Ruben Vera-Perez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN VERA-PEREZ, No. 20-73247
Petitioner, Agency No. A216-051-641
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 17, 2022**
Las Vegas, Nevada
Before: D.M. FISHER,*** BENNETT, and KOH, Circuit Judges.
Ruben Vera-Perez, a native and citizen of Mexico, petitions this Court for
review of the Board of Immigration Appeals’ (BIA’s) dismissal of his appeal of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
Immigration Judge’s (IJ’s) denial of his application for adjustment of status. We
lack jurisdiction and therefore dismiss the petition.1
Vera-Perez is potentially eligible for a statutory exception that allows
adjustment of status if an alien, among other criteria, is the subject of a properly
filed I-130 Petition for Alien Relative dated on or before April 30, 2001. 8 U.S.C.
§ 1255(i). Discretion to grant or deny a § 1255(i) petition rests with the Attorney
General. Id. § 1255(i)(2) (“[T]he Attorney General may adjust the status of the
alien. . . .”). We are deprived of jurisdiction to review this determination. Id.
§ 1252(a)(2)(B) (“[N]o court shall have jurisdiction to review . . . any judgment
regarding the granting of relief under section . . . 1255.”). However, we are not
precluded from “review of constitutional claims or questions of law.” Id.
§ 1252(a)(2)(D).
Vera-Perez argues that the IJ and BIA committed legal error because they
violated BIA precedent by erroneously weighing the significance of two police
reports: the reports of his December 21, 2000 arrest for corporal injury of a spouse
and related charges, and his May 17, 2019 arrest for driving under the influence
and related charges. Neither of these arrests have resulted in a conviction. The
charges stemming from the 2000 arrest were dropped. Some of the charges
stemming from the 2019 arrest resulted in fines, and some remain pending.
1
The motion for temporary stay of removal is denied as moot.
2
Contrary to Vera-Perez’s arguments, the IJ and BIA were permitted to
consider the arrest reports. “In determining whether an application for relief is
merited as a matter of discretion, evidence of unfavorable conduct, including
criminal conduct which has not culminated in a final conviction . . . , may be
considered.” Matter of Thomas, 21 I. & N. Dec. 20, 20 (B.I.A. 1995). The evidence
is weighed according to its strength and the facts and circumstances of the case. Id.
at 20, 24. The IJ and BIA considered that the arrests bookended two DUI
convictions and noted the alcohol-related pattern shown by the arrests and
convictions. In addition, the IJ found that Vera-Perez had been offered treatment
but had not “demonstrated genuine rehabilitation.” Given the totality of the
circumstances, the IJ concluded—after a lengthy and thoughtful analysis—that
Vera-Perez’s convictions and “repeated failure to conform his conduct to the
requirements of the law” outweighed the factors that favored him. The BIA
adopted and affirmed the IJ’s opinion, holding that the record supported the IJ’s
findings. Thus, the agency weighed the evidence of the arrests “according to the
facts and circumstances,” as it was required to do. Id. at 20, 24.
Vera-Perez cites a case where the BIA was “hesitant to give substantial
weight” to an arrest report. In Re Arreguin de Rodriguez, 21 I. & N. Dec. 38, 42
(B.I.A. 1995). The facts of Arreguin de Rodriguez are distinguishable. The
petitioner had denied wrongdoing, and the conduct for which she was arrested
3
(giving a ride to a family near the border) was susceptible of an innocent
explanation. Id. Here, by contrast, Vera-Perez has not denied wrongdoing or
contested the facts in the arrest records. Nor is there an innocent explanation for
battering one’s spouse or causing an accident while driving drunk.
Similarly, two out-of-circuit cases that follow Arreguin de Rodriguez are
distinguishable because the petitioners credibly denied wrongdoing. Avila-Ramirez
v. Holder, 764 F.3d 717, 719 (7th Cir. 2014) (IJ found the petitioner “‘credible’
and gave ‘full weight to his testimony’”); Billeke-Tolosa v. Ashcroft, 385 F.3d 708,
709-10 (6th Cir. 2004) (court-appointed social worker evaluated the petitioner and
agreed he did not commit the acts described in the criminal complaints).
Because the IJ and BIA did not commit legal error, Vera-Perez’s argument
amounts to a request for this Court to reweigh the evidence. We lack jurisdiction to
do so. Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152-53 (9th Cir. 2015)
(“Although framed in an attempt to present a question of law, . . . this argument
challenges the BIA’s discretionary decision . . . . We therefore lack jurisdiction to
decide the merits of this argument.”).2
2
Panels of this Court have considered arguments similar to Vera-Perez’s and have
framed the result differently. Rather than concluding that the failure to make out a
legal error results in a lack of jurisdiction, they have denied the petition on the
merits after holding that there is “jurisdiction to consider whether the BIA acted
‘contrary to law’ by violating” its own precedents, i.e., Thomas, 21 I. & N. Dec. at
20, and Arreguin, 21 I. & N. Dec. at 38. See, e.g., Martinez-Corona v. Garland,
No. 19-72569, 2021 WL 4868357, at *1 (9th Cir. Oct. 19, 2021) (denying the
4
DISMISSED.
petition because “nothing indicates that [Arreguin’s] case-specific holding was
intended to overrule or modify the more general Thomas standard or prevent IJs
from considering arrest reports altogether”). Viewing Vera-Perez’s argument this
way, we would deny the petition on the merits for the reasons stated above.
5