Barros v. Garland
Decision Date | 19 April 2022 |
Docket Number | 21-1335 |
Parties | Jose Pedro Santos Faria BARROS, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
Court | U.S. Court of Appeals — First Circuit |
Manuel R. Pires, with whom Rodrigues Pires PC was on brief, for petitioner.
Rodolfo D. Saenz, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Zoe J. Heller, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.
Gilles Bissonnette and SangYeob Kim were on brief for amicus curiae American Civil Liberties Union of New Hampshire.
Before Barron, Chief Judge, Howard and Thompson, Circuit Judges.
We again face a claim that the Board of Immigration Appeals ("BIA") violated its standard of review when reviewing the grant of discretionary relief from removal by an Immigration Judge ("IJ"). After clearing some jurisdictional hurdles along the way, we conclude the BIA impermissibly changed an IJ's balance-tipping factual finding. We thus grant the petition for review.
Jose Pedro Santos Faria Barros first entered the United States as a lawful permanent resident in 1991, at the age of five. He came with the rest of his family, including his mother, father, and siblings, from Cape Verde. He has resided here ever since. In fact, Barros has never been back to Cape Verde. All of his immediate family resides here, too.
Barros has a history of depression, anxiety, self-harm, and drug use. He attributes his struggles to a fall when he was 4 years old in which he struck his head. He began to experience headaches around age 11, and he says those headaches led to difficulty concentrating, which in turn led to depression and anxiety. His depression and anxiety, in turn, led to suicidal ideations
and at least three suicide attempts.
Barros also began using drugs around the time he turned 18. He says it started with crack cocaine, which he used to cope with his depression and anxiety. At age 32, he also started to use heroin. He's been to treatment at least three times, though he often relapsed. He last sought treatment not long before he was hauled before the immigration court in this case. And, as of February 2020, he had been sober for about ten months.
Beginning in 2003, Barros began amassing a criminal rap sheet. He's been convicted six times, including four convictions for possession of controlled substances and two for breaking and entering. He's also been arrested at least an additional ten times for charges such as breaking and entering, malicious destruction of property, shoplifting, disorderly conduct, assault and battery, and prison vandalism. Barros has said that, on at least one of these occasions, he stole to get money for drugs.
Barros's run-ins with the law at some points involved his behavior towards his family in his efforts to get cash for drugs. First, in 2015, Barros went to his parents’ house to get money. When his mother refused, he grabbed her by the throat, struck his father on the head, and smashed a crystal vase and a flat-screen television. Barros was charged with assault and battery on a person 60 years or older, as well as malicious destruction of property, though the charges were later dismissed. Second, the next year, Barros got into another argument with his father, which although did not spawn an arrest, resulted in his father taking out a short-lived restraining order against him. Finally, in October 2017, Barros was arrested after he went to his sister's house, high on drugs, again demanding money for narcotics. When she refused, and Barros's niece told him that he needed help, Barros became angry, yelling and raising his arms in the air as if he was going to strike his niece. After the commotion continued outside, Barros's sister and niece went back into the house and locked the door. But Barros, undeterred, dropped his shoulder into the door and broke the chain lock. He was later arrested for assault, trespassing, and breaking and entering.
Also in 2017, Barros pled guilty to and was convicted of possession of crack cocaine. He initially received a probationary sentence, but after violating his probation, he was sentenced to one year in prison. After his release in March 2019, he moved in with his parents, where he took care of his aging mother.
When November 2019 rolled around, immigration officials knocked on Barros's door, handed him a notice alleging his deportability from the United States, and hauled him off in cuffs. While he was still in custody but awaiting his final hearing, Barros's mother passed away. And that brings us to the immigration proceedings at issue in this petition.
Before diving into what happened in those proceedings, we begin with a brief overview of the relevant legal principles.
Cancellation of removal is one of many forms of relief from removal. See 8 U.S.C. § 1229b(a). To qualify under the relevant provision for cancellation, a lawful permanent resident must establish that she: (1) has been lawfully admitted for permanent residence for not less than 5 years; (2) "has resided in the United States continuously for 7 years after having been admitted in any status"; and (3) "has not been convicted of any aggravated felony." Id. § 1229b(a)(1)–(3).1
Even so, establishing these three criteria does not automatically entitle the individual to relief: "[T]he Attorney General's decision to grant such relief is discretionary and ‘amounts to an act of grace.’ "
Cabrera v. Lynch, 805 F.3d 391, 394 (1st Cir. 2015) (quoting Sad v. INS, 246 F.3d 811, 819 (6th Cir. 2001) ). It is the applicant who bears the burden of proving both that she satisfies the eligibility requirements and that she merits a favorable exercise of administrative discretion. 8 U.S.C. § 1229a(c)(4)(A).
In exercising that discretion, IJs (and later, the BIA) apply the host of factors laid out in Matter of C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998). Favorable factors to consider include: (1) family ties in the United States; (2) duration of residence here "(particularly when the inception of residence occurred at a young age)"; (3) evidence of hardship to the applicant and her family in the event of deportation; (4) service in the U.S. Armed Forces; (5) history of employment; (6) property or business ties here; (7) value and service to the community; (8) proof of "genuine rehabilitation" if the applicant has a criminal record; and (9) evidence of the applicant's "good character." Id. On the other hand, the IJ must also consider the adverse factors, including: (1) the nature and grounds underlying the removal; (2) significant violations of the immigration laws; (3) the applicant's criminal record and its "nature, recency, and seriousness"; and (4) other evidence of the applicant's bad character or "undesirability as a permanent resident of this country." Id. Where adverse factors are present, the BIA has said, applicants may need to offset them by showing unusual or outstanding equities in the opposite direction. Matter of Arai, 13 I. & N. Dec. 494, 496 (BIA 1970) ; see Matter of C-V-T-, 22 I. & N. Dec. at 11–12.
In reviewing decisions of an IJ, the BIA is bound by certain standards of review. When reviewing the IJ's decision on questions of law, discretion, and judgment, the BIA may exercise de novo review. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).2
But when reviewing factual conclusions, the BIA's power is much narrower. That is so because "[t]he IJ has the front-line duty of finding the facts." Chen v. Holder, 703 F.3d 17, 22 (1st Cir. 2012). The BIA is prohibited from "engag[ing] in factfinding in the course of deciding appeals." 8 C.F.R. § 1003.1(d)(3)(iv) (2020). Rather, when the BIA reviews the IJ's findings of fact, it reviews them only for clear error. Id. § 1003.1(d)(3)(i) ; see Adeyanju v. Garland, 27 F.4th 25, 33 (1st Cir. 2022) ( ).
To find clear error, the BIA must be "left with the definite and firm conviction that a mistake has been committed." Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54878-01, 54889 (Aug. 26, 2002) [hereinafter "BIA Reforms"]. In other words, "to show clear error [one] ‘must show that the contested finding stinks like a 5 week old, unrefrigerated, dead fish.’ " Adeyanju, 27 F.4th at 33 (quoting United States v. Baptiste, 8 F.4th 30, 42 (1st Cir. 2021) ). It is not enough to "show that the finding is probably wrong, for [the BIA] can reverse on clear-error grounds only if -- after whole-record review -- it has a strong, unyielding belief that the [immigration] judge stumbled." Id. ( )(quoting United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir. 2019) ).
Before the IJ, Barros conceded removability. To avoid removal, he applied for cancellation of removal and requested voluntary departure. The parties agreed that Barros satisfied the statutory prerequisites for each. Thus, the only issue before the IJ was whether Barros merited a favorable exercise of administrative discretion.
So the IJ took evidence on the discretionary factors, including Barros's own testimony, a gob of documentary evidence concerning his criminal and medical history, letters from his family, and a declaration from his father. Barros testified extensively concerning his addiction and mental health challenges, his criminal record, and his family relationships. His father wrote in his declaration that, notwithstanding their prior conflicts, he wanted his son to stay with him.
After finding Barros a credible witness, the IJ began by identifying the positive factors weighing in favor of a favorable exercise of discretion. The court noted that Cape Verde, the country to which Barros would be deported, has a history of humanrights abuse and generally poor...
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