Case Information
*1 Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.
(Opinion Filed: February 4, 2013)
Francisco S. Guzmán, Esq. (ARGUED)
Guzmán Law Practice, P.C.
665 Newark Avenue
Jersey City, New Jersey 07306
Counsel for Petitioner, Santos Moises Tejada Tejada Stuart F. Delery, Acting Assistant Attorney General, Civil Division Edward J. Duffy, Senior Litigation Counsel, Office of Immigration Litigation *2 Zoe J. Heller, Trial Attorney, Office of Immigration Litigation (ARGUED) Aaron R. Petty, Trial Attorney, Office of Immigration Litigation Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent, Attorney General of the United States of America _____________
OPINION OF THE COURT _____________
FUENTES, Circuit Judge:
Petitioner, Santos Moises Tejada Tejada (“Tejada”), a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”). We will grant the petition and remand to the BIA.
I.
Because we write primarily for the parties, we set forth only those facts that are relevant to our conclusion. Tejada is a native and citizen of El Salvador. He entered the United States without inspection in 1989. In 1991, he was afforded temporary protected status by the former Immigration and Naturalization Service. Tejada renewed that status each year until he became a lawful permanent resident on September 27, 2004. He has numerous family ties to the United States, including a daughter with U.S. citizenship, siblings who are legally present in the United States, and parents with lawful permanent resident status. He and his teenage daughter maintain a close relationship, and he provides her with financial assistance of $100 per week and emotional support. He has *3 maintained stable employment since 1992 and also provides financial support to his ex- wife whenever she is in need.
In 1992, Tejada was arrested for simple assault and false imprisonment in 2003 but each of these charges was dismissed. In 2006, Tejada was convicted of driving while intoxicated, and his driver‟s license was suspended for ninety days. On June 14, 2007, Tejada was convicted of second-degree eluding of the police in violation of N.J. S TAT . A NN . § 2C:29-2(b) (2000). On the night of his arrest for this offense, Tejada was drinking and he struck another vehicle. He then left the scene of the accident and failed to stop when directed by the police. Tejada pled guilty to this offense. Although Tejada was sentenced to three years‟ imprisonment, he was only required to serve seven months and to fulfill certain probation conditions, which he completed. During his time in prison, Tejada‟s young daughter was sexually assaulted by an adult male relative, and she subsequently received counseling for about a year after this traumatic event.
Tejada has been detained by Immigration and Customs Enforcement since March 2, 2011. On that day, Tejada was returning from a brief trip abroad and was found to be inadmissible for having committed a crime of moral turpitude under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) for his 2007 eluding conviction. Tejada applied for cancellation of removal under 8 U.S.C. § 1229(b) and a waiver of inadmissibility under 8 U.S.C. §1182(h) (a “Section 212(h) waiver”).
On July 14, 2011, an Immigration Judge (“IJ”) denied Tejada‟s application for cancellation of removal but granted his application for a Section 212(h) waiver after finding that his daughter would suffer extreme hardship if he were removed. The IJ also *4 found that the positive equities of Tejada‟s life in the United States outweighed the adverse factors of his criminal record. The Government appealed to the BIA, which sustained the appeal and reversed the IJ‟s decision. The BIA found that Tejada‟s eluding conviction constituted a “violent or dangerous crime” under 8 C.F.R. § 1212.7(d). BIA Decision at 2. Therefore, Tejada must establish that a denial of relief would result in “exceptional and extremely unusual hardship” to his qualifying relatives to be eligible for such relief. Id. The BIA held that even if Tejada‟s conviction was not violent or dangerous as to merit the higher hardship standard, Tejada had not established that his daughter would suffer the lower standard of extreme hardship if he were removed. Finally, the BIA determined that even if Tejada could show extreme hardship to his daughter from his removal, he had not established that he warrants a Section 212(h) waiver as a matter of discretion. Having determined that Tejada‟s past criminal record outweighed his positive equities, the BIA ordered Tejada removable to El Salvador.
II.
This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of
removal issued by the BIA. The Government contends that we lack jurisdiction to hear
the case before us, as it relates to the BIA‟s discretionary decision to deny a Section
212(h) waiver. Although we agree that this Court generally lacks jurisdiction to review
the BIA‟s factual and discretionary rulings, we retain jurisdiction to review constitutional
claims or questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D);
Sukwanputra v. Gonzales,
A.
We hold that the BIA failed to apply the correct standard of review in making its
determination that Tejada was not eligible for relief. “[W]hen the BIA reaches a different
conclusion than the IJ, either on the facts or the law, its review must reflect a meaningful
consideration of the record as a whole. It is not enough for the BIA to select a few facts
and state that, based on them, it disagrees with the IJ‟s conclusion.” Huang v. Att‟y Gen.,
The BIA only briefly mentioned the sexual abuse that Tejada‟s daughter suffered,
and failed to provide a meaningful explanation as to why this factor and the removal of
Tejada‟s financial and emotional support would not result in extreme hardship for her.
We agree with Tejada‟s assertion that the BIA selected only a few pieces of evidence to
diminish why his daughter would suffer extreme hardship if her father were deported,
such as the fact that Tejada was incarcerated while his daughter was abused and that her
mother brought her to counseling at that time. The BIA applied an incorrect standard of
review by “fail[ing] to address any evidence that, if credited, would lend support to”
Tejada‟s position, “and thus the decision does not reflect a consideration of the record as
a whole.” Id. at 388. Put another way, the BIA‟s decision falls short under Huang
because it failed to provide specific reasoning as to why it reached a conclusion that was
different from that of the IJ. Id. at 387 (citing Awolesi v. Ashcroft,
In addition, the IJ acknowledged Tejada‟s prior criminal activity but noted that
two of his arrests did not lead to convictions and were dismissed. The IJ considered the
fact that Tejada has been free of any criminal activity since 2006, and that the positive
equities of his life in the United States outweighed the adverse factor of his criminal
record. In contrast, the BIA failed to consider that Tejada has been compliant with the
law for a significant period of time and placed emphasis on his prior arrests as weighing
negatively in his favor. The BIA appears to have made its own factual findings by
*7
referring to Tejada‟s “various incarcerations” and “multiple arrests” despite the fact that
the IJ referred only to one period of incarceration and noted that two of Tejada‟s prior
charges were dismissed. BIA Decision at 3. By failing to defer to the IJ‟s factual
conclusions as to Tejada‟s criminal past without an explanation of why such findings are
clearly erroneous, the BIA again failed to apply the appropriate standard of review.
Yusupov v. Att‟y Gen.,
B.
We also note that the BIA relied on 8 C.F.R. § 1212.7(d) [1] to state an alternative method for which Tejada may be denied relief—that his eluding conviction constitutes a violent or dangerous crime that would allow relief only if his “qualifying relatives” would suffer “exceptional and extremely unusual hardship” if Tejada were removed. BIA Decision at 2 (citing 8 C.F.R. § 1212.7(d)). Although we will not address whether a conviction of eluding constitutes a violent or dangerous crime, we will note that, even if *8 it does, we interpret the language in 8 C.F.R. § 1212.7(d) to allow for a favorable exercise of discretion in circumstances beyond a showing of “exceptional and extremely unusual hardship.” See 8 C.F.R. § 1212.7(d).
The Attorney General may still grant relief even if an immigrant has committed a
violent or dangerous crime in “extraordinary circumstances.” 8 C.F.R. § 1212.7(d).
Although such circumstances may include, as the statute notes, those involving national
security or foreign policy considerations or instances of exceptional and extremely
unusual hardship, these examples are not exhaustive and there may be other
circumstances in which relief may be warranted. See Samuels v. Chertoff,
Further, 8 C.F.R. § 1212.7(d) directs the BIA to consider hardship not only to
qualifying relatives but also to the immigrant. Rivera-Peraza v. Holder,
III.
For the foregoing reasons, we will grant the petition for review and remand to the BIA for further proceedings consistent with this opinion.
Notes
[1] 8 C.F.R. § 1212.7(d) states as follows: (d) Criminal grounds of inadmissibility involving violent or dangerous crimes. The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. 8 C.F.R. § 1212.7(d).