927 F.3d 17
1st Cir.2019Background
- Arnulfo Perez, a Mexican national who entered without admission, conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b), claiming long-term U.S. residence and hardship to U.S. citizen children.
- Administrative record included two prior felony convictions (1994 DWI; 2000 assault), four prior arrests, a 2006 police report alleging aggravated assault/battery against his wife, and a 2012 police report alleging assault and attempted murder/strangulation of his wife.
- At an IJ hearing Perez and his wife testified; the government submitted the police reports and other records. The IJ found inconsistencies in testimony, lack of remorse/rehabilitation, and weighty adverse factors from the reports.
- The IJ assumed statutory eligibility but denied relief as a discretionary matter, concluding Perez’s negative equities outweighed positives (notably family hardship).
- The BIA adopted and affirmed the IJ’s decision, holding the police reports were probative and their admission was fundamentally fair; Perez timely petitioned for review in this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review discretionary denial of §1229b(b) relief | Perez sought review of BIA’s denial | Government: Court lacks jurisdiction over discretionary denial | Dismissed for lack of jurisdiction over discretionary relief; only colorable legal/constitutional claims reviewable |
| Reliance on hearsay police reports | Perez: IJ/BIA improperly relied almost exclusively on hearsay police reports | Government: Police reports are probative and admissible for discretionary decisions | Not a colorable legal claim; courts and BIA may consider hearsay police reports in discretion determinations |
| Consideration of arrests without convictions | Perez: Reports reflect non-convictions and thus shouldn’t be used (cites Sierra-Reyes) | Government: Arrest reports still cast probative light on character and may be considered | Not colorable; First Circuit permits consideration of police reports even if arrest did not lead to conviction |
| Weight given to evidence and credibility determinations | Perez: IJ should have credited his and wife’s testimony over reports | Government: Credibility and weight are discretionary determinations for IJ/BIA | Credibility/weight challenges are not colorable legal errors; court cannot review discretionary balancing |
Key Cases Cited
- Rivera v. Sessions, 903 F.3d 147 (1st Cir.) (jurisdictional limits on review of discretionary cancellation decisions)
- Ayeni v. Holder, 617 F.3d 67 (1st Cir.) (requirement that legal/constitutional claim be colorable to confer jurisdiction)
- Arias-Minaya v. Holder, 779 F.3d 49 (1st Cir.) (police reports containing hearsay may be considered in discretionary relief decisions)
- Henry v. I.N.S., 74 F.3d 1 (1st Cir.) (police reports admissible and probative in immigration discretion determinations)
- Mele v. Lynch, 798 F.3d 30 (1st Cir.) (arrests not resulting in conviction may still be considered for character assessment)
- Sierra-Reyes v. I.N.S., 585 F.2d 762 (5th Cir.) (dicta noting police reports for unprosecuted arrests may be unprobative)