Thomas v. Garland, 25 F.4th 50

Akeim Le Andrew Thomas, a Jamaican national, entered the U.S. on a nonimmigrant visa in 2016 and overstayed.
On August 30, 2019, he was arrested in Connecticut on marijuana and related charges; police seized ~2 lbs of marijuana, cash, packaging materials, a scale, and a firearm.
DHS placed Thomas in removal proceedings; he conceded removability under 8 U.S.C. § 1227(a)(1)(B) and applied for adjustment of status under 8 U.S.C. § 1255(a).
At the removal hearing Thomas testified he did not know about the drugs and that packaging items were used by his wife for meat; the police report, admitted without objection, contradicted parts of his testimony.
The IJ found Thomas credible generally but not as to his criminal-history testimony, credited the police report, weighed equities, and denied discretionary adjustment; the BIA affirmed.
Thomas appealed, arguing (1) reliance on the police report was fundamentally unfair and (2) his Fifth Amendment due-process rights were violated because state criminal charges were pending when immigration proceedings relied on the arrest report. The First Circuit denied the petition.

Issue	Thomas's Argument	Government's Argument	Held
Whether reliance on the police report was "fundamentally unfair" because there was no conviction	Police report cannot be used to deny discretionary relief where no conviction exists; reliance is unfair	Immigration courts may consider police reports in discretionary determinations even without a conviction	Rejected — police reports may be considered in discretionary relief decisions (not fundamentally unfair)
Whether using the arrest evidence while state charges were pending violated due process	Removal proceedings during pending state prosecution and use of the police report deprived Thomas of due process	Thomas waived objections at the hearing; and he has no protected liberty interest in discretionary relief, so no due-process violation	Rejected — Thomas lacks a protected liberty interest in adjustment of status; no actionable due-process deprivation
Whether the agency erred by considering "criminal history" under § 1255(a)	(Alternative argument) § 1255(a) does not permit consideration of criminal history in granting adjustment	Agency discretion to weigh positive and negative factors including criminal behavior; but argument not raised below	Not considered — Thomas failed to exhaust this argument before the BIA, so court lacked jurisdiction to address it

De Acosta v. Holder, 556 F.3d 16 (1st Cir. 2009) (describing adjustment-of-status process for aliens present in the U.S.)
Mele v. Lynch, 798 F.3d 30 (1st Cir. 2015) (immigration courts may consider police reports when adjudicating discretionary relief even without a conviction)
Perez v. Barr, 927 F.3d 17 (1st Cir. 2019) (reaffirming admissibility and probative value of arrest reports in discretionary determinations)
Henry v. INS, 74 F.3d 1 (1st Cir. 1996) (police reports may be considered in immigration proceedings)
Tacuri-Tacuri v. Garland, 998 F.3d 466 (1st Cir. 2021) (standard of review for BIA legal rulings and jurisdictional posture)
Naeem v. Gonzales, 469 F.3d 33 (1st Cir. 2006) (no protected liberty interest in discretionary forms of immigration relief)