Dor v. Garland

Decision Date19 August 2022
Docket Number20-1694
Parties Jonalson DOR, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

46 F.4th 38

Jonalson DOR, Petitioner,
v.
Merrick B. GARLAND,* Attorney General, Respondent.

No. 20-1694

United States Court of Appeals, First Circuit.

August 19, 2022


Edward Crane, with whom Philip L. Torrey, Crimmigration Clinic, Harvard Law School, Shaiba Rather, Lena Melillo, and Katie Quigley, Law Student Advocates, Crimmigration Clinic, Harvard Law School, were on brief, for petitioner.

Andrew B. Insenga, Trial Attorney, U.S. Department of Justice, Civil Division, with whom Jeffrey B. Clark, Acting Assistant Attorney General, Civil Division, and Matthew B. George, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Thompson, Howard, and Gelpí, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioner, Jonalson Dor ("Dor"), seeks judicial review of a Board of Immigration Appeals ("BIA") decision affirming an immigration judge's ("IJ") decision to deny Dor's applications for relief from removal based on two marijuana offenses that the IJ and BIA found, for different reasons, to be "particularly serious" pursuant to 8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii). Before us, Dor argues that the BIA failed to conduct the appropriate analysis to reach its particularly-serious-crime conclusion. The government urges that we shouldn't even reach Dor's substantive challenges due to his petition's jurisdictional defects, but even if we can find our way to the merits, the government maintains the BIA's decision was correct.

46 F.4th 42

We find we have jurisdiction to review the petition. And, having undertaken that review, we remand to the BIA for further proceedings consistent with this opinion.

BACKGROUND

We begin our work by recounting the relevant parts of Dor's story and reciting the procedural history that brought him to us, pulling all relevant facts from the administrative record. See Adeyanju v. Garland, 27 F.4th 25, 31 (1st Cir. 2022) (citing Martínez-Pérez v. Sessions, 897 F.3d 33, 37 n.1 (1st Cir. 2018) ).

Dor is a native and citizen of Haiti who was admitted to the United States as a legal permanent resident back in 2007. But in April 2019, the Department of Homeland Security initiated removal proceedings against Dor, charging him with removability as a non-citizen convicted of a criminal offense relating to a controlled substance.

After a hearing, the IJ found Dor removable based on two 2016 Massachusetts state court convictions: one for distribution of $20 worth of marijuana, on May 20, and one for possession of what a police report says was "a large amount" (25 grams) of marijuana with the intent to distribute, on June 1. Dor then filed for various forms of relief, including applications for asylum, statutory withholding of removal, and withholding of removal pursuant to the United Nations Convention Against Torture.1

In a written decision denying Dor's applications for relief, the IJ found Dor ineligible for the relief he was seeking because his convictions were particularly serious crimes. By way of explanation, the IJ said that Dor had a "large amount of marijuana," and, under Matter of Y-L-, "all drug trafficking offenses are per se ‘particularly serious crimes.’ " 23 I. & N. Dec. 270, 276 (A.G. 2002). The IJ observed that sometimes a drug-trafficking offense is not a particularly serious crime -- this is true when the following rare and extraordinary circumstances are shown: (1) "a very small quantity of controlled substance"; (2) "a very modest amount of money paid for the drugs"; (3) "peripheral involvement ... in the criminal activity"; (4) absence of any violence or threat thereof; (5) absence of organized crime; and (6) "absence of any adverse or harmful effect of the activity or transaction on juveniles." Id. at 276-77 (providing this list and instructing that all criteria must be met for a court to scrutinize the default setting that all drug-trafficking felonies are particularly serious crimes). In the IJ's view, though, Dor could not even satisfy the first of those required factors since he was found with a "large amount of loose green leafy vegetable matter believed to be marijuana." Thus the IJ ordered Dor removed to Haiti.

Dor timely appealed to the BIA, arguing that the presumption set forth in Matter of Y-L- that "all drug trafficking offenses are per se ‘particularly serious crimes’ " applies only when the offenses are aggravated felonies, and his convictions were not. So, according to Dor, the BIA should remand the matter to the IJ to instead apply the multi-factor test for convictions that are not aggravated felonies, as set forth in Matter of Frentescu, to determine whether either of his convictions amounted to a particularly serious crime. See 18 I. & N. Dec. 244, 247 (BIA 1982) [hereinafter

46 F.4th 43

" Frentescu"] (listing "the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community" as the relevant factors to consider for this analysis).

The BIA agreed with Dor that the presumption in Matter of Y-L- that "all drug trafficking offenses are per se ‘particularly serious crimes’ " should not have been applied to his case because his convictions were not aggravated felonies. But instead of remanding to the IJ on this basis, the BIA observed that "whether an offense is a particularly serious crime is a question of law [it would] review de novo." The BIA, citing Frentescu (laying out relevant factors to make the particularly-serious-crime determination) and Matter of N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007) (same, and also instructing the immigration agencies to look at the elements of the statute of conviction to see whether the elements of the offense bring the crime into the particularly-serious-crime category), then indicated that "[w]here, as in the instant case, a conviction is not for an aggravated felony ... , [the BIA] examine[s] the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the case." "If the elements of the offense are found to potentially bring it within the ambit of a particularly serious crime," the BIA went on, again citing Matter of N-A-M-, "all reliable information that is relevant to the determination may be considered."

In the paragraph critical to Dor's appeal to this court (we'll lay it out in full later), the BIA stated that "[t]he nature, type, and circumstances of [Dor's] offenses are all indicative of a particularly serious crime," recited a number of the IJ's findings regarding both the May 20 and June 1 offenses, and then, "[f]or these reasons," upheld "the [IJ's] determination that [Dor was] ineligible for asylum and withholding of removal for having been convicted of a particularly serious crime."

Believing the BIA committed a variety of errors, Dor filed this timely petition for review, and we granted his subsequent motion to stay his removal.

JURISDICTION

We start by examining our jurisdiction, meaning we'll save for later our sum-up of Dor's merits arguments regarding the BIA's missteps. Our jurisdiction over petitions for review of BIA decisions is constrained by statute. And indeed, the government maintains we shouldn't reach any of Dor's contentions because 8 U.S.C. § 1252(a)(2)(C) precludes judicial review and, what's more, Dor failed to exhaust all administrative remedies. Below, we take these -- and Dor's responses to each -- in turn.

Section 1252 and Our Jurisdiction

Generally, we lack jurisdiction to review a final order of removal when the respondent has committed a criminal offense, see id. § 1252(a)(2)(C) (the so-called "criminal bar"), but...

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