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
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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, 897 F.3d 33, 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.

1 A "B-2 visa" is available, for example, to "tourists and 

those coming for social visits, health reasons, or participation 
- 4 -

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. 8 C.F.R. § 216.4(a)(1).
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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 

3 When 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.
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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 
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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.
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have different, but sometimes overlapping, roles. "The IJ has the 

front-line duty of finding the facts." Chen v. Holder, 703 F.3d 

17, 22 (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." 8 C.F.R. § 1003.1(d)(3)(iv) (2020). The BIA 

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

by an immigration judge." Id. § 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, 67 Fed. Reg. 54878-

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." Id. Or, as we've put 

it, see id. (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 
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finding stinks like 'a 5 week old, unrefrigerated, dead fish,'"

United States v. Baptiste, 8 F.4th 30, 42 (1st Cir. 2021) (quoting 

United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (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, 933 F.3d at 42 (quoting Toye v. O'Donnell (In 

re O'Donnell), 728 F.3d 41, 46 (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. 8 C.F.R. § 1003.1(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, 463 F.3d 135, 137 (2d Cir. 2006); see 8 U.S.C. 

§ 1255(a). There are no "restrictive guide lines for the exercise 

of discretion." Matter of Arai, 13 I. & N. Dec. 494, 495 (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 id. at 495–96. In weighing those equities, the 

BIA may "assign the weight it sees fit" to them. Alimbaev v. Att'y 
- 10 -

Gen. of the U.S., 872 F.3d 188, 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); 8 C.F.R. § 1240.8(d).5 As a discretionary call, 

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

of status is de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).

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

regulations. See Rotinsulu v. Mukasey, 515 F.3d 68, 72 (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, 458 F. 

App'x 506, 509 (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, 85 Fed. Reg. 81588, 81588 (Dec. 16, 2020). 

The parties do not clarify whether 8 C.F.R. § 1003.1(d)'s legal 

standards concerning factfinding used in deciding the initial 

appeal applies, or whether, in deciding the motions to reconsider 
- 11 -

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

Holder, 582 F.3d 78, 85 (1st Cir. 2009). And if we determine the 

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

See Rotinsulu, 515 F.3d at 72. 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., 524 

F. Supp. 3d 919, 980 (N.D. Cal. 2021); see also James v. Garland, 

16 F.4th 320, 323 n.2 (1st Cir. 2021).
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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.
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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.

10 Based 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%.
- 14 -

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 
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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 
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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 8 U.S.C. § 1252(a)(2)(B), we typically lack 

jurisdiction to review the BIA's discretionary remedy of 

adjustment of status. See Tacuri-Tacuri v. Garland, 998 F.3d 466, 

471 (1st Cir. 2021); see also Peulic v. Garland, 22 F.4th 340, 346

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

jurisdiction over petitions that raise "constitutional claims or 

questions of law." 8 U.S.C. § 1252(a)(2)(D); see Tacuri-Tacuri, 

998 F.3d at 471.
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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 8 C.F.R. 

§ 1003.1(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, 3 F.4th 10, 22 (1st Cir. 2021) (quoting Thompson v. Barr, 

959 F.3d 476, 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, 919 F.3d 209, 213 (4th Cir. 2019) ("Whether 
- 18 -

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

law for purposes of our jurisdiction."); Huang v. Holder, 677 F.3d 

130, 135 (2d Cir. 2012) (holding the BIA's failure to apply clearerror 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., 703 F.3d 1303, 1315 

(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, 741 F.3d 244, 249 & n.3 (1st 

Cir. 2013) (motions to reconsider); Mazariegos v. Lynch, 790 F.3d 

280, 285 (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 8 U.S.C. 

§ 1252(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, 

776 F.3d 52, 57 (1st Cir. 2015). This exhaustion requirement, we 
- 19 -

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

on our power of review." Mazariegos-Paiz v. Holder, 734 F.3d 57, 

62 (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, 858 

F.3d 1, 7 (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 
- 20 -

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 failureto-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, 413 F.3d 156, 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, 467 F. App'x 723, 724 

(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).
- 21 -

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, 783 

F.3d 30, 36 n.7 (1st Cir. 2015). A "material error of law 

automatically constitutes an abuse of discretion." Aponte v. 

Holder, 610 F.3d 1, 4 (1st Cir. 2010). And within the abuse-ofdiscretion framework, we review de novo whether the BIA committed 

an error of law. Id. 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, 515 F.3d at 72.

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, 433 

F.3d 86, 93 (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.
- 22 -

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-, 25 

I. & N. Dec. 209 (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." Id. at 212. 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 
- 23 -

from reviewing de novo the IJ's findings of fact. See 8 C.F.R. 

§ 1003.1(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, 804 F. App'x 633 (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." Id. at 635. We, of course, 

are not bound by Vasquez Chavez, see Caldero-Guzman v. Holder, 577 

F.3d 345, 349 (1st Cir. 2009) (noting we are not bound by Ninth 

Circuit cases) -- nor is the Ninth Circuit, see Corbin v. Time 
- 24 -

Warner Ent.-Advance/Newhouse P'ship, 821 F.3d 1069, 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-, 24 I. & N. Dec. 493, 497

(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-, 26 I. & N. Dec. 586, 589-91 (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.

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

has cited Vasquez Chavez.
- 25 -

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, 515 F.3d at 73 (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, 696 F.3d 907, 921-22 (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.'" Id. at 921 (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. Id. 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.
- 26 -

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, 609 F.3d 62, 68 (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, 756 F. App'x 97, 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., 433 F. App'x 124, 126 (3d Cir. 2011) (concluding 

no impermissible factfinding when the BIA "mentioned the presentence report, which the IJ did not reference in its decision"); 

Nathanial v. Holder, 433 F. App'x 22, 24 (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, 292 F. App'x 118, 120 (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-Zdon't convince us that we should abrogate it, at least under the 

circumstances of this case. Adeyanju says that other BIA 
- 27 -

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," 

25 I. & N. Dec. at 212, is not, as we see it, an erroneous view of 

the law, as our case law holds, cf. DeCarvalho v. Garland, 18 F.4th 

66, 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, 26 

I. & N. Dec. 494, 498, 500, 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-, 24 

I. & N. Dec. 151, 159 (BIA 2007) (stating the uncontroversial 

proposition that questions of intent are factual ones reviewed for 

clear error); Matter of R-S-H-, 23 I. & N. Dec. 629, 637, 641 (BIA 

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

BIA cannot overturn a "factfinding" merely "because the Board would 
- 28 -

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, 703 F.3d at 1314 (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, 688 F.3d 354, 361 (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., 
- 29 -

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, 809 F.3d 886, 896 (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." 

25 I. & N. Dec. at 212. 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," 515 F.3d at 73,

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," 

id., does not answer the ultimate question here: Whether the BIA 

"denigrate[s] the IJ's factual findings" when reweighing the 
- 30 -

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, 

8 C.F.R. § 1003.1(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, 472 F.3d 972, 975 

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

neutral rather than positive was not "factfinding"); Wallace, 463 

F.3d at 141 ("Although any reversal by the BIA of an IJ's 

discretionary determination must involve consideration of the 

16 Moreover, 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. 515 

F.3d at 73.

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

claim of legal error in the BIA's decision to apply discretionary 

weight to particular facts. See supra at 25 n.14.
- 31 -

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, 450 F.3d 596, 598, 

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.
- 32 -

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 

18 Indeed, this reasoning is picked up by another recent 

unpublished decision from the Ninth Circuit -- giving us another 

reason not to find Vasquez Chavez persuasive. See De La Luz Ramos

v. Garland, 861 F. App'x 145, 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, 750 F.3d 1120, 1127 (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.
- 33 -

denial of Adeyanju's motion to reconsider under the abuse-ofdiscretion rubric set forth previously. See Dimova, 783 F.3d at

36 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 
- 34 -

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 

19 Initially, 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."
- 35 -

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 
- 36 -

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, 944 F.3d 303, 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, 470 U.S. 564, 577 (1985); see also BIA Reforms, 

67 Fed. Reg. at 54889 (citing Anderson, 470 U.S. at 574). Further, 

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

criminal allegations, it could have remanded. 8 C.F.R. 

§ 1003.1(d)(3)(iv) (2020) ("If further factfinding is needed in a 

particular case, the Board may remand the proceeding to the 
- 37 -

immigration judge . . . ."). The BIA does not meet the clearerror 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 

20 We 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.

21 And 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.
- 38 -

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 AriasMinaya v. Holder, 779 F.3d 49, 54 (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, 515 F.3d at 73. The clear-error standard of review

22 In Arias-Minaya, we did note that there are limits to that 

general rule. See 779 F.3d at 54. "[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." Id. 

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, 783 F.3d at 38.
- 39 -

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

its power to weigh and evaluate evidence introduced before the 

IJ." Id. (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, 515 F.3d at 73; 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, 

703 F.3d at 23.

The undisputed record facts here amply support the BIA's 

conclusion that Adeyanju lied to the police. See Rotinsulu, 515 

F.3d at 73; Padmore, 609 F.3d at 68 (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 
- 40 -

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. UrizarCarrascoza v. Holder, 727 F.3d 27, 32–33 (1st Cir. 2013) (noting 
- 41 -

we lack jurisdiction to review the BIA's discretionary 

determination); see 8 U.S.C. § 1252(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, 463 F.3d at 141. The BIA "has the 

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

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

703 F.3d at 23. 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. 
- 42 -

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 

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

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 "nonimmigrant visa application."
- 43 -

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 
- 44 -

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 
- 45 -

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 
- 46 -

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 8 C.F.R. 

§ 1003.1(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, 515 

F.3d at 73 (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

24 For 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., 846 F.3d 

645, 654 (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 
- 47 -

The cases Adeyanju cites actually serve to clarify this 

point. See Lopez-Rodriguez v. Holder, 683 F.3d 1164, 1170 (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, 609 F.3d at 68 (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. 609 F.3d at 70. 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, 477 F.3d 

637, 641 (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.
- 48 -

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

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

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.
- 49 -

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 8 C.F.R. § 216.5(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 

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

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.
- 50 -

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, 987 F.3d 46, 52 (1st Cir. 2021) (quoting Jutus v. 

Holder, 723 F.3d 105, 110 (1st Cir. 2013)); see 8 C.F.R. 
- 51 -

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

motion to reopen "under the 'highly deferential abuse-ofdiscretion standard.'" Tay-Chan v. Barr, 918 F.3d 209, 212 (1st 

Cir. 2019) (quoting Pineda v. Whitaker, 908 F.3d 836, 840 (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." Id.

(quoting Gyamfi v. Whitaker, 913 F.3d 168, 172 (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., 715 F.2d 685, 693 (1st Cir. 1983)). Within the abuse-ofdiscretion rubric, we examine the BIA's legal conclusions de novo. 

Id. 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, 821 

F.3d 182, 185–187 (1st Cir. 2016); Aponte v. Holder, 683 F.3d 6, 

14-15 (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 
- 52 -

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 8 U.S.C. § 1252(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, 141 S. Ct. 

2850 (2021) (No. 20-979); see Cho v. Gonzales, 404 F.3d 96, 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, 930 F.3d 10, 19 (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).
- 53 -

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, 562 F.3d 71, 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 8 U.S.C. § 1252(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 

30 We note that it is unclear to us whether the continuances 

argument was part of Adeyanju's motion to reopen, motion to 

reconsider, or both.
- 54 -

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

v. Lynch, 794 F.3d 119, 121 (1st Cir. 2015).

Because it is now clear that the IJ would have 

jurisdiction over Adeyanju's I-751 waiver appeal, see 8 C.F.R. 

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

to remand for continuances until the IJ had jurisdiction, see

Qureshi v. Gonzales, 442 F.3d 985, 988 (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, 852 F. App'x 981, 985 (6th 

Cir. 2021) (same); Ismail v. Barr, 799 F. App'x 20, 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, 572 F.3d 37, 41 

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

only on reasoning provided by the agency, not on grounds 

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

that the BIA should have remanded to the IJ to grant continuances. 

See, e.g., Matter of Stowers, 22 I. & N. Dec. 605, 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, 20 I. & N. Dec. 833, 840 (BIA 

1994) (similar); see also Jackson v. Mukasey, 305 F. App'x 369, 

370 (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.).
- 55 -

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

379 F.3d 15, 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.