Summary
The First Circuit denied a petition for review of a BIA decision upholding denial of adjustment of status under 8 U.S.C. § 1255(a) and denying a motion to remand. The court held that it lacked jurisdiction to review the discretionary denial of adjustment of status, as the petitioner's arguments about the BIA ignoring or mischaracterizing evidence did not raise a colorable constitutional claim or question of law under 8 U.S.C. § 1252(a)(2)(D). The court further held that the BIA did not abuse its discretion in denying the motion to remand (treated as a motion to reopen) because the new evidence of the petitioner's partner's brain cancer diagnosis was not likely to change the result given the seriousness of his criminal history, including multiple drunk driving convictions.
Topics
Practice areas
Questions Presented
- Whether the court has jurisdiction to review the BIA's discretionary denial of adjustment of status
- Whether the BIA abused its discretion in denying the motion to remand based on new evidence
Holdings
- The court lacks jurisdiction because the petitioner's arguments are not colorable legal or constitutional claims; they are disputes with the discretionary analysis.
- The BIA did not abuse its discretion because the new evidence would not likely change the result given the seriousness of the criminal history.
Key quotations
“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.” (at 9)
“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.” (at 12-13)
“if 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.” (at 14)
Factual background
Moreno, a native of Cape Verde, entered the U.S. in 1989 on a visitor visa and overstayed. He has a lengthy criminal history including multiple OUI convictions, one in 2016 where he collided with another vehicle while his minor daughter was on board. He sought adjustment of status through his U.S.-citizen son. The IJ denied adjustment, weighing his criminal history against equities such as long residence, family ties, and employment. The BIA affirmed and denied a motion to remand based on new evidence that his life-partner had been diagnosed with brain cancer.
Procedural history
The IJ denied Moreno's application for adjustment of status. The BIA dismissed his appeal and denied his motion to remand based on new evidence of his partner's brain cancer.