F.2d 181 (10th Cir. 1986) (immigration authorities must rely on the judicial record of conviction)
Zinnanti v. INS, 651 F.2d 420 (5th Cir. 1981) (agency may not independently reassess validity of guilty plea)