Santos Moises Tejada Tejada v. Attorney General United States , 513 F. App'x 190 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1239
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SANTOS MOISES TEJADA TEJADA,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of a Final Order
of the Board of Immigration Appeals
(Agency No. A094-163-406)
(DETAINED)
_____________
Argued
January 7, 2013
Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.
(Opinion Filed: February 4, 2013)
Francisco S. Guzmán, Esq. (ARGUED)
Guzmán Law Practice, P.C.
665 Newark Avenue
Jersey City, New Jersey 07306
Counsel for Petitioner, Santos Moises Tejada Tejada
Stuart F. Delery, Acting Assistant Attorney General, Civil Division
Edward J. Duffy, Senior Litigation Counsel, Office of Immigration Litigation
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Zoe J. Heller, Trial Attorney, Office of Immigration Litigation (ARGUED)
Aaron R. Petty, Trial Attorney, Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent, Attorney General of the United States of America
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
Petitioner, Santos Moises Tejada Tejada (“Tejada”), a native and citizen of El
Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”).
We will grant the petition and remand to the BIA.
I.
Because we write primarily for the parties, we set forth only those facts that are
relevant to our conclusion. Tejada is a native and citizen of El Salvador. He entered the
United States without inspection in 1989. In 1991, he was afforded temporary protected
status by the former Immigration and Naturalization Service. Tejada renewed that status
each year until he became a lawful permanent resident on September 27, 2004. He has
numerous family ties to the United States, including a daughter with U.S. citizenship,
siblings who are legally present in the United States, and parents with lawful permanent
resident status. He and his teenage daughter maintain a close relationship, and he
provides her with financial assistance of $100 per week and emotional support. He has
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maintained stable employment since 1992 and also provides financial support to his ex-
wife whenever she is in need.
In 1992, Tejada was arrested for simple assault and false imprisonment in 2003
but each of these charges was dismissed. In 2006, Tejada was convicted of driving while
intoxicated, and his driver‟s license was suspended for ninety days. On June 14, 2007,
Tejada was convicted of second-degree eluding of the police in violation of N.J. STAT.
ANN. § 2C:29-2(b) (2000). On the night of his arrest for this offense, Tejada was
drinking and he struck another vehicle. He then left the scene of the accident and failed
to stop when directed by the police. Tejada pled guilty to this offense. Although Tejada
was sentenced to three years‟ imprisonment, he was only required to serve seven months
and to fulfill certain probation conditions, which he completed. During his time in
prison, Tejada‟s young daughter was sexually assaulted by an adult male relative, and she
subsequently received counseling for about a year after this traumatic event.
Tejada has been detained by Immigration and Customs Enforcement since March
2, 2011. On that day, Tejada was returning from a brief trip abroad and was found to be
inadmissible for having committed a crime of moral turpitude under 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) for his 2007 eluding conviction. Tejada applied for cancellation of
removal under 8 U.S.C. § 1229(b) and a waiver of inadmissibility under 8 U.S.C.
§1182(h) (a “Section 212(h) waiver”).
On July 14, 2011, an Immigration Judge (“IJ”) denied Tejada‟s application for
cancellation of removal but granted his application for a Section 212(h) waiver after
finding that his daughter would suffer extreme hardship if he were removed. The IJ also
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found that the positive equities of Tejada‟s life in the United States outweighed the
adverse factors of his criminal record. The Government appealed to the BIA, which
sustained the appeal and reversed the IJ‟s decision. The BIA found that Tejada‟s eluding
conviction constituted a “violent or dangerous crime” under 8 C.F.R. § 1212.7(d). BIA
Decision at 2. Therefore, Tejada must establish that a denial of relief would result in
“exceptional and extremely unusual hardship” to his qualifying relatives to be eligible for
such relief. Id. The BIA held that even if Tejada‟s conviction was not violent or
dangerous as to merit the higher hardship standard, Tejada had not established that his
daughter would suffer the lower standard of extreme hardship if he were removed.
Finally, the BIA determined that even if Tejada could show extreme hardship to his
daughter from his removal, he had not established that he warrants a Section 212(h)
waiver as a matter of discretion. Having determined that Tejada‟s past criminal record
outweighed his positive equities, the BIA ordered Tejada removable to El Salvador.
II.
This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of
removal issued by the BIA. The Government contends that we lack jurisdiction to hear
the case before us, as it relates to the BIA‟s discretionary decision to deny a Section
212(h) waiver. Although we agree that this Court generally lacks jurisdiction to review
the BIA‟s factual and discretionary rulings, we retain jurisdiction to review constitutional
claims or questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D);
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). While the BIA may not
reverse an IJ‟s factual findings unless they are clearly erroneous, it reviews the IJ‟s legal
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conclusions de novo. 8 C.F.R. § 1003.1(d)(3). We have jurisdiction to review the legal
question of whether the BIA applied the correct standard of review in its decision to deny
Tejada relief. See Kaplun v. Att‟y Gen., 602 F.3d 260, 268-69 (3d Cir. 2010) (granting a
petition for review upon consideration of the BIA‟s application of an incorrect standard
of review).
A.
We hold that the BIA failed to apply the correct standard of review in making its
determination that Tejada was not eligible for relief. “[W]hen the BIA reaches a different
conclusion than the IJ, either on the facts or the law, its review must reflect a meaningful
consideration of the record as a whole. It is not enough for the BIA to select a few facts
and state that, based on them, it disagrees with the IJ‟s conclusion.” Huang v. Att‟y Gen.,
620 F.3d 372, 387 (3d Cir. 2010). The BIA is required to demonstrate that it reviewed
the record and considered all of the evidence on which the IJ relied—“it must explain
why the record warrants a different conclusion than the one reached by the IJ.” Id.When the IJ granted Tejada a Section 212(h) waiver, it relied on the fact that
Tejada‟s daughter would suffer extreme hardship if her father were removed. Noting that
this case “presents exacerbating, magnifying circumstances,” the IJ gave significant
weight to the fact that Tejada‟s daughter is the victim of a sex crime, as she offered
“compelling” testimony regarding her reliance on her father‟s presence and support in
overcoming the abuse that she has suffered. IJ Oral Decision at 9. In finding that Tejada
was eligible for relief, the IJ also emphasized the considerable financial support that
Tejada offers his daughter and ex-wife and relied on Tejada‟s positive equities, such as
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maintaining stable employment, supporting his family, close family ties to the United
States, and the lack of any criminal activity since 2006.
The BIA only briefly mentioned the sexual abuse that Tejada‟s daughter suffered,
and failed to provide a meaningful explanation as to why this factor and the removal of
Tejada‟s financial and emotional support would not result in extreme hardship for her.
We agree with Tejada‟s assertion that the BIA selected only a few pieces of evidence to
diminish why his daughter would suffer extreme hardship if her father were deported,
such as the fact that Tejada was incarcerated while his daughter was abused and that her
mother brought her to counseling at that time. The BIA applied an incorrect standard of
review by “fail[ing] to address any evidence that, if credited, would lend support to”
Tejada‟s position, “and thus the decision does not reflect a consideration of the record as
a whole.” Id. at 388. Put another way, the BIA‟s decision falls short under Huang
because it failed to provide specific reasoning as to why it reached a conclusion that was
different from that of the IJ. Id. at 387 (citing Awolesi v. Ashcroft, 341 F.3d 227, 232
(3d Cir. 2003)).
In addition, the IJ acknowledged Tejada‟s prior criminal activity but noted that
two of his arrests did not lead to convictions and were dismissed. The IJ considered the
fact that Tejada has been free of any criminal activity since 2006, and that the positive
equities of his life in the United States outweighed the adverse factor of his criminal
record. In contrast, the BIA failed to consider that Tejada has been compliant with the
law for a significant period of time and placed emphasis on his prior arrests as weighing
negatively in his favor. The BIA appears to have made its own factual findings by
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referring to Tejada‟s “various incarcerations” and “multiple arrests” despite the fact that
the IJ referred only to one period of incarceration and noted that two of Tejada‟s prior
charges were dismissed. BIA Decision at 3. By failing to defer to the IJ‟s factual
conclusions as to Tejada‟s criminal past without an explanation of why such findings are
clearly erroneous, the BIA again failed to apply the appropriate standard of review.
Yusupov v. Att‟y Gen., 650 F.3d 968, 979 (3d Cir. 2011). Although the BIA has
discretion to accord Tejada‟s past criminal activity more weight in its analysis than did
the IJ, it must consider the factors upon which the IJ relied in deciding to grant relief.
B.
We also note that the BIA relied on 8 C.F.R. § 1212.7(d)1 to state an alternative
method for which Tejada may be denied relief—that his eluding conviction constitutes a
violent or dangerous crime that would allow relief only if his “qualifying relatives”
would suffer “exceptional and extremely unusual hardship” if Tejada were removed.
BIA Decision at 2 (citing 8 C.F.R. § 1212.7(d)). Although we will not address whether a
conviction of eluding constitutes a violent or dangerous crime, we will note that, even if
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8 C.F.R. § 1212.7(d) states as follows:
(d) Criminal grounds of inadmissibility involving violent or dangerous crimes. The Attorney
General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8
U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the
United States, or adjustment of status, with respect to immigrant aliens who are inadmissible
under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in
extraordinary circumstances, such as those involving national security or foreign policy
considerations, or cases in which an alien clearly demonstrates that the denial of the application
for adjustment of status or an immigrant visa or admission as an immigrant would result in
exceptional and extremely unusual hardship.
8 C.F.R. § 1212.7(d).
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it does, we interpret the language in 8 C.F.R. § 1212.7(d) to allow for a favorable
exercise of discretion in circumstances beyond a showing of “exceptional and extremely
unusual hardship.” See 8 C.F.R. § 1212.7(d).
The Attorney General may still grant relief even if an immigrant has committed a
violent or dangerous crime in “extraordinary circumstances.” 8 C.F.R. § 1212.7(d).
Although such circumstances may include, as the statute notes, those involving national
security or foreign policy considerations or instances of exceptional and extremely
unusual hardship, these examples are not exhaustive and there may be other
circumstances in which relief may be warranted. See Samuels v. Chertoff, 550 F.3d 252,
262 (2d Cir. 2008) (remanding to the BIA when the BIA had considered only whether the
hardship that would accrue to an immigrant‟s family was exceptional and extremely
unusual, and it failed to consider whether the other equities of the immigrant‟s life
constituted extraordinary circumstances to merit relief). Because the BIA made only a
passing reference to Tejada‟s positive equities without a full analysis as to why these
would outweigh his criminal past, we hold that further consideration of such factors is
warranted.
Further, 8 C.F.R. § 1212.7(d) directs the BIA to consider hardship not only to
qualifying relatives but also to the immigrant. Rivera-Peraza v. Holder, 684 F.3d 906,
910-11 (9th Cir. 2012). Therefore, the “exceptional and extremely unusual hardship”
analysis need not relate to Tejada‟s daughter only but may also be applied to Tejada
himself. Id. The BIA noted that Tejada “must establish an „exceptional and extremely
unusual hardship‟ to his qualifying relatives for a waiver of inadmissibility,” BIA
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Decision at 3 (emphasis added), but it must also consider whether Tejada himself would
suffer a hardship of this nature if removed to El Salvador. Rivera-Peraza, 684 F.3d at
910-11.
III.
For the foregoing reasons, we will grant the petition for review and remand to the
BIA for further proceedings consistent with this opinion.
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