Mutua v. U.S. Attorney Gen.

• Decision Date: 05 January 2022
• Docket Number: No. 20-13129,20-13129
• Citation: 22 F.4th 963
• Parties: Rainey Muoka MUTUA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

22 F.4th 963

Rainey Muoka MUTUA, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 20-13129

United States Court of Appeals, Eleventh Circuit.

Filed: January 5, 2022

Benjamin Ross Winograd, Immigrant & Refugee Appellate Center, Alexandria, VA, Helen Parsonage, Elliot Pishko Morgan, Winston-Salem, NC, for Petitioner.

Mona Maria Yousif, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Alfie Owens, DHS/ICE Office of Chief Counsel, Atlanta, GA, for Respondent.

Before Wilson, Lagoa, Circuit Judges, and Martinez,^* District Judge.

Martinez, District Judge:

Petitioner Rainey Muoka Mutua, a native and citizen of Kenya, seeks review of the final order issued by the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") discretionary denial of Mutua's application for adjustment of status. In his petition, Mutua argues that the IJ erred by holding him to an improperly high burden of proof when considering whether he was entitled to a favorable exercise of discretion. Mutua also argues that the BIA erred by applying the wrong standard of review to the IJ's determination, and that it misinterpreted its own regulations on administrative notice. Lastly, he argues that the BIA erred by not referring his appeal to a three-member panel because his case involved complex, novel, or unusual issues of law.

The government, in turn, contends that we lack jurisdiction over Mutua's issues challenging the burden of proof applied by the IJ and standard of review applied by the BIA, and we should dismiss his petition in that respect. As to the other issues regarding administrative notice and referral to a three-member panel, the government asserts that the BIA did not abuse its discretion and urges us to deny Mutua's petition. After reviewing the record and reading the parties’ briefs, we agree with the government and dismiss in part and deny in part Mutua's petition for review.

I. Background

Mutua, a native and citizen of Kenya, was admitted into the United States as a non-immigrant temporary visitor for business. He was authorized to remain in the country for about three months but did not depart in January 2006 as his visa required. In 2008, Mutua married a United States citizen. About eight years later, Mutua applied for an adjustment status. Nearly one year later, the Department of Homeland Security ("DHS") denied Mutua's application because he had criminal charges pending against him. In January 2018, Mutua re-submitted his adjustment application, but DHS denied it again for the same reasons.

The pending criminal charges arise from an alleged sexual assault that occurred in August 2013, while Mutua and several family members vacationed in South Carolina. After the vacation, Mutua's sister-in-law filed a report with the police stating that Mutua had sexually assaulted her eleven-year-old daughter. In response to the report, the police opened an investigation and arrested Mutua in September 2015, charging him with engaging in criminal sexual conduct with a child in the second degree. See S.C. Code Ann. § 16-2-655(B)(1). The case proceeded to trial and resulted in a hung jury. The state dismissed the charge against Mutua because the victim and her family did not want to endure another trial. When the jury trial concluded in October 2019, the state transferred custody of Mutua to DHS. DHS issued Mutua a notice to appear, charging him as removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Through counsel, Mutua conceded removability as charged and stated that he would apply for adjustment of status based on his marriage to a U.S. citizen.

At the merits hearing on Mutua's entitlement to adjustment of status, Mutua testified that he entered the United States with a business visa in 2005 but never left; married a U.S. citizen; fabricated trailers for a living; lived with his mother, wife, mother-in-law, and grandmother-in-law; and helped care for his in-laws. He testified that he had never been convicted of a crime, but that he had been arrested once for allegedly sexually abusing his niece. He testified to the facts and circumstances surrounding the crime he was accused of committing and denied any wrongdoing. Mutua's wife testified, stating that Mutua was a good and caring husband, and she did not believe he committed the alleged crime. His mother-in-law also testified, agreeing with her daughter about Mutua's character.

The IJ issued a decision recognizing that Mutua was statutorily eligible for adjustment of status but denying his application because Mutua did not merit a favorable exercise of the IJ's discretion. Without the benefit of a trial transcript, the IJ detailed the alleged assault based on the information provided by DHS. The IJ concluded that, based on the evidence, there was reason to believe that Mutua committed the offense. In addition, the IJ determined that Mutua had abused this country's hospitality by remaining longer than his non-immigrant visa authorized, and there was no evidence that he would be unable to work and provide for his family if removed to Kenya. Thus, while Mutua was statutorily eligible for adjustment of status, the IJ exercised its discretion and denied his application.

Mutua administratively appealed to the BIA. A single-member panel of the BIA dismissed Mutua's appeal and denied his motion to remand. The BIA stated that it reviewed de novo questions of law and the IJ's discretion and judgment. It then determined that, even if the government had implicitly conceded that Mutua did not engage in criminal conduct by accepting Mutua's statutory eligibility for adjustment of status, the IJ still had the independent obligation to inquire into Mutua's conduct to assess whether he merited a discretionary adjustment of status, and in doing so, the IJ was not bound by the government's concessions.

The BIA was not persuaded by Mutua's argument that the IJ improperly held him to a "clear and convincing" burden of proof, rather than to a "preponderance of the evidence" burden. The BIA also did not agree with Mutua that the IJ denied his application because there was probable cause to believe that he committed the assault—a lower standard of proof than "preponderance of the evidence." The BIA concluded that the IJ's use of the word "convincingly" did not impose a requirement on Mutua to prove his lack of criminal activity by a "clear and convincing" standard. Rather, the term "convincingly," as interpreted by the BIA in the context of the IJ's decision, simply noted Mutua's burden to prove with credible and persuasive evidence that he merited relief.

The BIA then balanced the factors relevant to Mutua's application and determined that the adverse factors outweighed the favorable ones. After noting the positive factors, it determined that Mutua's violation of his immigration status by overstaying his visa and arrest for the sexual assault charge were adverse factors. The BIA recognized that the IJ found the police and medical reports reliable and persuasive as to the key facts forming the basis for Mutua's actual conduct in connection with the child sexual abuse complaint. Those records all either supported or could not rule out the conclusion that Mutua sexually abused his niece. The BIA specifically noted that there was sufficient evidence in the police reports to show probable cause that the child molestation occurred, and because there was conflicting evidence on whether Mutua engaged in the criminal misconduct, the IJ's findings as to Mutua's actual conduct were a permissible view of the evidence.

In sum, the BIA acknowledged that there was no conclusive evidence that Mutua committed a sexual assault on a minor, but the existing evidence coupled with the severity of the crime alleged was sufficient to conclude that Mutua did not merit adjustment of status as a matter of discretion. Upon this conclusion, the BIA stated that given the conflicting evidence over whether Mutua committed the crime, the IJ did not commit "clear error" with regard to Mutua's actual conduct.

The BIA also declined to take administrative notice of Mutua's criminal trial transcript. The BIA reasoned that while the transcript appeared to be an official document, because the BIA was prohibited from reviewing it to weigh evidence and make a factual finding that Mutua did not commit the crime, administrative notice was not appropriate.

II. Standard of Review

We review only the BIA's decision, unless it expressly adopted the IJ's opinion or agreed with the IJ's reasoning. Perez-Zenteno v. U.S. Att'y Gen. , 913 F.3d 1301, 1306 (11th Cir. 2019). To the extent the BIA adopts the IJ's decision, we review the IJ's decision as if it were the BIA's decision. Id. We review our own subject-matter jurisdiction de novo . Jeune v. U.S. Att'y Gen. , 810 F.3d 792, 799 (11th Cir. 2016).

III. Discussion

A. The Court Lacks Jurisdiction Over the BIA's Discretionary Judgment

Generally, the Immigration and Nationality Act ("INA") § 242, contained in 8 U.S.C. § 1252, prevents us from exercising jurisdiction over a BIA's discretionary judgment regarding adjustment of status. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). Although we may review de novo constitutional questions and questions of law, the INA's jurisdictional bar prohibits our review of an exclusively "discretionary decision" and of "any judgment relating to [the alien's] request for relief, except to the extent that he raises a constitutional claim or a question of law." INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) ; Patel v. U.S. Att'y Gen. , 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc), cert. granted , ––– U.S. ––––, 141 S. Ct. 2850, 210 L.Ed.2d 959, 984 (2021) ; Jeune , 810 F.3d at 799. A question of law includes whether the BIA applied the wrong legal standard. See Jeune , 810 F.3d at 799.

We have jurisdiction over genuine, colorable constitutional or legal claims, but a "party may not dress up a claim with legal or constitutional clothing to...