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    The petitioner, a Dominican national, sought voluntary departure from the United States to avoid removal proceedings. The immigration judge and Board of Immigration Appeals denied his request based largely on a police report describing a domestic violence incident. The petitioner argued this was an abuse of discretion and legal error. The court dismissed the abuse of discretion claim for lack of jurisdiction, as it challenged only factual weighing. However, the court had jurisdiction to review the claim of legal error in relying on the police report.

    Original Description:

    Filed: 2015-02-27 Precedential Status: Precedential Docket: 13-2537

    Original Title

    Arias Minaya v. Holder, 1st Cir. (2015)

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    The petitioner, a Dominican national, sought voluntary departure from the United States to avoid removal proceedings. The immigration judge and Board of Immigration Appeals denied his request based largely on a police report describing a domestic violence incident. The petitioner argued this was an abuse of discretion and legal error. The court dismissed the abuse of discretion claim for lack of jurisdiction, as it challenged only factual weighing. However, the court had jurisdiction to review the claim of legal error in relying on the police report.

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    United States Court of Appeals: For The First Circuit

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    The petitioner, a Dominican national, sought voluntary departure from the United States to avoid removal proceedings. The immigration judge and Board of Immigration Appeals denied his request based largely on a police report describing a domestic violence incident. The petitioner argued this was an abuse of discretion and legal error. The court dismissed the abuse of discretion claim for lack of jurisdiction, as it challenged only factual weighing. However, the court had jurisdiction to review the claim of legal error in relying on the police report.

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    of 13

    United States Court of Appeals

    For the First Circuit


    No. 13-2537
    CARLOS MANUEL ARIAS-MINAYA,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., ATTORNEY GENERAL,
    Respondent.

    PETITION FOR REVIEW OF AN ORDER OF THE


    BOARD OF IMMIGRATION APPEALS

    Before
    Lynch, Chief Judge,
    Souter,* Associate Justice,
    and Selya, Circuit Judge.

    Jeffrey B. Rubin, Allan M. Tow, and Rubin Pomerleau, P.C. on


    brief for petitioner.
    Stuart F. Delery, Assistant Attorney General, Civil Division,
    Eric W. Marsteller, Senior Litigation Counsel, and Juria L. Jones,
    Trial Attorney, Office of Immigration Litigation, on brief for
    respondent.

    February 27, 2015

    Hon. David H. Souter, Associate Justice (Ret.) of the


    Supreme Court of the United States, sitting by designation.

    SELYA, Circuit Judge.

    Petitioner Carlos Manuel Arias-

    Minaya seeks judicial review of a final order of the Board of


    Immigration
    departure.

    Appeals

    (BIA)

    denying

    his

    request

    for

    voluntary

    After careful consideration, we deny the petition in

    part and dismiss it in part for want of jurisdiction.


    I.

    BACKGROUND
    The relevant facts are easily assembled. The petitioner,

    a Dominican national, overstayed after entering the United States


    in 2005 on a six-month visitor's visa.

    In 2009, the Department of

    Homeland Security commenced removal proceedings.


    1227(a)(1)(B).

    See 8 U.S.C.

    The petitioner conceded removability and cross-

    applied for adjustment of status, see id. 1255, or voluntary


    departure, see id. 1229c.
    While the immigration proceedings were pending, the
    petitioner was arrested and charged in a Massachusetts state court
    with one count of assault with a dangerous weapon (a knife) and
    three counts of threatening to commit murder.
    ch. 265, 15B(b); id. ch. 275, 2.
    domestic disturbance.

    See Mass. Gen. Laws

    The charges arose from a

    The record indicates that when the officers

    arrived at the scene, the complaining witness (the mother of the


    petitioner's two children) told the police that the petitioner had
    repeatedly threatened to kill both her and her children, first by
    telephone and then in person.

    The police arrested the petitioner,

    -2-

    and a state court thereafter granted the complaining witness a


    restraining order.
    One of the police officers prepared a report documenting
    the events surrounding the petitioner's arrest.

    This report

    chronicled statements made by both the complaining witness and the


    petitioner.1
    In the immigration court, the petitioner abandoned his
    claim for adjustment of status.
    his

    claim

    introduced

    for

    voluntary

    into

    He continued, however, to press

    departure.

    evidence.

    At

    the

    The
    end

    police

    of

    the

    report

    was

    hearing,

    the

    immigration judge (IJ) determined that, even though the criminal


    charges against the petitioner were still pending in state court,
    there was no reason to find the police report inaccurate or lacking
    in probative value.

    In the IJ's view, the police report reliably

    disclosed a "very disturbing set of facts" and the petitioner


    presented a "direct an[d] immediate danger to both his children and
    the mother of his children."
    factors

    far

    outweighed

    any

    The IJ concluded that these negative


    positive

    factors

    and,

    thus,

    the

    petitioner did not warrant a favorable exercise of discretion in


    the form of voluntary departure.

    An order for removal followed.

    The petitioner appealed to the BIA. While the appeal was


    pending,

    the

    criminal

    charges

    were

    dismissed

    because

    the

    The petitioner reportedly told the police that he "was


    crazy" and "wanted [the police] to arrest him."
    -3-

    complaining witness failed to appear.

    The petitioner thereupon

    asked the BIA to remand the matter to the IJ for reconsideration.


    The BIA obliged, acknowledging that the IJ had relied on the
    criminal charges in denying the petitioner's request for voluntary
    departure.
    On remand, the IJ invited the petitioner to submit a
    declaration describing his version of the events surrounding the
    arrest.

    The petitioner declined the invitation.

    In reconsidering

    his earlier decision, the IJ noted that the dismissal of the


    criminal charges occurred only because the complaining witness had
    failed to appear for trial.

    The IJ further observed that the

    petitioner had offered no reason to doubt either the reliability of


    the police report or the truth of the facts set forth therein.

    The

    IJ concluded that the police report was probative, that reliance on


    it was appropriate under the circumstances, that the negative
    factors weighing against voluntary departure (principally, those
    related to the events described in the police report) outweighed
    any positive factors, and that an exercise of discretion in the
    petitioner's favor was therefore unwarranted.
    The petitioner again appealed to the BIA.

    This time

    around, the BIA affirmed the IJ's denial of voluntary departure.


    In doing so, it concluded that the IJ had not afforded undue weight
    to the facts contained in the police report because the police
    report was probative of factors relevant to the discretionary

    -4-

    analysis and the petitioner was given every opportunity to refute


    the report's contents.

    This timely petition for judicial review

    followed.
    II.

    ANALYSIS
    Voluntary departure is a discretionary form of relief.

    See

    U.S.C.

    1229c(a)(1),

    (b)(1).

    It

    benefits

    both

    the

    government and the alien by enabling the former to expedite


    repatriation and the latter to avoid some of the harsh strictures
    See Naeem v. Gonzales, 469 F.3d

    that typically accompany removal.


    33, 36-37 (1st Cir. 2006).

    An alien may request voluntary departure either in lieu


    of removal, see 8 U.S.C. 1229c(a)(1), or at the conclusion of
    removal proceedings, see id. 1229c(b).

    In either event, the

    alien must show that he meets the relevant statutory requirements


    and that he merits a favorable exercise of discretion.

    See id.

    1229a(c)(4)(A); Matter of Arguelles-Campos, 22 I&N Dec. 811, 817


    (BIA 1999); 8 C.F.R. 1240.26(b)-(c).

    The record is murky as to

    whether the petitioner sought voluntary departure under section


    1229c(a)(1) or section 1229c(b).

    Here, however, we need not probe

    this point: the statutory eligibility requirements are not in


    issue, and the agency refused to grant voluntary departure solely
    as a matter of discretion.
    Against this backdrop, we turn to the petitioner's claims
    of error.

    Because the BIA adopted and affirmed the IJ's decision

    -5-

    yet supplied its own gloss, we review the tiered decisions as a


    unit.

    See Ramirez-Matias v. Holder, ___ F.3d ___, ___ (1st Cir.

    2015) [No. 14-1056, slip op. at 5].


    We start with the recognition that our jurisdiction to
    review decisions denying discretionary relief from removal is
    narrowly circumscribed. As a general rule, a federal court may not
    review the agency's discretionary decisionmaking in an immigration
    case (including orders granting or denying voluntary departure).
    See 8 U.S.C. 1252(a)(2)(B)(i); Dada v. Mukasey, 554 U.S. 1, 11
    (2008).

    "But this rule, like virtually every other general rule,

    admits of exceptions."
    at 7].

    Ramirez-Matias, ___ F.3d at ___ [slip op.

    We may review such decisions to the extent that the

    assigned errors raise colorable constitutional claims or questions


    of law.

    See 8 U.S.C. 1252(a)(2)(D); Ramirez-Matias, ___ F.3d at

    ___ [slip op. at 7].


    Whether a claim fits within the confines of one of these
    exceptions depends on substance, not on form. See Ayeni v. Holder,
    617 F.3d 67, 70-71 (1st Cir. 2010).

    "A bare allegation of either

    a constitutional shortfall or legal error will not transmogrify an


    unreviewable issue of fact into an issue reviewable by the courts."
    Id. at 71.
    The petitioner here makes two related claims: he says
    that the IJ's and the BIA's decisions not only reflect an abuse of

    -6-

    discretion but also are tainted by legal error.2

    With respect to

    the latter claim, he submits that the agency either ignored or


    misconstrued applicable precedents by relying on a police report
    that never culminated in a conviction and consisted mainly of
    untrustworthy "double-hearsay statement[s]."
    The petitioner's first claim abuse of discretion is
    beyond the scope of judicial review.

    It amounts to nothing more

    than a challenge to the way in which the IJ (and, on appeal, the


    BIA) weighed the facts.

    As such, the claim is reminiscent of the

    claim presented in Ramirez-Matias, where the alien argued that the


    agency gave police reports "too much weight" and failed properly to
    assess their "probative value."

    ___ F.3d at ___ [slip op. at 8].

    We dismissed that claim for want of jurisdiction, holding that the


    petitioner's attack on the agency's discretionary decisionmaking
    was "hopelessly factbound."
    Matias

    is

    controlling

    Id. at ___ [slip op. at 8].

    here.

    Accordingly,

    we

    Ramirez-

    dismiss

    the

    petitioner's abuse of discretion claim for want of jurisdiction.

    In his reply brief, the petitioner makes yet a third claim:


    that his procedural due process rights were violated. This claim
    is twice foreclosed. For one thing, the petitioner failed to raise
    any due process argument before the BIA and, thus, we lack
    jurisdiction to consider such an argument now. See Wan v. Holder,
    ___ F.3d ___, ___ (1st Cir. 2015) [Nos. 13-1893, 14-1285, slip op.
    at 7] (explaining that an alien must exhaust all administrative
    remedies to confer jurisdiction on a federal court). For another
    thing, the due process argument surfaced for the first time in the
    petitioner's reply brief and, therefore, has been waived.
    See
    Jupiter v. Ashcroft, 396 F.3d 487, 491 n.5 (1st Cir. 2005);
    Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).
    -7-

    See id. at ___ [slip op. at 9]; see also Castro v. Holder, 727 F.3d
    125,

    129-30

    (1st

    Cir.

    2013)

    (concluding

    that

    court

    lacked

    jurisdiction since petitioner's claims on appeal merely attacked


    factual findings); Ayeni, 617 F.3d at 72-73 (concluding that
    argument about weight afforded certain factors in a discretionary
    analysis was essentially attack on factual finding that did not
    raise reviewable constitutional or legal question); Elysee v.
    Gonzales, 437 F.3d 221, 223-24 (1st Cir. 2006) (concluding that
    claims that IJ disregarded certain factors and overvalued others
    did not raise colorable constitutional or legal questions).
    While we lack jurisdiction to review the petitioner's
    claim that the agency abused its discretion in weighing the
    evidence, we may have jurisdiction to review his claim that the
    agency should not have considered the police report at all.
    claim

    posits

    that

    the

    agency

    either

    ignored

    or

    This

    misconstrued

    applicable precedents in failing to exclude as a matter of law a


    police report that consisted mainly of hearsay statements and
    described an arrest that never culminated in a conviction.

    As

    framed, this claim asks us to determine the contours of a legal


    standard governing the use of evidence; and "the choice and shape
    of an applicable legal standard is quintessentially a question of
    law."

    Ayeni, 617 F.3d at 71.


    A case that aptly illustrates the dichotomy between the

    petitioner's legal standard claim and his abuse of discretion claim

    -8-

    is Barrera-Quintero v. Holder, 699 F.3d 1239 (10th Cir. 2012).


    There, the petitioner argued that the BIA misconstrued prior BIA
    precedents in determining whether he had voluntarily departed. See
    id. at 1244-45. The Tenth Circuit exercised jurisdiction to review
    the claimed legal error with respect to the interpretation of
    relevant precedents.

    See id. at 1245.

    But the court declined to

    reach the ultimate question of the petitioner's eligibility for


    discretionary

    relief,

    concluding

    that

    this

    question

    was

    so

    factbound as to fall outside the scope of judicial review. See id.


    at 1246-47.
    Nor is this the first time that we have considered a
    single petition for judicial review that presents related claims
    that arguably fall on different sides of the jurisdictional divide.
    In Gonzalez-Ruano v. Holder, 662 F.3d 59 (1st Cir. 2011), the
    petitioner assigned error to the BIA's consideration of a prior
    state court criminal conviction in the discretionary evaluation of
    his request for special rule cancellation of removal.
    64.

    See id. at

    We exercised jurisdiction to review the petitioner's legal

    claim concerning the BIA's interpretation of the relevant statute


    to ensure that the statute permitted consideration of the prior
    conviction.
    appropriately

    See id.

    Once we determined that the conviction was

    considered,

    however,

    we

    ruled

    that

    we

    lacked

    jurisdiction to review the agency's weighing of that conviction in


    the discretionary decisionmaking calculus.

    -9-

    See id. at 64-65.

    The issue in this case, however, is whether the legal


    standard claim advanced by the petitioner is colorable. That issue
    is

    close,

    but

    we

    need

    not

    grapple

    with

    it.

    Assuming,

    for

    argument's sake, that the petitioner's claim is colorable and that


    we therefore have jurisdiction to consider it, the claim is easily
    repulsed on the merits.
    On this understanding, we review de novo the putatively
    colorable legal question of whether it was permissible for the
    agency to consider the police report.
    F.3d 35, 38 (1st Cir. 2012).

    See Gonzalez v. Holder, 673

    We hold that there was no error in

    considering the police report even though it contained hearsay and


    the petitioner's arrest did not result in a conviction.
    We do not write on a pristine page.
    matter,

    it

    is

    settled

    beyond

    hope

    of

    As an initial

    contradiction

    that

    in

    reviewing requests for discretionary relief, immigration courts may


    consider police reports even when they rest largely on hearsay.
    See Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996).

    There are, of

    course, limits but those limits are generally satisfied as long


    as the trier first determines that the report is reliable and that
    its use would not be fundamentally unfair. See Matter of Teixeira,
    21 I&N Dec. 316, 321 (BIA 1996); Matter of Grijalva, 19 I&N Dec.
    713, 721-22 (BIA 1988).
    applied here.
    that

    the

    The applicable precedents were properly

    To begin, the IJ determined (and the BIA confirmed)

    police

    report

    was

    reliable

    -10-

    and

    probative

    of

    the

    petitioner's character.

    Similarly, both the IJ and the BIA

    determined that use of the police report was not fundamentally


    unfair since the petitioner was given an opportunity to challenge
    its veracity and refute its contents.
    As long as the nature and stage of the proceedings are
    taken into account as they were here the case law does not
    categorically preclude the agency from considering a police report
    simply because the arrest detailed therein has not resulted in a
    conviction.

    See Henry, 74 F.3d at 6-7; White v. INS, 17 F.3d 475,

    479-80 (1st Cir. 1994); Matter of Thomas, 21 I&N Dec. 20, 23-24
    (BIA 1995).

    In Henry, for example, we sanctioned the agency's

    reliance on facts contained in a police report though the charges


    were still pending.

    See 74 F.3d at 5-7.

    We reasoned that, in the

    context of determining whether an alien warrants discretionary


    relief from removal, the fact of an arrest and its attendant
    circumstances, without more, may have probative value in assessing
    his

    character

    relief).3

    (and,

    thus,

    his

    suitability

    for

    discretionary

    See id. at 6.

    We note that both Henry and White were decided before


    Congress stripped the federal courts of the power to review
    discretionary decisions in immigration cases.
    See Illegal
    Immigration Reform & Immigrant Responsibility Act of 1996, Pub. L.
    No. 104-208, Div. C, Title III, 306(a)(2), 110 Stat. 3009-546,
    3009-607. Though decided under an earlier regime, those decisions
    remain apposite insofar as they construe BIA precedent relevant to
    the legal question of whether the agency may consider police
    reports in making discretionary determinations.
    -11-

    The petitioner asserts that Matter of Arreguin, 21 I&N


    Dec. 38 (BIA 1995), requires a different result. This assertion is
    groundless.

    While the BIA in that case afforded little weight to

    an arrest that did not result in prosecution, see id. at 42, we


    previously have explained that the decision in Arreguin rested on
    idiosyncratic facts and the case surely does not create an ironclad
    rule that an arrest without a subsequent conviction may never be
    considered in the discretionary relief context. See Henry, 74 F.3d
    at 6.
    We conclude, therefore, that there is no per se bar to
    the agency's consideration of hearsay-laden police reports where
    convictions have not followed.4
    conclusion.

    Other courts have reached the same

    See, e.g., Paredes-Urrestarazu v. INS, 36 F.3d 801,

    810 (9th Cir. 1994); Parcham v. INS, 769 F.2d 1001, 1005 (4th Cir.
    1985).
    legal

    It follows that neither the IJ nor the BIA committed any


    error

    petitioner's

    by

    considering

    arrest

    as

    the

    police

    negative

    report

    factor

    describing

    weighing

    the

    against

    discretionary relief.

    We note that such a rule seems especially uncontroversial


    where, as here, the charges against the petitioner were dropped
    only because the complaining witness failed to appear for trial and
    any concern for fundamental fairness was fully addressed by
    affording the petitioner ample opportunity to challenge or refute
    the report.
    -12-

    III.

    CONCLUSION
    We need go no further. For the reasons elucidated above,

    the petition for review is denied in part and dismissed in part.

    So Ordered.

    -13-

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