Ramirez Matias v. Holder ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1056
JUAN RAMIREZ-MATIAS,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya and Thompson,
Circuit Judges.
Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Leslie McKay, Assistant Director, and Melissa Neiman-Kelting,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.
February 13, 2015
SELYA, Circuit Judge. Federal courts are courts of
limited jurisdiction — and those limits demand strict adherence.
As we explain below, the petitioner crosses this jurisdictional
line.
The petitioner's claims of error can be divided into two
tranches. The first tranche involves an agency decision under the
Nicaraguan Adjustment and Central American Relief Act (NACARA), see
Pub. L. No. 105-100, §§ 201-204, 111 Stat. 2160, 2196-2201
(codified as amended in scattered sections of 8 U.S.C.) — a
decision that Congress has removed from the jurisdiction of the
Article III courts. See 8 U.S.C. § 1252(a)(2)(B). The second
tranche involves claims of error that are unexhausted and, thus,
unsuitable for judicial review. See, e.g., 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).
The facts are straightforward. Petitioner Juan Ramirez-
Matias, a Guatemalan national, entered the United States without
inspection in 1990 and has remained unlawfully, save for a two-
month visit to his homeland. In August of 2008, the Department of
Homeland Security commenced removal proceedings against him. See
8 U.S.C. § 1182(a)(6)(A)(i). The petitioner conceded removability
and cross-applied for discretionary relief under NACARA in the form
of special rule cancellation of removal or, in the alternative, for
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asylum, withholding of removal, or protection under the United
Nations Convention Against Torture (CAT).
Although the petitioner admitted that he had neither been
threatened nor physically harmed while residing in Guatemala, he
asserted that he left to escape an ongoing civil war. He claimed
to fear returning to Guatemala because his return would bring back
negative memories of the war. As an additional ground for relief,
he argued that he does not wish to be separated from his children
(one of whom is a special needs child) and that, if he takes his
children to Guatemala, he will not be able to support them.
The discretionary nature of NACARA relief brought the
petitioner's moral character into issue before the immigration
judge (IJ). In his testimony, the petitioner was confronted with
two earlier domestic violence charges. The first — for battery —
occurred in 1994; the second — for assault — occurred in 2006.
The police report for the first incident states that the
petitioner's first wife, displaying visible marks, complained to
the responding officers that he had struck her several times in the
face. Both the petitioner and his first wife testified before the
IJ and contradicted this account.
The 2006 police report states that the police responded
to a call reporting a domestic dispute. There, the petitioner's
second wife told police that the petitioner had struck her in the
face and mouth. She had a bruise on her face and a bleeding cut on
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her lip consistent with this account. Before the IJ, however, both
the petitioner and his second wife disclaimed this version of
events.
The IJ denied the petitioner's entreaties for special
rule cancellation of removal, asylum, withholding of removal, and
CAT protection. He premised his decision denying special rule
cancellation of removal on a finding that, although the petitioner
met the continuous physical presence requirement and demonstrated
the requisite level of hardship with respect to his special needs
child, he did not merit a favorable exercise of discretion. In
this regard, the IJ expressed grave concern about the domestic
assault charges and what he characterized as perjurious testimony
by the petitioner and his two witnesses. The IJ also denied the
petitioner's asylum and withholding of removal claims (finding,
inter alia, that he neither was a victim of past persecution nor
subject to a well-founded fear of future persecution) and rejected
the CAT claim as well (noting that the petitioner had made no
showing that he would be tortured if repatriated).
The petitioner appealed to the Board of Immigration
Appeals (BIA). His appeal focused almost exclusively on the denial
of his NACARA claim and made only a perfunctory protest of the
denial of his other claims. The BIA upheld the IJ's denial of
special rule cancellation of removal under NACARA as an appropriate
exercise of discretion. At the same time, the BIA affirmed the
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IJ's rejection of the petitioner's remaining claims for relief.
This timely petition for judicial review followed.
In this venue, the petitioner attempts to pursue two
lines of attack. First, he asseverates that the denial of special
rule cancellation of removal constituted an abuse of discretion.
Second, he asseverates that the denial of his other requests for
relief was unwarranted.1 Where, as here, the BIA adopts and
affirms the IJ's decision but adds reasoning of its own, we review
the tiered decisions as a unit. See Chen v. Holder, 703 F.3d 17,
21 (1st Cir. 2012); Berrio-Barrera v. Gonzales, 460 F.3d 163, 167
(1st Cir. 2006).
We start with the denial of the petitioner's application
for special rule cancellation of removal. That application invoked
NACARA, a statute that amended the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 to allow certain aliens
(including those from Guatemala) to apply for special rule
cancellation of removal. See Gonzalez-Ruano v. Holder, 662 F.3d
59, 60-61 (1st Cir. 2011). NACARA enables non-citizen aliens who
are facing removal to apply for "discretionary relief under prior,
more generous statutory standards." Id. at 60.
To qualify for relief under NACARA, a Guatemalan national
must have entered the United States on or prior to October 1, 1990,
1
In this court, as in the proceedings before the BIA, the
petitioner has not attempted to make out a CAT claim. Thus, we
make no further reference to such a claim.
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and must have registered for benefits under American Baptist
Churches, Inc. v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991)
prior to December 31, 1991.2 See NACARA, Pub. L. No. 105-100, sec.
203(a)(1), § 309(c)(5)(C)(i)(I)(bb), 111 Stat. at 2197 (codified at
8 U.S.C. 1101 note); 8 C.F.R. §§ 1240.61(a); 1240.66(a).
Additionally, such a person (who, like the petitioner, is not
inadmissible under 8 U.S.C. § 1182(a)(2) or (3)) must demonstrate
a seven-year period of continuous presence in the United States,
good moral character, and extreme hardship. See 8 C.F.R.
§ 1240.66(b); see also Gonzalez-Ruano, 662 F.3d at 61. The
applicant has the burden of proving by preponderant evidence that
he satisfies these baseline eligibility requirements. See 8 C.F.R.
§§ 1240.64(a), 1240.66; see also Gonzalez-Ruano, 662 F.3d at 61.
If so, the applicant must then persuade the immigration court that
he merits a favorable exercise of its discretion. See 8 C.F.R.
§ 1240.64(a); see also Gonzalez-Ruano, 662 F.3d at 61.
In this instance, the IJ (and, on appeal, the BIA)
balanced the positive and negative equities and found, as an
exercise of discretion, that the petitioner was not entitled to
relief. As a general rule, federal courts lack jurisdiction to
review discretionary decisions denying relief from removal. See 8
U.S.C. § 1252(a)(2)(B); see also Ayeni v. Holder, 617 F.3d 67, 70
2
There is no dispute here that the petitioner meets these
threshold requirements.
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(1st Cir. 2010). But this rule, like virtually every other general
rule, admits of exceptions. One such exception inures when the
claim presented to a federal court embodies colorable
constitutional claims or questions of law. See 8 U.S.C.
§ 1252(a)(2)(D); see also Castro v. Holder, 727 F.3d 125, 128 (1st
Cir. 2013); Gonzalez-Ruano, 662 F.3d at 63. The petitioner's
argument is confused, but we read it (favorably to him) as implying
that his case comes within the compass of this exception.
In determining whether a petitioner has raised a
colorable constitutional claim or question of law, substance must
triumph over form. An alien cannot "transform an unreviewable
issue of fact into a reviewable issue of law" by the simple
expedient of cloaking what is essentially a factual claim in the
raiment of constitutional or legal error. Alvarado v. Holder, 743
F.3d 271, 275 (1st Cir. 2014). Put another way, we must look to
the meat of the petitioner's arguments, not to the packaging in
which they are wrapped. See Ayeni, 617 F.3d at 70-71.
Despite the petitioner's efforts at creative labeling, we
discern here no colorable constitutional claim or question of law.
In his petition for judicial review and his accompanying brief, the
petitioner's argument is quite pointed. He submits that the IJ
bungled the decision on special rule cancellation of removal by
relying on hearsay evidence (particularly the police reports) to
determine that the petitioner did not deserve a favorable exercise
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of discretion. This was error, the petitioner insists, because the
police reports were contradicted by live testimony. Thus, the IJ
gave the police reports "too much weight." And to make a bad
situation worse, the IJ (so the petitioner says) failed to assess
the "probative value" of the police reports properly, and should
have discounted them in the interest of "fundamental fairness."
We think it readily apparent that the petitioner's attack
on the agency's decisionmaking with respect to special rule
cancellation of removal is hopelessly factbound. There is no hint
of any cognizable constitutional claim or question of law. Rather,
the petitioner's plaint depends on an assertion that the IJ abused
his discretion by mis-weighing the evidence before him and that the
BIA, in turn, improvidently placed its imprimatur on that mis-
weighing. At the heart of this assertion is the petitioner's
disagreement with the agency's view of the relative credibility of
the police reports and the testimony proffered to contradict them.
That is a factual determination and, therefore, a determination
that we have no jurisdiction to review. See Castro, 727 F.3d at
129-30 (concluding, in NACARA case, that court lacked jurisdiction
because the petitioner's claims on appeal merely attacked factual
findings). While Rumpelstiltskin may have claimed the ability to
transform dross into gold, the petitioner cannot, by word play and
exhortation, transform a factual question into a question of law.
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That ends this aspect of the matter. Simply put, a
challenge to the way in which the agency weighed the evidence and
balanced negative and positive factors is not a claim that raises
a legal question. See Santana-Medina v. Holder, 616 F.3d 49, 52-53
(1st Cir. 2010); Elysee v. Gonzales, 437 F.3d 221, 223-24 (1st Cir.
2006). It follows inexorably that, in the circumstances of this
case, we lack jurisdiction to review the agency's denial of special
rule cancellation of removal.
The petitioner's remaining remonstrance implicates the
denial of asylum and withholding of removal. He predicates this
remonstrance on his putative membership in a social group comprised
of indigenous Guatemalans. Members of this social group, he says,
were persecuted during Guatemala's Civil War, and he claims to have
fled from his homeland because he feared the Guatemalan military
and knew that the government was unwilling (or, at least, unable)
to protect him.
Although this theory (or a variation of it) was arguably
advanced before the IJ and is spelled out in the petitioner's brief
in this venue, there is a threshold problem. The petitioner did
not present this theory to the BIA. Instead, he concentrated his
fire on his NACARA claim and paid no more than lip service to his
other claims. The petitioner's perfunctory assertion that the IJ
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erred in denying other forms of relief was made only in generalized
and non-specific terms.3
Faced with an absence of developed argumentation, the BIA
concluded that the petitioner had failed meaningfully to address
the merits of the IJ's denial of asylum and withholding of removal.
In immigration cases, an alien cannot leapfrog over the BIA; that
is, he cannot proffer a theory to the IJ, forgo any presentation of
that theory to the BIA, and then resurrect the theory on a petition
for judicial review. See Wu v. Holder, 705 F.3d 1, 3 (1st Cir.
2013); Sombah v. Mukasey, 529 F.3d 49, 52 (1st Cir. 2008). A
failure to present developed argumentation to the BIA on a
particular theory amounts to a failure to exhaust administrative
remedies as to that theory. See Makhoul v. Ashcroft, 387 F.3d 75,
80 (1st Cir. 2004) (explaining that "theories not advanced before
the BIA may not be surfaced for the first time in a petition for
judicial review of the BIA's final order").
It is apodictic that a court lacks jurisdiction to review
unexhausted claims. See 8 U.S.C. § 1252(d)(1); Wan, ___ F.3d at
___ [slip op. at 7]; Berrio-Barrera, 460 F.3d at 167; Makhoul, 387
F.3d at 80. Accordingly, it is not within our proper province to
entertain the petitioner's unexhausted theory as to why the IJ
3
To be specific, the petitioner's brief to the BIA asserted
only that the IJ "made material errors of law, discretion and fact"
in connection with the denial of asylum and withholding of removal.
The brief did not attempt to illuminate this conclusory assertion
in any way, shape, or form.
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supposedly erred in denying him asylum and/or withholding of
removal.
We need go no further. For the reasons elucidated above,
we dismiss the petition for judicial review for want of
jurisdiction.
Dismissed.
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