Peulic v. Garland
| Decision Date | 11 January 2022 |
| Docket Number | No. 20-1587,20-1587 |
| Parties | Igor PEULIC, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Stephanie E.Y. Marzouk for petitioner.
Jennifer A. Singer, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom John V. Coghland, Deputy Assistant Attorney General and Shelley R. Goad, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Before Barron and Selya, Circuit Judges, and Delgado-Hernández,** † District Judge.
Igor Peulic petitions for review of a final order of the Board of Immigration Appeals ("BIA"), which affirmed an immigration judge's decision finding him removable and denying his application for adjustment of immigration status, waiver of inadmissibility, asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), and ordered him removed from the United States. After careful consideration, we deny the petition in part and dismiss it in part for want of jurisdiction.
Mr. Peulic is a 38-year-old native and citizen of Bosnia-Herzegovina. In July 1992, he was admitted to the United States as a refugee. In April 2016, he was convicted by a jury in Massachusetts of: (1) assault with a dangerous weapon ("ADW"), a firearm, see Mass. Gen. Laws ch. 265, § 15B(b), for which he was sentenced to a term of imprisonment of four to five years; (2) carrying a firearm, a .357 revolver, without a license, see Mass. Gen. Laws ch. 269, § 10(a), for which he was sentenced to a concurrent term of imprisonment of four to five years; (3) carrying a loaded firearm without a license, see id. § 10(n), for which he was sentenced to a consecutive but suspended term of imprisonment of two and a half years; and (4) discharging a firearm within 500 feet of a dwelling, see id. § 12E, for which he was sentenced to a concurrent term of imprisonment of three months.
The convictions stemmed from an incident that occurred in the early morning hours of February 1, 2015, when a police officer on patrol in the Bellingham Square section of Chelsea, Massachusetts –- a typically busy area -– heard three gunshots and observed a muzzle flash coming from a crosswalk. As the officer approached, he observed a man, later identified as Mr. Peulic, with a firearm in his hand.1 Mr. Peulic ignored the officer's order to stop and fled on foot. He encountered a second officer, who ordered Mr. Peulic to drop the gun several times. Mr. Peulic ignored the officer's commands, advanced toward the officer, and pointed the gun in the direction of the officer. Believing he was in immediate danger, the officer fired his service weapon three times, striking Mr. Peulic once. After being shot, Mr. Peulic dropped the gun but tried to reach it until being ordered by police not to touch the gun. Mr. Peulic appealed his conviction for ADW. In April 2018, the Massachusetts Appeals Court affirmed the conviction. See Commonwealth v. Peulic, 93 Mass.App.Ct. 1106, 103 N.E.3d 771 (2018) (unpublished table decision). In June 2018, the Massachusetts Supreme Judicial Court denied further appellate review. See Commonwealth v. Peulic, 113 N.E.3d 838 (Mass. 2018) (unpublished table decision).
On October 9, 2018, the Department of Homeland Security served Mr. Peulic with a Notice to Appear, charging him with removability under Section 237(a)(2)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony in connection with ADW, and Section 237(a)(2)(C) of the INA, 8 U.S.C. § 1227(a)(2)(C), for the firearm offense.2 On April 25, 2019, Mr. Peulic appeared with counsel for a preliminary hearing before an Immigration Judge ("IJ"), conceding the firearms charge of removability while denying the aggravated felony charge of removability. After reviewing the conviction documents, the IJ sustained both charges of removability.
On June 4, 2019, Mr. Peulic submitted applications for adjustment of status and a concurrent waiver of inadmissibility to the IJ. In addition, he sought asylum, withholding of removal, and CAT protection. On June 26, 2019, he appeared for a merits hearing, and testified in support of his applications for relief, as did two of his three siblings, Bojan Peulic and Tatjana Peulic. The testimony reflects that their mother has schizophrenia
, breast cancer, and diabetes
. Prior to his February 2015 arrest, Mr. Peulic was the mother's primary caregiver because his siblings and father worked fulltime, whereas Mr. Peulic did not. Since that date, Mr. Peulic's sister, who lives with her parents and two other brothers, took over responsibility for their mother's care, albeit the father helps when he can. She expressed that taking care of her mother is "very hard," particularly because she also has a young child. Tatjana said that she expects Mr. Peulic to resume caretaking duties once he is released from custody, though the record reflects that as a condition of his probation, Mr. Peulic is required to maintain full-time employment or school. The family has discussed placing the mother in a nursing home, but they worry that she would not be treated well there.
Mr. Peulic has family ties in Bosnia-Herzegovina, and his father traveled there as recently as 2018 without incident, despite his military service during that country's war, and being Orthodox Christian in a predominantly Muslim part of Bosnia-Herzegovina. Mr. Peulic's siblings declared that if he had to return to Bosnia-Herzegovina, circumstances would be "much harder for them" and that his family "need[ed] [him] here." As for his crimes, Mr. Peulic stated he did not recall what happened because he was "black[ed] out" from consuming too much alcohol. Even though the incident was characterized as isolated, he admitted to a history of struggles with alcohol. He remarked that he realized he "[made] a big mistake," and attended AA meetings and a violence prevention class while in state custody.
On July 25, 2019, Mr. Peulic sought to adjust his status from refugee to that of a lawful permanent resident under 8 U.S.C. § 1159(a) with the United States Citizenship and Immigration Services ("USCIS") and applied for a concurrent waiver of inadmissibility under 8 U.S.C. § 1159(c). On September 12, 2019, the USCIS denied Mr. Peulic's applications for adjustment of status and waiver. It concluded that, because Mr. Peulic's crime was "violent or dangerous," pursuant to Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002), he was required to show "exceptional and extremely unusual hardship" to overcome his criminal history, and neither his mother's illness nor the difficulties he would face in Bosnia-Herzegovina met this standard.
On October 17, 2019, the IJ issued a written decision, finding that Mr. Peulic's conviction for ADW was a "crime involving moral turpitude" that rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), and thus ineligible for adjustment of status under 8 U.S.C. § 1159(a).3 Considering Mr. Peulic's application for a waiver of inadmissibility, the IJ determined that Mr. Peulic's crime was "violent and dangerous." As a result, the Matter of Jean heightened standard applied to his request for a waiver. Applying this standard, the IJ concluded that Mr. Peulic failed to establish that his removal would cause "exceptional and extremely unusual hardship" to himself or his family. Alternatively, the IJ determined that, even if Mr. Peulic had established the requisite hardship, he did not merit a waiver as a matter of discretion. She explained that Mr. Peulic engaged in an extremely serious and dangerous incident that had the potential to cause the death of a police officer in the line of duty and put others in the area in great danger as well. Furthermore, she found Mr. Peulic ineligible for asylum and withholding of removal, and denied the application for CAT protection, concluding that Mr. Peulic had not shown he would more likely than not suffer torture upon return to Bosnia-Herzegovina. Thus, she ordered him removed from the United States to Bosnia-Herzegovina.
The BIA affirmed the IJ's decision to deny Mr. Peulic's application to adjust his status in conjunction with a waiver of inadmissibility.
Because Mr. Peulic claims that the agency relied on a wrong legal standard -- the heightened standard set in Matter of Jean –- and wrongfully applied the standard here, he raises questions of law over which we have jurisdiction. See Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010) (); Mustafic v. U.S. Att'y Gen., 591 F. App'x 726, 729 (11th Cir. 2014) ().
Mr. Peulic alleges that, in Matter of Jean, the Attorney General exceeded the scope of his discretionary authority by adopting a heightened waiver standard. An alien who is found to have committed "a crime of moral turpitude" generally may be deemed inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). If a refugee alien is inadmissible, he may request a waiver of inadmissibility. See 8 U.S.C. § 1159(c). The Attorney General may, in his discretion, waive certain grounds of inadmissibility for "humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." See 8 U.S.C. § 1159(c). Applying this precept, in Matter of Jean, the Attorney General overturned the BIA, which had granted an inadmissibility waiver to a refugee convicted of second-degree manslaughter for beating and shaking a baby to death. 23 I. & N. Dec. at 374-75. Doing so, the Attorney General articulated...
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