United States Court of Appeals For the First Circuit

Nos. 21-1045 & 21-1616

ADEKUNLE OLUWABUMWI ADEYANJU,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General of the United States,

Respondent.

PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson, Hawkins,* and Barron, Circuit Judges.

SangYeob Kim, with whom Ronald L. Abramson, Emily Assunta White, Shaheen & Gordon P.A., Gilles Bissonnette, Jennifer Lyon, and American Civil Liberties Union of New Hampshire, were on brief, for petitioner. Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

* Of the Ninth Circuit, sitting by designation. February 24, 2022 THOMPSON, Circuit Judge. When the Board of Immigration

Appeals ("BIA") considers an appeal, it is bound, as we are, by

certain standards of review. It reviews factual findings of an

Immigration Judge ("IJ") only for clear error. But it is free to

conduct discretionary-relief determinations based on those factual

findings afresh without any deference to the IJ's conclusion. In

today's case, the primary question is where the line lies between

an IJ's factual finding, reviewed for clear error, and a

discretionary judgment call, reviewed by the BIA de novo. We must

consider if the BIA properly applied clear-error review to truly

factual findings. We also consider whether the BIA erred in

refusing to remand this case to the IJ. Agreeing with some, but

not all, of the petitioner's contentions, we grant only in part

one of the petitions for review.

BACKGROUND

We begin by exploring how the parties got here, taking

the facts from the administrative record, including Petitioner

Adekunle Oluwabumwi Adeyanju's testimony before the IJ. See

Martínez-Pérez v. Sessions,

, 37 n.1 (1st Cir. 2018).

Adeyanju is a native and citizen of Nigeria who entered

the United States on March 7, 2013, using a B-2 tourist visa.1 He

has resided here ever since, now residing in Maine.

1A "B-2 visa" is available, for example, to "tourists and those coming for social visits, health reasons, or participation

- 3 - Before his arrival from Nigeria, he submitted at least

two applications for a visa, one in 2010, the other in 2011. In

each, Adeyanju represented that he had a live-in domestic partner

in Nigeria to whom he was engaged. Within a month of his arrival

here, though, Adeyanju met, via an online dating site, Miranda

Raymond, who seven months later, in the autumn of 2013, would go

on to become his first U.S.-citizen wife. About six months after

his marriage, Adeyanju was granted conditional resident status

based on his marriage to a U.S. citizen. The couple subsequently

filed a joint I-751 petition to remove the conditions of his

residency.2

Before the I-751 petition was adjudicated, though, the

marriage apparently deteriorated and by 2015, Adeyanju was no

longer living with Raymond. Instead, he was residing with Rebecca

Dyer, whom he said was, at that time, his roommate. During their

time together, Rebecca became pregnant with Adeyanju's child, who

was born in April 2016.

in amateur music and sports events." 1 Charles Gordon et al., Immigration Law and Procedure § 1.03 (2021). It doesn't permit employment while in the U.S., and it ordinarily stays valid for at least six months. Id. 2 An "I-751 petition" is immigration lingo for the form filed jointly by a U.S.-citizen spouse and their qualifying immigrant spouse to remove the conditional basis of the immigrant spouse's residency. See 4 Gordon et al., supra, § 42.04; see also 8 U.S.C. § 1186a(c). It is filed within the 90-day window before the second anniversary of the immigrant spouse's obtaining conditional residency.

(a)(1).

- 4 - Also in 2014 and 2015, a number of police reports in

Maine were generated for Adeyanju's behavior towards women. In

short, on at least six occasions, Adeyanju was reported as engaging

in harassing or suspicious behavior towards women as young as

seventeen. Women reported that Adeyanju approached them in public

places and asked them personal questions, including whether they

were in high school. He requested their phone numbers or solicited

them to go out with him, persisting even after the women declined.

Nevertheless, none of these incidents resulted in any arrests or

charges.

In January 2018, the United States Customs and

Immigration Service ("USCIS") notified Adeyanju and Raymond that

it intended to deny their jointly filed I-751 petition and did so

in May 2018.3 In issuing the denial, USCIS reasoned that Adeyanju

intended to commit marriage fraud with Raymond. To support its

finding, USCIS relied on the separate living arrangements, records

of Adeyanju's police encounters involving other women, and

evidence suggesting there was not a "bona fide familial

relationship," including: the lack of knowledge about each

spouse's finances, activities, or personal relationships; the

3When USCIS finds potential evidence that the marriage was not bona fide, it may issue a "notice of intent to deny" the petition, then giving the immigrant the opportunity to rebut the information before issuing the formal denial. 4 Gordon et al., supra, § 42.06.

- 5 - failure to file joint tax returns; their failure to go on shared

trips or participate in shared activities; and Adeyanju's

relationship and child with Rebecca. Additionally, according to

USCIS, Raymond told the officer at an interview that Adeyanju lied

to her about why he was marrying her -- not for love, but rather,

to gain an immigration benefit. After the notice of intent to

deny was issued, Raymond disputed USCIS's assertion that she told

a USCIS officer that Adeyanju lied about their marriage and claimed

that the officer had twisted her statements. But USCIS was

unconvinced and rejected Raymond's explanation in the final

denial. The same day the I-751 denial was issued, the Department

of Homeland Security ("DHS") initiated removal proceedings against

Adeyanju.

Three months later, Adeyanju divorced Raymond. And two

months after that, he married Rebecca -- a U.S. citizen and mother

of Adeyanju's U.S.-citizen child. Rebecca then filed an

application for adjustment of Adeyanju's status on the basis of

their marriage and an I-751 waiver petition.4

4 An "I-751 waiver" refers to the procedure established in 8 U.S.C. § 1186a(c)(4). As discussed, an immigrant typically files her I-751 petition jointly with her U.S. citizen spouse. But Congress recognized that some good-faith marriages nonetheless still break down. See Gordon et al., supra, § 42.05. So § 1186a(c)(4) sets forth an option for the Secretary of Homeland Security to, in her discretion, waive the requirement that the I-751 petition be filed jointly if the immigrant can establish certain grounds for relief. As relevant here, one of those grounds is that the qualifying marriage "was entered into in good faith

- 6 - Not long before the new application was filed, Adeyanju

was arrested in Maine. A woman reported that Adeyanju drove her

home from a local bar because she was too drunk to drive. And she

reported that, on the way to her home, Adeyanju pulled the car

over and raped her. Initially, when the police approached Adeyanju

regarding the allegations, he flat-out denied having sexual

intercourse with the victim. Adeyanju told police that he was

married and was on medication that prohibited him from having

sexual intercourse. Later, though, the victim participated in a

sexual-assault evidence collection procedure, which revealed

physical evidence of sexual intercourse and which harvested a DNA

sample of the assailant. Armed with a search warrant for a sample

of Adeyanju's DNA, police were able to match Adeyanju's DNA to the

sample collected. As a result, Adeyanju was indicted for

kidnapping, as well as two different counts of sexual assault.

LEGAL PRIMER

Given the quirkiness of immigration law, before we

explore the proceedings before the BIA and IJ, we will begin with

a primer on some relevant legal principles to offer some context.

The BIA's regulations set up a procedural hierarchy for

immigration proceedings. Within that hierarchy, the IJ and BIA

. . . but . . . has been terminated . . . and the [immigrant] was not at fault" in failing to file the joint petition. 8 U.S.C. § 1186a(c)(4)(B). The marriage at issue in the I-751 waiver, though, is Adeyanju's marriage to Raymond, not Rebecca.

- 7 - have different, but sometimes overlapping, roles. "The IJ has the

front-line duty of finding the facts." Chen v. Holder,

(1st Cir. 2012). On appeal, the BIA's review of the IJ's

factual determinations is circumscribed by regulation. BIA

regulations at the time of the appeal provided that the BIA is

prohibited from "engag[ing] in factfinding in the course of

deciding appeals."

(d)(3)(iv) (2020). The BIA

"will not engage in de novo review of findings of fact determined

by an immigration judge."

§ 1003.1(d)(3)(i). Rather, "[f]acts

determined by the immigration judge, including findings as to the

credibility of testimony, shall be reviewed only to determine

whether the findings of the immigration judge are clearly

erroneous." Id.

To find clear error as to the IJ's findings of fact, the

BIA must be "left with the definite and firm conviction that a

mistake has been committed." Board of Immigration Appeals:

Procedural Reforms To Improve Case Management,

-

01, 54889 (Aug. 26, 2002) [hereinafter "BIA Reforms"]. "A

factfinding may not be overturned simply because the [BIA] would

have weighed the evidence differently or decided the facts

differently had it been the factfinder."

Or, as we've put

it, see

(noting the regulation's clear-error standard mirrors

that employed by the courts of appeals in non-immigration cases),

to show clear error a challenger "must show that the contested

- 8 - finding stinks like 'a 5 week old, unrefrigerated, dead fish,'"

United States v. Baptiste,

, 42 (1st Cir. 2021) (quoting

United States v. Rivera-Carrasquillo,

(1st Cir.

2019)). To demonstrate clear error, one "must do more than show

that the finding is 'probably wrong,' for [a court] can reverse on

clear-error grounds only if -- after whole-record review -- [it]

ha[s] 'a strong, unyielding belief' that the judge stumbled."

Rivera-Carrasquillo,

(quoting Toye v. O'Donnell (In

re O'Donnell),

(1st Cir. 2013)).

When it comes to questions of law, discretion, and

judgment, though, the BIA has the authority to review those

determinations of the IJ de novo.

(d)(3)(ii)

(2020).

"Adjustment of status," the application at issue here,

"is a matter of grace, not of right, and the evaluation of such

applications is left to the discretion of the Attorney General."

Wallace v. Gonzales,

(2d Cir. 2006); see

(a). There are no "restrictive guide lines for the exercise

of discretion." Matter of Arai,

(BIA

1970). In general strokes, the Attorney General (or her designee

in the IJ or BIA) balances the negative equities weighing against,

and the positive equities favoring, an exercise of administrative

discretion. See

at 495–96. In weighing those equities, the

BIA may "assign the weight it sees fit" to them. Alimbaev v. Att'y

- 9 - Gen. of the U.S.,

, 200 n.10 (3d Cir. 2017); see BIA

Reforms, 67 Fed. Reg. at 54890 ("[T]he weight accorded to

individual factors . . . may be reviewed by the Board de novo.").

The petitioner bears the burden of demonstrating in her removal

proceeding that she satisfies the eligibility requirements and

merits a favorable exercise of discretion. 8 U.S.C.

§ 1229a(c)(4)(A);

(d).5 As a discretionary call,

the BIA's review of an IJ's decision granting or denying adjustment

of status is de novo.

(d)(3)(ii) (2020).

In deciding appeals, the BIA is bound to follow its own

regulations. See Rotinsulu v. Mukasey,

(1st Cir.

2008) ("An agency has an obligation to abide by its own

regulations."); see also 8 C.F.R. 1003.1(d)(1) (2020) ("The Board

shall resolve the questions before it in a manner that is . . .

consistent with the Act and regulations.").6 Whether an agency

5 Neither the statute nor the regulation clarifies what exactly that burden entails. See, e.g., Chaidy v. Holder,

(6th Cir. 2012) (noting that the statute requires the immigrant "to prove his eligibility for relief from removal, such as adjustment of status, by some unspecified burden"); 4 Gordon et al., supra, § 51.05 (noting that "the extent of th[e] burden has not always been clear"). 6 The applicable regulations were amended effective January 15, 2021. But they "apply only to appeals filed, motions to reopen or reconsider filed, or cases remanded to the Board by a Federal court on or after the effective date of the final rule." Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,

, 81588 (Dec. 16, 2020). The parties do not clarify whether

(d)'s legal standards concerning factfinding used in deciding the initial appeal applies, or whether, in deciding the motions to reconsider

- 10 - fails to follow a regulation raises a question of law. Lumataw v.

Holder,

(1st Cir. 2009). And if we determine the

agency failed to follow the regulations, we may vacate and remand.

See Rotinsulu,

. With those principles in the

backdrop, we forge on.

PROCEEDINGS BELOW

I. The IJ's Decision

After a hearing before an IJ at which Adeyanju testified,

the IJ granted the application for adjustment of status. The IJ

surveyed the record and determined that Adeyanju had a number of

positive equities weighing in his favor. He had been in the United

States for seven years; has a U.S.-citizen daughter; is gainfully

employed and pays his taxes; and has other family ties in the

United States, including two lawful-permanent-resident sisters and

a U.S.-citizen brother. The IJ also found that Adeyanju was a

credible witness and was candid about his criminal record.

The IJ then considered the negative equities weighing

against discretionary relief as argued by the government's

counsel. He first began by finding that Adeyanju did not commit

and reopen filed after January 15, 2021, the BIA had to employ the new standard articulated in the amended § 1003.1. In any event, we assume the 2020 version of § 1003.1 applies here because implementation of the 2021 amendments is currently enjoined. See Centro Legal de la Raza v. Exec. Office for Immigr. Rev.,

, 980 (N.D. Cal. 2021); see also James v. Garland,

, 323 n.2 (1st Cir. 2021).

- 11 - fraud in the visa-application process in Nigeria where he stated

that he was engaged to his live-in girlfriend. Rather, the IJ

concluded, Adeyanju's explanation of the circumstances concerning

his supposed engagement and the resulting answers he gave on the

application were reasonable.7

Second, the IJ reviewed the evidence of purported

marriage fraud, concluding the evidence was "inconclusive."

According to the IJ, there was evidence refuting DHS's argument

that Adeyanju intended to commit marriage fraud with his marriage

to Raymond. Ultimately, the IJ said that "there is some evidence

of fraud in the previous marriage [to Raymond] in the notice of

intent,"8 and the IJ thus "place[d] some weight on the notice of

7 At the hearing before the IJ, Adeyanju explained that the mix-up here is rooted in cultural differences between the United States and Nigeria. He explained that he was living with a girlfriend and they intended to "go to [the] next level, but things didn't work out." 8 As a refresher, those details are: separate living arrangements; records of Adeyanju's police encounters involving other women; and evidence suggesting there was not a "bona fide familial relationship" (including the lack of knowledge about each spouse's finances, activities, or personal relationships; the failure to file joint tax returns; their failure to go on shared trips or participate in shared activities; and Adeyanju's relationship and child with Rebecca). Adeyanju did not object to the information contained in USCIS's denial letter being used as evidence. In any event, almost all the information concerning the alleged indicia of marriage fraud contained in the notice (save the information about joint activities and trips) is corroborated by other evidence in the Administrative Record.

- 12 - intent to terminate."9 Still, he found the evidence of fraud in

the prior marriage "inconclusive." The IJ further concluded that

Adeyanju's having a child out of wedlock was "evidence of immoral

and bad behavior."

Third, the IJ went on to review Adeyanju's criminal

record, including a dismissed charge for operating under the

influence. On the subject of his police encounters resulting from

his behavior with young women, the IJ said that "[t]here is

insufficient evidence" that any behavior like that has occurred

since 2016. This behavior, which the court called "creepy," was

given "some negative weight." As to the pending charges for

kidnapping and sexual assault, the IJ took them into consideration

but noted that Adeyanju testified before the IJ and "admit[ted]

his behavior, and . . . assert[ed] a consent defense."10

Ultimately, the IJ found that the positive equities

outweighed the negative equities. So he granted the application

for adjustment of status. As for the pending I-751 waiver, at a

pre-hearing conference Adeyanju had told the IJ that the hearing

on the adjustment-of-status application shouldn't be held up to

9 We note that the IJ appears to be referring to USCIS's final denial of Adeyanju's joint I-751 petition with Raymond and not USCIS's pre-denial notice of intent to deny. 10Based on a blood draw from the victim on the night of the alleged rape, the crime lab estimates that her blood alcohol content at the time of the alleged rape would've been about 0.17%.

- 13 - wait for the I-751 waiver to be adjudicated by USCIS.

Specifically, the IJ had asked Adeyanju's counsel at an earlier

hearing: "[I]f the 751 waiver has not been adjudicated by [the

date scheduled for the adjustment-of-status hearing], will you be

ready to go forward . . . ?" To which Adeyanju's counsel

responded: "Yes." So the IJ didn't consider it because when he

issued his ruling on Adeyanju's adjustment-of-status application,

the I-751 waiver wasn't ripe as USCIS had not made a final decision

on it.

II. DHS's Appeal

Unhappy with the IJ's decision, DHS appealed to the BIA.

In its final decision, the BIA noted that it reviewed discretionary

calls de novo and factual findings for clear error. It then

pronounced its disagreement with the IJ's determination that the

positive equities outweighed the negatives. After recognizing the

same positive equities the IJ considered, the BIA took a deep dive

into the adverse factors. The BIA began by rehearsing the

"documented history of predatory and criminal behavior towards

women and adolescent girls." According to the BIA, the IJ

"erroneously found that . . . there was no evidence that [Adeyanju]

had engaged in similar behavior since" 2016. Instead, the BIA

observed, "the record reflects that [Adeyanju]'s behavior may have

instead escalated," referring to his pending charges for

kidnapping and sexual assault. The BIA also stated that the IJ

- 14 - failed to "mention [Adeyanju] lied to the police to avoid

responsibility, and instead [the IJ] focused on the fact that [he]

eventually admitted that he had sex with the victim." The BIA

concluded that, even though Adeyanju hadn't been convicted of any

crimes, it could still consider the fact that "he lied to the

police" and that Adeyanju's "dishonesty regarding his conduct is

indicative of bad character and is a serious negative factor."

The BIA also regarded as an additional negative factor

the "indicia of past immigration fraud." The BIA stated that

Adeyanju "inaccurately claimed that he was engaged to a woman in

Nigeria" on his visa application. The BIA further recounted the

history with his first wife, Raymond, and noted that the IJ found

the evidence of marriage fraud was "inconclusive."

Weighing these negative factors against the positive

ones, the BIA concluded that Adeyanju failed to show that he

merited adjustment of status. The BIA thus sustained the appeal

and ordered Adeyanju removed. At the same time, it acknowledged

Adeyanju had a pending I-751 waiver but said nothing else about

it. Adeyanju petitioned for our review.

III. Subsequent BIA Decisions

Soon after the first petition for our review was filed,

Adeyanju filed timely motions to reconsider and reopen with the

BIA. The BIA denied those motions in August 2021. The BIA rejected

Adeyanju's legal contention that it had made improper findings of

- 15 - fact, reasoning instead that it had only reweighed the positive

and negative factors and reached a determination different than

the IJ's. As to the pending I-751 waiver, the BIA said there was

no need for a remand to the IJ because the IJ still lacked

jurisdiction over the still unadjudicated petition. And, it

stated, regardless, Adeyanju failed to make out a prima facie case

of eligibility for I-751 waiver relief, notwithstanding Adeyanju's

assertion that it was "undisputed that [he] is prima facie

eligible." The BIA gave no explanation for its determination of

ineligibility. Unsuccessful a second time, Adeyanju filed another

petition for our review of the BIA's denial of his motions to

reconsider and reopen, and here we are.

JURISDICTION

We begin by checking our jurisdiction. For petitions

for review of BIA decisions, our jurisdiction is circumscribed by

statute. Under

(a)(2)(B), we typically lack

jurisdiction to review the BIA's discretionary remedy of

adjustment of status. See Tacuri-Tacuri v. Garland,

,

471 (1st Cir. 2021); see also Peulic v. Garland,

, 346

(1st Cir. 2022). But as a general proposition, we have

jurisdiction over petitions that raise "constitutional claims or

questions of law."

(a)(2)(D); see Tacuri-Tacuri,

998 F.3d at 471.

- 16 - In both of his petitions, Adeyanju argues that the BIA

committed two legal errors in adjudicating his appeal. First, he

says that the BIA engaged in impermissible de novo factfinding,

which it isn't allowed to do under its regulations. See

(d)(3)(i) (2020). And second, he argues that the BIA

should have remanded the case to the IJ for further factfinding

and consideration of his pending I-751 waiver before entering a

final order of removal.

The government, for its part, contends that we lack

jurisdiction over Adeyanju's first petition (from the initial

appeal) because his claims are mere attacks on the BIA's

discretionary decisions cloaked in question-of-law garb. The

government does not appear to dispute, though, that, in general,

if the BIA failed to appropriately apply clear-error review (as

Adeyanju presses it did) then we would retain jurisdiction over

the first petition. Indeed, we have held that if "the BIA has

'departed from its settled course of adjudication' in the process

of making a discretionary determination," we have jurisdiction to

review a petition claiming such a legal error. Perez-Trujillo v.

Garland,

, 22 (1st Cir. 2021) (quoting Thompson v. Barr,

, 490 (1st Cir. 2020)); see Peulic, 22 F.4th at 346

(claims that the agency applied the incorrect legal standard make

out questions of law over which we have jurisdiction); accord,

e.g., Duncan v. Barr,

(4th Cir. 2019) ("Whether

- 17 - the BIA has applied the proper standard of review is a question of

law for purposes of our jurisdiction."); Huang v. Holder,

(2d Cir. 2012) (holding the BIA's failure to apply clear-

error review is a question of law for which § 1252 provides

jurisdiction). Just as a petitioner may not cloak her attacks on

discretion in question-of-law garb, "[t]he BIA cannot reverse an

IJ's findings and cloak its actions in the euphemistic language of

reweighing." Zhou Hua Zhu v. U.S. Att'y Gen.,

(11th Cir. 2013).

On Adeyanju's second petition (coming from the denial of

his motions to reconsider and to reopen), the government does not

dispute that we have jurisdiction to review the BIA's denial of

those motions. See Saka v. Holder,

, 249 & n.3 (1st

Cir. 2013) (motions to reconsider); Mazariegos v. Lynch,

(1st Cir. 2015) (motions to reopen).

There is, however, another jurisdictional wrinkle lying

latent here. Another component of our jurisdiction over petitions

for review in immigration cases is that the petitioner must have

exhausted all of her administrative remedies. See

(d)(1). We have suggested in a case raising alleged

impermissible factfinding by the BIA that such a claim "is

unexhausted unless and until the [petitioner] files a timely motion

asking the BIA to reconsider its actions." Meng Hua Wan v. Holder,

(1st Cir. 2015). This exhaustion requirement, we

- 18 - opined, "is jurisdictional; that is, it constitutes a limitation

on our power of review." Mazariegos-Paiz v. Holder,

(1st Cir. 2013). Though the government has not argued that

Adeyanju failed to exhaust his administrative remedies here, this

requirement cannot be waived. See García-Cruz v. Sessions,

(1st Cir. 2017).

Tackling the flaw with his first petition head on,

Adeyanju in his second petition contends that we have jurisdiction

over his first petition for review notwithstanding that it came

before he filed a motion to reconsider or reopen because his case

is distinguishable from Meng Hua Wan. As he sees it, because he

told the BIA in the initial appeal's briefing that it was bound by

the clear-error standard, that passing mention to the appropriate

standard of review sufficed to exhaust that issue in the first

petition. But we need not decide whether his distinction carries

the day because Adeyanju ultimately did file a timely motion to

reconsider to the BIA arguing that it engaged in impermissible

factfinding and petitioned for review from the BIA's denial of

that motion. Thus, Meng Hua Wan's exhaustion requirement, assuming

it does apply here, has been met. We therefore have jurisdiction

to consider those clear-error-standard-violation arguments made in

- 19 - the motion to reconsider raised in the second petition, and we

will ultimately dismiss his first petition as moot.11

In considering his second petition, though, we note that

the petition re-raises almost all the same legal issues from the

first petition (save for the BIA's failure to explain its

reasoning, which we'll get to below) and supplements the arguments

on those issues, incorporating by reference the arguments made in

his briefs in the first petition. As such, we see no reason not

to address the various legal arguments Adeyanju made in both sets

of briefs on all issues over which we have jurisdiction.

Bottom line, after reviewing the record and examining

Adeyanju's claims, we conclude his petition presents questions of

11 The government also does not argue that any of the failure- to-remand arguments (which we'll get to later) are not exhausted. And though the government contends (separate from an exhaustion argument) that the BIA did not address one of Adeyanju's arguments, see infra II.C., because he didn't raise it until his reply brief, the government points to no authority suggesting that an argument raised for the first time in a reply brief at the BIA isn't enough to exhaust administrative remedies on that issue. See Singh v. Gonzales,

, 160 n.3 (1st Cir. 2005) (concluding an issue raised even "in a perfunctory manner" before the BIA was exhausted); see also Toledo v. Gonzales,

(9th Cir. 2012) (finding issue exhausted where it was raised in the reply brief to the BIA). And we have not identified any, either. Additionally, the government below did not object to Adeyanju's filing of the reply brief, and the BIA did not tell us that it was not considering the reply brief. See BIA Practice Manual § 5.4 (2020) (providing only for an opening brief and a brief in opposition, but not a reply); see also id. § 4.6(h) (providing that, in deciding an appeal -- not a motion -- the BIA "does not normally accept" reply briefs and requiring the party file a motion meeting certain requirements to file a reply brief).

- 20 - law, and we have jurisdiction to consider the issues exhausted by

the motions to reconsider and reopen.12

DISCUSSION

I. Whether the BIA Engaged in De Novo Factfinding

Adeyanju argues that the BIA committed legal error when

it failed to employ the clear-error standard of review to the IJ's

adjustment-of-status fact findings and thus erred in denying his

motion to reconsider on this ground.

We review the BIA's denial of Adeyanju's motion to

reconsider for abuse of discretion. See Dimova v. Holder,

, 36 n.7 (1st Cir. 2015). A "material error of law

automatically constitutes an abuse of discretion." Aponte v.

Holder,

(1st Cir. 2010). And within the abuse-of-

discretion framework, we review de novo whether the BIA committed

an error of law.

So to determine whether the BIA abused its

discretion in denying Adeyanju's motion to reconsider on the

alleged de novo factfinding ground, we ultimately review de novo

whether the BIA properly applied the clear-error standard of review

below. See Rotinsulu,

.

12 The government also appears to argue that we lack jurisdiction because, even if the petitions present questions of law, the claims are not "colorable." See Mehilli v. Gonzales,

(1st Cir. 2005). But, as we've said before, this meshes with the merits, see Perez-Trujillo, 3 F.4th at 22 n.5, so if we do find the claims colorable, then we would have jurisdiction.

- 21 - A. The existence and nature of the equities

Kicking it off, Adeyanju takes issue with the BIA's

reliance on one of its precedents, Matter of H-L-H- & Z-Y-Z-,

(BIA 2010), when it denied his reconsideration

motion. In that case, the BIA said that "[i]n order to determine,

under de novo review, whether specific facts are sufficient to

meet a legal standard . . . the Board has authority to give

different weight to the evidence from that given by the Immigration

Judge."

. The BIA cited H-L-H- & Z-Y-Z- for the

proposition that it could "weigh evidence differently than an

Immigration Judge" in finding certain evidence to be a negative

factor.

We understand Adeyanju to offer four reasons why we

should abrogate H-L-H- & Z-Y-Z-'s conclusion that the BIA may "give

different weight to the evidence from that given by the Immigration

Judge":

• It is inconsistent with the BIA's regulations.

• It is inconsistent with BIA precedent.

• It is inconsistent with circuit court precedent.

• It relies on inapposite caselaw for the conclusion it reaches.

We take each in turn, rejecting each.

First, Adeyanju says that H-L-H- & Z-Y-Z-'s reweighing

conclusion is inconsistent with the regulations forbidding the BIA

- 22 - from reviewing de novo the IJ's findings of fact. See

(d)(3)(i) (2020). According to Adeyanju, the BIA lacks

the authority to reweigh the evidence and find new negative (or

positive) equities on appeal when the IJ did not find those same

equities. He says the BIA is bound, absent a finding of clear

error, by the IJ's finding of the existence and nature of the

equities relative to the exercise of discretion. If the BIA sees

another equity in the record, his argument goes, the BIA must state

why it was clearly erroneous for the IJ to not have considered

that fact as a negative or positive equity before including it in

its own discretionary calculus.

For this proposition, Adeyanju cites to Vasquez Chavez

v. Barr,

(9th Cir. 2020), an unpublished

disposition from the Ninth Circuit. There, the court addressed a

petition for review of a BIA decision reversing an IJ's grant of

adjustment-of-status relief. In setting forth its understanding

of how clear-error review applied to the IJ's listed equities, the

court stated that "in reviewing the IJ's grant of adjustment of

status, the BIA was bound (absent clear error) by the IJ's factual

findings about the existence and nature of equities weighing for

and against granting the application."

. We, of course,

are not bound by Vasquez Chavez, see Caldero-Guzman v. Holder,

(1st Cir. 2009) (noting we are not bound by Ninth

Circuit cases) -- nor is the Ninth Circuit, see Corbin v. Time

- 23 - Warner Ent.-Advance/Newhouse P'ship,

, 1076 n.5 (9th

Cir. 2016) (noting the court isn't bound by prior unpublished

decisions).13

The government, for its part, draws a line between the

factual finding that an event occurred, and the discretionary

judgment as to whether the event should bear negative or positive

weight in the discretionary calculus, reasoning by analogy to other

BIA precedent. See Matter of A-S-B-,

(BIA 2008) (noting that "[a]fter the Board has determined that the

Immigration Judge's findings regarding the facts underlying the

hardship claim are not clearly erroneous, it may review de novo

whether the facts support a conclusion that the hardship rises to

the required level," and that "[i]n determining whether

established facts are sufficient to meet a legal standard . . .

the Board is entitled to weigh the evidence in a manner different

from that accorded by the Immigration Judge"), overruled in part

on other grounds by In re Z-Z-O-,

(BIA

2015). For example, the government says, whether Adeyanju had a

child out of wedlock is a factual conclusion. But whether that is

evidence of immoral character to support a negative equity is a

discretionary conclusion the BIA is free to reach under its de

novo review.

We also note that no court, including the Ninth Circuit, 13

has cited Vasquez Chavez.

- 24 - To the extent Adeyanju suggests we should apply a Vasquez

Chavez-like rule in our circuit, we do not find Vasquez Chavez

persuasive.14 As we've explained, the clear-error standard "was

not intended to restrict the BIA's powers of review, including its

power to weigh and evaluate evidence introduced before the IJ."

Rotinsulu,

(emphasis added). The clear-error

standard does not restrict the BIA's authority to "analyze[] the

evidence that had been presented in the immigration court," but

rather constrains it from "supplement[ing] the record by

considering new evidence." Id.15

14 We note, however, that we do not decide (as the government pressed at oral argument) that the BIA's judgment that a fact is a negative equity is always immune from judicial review. We need not decide here whether the BIA might commit legal error in its decision that a particular fact supports the finding of a negative equity. Adeyanju doesn't argue that any of the facts the BIA relied on could not, as a matter of law, support a finding of a negative equity. He argues only that the BIA cannot find a positive or negative equity that the IJ had not previously found. 15 Another reason we don't find Vasquez Chavez persuasive is that to support its broad proposition, Vasquez Chavez cites to Ridore v. Holder,

(9th Cir. 2012), presumably for the language in Ridore that "the BIA's list of equities differed from those set forth by the IJ, and the BIA therefore 'overturn[ed] the IJ's findings and enter[ed] its own findings of fact.'"

(alteration in original). Yet that quotation comes not from a legal conclusion made by the court, but a party's argument. Sure, one could read Ridore to imply that it thought the BIA ought to "properly defer[] to the IJ's factual findings with respect to the equities" and then weigh them as a matter of discretion.

Yet Ridore didn't cite any legal authority for the proposition that the characterization of a fact as a positive or negative equity is itself a factual finding. Neither Vasquez Chavez nor Ridore persuades us to adopt such a rule in our circuit.

- 25 - We are not the only circuit to conclude that the BIA

does not violate clear-error review when, in explaining its legal

or discretionary conclusion, it pulls from the undisputed record

additional underlying facts not spotted by the IJ. See, e.g.,

Padmore v. Holder,

(2d Cir. 2010) (finding

impermissible factfinding where the BIA relied on "disputed

material facts with respect to which the IJ reached no resolution"

(emphasis added)); James v. Barr,

, 98 (2d Cir.

2019) (concluding the BIA didn't engage in de novo factfinding by

identifying an additional conviction not found by the IJ but

supported by the respondent's own testimony); Andrickson v. Att'y

Gen. of the U.S.,

(3d Cir. 2011) (concluding

no impermissible factfinding when the BIA "mentioned the pre-

sentence report, which the IJ did not reference in its decision");

Nathanial v. Holder,

(2d Cir. 2011)

("Accordingly, because the BIA did not make new factual

determinations of disputed factual questions or rely on facts

outside of the record, the BIA did not engage in factfinding

. . . ."); Efimova v. Mukasey,

(2d Cir. 2008)

(finding no impermissible factfinding with the BIA's "decision to

quote portions of the record that were not emphasized by the IJ").

Adeyanju's three remaining criticisms of H-L-H- & Z-Y-Z-

don't convince us that we should abrogate it, at least under the

circumstances of this case. Adeyanju says that other BIA

- 26 - precedents make clear that the BIA lacks the authority to reverse

a factual conclusion under clear-error review merely because the

BIA would have weighed the evidence differently than the IJ. But

H-L-H- & Z-Y-Z-'s conclusion that the BIA may "give different

weight to the evidence" in "determin[ing], under de novo review,

whether specific facts are sufficient to meet a legal standard,"

, is not, as we see it, an erroneous view of

the law, as our case law holds, cf. DeCarvalho v. Garland,

, 73 (1st Cir. 2021) (clarifying that BIA review of facts is for

clear error, but review of "how the law applies to those facts" is

de novo). And Adeyanju's cherry-picked quotations from BIA

decisions shed no light on whether the IJ's conclusion that a fact

justifies considering the equity to be negative or positive is,

itself, a finding of fact. See, e.g., Matter of Casanova,

, 505–09 (BIA 2015) (stating, as Adeyanju

notes, that "[i]nferences from direct and circumstantial evidence

are also reviewed for clear error," but in a case concerning

reliability of testimony, the immigrant's role in and knowledge of

acts of torture, and witness credibility); Matter of Y-L-,

(BIA 2007) (stating the uncontroversial

proposition that questions of intent are factual ones reviewed for

clear error); Matter of R-S-H-,

, 637, 641 (BIA

2003) (stating broadly in line with Adeyanju's quotations that the

BIA cannot overturn a "factfinding" merely "because the Board would

- 27 - have weighed the evidence differently," but doing so in a case

involving issues of an adverse credibility determination and

whether the immigrant had links to terrorism).

Nor does the litany of these out-of-circuit cases on

which Adeyanju relies to press that the BIA cannot "evaluate[] and

reweigh[] the facts anew" clarify whether the characterization of

a fact as a positive or negative equity is itself a factual

finding. Although some of the cases Adeyanju cites recognize the

general proposition that the BIA cannot reweigh the facts afresh,

they also recognize the distinction between fact findings and how

those underlying facts fit into a legal or discretionary

conclusion. See, e.g., Zhou Hua Zhu,

(noting the

distinction between "fact-finding about the likelihood of a future

event" and the legal question of "whether that future event would

constitute persecution or . . . warrant a well-founded fear");

Waldron v. Holder,

(8th Cir. 2012) (noting that

"there is a difference between weighing the factual findings of

the IJ and reweighing the underlying evidence and testimony behind

those factual findings to reach new factual conclusions," but also

that "the BIA has the discretion to weigh the IJ's factual findings

differently than the IJ when making the ultimate determination of

whether an applicant demonstrated 'exceptional or extremely

unusual hardship'"). Others involve cases addressing issues that

fall clearly within the scope of a factual finding. See, e.g.,

- 28 - Alimbaev, 872 F.3d at 197–200 (considering whether the BIA violated

clear-error review in reversing determination of testimony's

credibility); Estrada-Martinez v. Lynch,

(7th

Cir. 2015) (considering whether the BIA overstepped clear-error

review as to the IJ's finding of likelihood of torture).

Finally, Adeyanju contends that H-L-H- & Z-Y-Z- is

legally flawed because it relied on inapposite caselaw for the

proposition that the BIA has the authority to "give different

weight to the evidence from that given by the Immigration Judge."

. Specifically, he says that Rotinsulu --

a case from our court cited by the BIA -- does not lend any support

for that proposition. Though he recognizes that we said in

Rotinsulu that the clear-error standard "was not intended to

restrict the BIA's powers of review, including its power to weigh

and evaluate evidence introduced before the IJ,"

,

Adeyanju contends that case is distinguishable because the BIA

there relied on other evidence to affirm, rather than reverse, the

IJ's determination. Adeyanju does not explain why that procedural

posture matters here, and we think that is -- at least in the

context of this case -- a distinction without a difference. The

fact that Rotinsulu involved a case in which the BIA "did not in

any way impeach, impugn, or denigrate the IJ's factual findings,"

does not answer the ultimate question here: Whether the BIA

"denigrate[s] the IJ's factual findings" when reweighing the

- 29 - record evidence to determine the existence and nature of the

equities relevant to the adjustment-of-status application.16

Thus, we conclude as a matter of first impression that,

under the regulation establishing the BIA's standards of review,

(d)(3) (2020), as well as BIA and circuit court

precedent, the BIA had the de novo legal authority to assign

various weights -- positive or negative, heavy or little -- to

those undisputed underlying facts in its discretionary calculus.17

In doing so, we also join a chorus of our sister circuits

that have concluded that the BIA does not violate the clear-error

regulation when it identifies other undisputed facts in the record,

not cited by the IJ, and applies different discretionary weight to

those facts. Accord, e.g., Guevara v. Gonzales,

(7th Cir. 2007) (holding the BIA's determination that a factor was

neutral rather than positive was not "factfinding"); Wallace,

("Although any reversal by the BIA of an IJ's

discretionary determination must involve consideration of the

16Moreover, setting aside any slight differences in procedural posture, Rotinsulu nonetheless still helps clarify our understanding of how the clear-error-review regulation operates. Rotinsulu offered our reasoned interpretation of the regulation and concluded that the regulation does not restrict the BIA's authority to review the evidence submitted before the IJ.

. Again, we do not decide here whether there may lie some 17

claim of legal error in the BIA's decision to apply discretionary weight to particular facts. See supra at 25 n.14.

- 30 - underlying facts, a review of the factual record by the BIA does

not convert its discretionary determination as to whether a

petitioner warrants an adjustment of status into improper

factfinding."); Delgado-Reynua v. Gonzales,

,

599–600 (5th Cir. 2006) (finding no impermissible factfinding even

where "the BIA noted additional, material negative factors" not

relied on by the IJ).

Indeed, the rulemaking adopting the clear-error

standard, too, draws the distinction we have discussed, noting

that clear-error review applies "only to the factual findings by

an immigration judge . . . that form the factual basis for the

decision under review" and not to "determinations of matters of

law, nor to the application of legal standards, in the exercise of

judgment or discretion." BIA Reforms, 67 Fed. Reg. at 54890. It

continues to draw that distinction in the context of forms of

discretionary relief:

What have historically been referred to as "equities" are facts that the respondent establishes in his or her case, and these factual determinations by an immigration judge may be reviewed by the Board only to determine if they are clearly erroneous. However, the "discretion," or judgment, exercised based on those findings of fact, and the weight accorded to individual factors, may be reviewed by the Board de novo.

- 31 - Id.18

H-L-H- & Z-Y-Z-'s conclusion that the BIA may reweigh

the undisputed record evidence to reach its discretionary

conclusion is thus, in these circumstances, not inconsistent with

the regulation.

B. Changes to the specific equities

Finding no infirmity in the BIA's reweighing of the

undisputed record evidence to determine whether certain facts give

rise to a positive or negative equity for the discretionary

analysis, we turn to the BIA's application of the clear-error

standard to certain factual issues relevant to the equities here.

Adeyanju spies five areas in which he claims the BIA reversed

"factual" findings without employing clear-error review. We take

each of these grounds in turn. In doing so, we review the BIA's

Indeed, this reasoning is picked up by another recent 18

unpublished decision from the Ninth Circuit -- giving us another reason not to find Vasquez Chavez persuasive. See De La Luz Ramos v. Garland,

, 147 (9th Cir. 2021). In De La Luz Ramos, the Ninth Circuit addressed an argument that the BIA engaged in improper factfinding in conducting a discretionary analysis of whether the immigrant was convicted of a particularly serious crime. Id.; see Konou v. Holder,

(9th Cir. 2014) (noting the Ninth Circuit considers this a discretionary decision). Specifically, the petitioner claimed that the BIA violated clear-error review in determining that his "three-year term of imprisonment is a 'significant sentence[.]'" De La Luz Ramos, 861 F. App'x at 147. Yet the Ninth Circuit said that "was not a factual finding." Id. Rather, the court said, "the BIA was assigning weight ('significant') to a fact (three-year sentence) as part of its discretionary analysis." Id. The court did not cite Vasquez Chavez.

- 32 - denial of Adeyanju's motion to reconsider under the abuse-of-

discretion rubric set forth previously. See Dimova,

n.7.

1. Escalation of the "creepy" behavior

First up, Adeyanju takes issue with the BIA's review of

the one IJ factual finding the BIA directly confronted. The IJ,

recall, said that though Adeyanju had some "creepy" behavior

documented in 2014 and 2015, "[t]here is insufficient evidence

that any reports have been generated or any incidents have occurred

from 2016 to the present day." According to the BIA, though, the

IJ "erroneously found" that Adeyanju's "creepy" behavior hadn't

occurred again since 2016. Rather, the BIA said, "the record

reflects that [Adeyanju]'s behavior may have instead escalated,"

citing to his 2019 arrest.

Adeyanju first latches onto the BIA's "erroneously

found" language to contend that it reveals the BIA's failure to

apply clear-error review. Rather than concluding the IJ clearly

erred, as the standard goes, the BIA instead called the IJ's

finding simply "erroneous[]." Continuing, he says the BIA's

statement that Adeyanju's behavior "may have escalated" also

reflects that the BIA did not have a firm conviction (harkening

back to the clear-error standard) that the IJ reached an incorrect

conclusion about Adeyanju's post-2016 conduct. See BIA Reforms,

67 Fed. Reg. at 54889 (to find clear error, the BIA must be "left

- 33 - with the definite and firm conviction that a mistake has been

committed"). The government counters by pointing to the BIA's

ruling on the motion to reconsider, wherein the BIA underscores

that it intended this to be a clearly erroneous determination.

According to the government, whether the IJ believed Adeyanju's

side of the allegations surrounding his 2019 arrest is "immaterial"

-- all that matters is that there was record evidence showing that

charges were filed.

While we are not persuaded by Adeyanju's semantical

hair-splitting, we do agree that the BIA failed to adequately

employ clear-error review and thus committed legal error when it

concluded that Adeyanju's "creepy" behavior may have escalated.

As the government now appears to concede in its second round of

briefing to us, this is not a case where the BIA was merely applying

different discretionary weight to the IJ's findings of fact and

record evidence.19 Nor is this a case where the IJ stayed silent

on the issue and the BIA filled in the gap by citing to undisputed

19Initially, in the briefing on the first petition for review, the government said that the BIA was merely applying different discretionary weight to the allegations of sexual assault. However, in the briefing on the second petition for review, the government no longer advances this argument. Instead, the government acknowledges that the BIA did, in fact, reverse the IJ's factual finding here, contending that the BIA "did not abuse its discretion when it found no grounds to reconsider its reversal of the immigration judge's clearly erroneous factual finding," that it "reversed the immigration judge's factual finding," and that the BIA noted certain facts "[i]n explanation for its reversal of this factual finding."

- 34 - record facts. Rather, the IJ explicitly found that the "creepy"

behavior was confined to 2014–2015, and the BIA explained in

denying Adeyanju's motion to reconsider that it was reversing the

IJ's factual finding on this point and explaining its "firm

conviction that the Immigration Judge's finding of fact in this

regard was erroneous." The question here is thus whether the BIA

adequately applied that clear-error standard.

At first blush, the government's contention that the BIA

merely looked to the record evidence that contradicted the IJ's

conclusion seems plausible given the uncontroverted fact that

Adeyanju was arrested for sexual assault. But the line between

factfinding and the BIA's application of discretionary weight to

undisputed record facts is fine, and the problem here is that the

IJ specifically found, as a factual matter, that Adeyanju had not

engaged in any creepy behavior since 2016 notwithstanding his

acknowledgment of the 2019 arrest. In other words, the IJ made a

factual determination about the nature and circumstances of

Adeyanju's 2019 behavior. And implicit in that finding is a

credibility determination by the IJ as to what kind of conduct

Adeyanju engaged in after 2016. While the IJ did not make explicit

his reasoning for his finding, the record suggests the IJ, in

minimizing the significance of the 2019 conduct, was influenced by

Adeyanju being "candid about his criminal record" and "actually

admitt[ing to] having sex with the victim," but asserting the sex

- 35 - was consensual. Then from that credibility determination, the IJ,

by his lights, plausibly read the evidence as demonstrating that

Adeyanju's conduct in the pending criminal case was quite different

from the earlier behavior.

On the other hand, in its review of the record, the BIA

saw things quite differently. It viewed Adeyanju's "creepy"

conduct as escalating with his 2019 arrest rather than it being a

horse of a different color. Problem is, although the BIA's

interpretation of how the 2019 arrest related to the "creepy"

conduct was, undoubtedly, also supported by the record and was

another permissible view of the evidence, choosing another

plausible interpretation of the evidence is factfinding and does

not meet the BIA's obligation to utilize clear-error review. See

Díaz-Alarcón v. Flández-Marcel,

, 312 (1st Cir. 2019).

The BIA's job, if it questioned the IJ's determination that

Adeyanju's 2019 behavior was not of the same ilk as that in 2014-

2015, was to explicate why the finding was "illogical or

implausible," not substitute its own factual judgments. Anderson

v. Bessemer City,

(1985); see also BIA Reforms,

67 Fed. Reg. at 54889 (citing Anderson,

). Further,

if the BIA thought the IJ needed to take a second look at the

criminal allegations, it could have remanded.

(d)(3)(iv) (2020) ("If further factfinding is needed in a

particular case, the Board may remand the proceeding to the

- 36 - immigration judge . . . ."). The BIA does not meet the clear-

error standard by simply pointing to potentially contradictory

evidence in the form of the allegations in the police report (which

the IJ acknowledged but discounted given Adeyanju's consent

defense) and Adeyanju's initial response to police questioning.

On this point, the BIA committed legal error.20

2. Purported dishonesty

Next, the BIA placed negative weight on the fact that

Adeyanju had "lied to the police to avoid responsibility" in the

pending criminal case for kidnapping and sexual assault.21

According to Adeyanju, the BIA reached this conclusion

"independently" and without applying the clear-error standard. In

fact, Adeyanju contends, the IJ found him to be "credible."

Adeyanju misconstrues the record. Yes, the IJ did find

Adeyanju to be a credible witness. But that finding related to

20We need not opine on whether the BIA could ultimately conclude the IJ's factual determinations on the veracity of the pending criminal charges are clearly erroneous. We decide only that, if the BIA thinks that is so, it must surmount the high bar of clear-error review and thoroughly explain why it was "illogical or implausible" for the IJ to conclude that Adeyanju's 2019 arrest does not reflect that Adeyanju's "creepy" behavior from 2015 and 2016 may have escalated. 21And as we noted earlier, those police reports indicate that, when first approached by police, Adeyanju repeatedly denied having sexual intercourse with the victim and lied about his medical ability to do so. Then, before the IJ (and after the results of the DNA-comparison test were back), Adeyanju admitted that he did.

- 37 - Adeyanju's testimony before the IJ, not to the answers he gave to

the Maine police investigating the sexual-assault allegations.

Thus, the BIA did not violate the clear-error standard of review

here by engaging in de novo factfinding because, contrary to

Adeyanju's suggestion, the IJ did not find that Adeyanju had been

honest with the police. In fact, Adeyanju never argued -- and

does not argue now -- that the police report describing his

statement to the police is inaccurate. As such, Adeyanju gives us

no viable reason why it was improper for the BIA to consider this

evidence when conducting its discretionary assessment. See Arias-

Minaya v. Holder,

(1st Cir. 2015) (noting that, as

a general matter, "immigration courts may consider police reports

even when they rest largely on hearsay").22

To be clear, the BIA does not engage in impermissible

factfinding where it "d[oes] not supplement the record by

considering new evidence but, rather, merely analyze[s] the

evidence that had been presented in the immigration court."

Rotinsulu,

. The clear-error standard of review

22In Arias-Minaya, we did note that there are limits to that general rule. See

. "[T]hose 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."

Here, unlike in Arias-Minaya, there is no record evidence suggesting that the IJ determined that the police reports were reliable. Yet Adeyanju does not argue on appeal that the BIA or IJ erred on this ground. We thus deem waived any potential argument that the police reports should not have been relied on. See, e.g., Dimova,

.

- 38 - "was not intended to restrict the BIA's powers of review, including

its power to weigh and evaluate evidence introduced before the

IJ."

(emphasis added); see Matter of A-S-B-, 24 I. & N. Dec.

at 498 ("Were we to treat the matter otherwise, we would be

precluded from considering the total content of any documentary

evidence submitted before the Immigration Judge unless the entire

document was read into the Immigration Judge's decision."). The

regulation does not restrict the BIA's authority to "analyze[] the

evidence that [was] presented in the immigration court," but rather

constrains it from "supplement[ing] the record by considering new

evidence." Rotinsulu,

; see BIA Reforms, 67 Fed.

Reg. at 54891–92 (noting the regulation "generally prohibits the

introduction and consideration of new evidence in proceedings

before the Board" but also that "[t]he Board reviews the record of

proceedings made before the immigration judge"). And the BIA "has

the prerogative -- indeed, the duty -- of examining the basis for,

and then synthesizing and analyzing, the IJ's findings." Chen,

.

The undisputed record facts here amply support the BIA's

conclusion that Adeyanju lied to the police. See Rotinsulu,

; Padmore,

(finding impermissible

factfinding where the BIA relied on "disputed material facts with

respect to which the IJ reached no resolution" (emphasis added));

see also, e.g., James, 756 F. App'x at 98 (concluding the BIA

- 39 - didn't engage in de novo factfinding by identifying an additional

conviction not found by the IJ but supported by the respondent's

own testimony). We see no error.

3. Indicia of past marriage fraud

Third, Adeyanju claims the BIA contradicted the IJ's

findings when it "changed the nature of the evidence of purported

past immigration fraud." According to Adeyanju, the IJ didn't

view the indicia of marriage fraud as a negative equity. Yet, the

BIA clearly did when it concluded the "indicia of past immigration

fraud" was a negative factor.

Adeyanju's argument is a non-starter because the IJ did

view the evidence of marriage fraud as a negative equity. To be

sure, the IJ found the evidence to be "inconclusive." At the same

time, though, the IJ admitted that "there is some evidence of fraud

in the previous marriage in the notice of intent." The IJ then

"place[d] some weight on the notice of intent." And the BIA,

following the IJ's lead, did not make any finding as to whether

the marriage was in fact fraudulent. Adeyanju may opine that the

BIA, unlike the IJ, didn't place enough discretionary weight on

the other evidence that the IJ thought tended to rebut the

allegations of marriage fraud. But weight determination is not a

claim of legal error over which we have jurisdiction. Urizar-

Carrascoza v. Holder,

, 32–33 (1st Cir. 2013) (noting

- 40 - we lack jurisdiction to review the BIA's discretionary

determination); see

(a)(2)(B).

Undeterred, Adeyanju stresses that the BIA's view of the

facts on marriage fraud was "expressly contrary to the IJ's

interpretation." He highlights the fact that the BIA looked to

underlying evidence in the record suggesting marriage fraud that

the IJ did not highlight. According to Adeyanju, then, the BIA's

review of these facts was "tantamount to a de novo" factual review.

We disagree. "[A] review of the factual record by the

BIA does not convert its discretionary determination as to whether

a petitioner warrants an adjustment of status into improper

factfinding." Wallace,

. The BIA "has the

prerogative -- indeed, the duty -- of examining the basis for, and

then synthesizing and analyzing, the IJ's findings." See Chen,

. Here, the BIA reviewed the undisputed record

evidence, relied on by USCIS in the notice of intent, to determine

that the "indicia of past immigration fraud" was a negative factor.

The IJ, too, placed negative weight on the notice of intent even

though he found the evidence of marriage fraud, on the whole,

inconclusive. We see no violation of clear-error review here.

4. Indicia of visa-application fraud

Moving on, Adeyanju claims the BIA violated clear-error

review when it looked to Adeyanju's alleged "inaccurate[]" claim

on his visa application that he was engaged in Nigeria. We agree.

- 41 - The IJ specifically found that Adeyanju did not intend to commit

fraud or give an inaccurate answer on the application. Rather,

the IJ found that Adeyanju's explanation of why he stated he was

engaged to be "reasonable." The IJ even went so far as to say:

"To the extent the Department is asserting that he committed fraud

on the non-immigrant visa application process, the Court does not

find that. And indeed, finds his explanation based on his

relationship with his girlfriend and their intentions was

reasonable." The BIA, though, said that Adeyanju "inaccurately

claimed that he was engaged to a woman in Nigeria," and placed

negative weight on this factoid. This conclusion contradicts the

IJ's clear finding that Adeyanju's claims of being engaged were

"reasonable."

The government chimes in that the BIA may rely on

evidence in the record indicating there may have been fraud to

justify a negative factor.23 And, it says as it has argued

throughout, Adeyanju merely asks us to reweigh the evidence in his

favor. But we do not see this as a mere discretionary weighing of

The government isn't clear on whether this argument applies 23

only regarding the evidence of marriage fraud. Indeed, the government doesn't specifically explain why the BIA's reliance on Adeyanju's "inaccurate[]" claim on his visa application didn't violate the clear-error standard. And at oral argument, the government stated that the BIA made no mention of fraud on the visa application. But that's belied by the BIA's clear statement that it was considering his "inaccurate[]" claims on his "non- immigrant visa application."

- 42 - the undisputed record evidence or the factual findings by the IJ.

Adeyanju clearly disputed that he made inaccurate claims on his

visa application, and the IJ agreed, finding his explanation

reasonable. Yet the BIA's conclusion directly conflicts with the

IJ's finding. The BIA therefore erred when it failed to apply the

clear-error standard to explain why it was left with the clear

conviction that the IJ mistakenly concluded the claims were

reasonable.

5. Predatory and criminal behavior

Finally, Adeyanju complains about the BIA's

characterization of his past encounters with women. The BIA

described Adeyanju's encounters with law enforcement concerning

these incidents as "a documented history of predatory and criminal

behavior towards women and adolescent girls." But, Adeyanju points

out, the IJ explicitly found that Adeyanju's actions "did not rise

to the level of criminal behavior," instead calling the behavior

"creepy." Adeyanju contends the BIA could not deem his behavior

"predatory and criminal" absent a finding of clear error by the

IJ.

Looking to his papers below, we don't think Adeyanju

specifically raised this particular ground of impermissible

factfinding to the BIA in his motions to reconsider and reopen.

However, since we will remand this case for the BIA to reconsider

the two clear-error violations we've already identified, we need

- 43 - not cross the bridge of whether that failure creates an exhaustion

issue here. We thus do not decide whether this particular ground

of error is exhausted notwithstanding that it was not included in

Adeyanju's motions below. Nor do we pass on the underlying merits

of Adeyanju's clear-error contention. Instead, we allow the

parties to sort this piece out on remand.

* * *

To review, we've spotted two legal errors: (1) the BIA

violated the clear-error standard in concluding that Adeyanju's

"creepy" behavior may have escalated with his most recent arrest;

and (2) the BIA violated the clear-error standard in finding

Adeyanju's visa-application answers were inaccurate. The BIA

therefore abused its discretion in denying Adeyanju's motion to

reconsider on these grounds. The rest of the arguments, though,

fall flat. The BIA did not commit legal error in placing more

negative weight (or less positive weight) on facts that either the

IJ relied on or lied undisputed in the record. The BIA was free,

under its de novo authority, to survey the record for undisputed

facts and, in combination with the IJ's factual determinations,

identify additional positive or negative equities, and balance

those equities anew. We will, however, grant in part the petition

in 21-1616 and remand to the BIA for reconsideration of the two

clear-error-standard violations we've identified. That being

said, we proceed now to review Adeyanju's contention that our

- 44 - remand to the BIA necessarily requires it to further remand to the

IJ. We reject this argument and explain why.

II. Whether the BIA Erred by Issuing a Final Order of Removal

In addition to his clear-error-standard arguments,

Adeyanju makes a three-pronged attack to the BIA's decision to

issue a final order of removal, which he says flouts the BIA's

regulations and precedents.

A. Failure to remand after finding clear error

Adeyanju appears to contend that, if the BIA found clear

error in the IJ's factual conclusions on appeal, then it was

required to reverse the conclusions and then remand to the IJ for

further consideration before issuing a final order of removal. He

says the BIA could not reverse the factual conclusions, substitute

the new factual conclusions, survey the factual record itself to

fill in gaps, and then conduct its de novo discretionary analysis,

resulting in a final order of removal, without first letting the

IJ take a pass at a discretionary calculus that accounted for the

BIA's clear-error holding.

In support of his contention, Adeyanju points to case

law and regulations stating that the BIA is prohibited from

engaging in factfinding in the course of deciding appeals. But we

do not think the regulation requires the BIA to remand to the IJ

for a new discretionary analysis whenever it makes a clear-error

- 45 - determination.24 Although it is true that the BIA must remand in

those instances where further factfinding on an issue may be

required to reach a resolution of the merits, see

(d)(3)(iv) (2020), the BIA has the authority to review the

undisputed facts in the entire record and, if it finds those facts

sufficient to adjudicate the appeal, it may give discretionary

weight to those facts and resolve the case, see Rotinsulu,

(noting that the BIA may "analyze[] the evidence that

had been presented in the immigration court" but cannot "supplement

the record by considering new evidence"); BIA Reforms, 67 Fed.

Reg. at 54890 ("[T]he 'discretion,' or judgment, exercised based

on those findings of fact, and the weight accorded to individual

factors, may be reviewed by the Board de novo.").25

24For that reason, Adeyanju's citation to rulemaking stating that the BIA "has authority to reverse erroneous fact findings and no authority to correct them" does not move the needle. BIA Reforms, 67 Fed. Reg. at 54890. The rulemaking merely clarifies that the BIA cannot "engage in de novo factfinding to 'correct' clearly erroneous facts," and aligns the procedure with that followed in the federal courts. Id. (emphasis added). 25 Nor has Adeyanju identified any precedential BIA opinion establishing a "settled course of adjudication" at the BIA (which, recall, the BIA's variation from that "settled course" can be a ground of legal error, see Perez-Trujillo, 3 F.4th at 22) in which it will remand for a new discretionary reweighing by the IJ after a BIA finding of clear error on a finding of fact. In fact, the unpublished, non-precedential BIA opinions go both ways on this issue, meaning there was no settled course at the BIA from which to diverge, and thus no successful claim of legal error on this basis here. See Sang Goo Park v. Att'y Gen. of the U.S.,

(3d Cir. 2017) (finding no settled course where there is no "obvious consistency by the BIA"); compare In re: Hong, 2008 Immig. Rptr. LEXIS 5225, at *6 (BIA Sept. 25, 2008) ("Because we

- 46 - The cases Adeyanju cites actually serve to clarify this

point. See Lopez-Rodriguez v. Holder,

(9th

Cir. 2012) (remand is required for further factfinding "[w]here

the IJ has not made a finding of fact on a disputed matter, and

such a finding is necessary to resolution of the case" (emphasis

added)); Padmore,

(concluding remand to the IJ for

factfinding may be required where the BIA relied on "disputed

material facts with respect to which the IJ reached no resolution"

(emphasis added)).26 Indeed, Padmore clarified that the need for

remand to the IJ would be "to develop the factual record further"

on those disputed material facts.

. As we've noted,

Adeyanju didn't dispute the fallacious statements he made to the

Maine police conducting the sexual-assault investigation. Nor did

have limited fact-finding authority on appeal and because some of the above-mentioned errors by the Immigration Judge involve clearly erroneous factual findings that need to be amended, we find that a remand is necessary in this case to allow the Immigration Judge to reassess the facts and to again weigh the positive and negative equities to determine whether the respondent is entitled to relief in the exercise of discretion."), with, In re: Lat, 2007 Immig. Rptr. LEXIS 3038, at *5-7 (BIA Aug. 3, 2007) (finding an instance of clearly erroneous factfinding, applying de novo review to discretionary weighing of cancellation-of-removal factors, reversing IJ's grant of relief, and ordering removal). 26 Adeyanju also cites Ramirez-Peyro v. Gonzales,

(8th Cir. 2007), where the Eight Circuit concluded that if the BIA thought it needed a fact specifically addressed, it should have remanded to the IJ. But the court does not mention whether there was record support for the BIA's factual conclusion. And the government in Ramirez-Peyro conceded that the BIA violated clear-error review.

- 47 - he dispute that USCIS found some indicia of marriage fraud in his

marriage to Raymond.27 So those facts did not require a remand to

the IJ. Again, when this application lands before the BIA anew,

it will be up to the BIA to determine whether, sans the inclusion

of the two facts found in violation of clear-error review, it will

need a more factually developed record before it can decide

Adeyanju's appeal.

B. Failure to explain its reasoning

Moving on to the I-751 claims in his original petition

for review, Adeyanju took issue with the BIA's failure to explain

why it issued a final order of removal notwithstanding the pendency

of the I-751 waiver he filed with Rebecca. Nevertheless, in the

BIA's subsequent decision denying his motions to reconsider and

reopen, the BIA did explain its reasoning. It did not remand to

the IJ to consider the I-751 waiver because the IJ lacked

jurisdiction over the petition: It was still pending with USCIS.

In his second petition before us, Adeyanju does not press the BIA's

failure to explain its initial decision as an error. So, with a

Adeyanju also argues that, even if the BIA properly applied 27

the clear-error standard, further factfinding was necessary as to whether his past dishonesty and immigration fraud were negative equities. But, as we explained, the nature of the equities is not a question of fact for which remand would be necessary. And as to whether further factfinding was necessary on the disputed issues of his answers on the visa application and the escalation of his "creepy" behavior, we need not decide here whether remand was necessary for further factfinding because we conclude the BIA failed to apply the clear-error standard to those factual findings.

- 48 - clarifying explanation from the BIA now on the record, we consider

this claim of error moot.

C. Remand for consideration of the I-751 waiver

Adeyanju also contends that the BIA committed legal

error when it ordered him removed even though his I-751 waiver

petition -- which he filed with his second wife, Rebecca -- was

still pending.28 The BIA's original decision was mostly silent on

the I-751 waiver, aside from a footnote acknowledging that it was

pending when the IJ held its hearing. Miffed at the BIA's failure

to allow him a shot at having the IJ review a potential I-751

waiver denial, see

(f), Adeyanju included this

alleged error in his motions to reconsider and reopen with the

BIA. In his motion to reconsider, he contended that the BIA

committed legal error when it did not remand to the IJ (the person

charged with initial appellate review authority) to determine

whether he was eligible for the I-751 waiver, did not explain its

reasons, and violated his due-process rights by failing to give

him an opportunity to have his I-751 waiver denial heard before an

IJ. As to reopening, Adeyanju told the BIA that, since the initial

decision, USCIS had denied his I-751 waiver, so the IJ now had

Recall that the I-751 petition, filed with Raymond, was 28

denied. It was not until after that I-751 petition was denied that Adeyanju and Rebecca filed the I-751 waiver petition, which was still pending with USCIS at the time of the hearing before the IJ and the original appeal to the BIA.

- 49 - jurisdiction. After the government clarified that USCIS had not

yet issued a final denial of the I-751 waiver, only a notice of

intent to deny, Adeyanju later told the BIA in his reply brief

that, even if the IJ did not currently have jurisdiction over the

petition, the BIA should, instead of issuing a final order of

removal, remand to allow the IJ to grant continuances until the

I-751 waiver denial was final.

The BIA denied both the motion to reconsider and the

motion to reopen. As to the motion to reconsider, the BIA

concluded that there was no error in its conclusion that the IJ

lacked jurisdiction over the I-751 waiver. As to reopening, the

BIA gave two reasons for its denial: (1) Adeyanju (to repeat) did

not show that the IJ would then have jurisdiction to review his

I-751 waiver; and (2) Adeyanju didn't show prima facie eligibility

for relief under the I-751 waiver.

On appeal, Adeyanju takes on the denial of both the

motion to reconsider and the motion to reopen. We begin with

reopening.

"To prevail on a motion to reopen before the BIA, the

movant must show 'new, material evidence that was not available or

discoverable at the prior hearing and must also present a prima

facie case of eligibility for the relief sought.'" Benitez v.

Wilkinson,

, 52 (1st Cir. 2021) (quoting Jutus v.

Holder,

(1st Cir. 2013)); see 8 C.F.R.

- 50 - § 1003.2(c)(1) (2020). We review the BIA's denial of Adeyanju's

motion to reopen "under the 'highly deferential abuse-of-

discretion standard.'" Tay-Chan v. Barr,

(1st

Cir. 2019) (quoting Pineda v. Whitaker,

(1st

Cir. 2018)). We will find such abuse when the complaining party

shows that the BIA "committed a material error of law or exercised

its authority arbitrarily, capriciously, or irrationally."

(quoting Gyamfi v. Whitaker,

(1st Cir. 2019));

see Benitez, 987 F.3d at 52. The BIA also abuses its discretion

if it "inexplicably departs from established policies," including

its own precedents, "or rests its decision on an impermissible

basis." Benitez, 978 F.3d at 52 (cleaned up) (quoting Leblanc v.

I.N.S.,

(1st Cir. 1983)). Within the abuse-of-

discretion rubric, we examine the BIA's legal conclusions de novo.

Where the BIA's explanation is too thin to allow us to evaluate

the claims of error, we may find an abuse of discretion and remand

to the BIA for further explanation. See Tillery v. Lynch,

, 185–187 (1st Cir. 2016); Aponte v. Holder,

(1st Cir. 2012) (Aponte II).

With those principles in mind, when it comes to the BIA's

conclusion that Adeyanju failed to show his prima facie case that

he was eligible for relief, we cannot deduce from the BIA's terse

statement whether it was legally correct. An I-751 waiver can be

granted discretionarily by the Secretary of Homeland Security if

- 51 - the petitioner shows, among other potential grounds not relevant

here, that "the qualifying marriage" -- here, the marriage to

Raymond, not Rebecca -- "was entered into in good faith by the

[immigrant] spouse, but the qualifying marriage has been

terminated (other than through the death of the spouse) and the

[immigrant] was not at fault" in failing to file the joint

petition. 8 U.S.C. § 1186a(c)(4)(B). The BIA here merely stated

that Adeyanju "has not shown that he is prima facie eligible for

the relief sought." That one-liner does not give us enough to

analyze why Adeyanju supposedly didn't meet his prima facie

burden.29 We thus remand to the BIA, as we have done in the past,

29 We pause to note we are assuming that we might ultimately have jurisdiction to review the BIA's reasoned explanation of why no prima facie case was established (i.e., is it a potential challenge premised on a legal or constitutional error or is it something that squarely falls within the BIA's discretionary bailiwick), as we note that the Supreme Court has granted certiorari in a case in which it has been asked to decide "[w]hether

(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a non-discretionary determination that a noncitizen is ineligible for certain types of discretionary relief." Brief for Petitioners at i, Patel v. Garland,

(2021) (No. 20-979); see Cho v. Gonzales,

, 99- 102 (1st Cir. 2005) (concluding we have jurisdiction to review whether a petitioner has established the non-discretionary eligibility criterion that her marriage was entered into in good faith under § 1186a(c)(4)(B), but noting § 1252(a)(2)(B)(ii) "precludes court review" of petitions based on credibility determinations and the weight applied to credited evidence, both of which are vested in the agency's sole discretion under § 1186a(c)(4)); but see Twum v. Barr,

(1st Cir. 2019) (noting some tension in our case law on this point and concluding we lack jurisdiction to review a petitioner's eligibility for a different form of discretionary relief).

- 52 - for further explanation. See Aponte II, 683 F.3d at 14 (taking

the same route where the BIA's decision on prima facie eligibility

was too "summary" to allow us to determine its basis); Larngar v.

Holder,

, 79–80 (1st Cir. 2009).

Adeyanju further contends that the BIA abused its

discretion in denying the motion to reopen, as well as the motion

to reconsider, on the ground that he failed to demonstrate that

the IJ had jurisdiction over the I-751 waiver. Though he does not

appear to dispute that the IJ lacked jurisdiction over the I-751

waiver based on the record before the BIA, he flags the BIA's

failure to address his alternative argument that the BIA should

remand to permit the IJ to grant continuances until the I-751

waiver denial became final.30

After filing his motions to reconsider and reopen but

before the BIA ruled on the motions, though, the I-751 waiver

decision did become final, as USCIS formally denied it on July 22,

2021. Typically, we are constrained to ignore information outside

the administrative record when deciding petitions for review of

BIA decisions. See

(b)(4)(A). But we have also

held that we may peek outside that record and take judicial notice

of agency actions in immigration proceedings to resolve whether a

30We note that it is unclear to us whether the continuances argument was part of Adeyanju's motion to reopen, motion to reconsider, or both.

- 53 - claim in a petition for review may have become moot. See Manguriu

v. Lynch,

(1st Cir. 2015).

Because it is now clear that the IJ would have

jurisdiction over Adeyanju's I-751 waiver appeal, see

(f), we need not address whether the BIA erred in refusing

to remand for continuances until the IJ had jurisdiction, see

Qureshi v. Gonzales,

(7th Cir. 2006) (finding

moot claims of error in denying continuance motion pending

adjudication of I-130 petition after USCIS dismissed the

petition); see also Dia v. Garland,

, 985 (6th

Cir. 2021) (same); Ismail v. Barr,

, 23 (2d Cir.

2020) (similar).31 Nor need we consider the government's

alternative explanations for the BIA's failure to acknowledge

Adeyanju's argument. See, e.g., Makieh v. Holder,

(1st Cir. 2009) (noting that we "judge the action of the BIA based

only on reasoning provided by the agency, not on grounds

There appears to be some support for Adeyanju's argument 31

that the BIA should have remanded to the IJ to grant continuances. See, e.g., Matter of Stowers,

, 613–14 (BIA 1999) ("[W]here an alien is prima facie eligible for a waiver under section 216(c)(4) of the Act and wishes to have his or her waiver application adjudicated by the Service, the proceedings should be continued in order to allow the Service to adjudicate the waiver application."); Matter of Mendes,

(BIA 1994) (similar); see also Jackson v. Mukasey,

(9th Cir. 2008) ("As DHS never had the opportunity to adjudicate the application, however, we agree with Jackson's contention that the BIA was required to remand her case under" Stowers.).

- 54 - constructed by the reviewing court" (quoting Mihaylov v. Ashcroft,

, 21 (1st Cir. 2004))). Instead, we instruct the BIA

on remand to consider the effect, if any, of the final denial of

the I-751 waiver on Adeyanju's motions, including his newly filed

motion to reopen pending before the BIA.

CONCLUSION

For reasons we just explored, we grant in part the

petition in 21-1616 and remand for further proceedings consistent

with this opinion. The remainder of the petition in 21-1616 is

denied. As all of Adeyanju's contentions in the petition in

21-1045 are either moot or disposed of by our decision in 21-1616,

the petition in 21-1045 is dismissed as moot.

- 55 -