United States Court of Appeals For the First Circuit

No. 21-1237

FELIX MORENO,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Barron, Chief Judge, Lipez and Gelpí, Circuit Judges.

Randy Olen for petitioner. Jessica R. Lesnau, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Brian M. Boynton, Assistant Attorney General, and Anna Juarez, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

October 14, 2022 GELPÍ, Circuit Judge. Petitioner Felix Moreno ("Moreno"

or "Petitioner") seeks review of a final removal order upheld by

the Board of Immigration Appeals ("BIA"). He sought adjustment of

status under

(a), which the Immigration Judge ("IJ")

denied. He then appealed the denial of his status adjustment

application to the BIA, while also moving to remand based on new

evidence. The BIA dismissed Moreno's appeal and denied his motion

to remand. Petitioner contends before us that the BIA committed

legal error and abused its discretion in failing to adequately

address new evidence. We deny Moreno's petition for review.

I. BACKGROUND

A. MORENO'S ENTRY AND IMMIGRATION STATUS

Moreno, a 54-year-old native and citizen of Cape Verde,

entered the United States on April 11, 1989, with a B-2 visitor

visa with authorization to stay until June 1, 1989, under former

section 101(a)(15) of the Immigration and Nationality Act ("INA"),

(a)(15).

In 2015, his U.S.-citizen son, Felix Samedo Sequeira

Jr., petitioned for an I-130 immigrant visa,1 available to

immediate relatives of U.S. citizens, on Moreno's behalf. This

was a necessary step for Moreno to become eligible for adjustment

An I-130 petition allows a U.S. citizen or lawful permanent 1

resident to sponsor an alien relative's application for permanent resident status.

- 2 - of status. The I-130 immigrant visa was approved by U.S.

Citizenship and Immigration Services on May 6, 2019.

B. MORENO'S INITIAL REMOVAL PROCEEDINGS

In 1995, the Immigration and Naturalization Service

("INS") initiated removal proceedings charging Moreno with

overstaying his visa by remaining in the United States for a time

longer than permitted after being admitted as a nonimmigrant

visitor, and thus, he was subject to removal under former INA

section 241(a)(1)(B).2 At the initial hearing held on June 7,

1995, Moreno denied the factual allegations, contested the charges

of removability, and declined to designate a country of removal.

However, the IJ designated Cape Verde as the country of removal.

In lieu of deportation, Moreno sought voluntary departure. At a

continued hearing held on December 29, 1995, Petitioner was found

removable and was granted voluntary departure to take place by

April 29, 1996.

On April 30, 1996, Moreno filed a motion to reopen

seeking suspension of deportation.3 At a hearing held on March

2Moreno was also charged with seeking to procure entry into the United States via fraud or misrepresentation under section 212(a)(6)(C)(i) of the INA. This ground was later withdrawn. 3 Suspension of deportation was the predecessor to the current, and more limited, relief of cancellation of removal. See Cortez-Felipe v. INS,

(9th Cir. 2001) (noting that on April 1, 1997, section 304(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 repealed

- 3 - 12, 1997, the IJ pretermitted Moreno's application for suspension

of deportation because the IJ determined that he had not

demonstrated eligibility for such relief. Instead, Moreno was

granted voluntary departure for a second time. That decision was

appealed to the BIA. On November 16, 2001, the BIA

administratively closed the case, finding that, at that time,

Moreno may have been eligible for cancellation of removal under

section 240A(b).

C. MORENO'S CRIMINAL HISTORY

Moreno had multiple run-ins with the law, accruing a

lengthy and serious criminal history. Among these incidents, four

involved drunk driving. In 1996, Moreno was arrested for operating

under the influence of alcohol ("OUI") and a marked lanes

violation. Moreno was sentenced to probation. In 2003, Moreno

was convicted of OUI and sentenced to a fourteen-day inpatient

treatment program, forty hours of community service, a bar program,

and suspension of his driver's license for two years. In 2009, he

was again arrested for a marked lanes violation, OUI, and negligent

operation of a motor vehicle. After a bench trial, he was found

not guilty of the OUI and guilty as to the other charges. Moreno

was placed on probation, ordered to attend a highway safety

suspension of deportation and replaced it with cancellation relief).

- 4 - program, and ordered to thirty days' home confinement and to

refrain from using alcohol or drugs.

In 2016, Moreno was again arrested for OUI when his

vehicle collided with another vehicle while his minor daughter was

on board. He was charged with third offense OUI and child

endangerment while OUI. He went to trial and was found guilty by

a jury on both charges. On October 3, 2018, he was sentenced to

ninety days' imprisonment for the child endangerment while OUI

violation and two-and-a-half years for the OUI charge.

On or about December 5, 2018, after serving his state

criminal sentence, Moreno was transferred to the custody of U.S.

Immigration and Customs Enforcement.

D. REINSTATEMENT OF REMOVAL PROCEEDINGS AGAINST MORENO

On December 14, 2018, the U.S. Department of Homeland

Security ("DHS") moved to reinstate proceedings before the BIA.

The BIA granted the DHS's motion. Accordingly, the BIA vacated

its November 2001 order administratively closing the case and

reinstated proceedings, remanding the case for further

proceedings.

1) PROCEEDINGS BEFORE THE IJ

In early 2020, Petitioner appeared at his merits hearing

solely seeking relief under former section 245(a) of the INA, 8

- 5 - U.S.C. § 1255(a)4, for adjustment of status through his

U.S.-citizen son. The IJ concluded that he was statutorily

eligible for adjustment and proceeded to address the merits of

such discretionary relief.

The IJ at the outset noted that "[Moreno]'s lengthy and

serious criminal history" weighed against a favorable exercise of

discretion. The IJ pointed to Moreno's numerous arrests and

convictions for driving under the influence, including the one in

2016, in which he hit another vehicle while his minor daughter was

on board.

The IJ further considered that Petitioner: 1) completed

an alcohol program in jail; 2) claimed to have quit consuming

alcohol after the 2016 incident; 3) vowed not to drive without a

license; 4) stated he would attend Alcoholics Anonymous meetings

if given the chance; 5) noted that his family fully supported his

recovery; and 6) stated that he had a job waiting and a plan to

get to and from work. The IJ, however, was troubled because

Petitioner admitted to drinking when stressed but "[h]e could

articulate no coping mechanisms or specific plans for what he will

do when he becomes worried or stressed again and wants to drink."

4 Section 1255(a) provides, in relevant part: "The status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence . . . ."

- 6 - The IJ moreover highlighted Moreno's lack of candor when asked if

there had been occasions when he had driven drunk without getting

caught. He initially denied ever having done so but eventually

admitted he had done so "on two, three, or four other occasions."

The IJ also took into account Moreno's extenuating

circumstances: 1) he had lived in the United States for over thirty

years; 2) he has three U.S.-citizen children, then-aged

twenty-five, thirteen, and five; 3) he had been employed by the

same employer for twenty-five years, who indicated that he is "a

dependable and hard worker"; 4) he had sporadically paid taxes;

5) his life-partner and mother of two of his children, Carmen

Lafleur ("Lafleur") "has a number of health problems including

Type 2 diabetes, carpal tunnel syndrome, severe obesity,

neuropathy, a mood disorder, and memory loss"; 6) Moreno's

detention "ha[d] been devastating" to his life-partner and family,

with her having to shoulder the full load in terms of familial and

financial obligations; 7) his twenty-five-year-old son, who

suffers from "'poorly controlled' Type 1 diabetes" and other health

issues and has been unemployed, considers Moreno "his role model

and best friend"; 8) his absence would be financially and

emotionally deleterious for the family; 9) the mother of

Petitioner's other child called Petitioner a "devoted father who

always paid child support before being incarcerated" and who used

to spend "weekends and some weekdays" with his thirteen-year-old

- 7 - child, who has been seeing a psychologist to deal with emotional

problems as a result of his father's absence.

The IJ ultimately weighed all of the evidence, noting

that "[b]ecause of [Petitioner's] significant criminal history, he

needed to present unusual or outstanding countervailing equities

to merit a favorable exercise of discretion" and that "[t]he

positive equities in this case simply cannot outweigh the adverse

factors." In doing so, the IJ afforded heavier weight to Moreno's

multiple drunk-driving arrests in which he repeatedly failed

sobriety tests, including that with his minor daughter as a

passenger, in comparison to his extenuating circumstances. The IJ

also gave adverse weight to Petitioner's lack of candor regarding

other incidents of drunk driving and his lack of a concrete plan

to fight the urge to drink in the future. Ultimately, the IJ

denied Moreno's application for adjustment of status.

2) APPEAL TO THE BIA

Petitioner appealed to the BIA, which, in turn,

thoroughly reviewed, recited, and agreed with the IJ's balancing

of factors. The BIA specifically commented that Petitioner "ha[d]

not persuasively presented evidence of genuine rehabilitation" and

that he "could not articulate his plan for rehabilitation with

specificity, aside from reading a book or spending time with his

child."

- 8 - Next, the BIA addressed Petitioner's motion to remand

the matter to the IJ so that he might present new, previously

unavailable evidence that his life-partner had been diagnosed with

a low-grade astrocytoma -- a form of brain cancer -- and was

undergoing treatment. The BIA held that it "do[es] not consider

new evidence on appeal" and that, even if it did, petitioner had

not shown that the new "evidence would likely change the result in

the case, especially in light of the seriousness of his criminal

history and dangerous behavior." The BIA cited to agency precedent

"providing that a motion to remand for the purpose of presenting

additional evidence must conform to the same standards as a motion

to reopen and will only be granted if the evidence was previously

unavailable, material, and new evidence that would likely change

the result of the case." See Matter of Coelho,

(BIA 1992).

II. DISCUSSION

A. ADJUSTMENT OF STATUS

As a general principle, this court lacks jurisdiction to

review the BIA's discretionary denial of Petitioner's application

for adjustment of his immigration status.

(a)(2)(B); see Mele v. Lynch,

(1st Cir.

2015); DaCosta v. Gonzales,

(1st Cir. 2006). As

we have recognized for some time, an exception lies "where the

petition raises claims premised on constitutional claims or

- 9 - questions of law." Jaquez v. Holder,

(1st Cir.

2014) (citing

(a)(2)(D)). However, we have

explained that "[i]n determining whether a petitioner has raised

a colorable constitutional claim or question of law, substance

must triumph over form." Ramirez-Matías v. Holder,

(1st Cir. 2015). "An alien cannot 'transform an unreviewable

issue of fact into a reviewable issue of law' by the simple

expedient of cloaking what is essentially a factual claim in the

raiment of constitutional or legal error."

(quoting Alvarado

v. Holder,

(1st Cir. 2014)). Simply put, "we

must look to the meat of the petitioner's arguments, not to the

packaging in which they are wrapped."

(citing Ayeni v. Holder,

(1st Cir. 2010)).

Petitioner acknowledges that this court lacks

jurisdiction to review the way that the BIA exercised its

discretion in denying his adjustment of status application. He

also does not contend that we have jurisdiction to review whether

there is enough support in the record for a finding of fact on

which that exercise of discretion depends. However, Moreno argues

that the BIA "both ignored important facts in the record, and

clearly mischaracterized others" and that the IJ and BIA's failure

to properly consider evidence constitutes a question of law that

confers jurisdiction for us to review. We disagree with

Petitioner.

- 10 - Insofar as Moreno's contention is that the BIA ignored

evidence in the record or mischaracterized factual findings by the

IJ in affirming the IJ's ruling, and that it is an error of law

for the BIA to have proceeded in that way, see Domingo-Mendez v.

Garland,

(1st Cir. 2022), we see no basis for

overturning the BIA's ruling. A review of the BIA's opinion

reveals that it did consider the evidence that Moreno contends

that it ignored and that it did not purport to be deciding the

matter based on any facts other than those found by the IJ. Thus,

even assuming that there is no jurisdictional bar to Moreno's

contention, his challenge fails. See

And, insofar as Moreno

is merely taking issue with the sufficiency of record support for

the facts on which the BIA relied in ruling as it did, the challenge

is not one that we may consider. See Patel v. Garland,

(2022).

In particular, Moreno contends that the IJ erred by

"rely[ing] on the abject speculation -- despite voluminous

evidence to the contrary -- that if the adjustment application

were granted, and Moreno was ever [convicted] in the future of

[OUI], the government would be unable to deport him." We are not

convinced. As the IJ emphasized in her decision, "[Moreno's]

criminal history shows a pattern of dangerous behavior, and the

[IJ] is not satisfied that he will change his ways if given another

chance." The BIA emphasized that Moreno's "assurances and the

- 11 - record evidence are not sufficient to overcome the [IJ]'s concerns

or establish genuine rehabilitation on Moreno's part, especially

given his past conduct."

The arguments and challenges Moreno advances as to the

denial of his application for adjustment of status are neither

constitutionally cognizable nor legally colorable. His arguments

are nothing more than a dispute with the BIA's discretionary

analysis repackaged as a legal question. See Jaquez,

. Accordingly, we lack jurisdiction to review such a ruling,

which constitutes a purely discretionary decision denying

Petitioner's application for adjustment of status. We now turn to

Petitioner's second issue.

B. MOTION TO REMAND

Petitioner contests the BIA's refusal to remand the

matter to the IJ for consideration of new evidence -- his

"long-term partner['s]" cancer diagnosis (low-grade astrocytoma)

and treatment. Moreno presented the new evidence to the BIA in

his motion to remand.

Requests that the BIA remand to the IJ for consideration

of new evidence "are treated as motions to reopen." Lee v. Barr,

(1st Cir. 2020). This court has jurisdiction to

review denials of motions to reopen, even where the petitioner's

ultimate goal before the agency was to garner some form of

discretionary relief as to which this court's jurisdiction has

- 12 - been substantially curtailed by statute. See Pandit v. Lynch,

, 4 n.3 (1st Cir. 2016) (citing Mazariegos v. Lynch,

(1st Cir. 2015) and Mata v. Lynch,

(2015) ("Under the INA, as under our century-old practice, the

reason for the BIA's denial [of a motion to reopen] makes no

difference to the jurisdictional issue.") (alteration in

original)).

We review the BIA's denial of Moreno's motion to remand

"under the 'highly deferential abuse-of-discretion standard.'"

Adeyanju v. Garland,

(1st Cir. 2022) (quoting

Tay-Chan v. Barr,

(1st Cir. 2019)). 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."

However, we "will only overturn a denial of a motion to

reopen[/remand] when 'the petitioner can establish that the BIA

made an error of law or acted in a manner that is fairly

characterizable as arbitrary and capricious.'" Lee,

(quoting Falae v. Gonzáles,

(1st Cir. 2005)).

To prevail, Petitioner must make three showings. First,

he must demonstrate that the "evidence sought to be offered [on

remand] is material and was not available and could not have been

discovered or presented at the former hearing." Matter of Coelho,

- 13 -

n.3; Rivera-Medrano v. Garland,

(1st Cir. 2022). Second, the petitioner must show that

"the new evidence [offered] would likely change the result in the

case." Matter of Coelho,

. Lastly, the

petitioner "must make a showing of prima facie eligibility for the

relief [sought]." Rivera-Medrano,

(quoting Falae,

); see also Matter of Coelho,

(noting that a motion to reopen may be denied based on failure to

establish prima facie eligibility for the relief sought).

Petitioner claims that the BIA's decision is legally

insufficient, and constitutes an abuse of discretion, because it

does not provide a reasonable explanation or analysis in support

of its conclusion. He further posits that the BIA's decision

ignores Lafleur's dramatically changed circumstances as a result

of her brain cancer, which is "likely to change the result" in the

matter. He adds that at the time of the removal hearing, Lafleur

"was capable of caring for her children, albeit by way of herculean

effort, given her pre-existing disabling health conditions." Now,

those circumstances have dramatically changed given she "can no

longer work and is unable to properly care for her two children."

In sum, Petitioner argues that the BIA committed an error of law

in concluding that the new evidence would not change the outcome

of the case.

- 14 - In declining to remand, the BIA concluded that the

addition of the new evidence would not likely change the result in

the case. Simply put, the BIA determined that this new evidence

was not likely to make a difference to the exercise of discretion

that resulted in the outcome that the BIA reached. Matter of

Coelho,

("[I]f we conclude that our decision

on the appeal would be the same even if the proffered evidence

were already part of the record on appeal, we will deny the

remand."). While we recognize the severity of this outcome,

because we cannot discern any error of law in the BIA's explanation

of its conclusion, we have no authority to review the BIA's

exercise of discretion. Thus, we have no basis to overturn the

BIA's decision to deny the motion to remand.

III. CONCLUSION

For the reasons explained above, Moreno's petition is

DENIED.

- 15 -