Camacho v. Whitaker

• Decision Date: 06 December 2018
• Docket Number: No. 17-3713,17-3713
• Parties: Pedro Olea CAMACHO, Petitioner v. Matthew G. WHITAKER, Acting Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

910 F.3d 378

Pedro Olea CAMACHO, Petitioner

v.Matthew G. WHITAKER, Acting Attorney General of the United States, Respondent

No. 17-3713

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2018

Filed: December 6, 2018

Counsel who presented argument on behalf of the petitioner was Bernadette Cox McGuire, of Englewood, CO.

Counsel who presented argument on behalf of the respondent was Michael Christopher Heyse, USDOJ, OIL, of Washington, DC.

Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Pedro Olea Camacho petitions for review of the Board of Immigration Appeals’s ("BIA") denial of his motion to reconsider the BIA’s previous order denying him a discretionary adjustment of status. We deny the petition.

I. Background

Pedro Olea Camacho is a Mexican citizen who first entered the United States without inspection in 1987. He has been married twice since entering the country. He adjusted his status to lawful permanent resident on December 7, 2000, on the basis of his first marriage. During his application process for adjustment of status, Camacho failed to disclose that he was convicted of fifth-degree theft in Iowa on September 17, 1993.

In March of 2015, Camacho was convicted in Iowa of two counts of indecent contact with a child. The charges related to alleged sexual misconduct between 1999 and 2002. The victims were the grandchildren of his first wife. Camacho pled guilty to both counts. Following Camacho’s conviction, the Department of Homeland Security ("DHS") served Camacho a Notice to Appear charging him with removability under: 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony (his sexual abuse of a child conviction); § 1227(a)(2)(E)(i), as an alien convicted of a crime of domestic violence; § 1227(a)(2)(A)(ii), as an alien convicted of two crimes involving moral turpitude; and § 1227(a)(1)(A), as an alien who obtained admission via fraud in 2000 by failing to disclose his 1993 theft conviction. Camacho responded by disputing his prior conviction for theft and denying all grounds for removability. On May 26, 2015, the Immigration Judge ("IJ") issued a decision finding Camacho removable as an alien convicted of an aggravated felony. Camacho then applied to adjust status through his second wife (a US citizen), and sought a waiver of his inadmissibility.

At the hearing to evaluate Camacho’s application, Camacho testified that he was innocent of the underlying conduct of indecent contact with a child. Camacho explained that he pled guilty to the charges in order to avoid the possibility of a lengthy mandatory minimum sentence if convicted at trial, but that he had not actually engaged in the alleged activity. He said the charges were the result of a plot by his ex-wife to frame him. Other members of his community testified to his good character.

The IJ granted Camacho’s application, finding that Camacho merited a favorable exercise of discretion. The IJ acknowledged that ordinarily a conviction for sexual abuse of a minor would weigh heavily against granting discretionary relief. However, the IJ found that Camacho’s testimony and that of his witnesses "render[ed] the conduct underlying the [sexual contact] conviction dubious." As a result, the IJ announced he would not afford the conviction its ordinary "full adverse weight."

Neither would the IJ ignore the conviction. Testimony elicited by the government suggested that one of Camacho’s victims had attempted suicide following the alleged sexual misconduct. In particular, Camacho’s wife acknowledged the attempted suicide during her testimony:

Q: What happened was one of the victims tried to kill herself, right?

A: Uh-huh.

The IJ did not directly quote Ms. Camacho’s testimony. The IJ explained, however, that testimony mentioning an "apparent suicide attempt by one of the victims in concert with the accusations" led him to consider the conviction (while still giving it less weight to account for the possibility that Camacho was innocent). The IJ found that the other equities, including Camacho’s long ties to his community and family, merited relief. The IJ also considered the possibility that Camacho’s wife could commit suicide if the pair were separated, writing that "the potential suicide that completes this analysis balances the alleged suicide that began it."

DHS successfully appealed the grant of discretionary relief to the BIA. The BIA found that the IJ, in crediting testimony suggesting that Camacho may not have committed his crime, impermissibly went "behind a record of conviction to reassess [Camacho’s] ultimate guilt or innocence." Matter of Roberts, 20 I. & N. Dec. 294, 301 (B.I.A. 1991) (citing Matter of Edwards, 20 I. & N. Dec. 191 (B.I.A. 1990) ). The BIA considered Camacho’s denial of the underlying conduct a negative factor weighing against relief, as it demonstrated that he had failed to take responsibility for his misconduct. The BIA also "found significant" that one of Camacho’s victims "attempted suicide following this offense." The BIA concluded that Camacho was not entitled to a discretionary grant of adjustment of status.

Camacho filed a motion asking the BIA to reconsider its decision. In particular, Camacho argued that the BIA’s statement that one of his victims "attempted suicide following this offense" was not supported by the IJ’s fact-finding and that the BIA had violated the clear error standard of review. See 8 C.F.R. §§ 1003.1(d)(3)(i) and (iv). The BIA denied the motion. The BIA disagreed that its original order committed error in stating that one of Camacho’s victims attempted suicide, citing the IJ’s discussion of testimony relating to the suicide attempt, as well as Camacho’s testimony. This petition followed.

II. Discussion

We ordinarily do not possess jurisdiction "to review discretionary denials of adjustment of status, unless the petition for review raises a constitutional claim or question of law." Hailemichael v. Gonzales, 454 F.3d 878, 886 (8th Cir. 2006) (citing 8 U.S.C. § 1252(a)(2)(B)(i),(ii) and (a)(2)(D) ). However, we "have held repeatedly that we have jurisdiction to review the denial of a motion to reconsider even when we lack jurisdiction to review the denial of the underlying motion." Averianova v. Holder, 592 F.3d 931, 935 (8th Cir. 2010) ; see also Al Milaji v. Mukasey, 551 F.3d 768, 773-74 (8th Cir. 2008). Our precedent compels the conclusion that we have jurisdiction to review Camacho’s petition, even though: 1) our review may "require us to consider the validity of [the underlying] order," Al Milaji, 551 F.3d at 774 (alteration in original) (internal quotation mark omitted) (quoting Aneyoue v. Gonzales, 478 F.3d 905, 907 (8th Cir. 2007) ), and, 2) we are statutorily barred from reviewing the factual claims in the underlying order in this case, which involves discretionary relief.¹ See 8 U.S.C. § 1252(a)(2)(B)(i).

We review the agency’s denial of a motion to reconsider for an abuse of discretion. Al Milaji, 551 F.3d at 774 (citing Aneyoue, 478 F.3d at 907 ). When reviewing the denial of a motion to reconsider, "we will find an abuse of discretion if the denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis (such as race)." Boudaguian v. Ashcroft, 376 F.3d 825, 828 (8th Cir. 2004) (quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003) ). To satisfy the requirement to offer a "rational explanation," the BIA need not revisit in detail every issue raised concerning the original order. See Averianova, 592 F.3d at 936 (quoting Barragan–Verduzco v. INS, 777 F.2d 424, 426 (8th Cir. 1985) ) (explaining that the BIA has "no duty to write an exegesis on every contention"). Instead, the BIA’s obligation is to "consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Camarillo-Jose v. Holder, 676 F.3d 1140, 1143 (8th Cir. 2012) (internal quotation mark omitted) (quoting Averianova, 592 F.3d at 936 ).

We conclude that the BIA satisfied its obligation to provide a "rational explanation" for its original decision to deny Camacho relief when it denied Camacho’s motion to reconsider.² In the BIA’s original consideration of DHS’s appeal it was required to review for clear error findings of fact, including determinations of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.1(d)(3)(i). The BIA could review de novo issues of law, judgment, and discretion. 8 C.F.R. § 1003.1(d)(3)(ii).

The BIA’s explanation that it did not violate the clear error standard of review in its weighing of the attempted suicide of one of Camacho’s victims qualifies as a "rational explanation." It is important to remember that the IJ balanced two considerations when deciding the weight he would afford Camacho’s conviction: 1) the IJ’s doubts that the underlying charges were true, and 2) testimony suggesting that one of Camacho’s victims attempted suicide "in concert with" the allegations. The IJ explicitly admitted that the testimony concerning the attempted suicide would weigh into his consideration of the equities, so that he would not "ignore" the conviction. At the same time, the IJ stated that he was unsure the sexual misconduct had, in fact, occurred. Read in context, the only plausible conclusion that can be drawn from the IJ’s analysis is that he partially credited testimony regarding the existence of the attempt but was unsure how much weight to give it in his analysis, given his underlying suspicion that Camacho had not actually committed the offense.

However, the IJ was not entitled to go behind Camacho’s record of conviction to reassess his "ultimate guilt or innocence" (as the BIA correctly pointed out when considering DHS’s appeal). See Roberts, 20 I. & N. Dec. at 301 (citing Edwards, 20 I. & N. Dec. 191 ); see also Trench v. INS, 783 F.2d 181, 184 (10th Cir. 1986) (quoting Zinnanti...