Rivera v. Sessions, 903 F.3d 147

Background

Carlos M. Rivera, a Guatemalan national who entered the U.S. without inspection in 1992, sought cancellation of removal under INA § 240A(b)(1); his initial application was denied and the BIA affirmed.
After a successful motion to reconsider and remand, Rivera renewed his cancellation application in 2017, naming his wife Marlen Castaneda as the qualifying relative.
Castaneda testified to anxiety, depression, and chronic back pain; the IJ found these conditions insufficient to establish "exceptional and extremely unusual hardship."
Rivera had multiple prior arrests (including a 1992 plea to simple assault and battery) and a 2016 arrest for child molestation of a then-12-year-old; the 2016 charges were pending at the IJ hearing.
The IJ declined to make an explicit adverse credibility finding but drew an adverse inference from Rivera’s invocation of the Fifth Amendment regarding the 2016 arrest, admitted a police report about that arrest, and denied cancellation as a matter of discretion based on Rivera’s criminal history.
The BIA affirmed, finding no clear error in the IJ’s hardship and discretionary analyses and rejecting Rivera’s due-process and legal-error claims. The First Circuit dismissed Rivera’s petition for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA/IJ legally erred by not making a specific factual finding on the overall severity of the qualifying relative's health issues	Rivera: BIA/IJ failed to follow Matter of Monreal‑Aguinaga and should have made an explicit severity finding	Government: IJ and BIA considered hardship factors in the aggregate; no legal requirement for a specific "overall severity" finding	Dismissed for lack of jurisdiction; claim is essentially factual and not a colorable legal error
Whether admission of the police report and adverse inference from Fifth Amendment invocation violated due process	Rivera: Admission of report and adverse inference, and denial of continuance, denied due process	Government: Report admissible; adverse inference permissible; continuance denial within IJ discretion; no prejudice shown	Dismissed for lack of jurisdiction; due‑process claim not colorable and no protected interest in discretionary relief
Whether denial of continuance pending criminal proceedings violated fundamental fairness	Rivera: Needed continuance to avoid prejudice from unresolved criminal charges	Government: IJ discretion; denial did not cause actual prejudice; Rivera later convicted	Dismissed for lack of jurisdiction; no showing of cognizable prejudice
Whether denial of cancellation as a matter of discretion was erroneous	Rivera: Positive equities outweighed negatives	Government: Criminal history and pending child-molestation charges outweigh positives	Dismissed for lack of jurisdiction over discretionary judgment; BIA affirmed that negatives outweighed positives

Key Cases Cited

Castro v. Holder, 727 F.3d 125 (1st Cir.) (limits judicial review of cancellation of removal to colorable legal or constitutional claims)
Santana‑Medina v. Holder, 616 F.3d 49 (1st Cir.) (statutory bar on review of discretionary cancellation decisions)
Ayeni v. Holder, 617 F.3d 67 (1st Cir.) (a legal or constitutional claim must be colorable to confer jurisdiction)
Alvarado v. Holder, 743 F.3d 271 (1st Cir.) (courts may not convert factual disputes into reviewable legal claims)
Ramirez‑Matias v. Holder, 778 F.3d 322 (1st Cir.) (same principle on factual vs. legal error)
Cruz‑Orellana v. Sessions, 878 F.3d 1 (1st Cir.) (admissibility of police reports and due‑process claims in removal proceedings)
Kandamar v. Gonzales, 464 F.3d 65 (1st Cir.) (discretionary immigration relief does not create a protected liberty interest)
DaCosta v. Gonzales, 449 F.3d 45 (1st Cir.) (same on procedural‑due‑process threshold)
Garcia‑Aguilar v. Lynch, 806 F.3d 671 (1st Cir.) (IJ may draw adverse inference from Fifth Amendment invocation)
Amouri v. Holder, 572 F.3d 29 (1st Cir.) (continuance denials reviewed for actual prejudice)
Lattab v. Ashcroft, 384 F.3d 8 (1st Cir.) (procedural‑due‑process claim requires cognizable, attributable prejudice)