United States Court of Appeals

For the First Circuit

No. 13-2537

CARLOS MANUEL ARIAS-MINAYA,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Souter,*

 Associate Justice,

and Selya, Circuit Judge.

Jeffrey B. Rubin, Allan M. Tow, and Rubin Pomerleau, P.C. on

brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division,

Eric W. Marsteller, Senior Litigation Counsel, and Juria L. Jones,

Trial Attorney, Office of Immigration Litigation, on brief for

respondent.

February 27, 2015

*

Hon. David H. Souter, Associate Justice (Ret.) of the

Supreme Court of the United States, sitting by designation.
SELYA, Circuit Judge. Petitioner Carlos Manuel AriasMinaya seeks judicial review of a final order of the Board of

Immigration Appeals (BIA) denying his request for voluntary

departure. After careful consideration, we deny the petition in

part and dismiss it in part for want of jurisdiction.

I. BACKGROUND

The relevant facts are easily assembled. The petitioner,

a Dominican national, overstayed after entering the United States

in 2005 on a six-month visitor's visa. In 2009, the Department of

Homeland Security commenced removal proceedings. See 8 U.S.C.

§ 1227(a)(1)(B). The petitioner conceded removability and crossapplied for adjustment of status, see id. § 1255, or voluntary

departure, see id. § 1229c.

While the immigration proceedings were pending, the

petitioner was arrested and charged in a Massachusetts state court

with one count of assault with a dangerous weapon (a knife) and

three counts of threatening to commit murder. See Mass. Gen. Laws

ch. 265, § 15B(b); id. ch. 275, § 2. The charges arose from a

domestic disturbance. The record indicates that when the officers

arrived at the scene, the complaining witness (the mother of the

petitioner's two children) told the police that the petitioner had

repeatedly threatened to kill both her and her children, first by

telephone and then in person. The police arrested the petitioner,

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and a state court thereafter granted the complaining witness a

restraining order.

One of the police officers prepared a report documenting

the events surrounding the petitioner's arrest. This report

chronicled statements made by both the complaining witness and the

petitioner.1

In the immigration court, the petitioner abandoned his

claim for adjustment of status. He continued, however, to press

his claim for voluntary departure. The police report was

introduced into evidence. At the end of the hearing, the

immigration judge (IJ) determined that, even though the criminal

charges against the petitioner were still pending in state court,

there was no reason to find the police report inaccurate or lacking

in probative value. In the IJ's view, the police report reliably

disclosed a "very disturbing set of facts" and the petitioner

presented a "direct an[d] immediate danger to both his children and

the mother of his children." The IJ concluded that these negative

factors far outweighed any positive factors and, thus, the

petitioner did not warrant a favorable exercise of discretion in

the form of voluntary departure. An order for removal followed.

The petitioner appealed to the BIA. While the appeal was

pending, the criminal charges were dismissed because the

1

 The petitioner reportedly told the police that he "was

crazy" and "wanted [the police] to arrest him."

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complaining witness failed to appear. The petitioner thereupon

asked the BIA to remand the matter to the IJ for reconsideration. 

The BIA obliged, acknowledging that the IJ had relied on the

criminal charges in denying the petitioner's request for voluntary

departure.

On remand, the IJ invited the petitioner to submit a

declaration describing his version of the events surrounding the

arrest. The petitioner declined the invitation. In reconsidering

his earlier decision, the IJ noted that the dismissal of the

criminal charges occurred only because the complaining witness had

failed to appear for trial. The IJ further observed that the

petitioner had offered no reason to doubt either the reliability of

the police report or the truth of the facts set forth therein. The

IJ concluded that the police report was probative, that reliance on

it was appropriate under the circumstances, that the negative

factors weighing against voluntary departure (principally, those

related to the events described in the police report) outweighed

any positive factors, and that an exercise of discretion in the

petitioner's favor was therefore unwarranted.

The petitioner again appealed to the BIA. This time

around, the BIA affirmed the IJ's denial of voluntary departure. 

In doing so, it concluded that the IJ had not afforded undue weight

to the facts contained in the police report because the police

report was probative of factors relevant to the discretionary

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analysis and the petitioner was given every opportunity to refute

the report's contents. This timely petition for judicial review

followed.

II. ANALYSIS

Voluntary departure is a discretionary form of relief. 

See 8 U.S.C. § 1229c(a)(1), (b)(1). It benefits both the

government and the alien by enabling the former to expedite

repatriation and the latter to avoid some of the harsh strictures

that typically accompany removal. See Naeem v. Gonzales, 469 F.3d

33, 36-37 (1st Cir. 2006).

An alien may request voluntary departure either in lieu

of removal, see 8 U.S.C. § 1229c(a)(1), or at the conclusion of

removal proceedings, see id. § 1229c(b). In either event, the

alien must show that he meets the relevant statutory requirements

and that he merits a favorable exercise of discretion. See id.

§ 1229a(c)(4)(A); Matter of Arguelles-Campos, 22 I&N Dec. 811, 817

(BIA 1999); 8 C.F.R. § 1240.26(b)-(c). The record is murky as to

whether the petitioner sought voluntary departure under section

1229c(a)(1) or section 1229c(b). Here, however, we need not probe

this point: the statutory eligibility requirements are not in

issue, and the agency refused to grant voluntary departure solely

as a matter of discretion.

Against this backdrop, we turn to the petitioner's claims

of error. Because the BIA adopted and affirmed the IJ's decision

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yet supplied its own gloss, we review the tiered decisions as a

unit. See Ramirez-Matias v. Holder, ___ F.3d ___, ___ (1st Cir.

2015) [No. 14-1056, slip op. at 5].

We start with the recognition that our jurisdiction to

review decisions denying discretionary relief from removal is

narrowly circumscribed. As a general rule, a federal court may not

review the agency's discretionary decisionmaking in an immigration

case (including orders granting or denying voluntary departure). 

See 8 U.S.C. § 1252(a)(2)(B)(i); Dada v. Mukasey, 554 U.S. 1, 11

(2008). "But this rule, like virtually every other general rule,

admits of exceptions." Ramirez-Matias, ___ F.3d at ___ [slip op.

at 7]. We may review such decisions to the extent that the

assigned errors raise colorable constitutional claims or questions

of law. See 8 U.S.C. § 1252(a)(2)(D); Ramirez-Matias, ___ F.3d at

___ [slip op. at 7].

Whether a claim fits within the confines of one of these

exceptions depends on substance, not on form. See Ayeni v. Holder,

617 F.3d 67, 70-71 (1st Cir. 2010). "A bare allegation of either

a constitutional shortfall or legal error will not transmogrify an

unreviewable issue of fact into an issue reviewable by the courts." 

Id. at 71.

The petitioner here makes two related claims: he says

that the IJ's and the BIA's decisions not only reflect an abuse of

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discretion but also are tainted by legal error.2 With respect to

the latter claim, he submits that the agency either ignored or

misconstrued applicable precedents by relying on a police report

that never culminated in a conviction and consisted mainly of

untrustworthy "double-hearsay statement[s]."

The petitioner's first claim — abuse of discretion — is

beyond the scope of judicial review. It amounts to nothing more

than a challenge to the way in which the IJ (and, on appeal, the

BIA) weighed the facts. As such, the claim is reminiscent of the

claim presented in Ramirez-Matias, where the alien argued that the

agency gave police reports "too much weight" and failed properly to

assess their "probative value." ___ F.3d at ___ [slip op. at 8]. 

We dismissed that claim for want of jurisdiction, holding that the

petitioner's attack on the agency's discretionary decisionmaking

was "hopelessly factbound." Id. at ___ [slip op. at 8]. RamirezMatias is controlling here. Accordingly, we dismiss the

petitioner's abuse of discretion claim for want of jurisdiction. 

2

 In his reply brief, the petitioner makes yet a third claim:

that his procedural due process rights were violated. This claim

is twice foreclosed. For one thing, the petitioner failed to raise

any due process argument before the BIA and, thus, we lack

jurisdiction to consider such an argument now. See Wan v. Holder,

___ F.3d ___, ___ (1st Cir. 2015) [Nos. 13-1893, 14-1285, slip op.

at 7] (explaining that an alien must exhaust all administrative

remedies to confer jurisdiction on a federal court). For another

thing, the due process argument surfaced for the first time in the

petitioner's reply brief and, therefore, has been waived. See

Jupiter v. Ashcroft, 396 F.3d 487, 491 n.5 (1st Cir. 2005);

Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).

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See id. at ___ [slip op. at 9]; see also Castro v. Holder, 727 F.3d

125, 129-30 (1st Cir. 2013) (concluding that court lacked

jurisdiction since petitioner's claims on appeal merely attacked

factual findings); Ayeni, 617 F.3d at 72-73 (concluding that

argument about weight afforded certain factors in a discretionary

analysis was essentially attack on factual finding that did not

raise reviewable constitutional or legal question); Elysee v.

Gonzales, 437 F.3d 221, 223-24 (1st Cir. 2006) (concluding that

claims that IJ disregarded certain factors and overvalued others

did not raise colorable constitutional or legal questions).

While we lack jurisdiction to review the petitioner's

claim that the agency abused its discretion in weighing the

evidence, we may have jurisdiction to review his claim that the

agency should not have considered the police report at all. This

claim posits that the agency either ignored or misconstrued

applicable precedents in failing to exclude as a matter of law a

police report that consisted mainly of hearsay statements and

described an arrest that never culminated in a conviction. As

framed, this claim asks us to determine the contours of a legal

standard governing the use of evidence; and "the choice and shape

of an applicable legal standard is quintessentially a question of

law." Ayeni, 617 F.3d at 71.

A case that aptly illustrates the dichotomy between the

petitioner's legal standard claim and his abuse of discretion claim

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is Barrera-Quintero v. Holder, 699 F.3d 1239 (10th Cir. 2012). 

There, the petitioner argued that the BIA misconstrued prior BIA

precedents in determining whether he had voluntarily departed. See

id. at 1244-45. The Tenth Circuit exercised jurisdiction to review

the claimed legal error with respect to the interpretation of

relevant precedents. See id. at 1245. But the court declined to

reach the ultimate question of the petitioner's eligibility for

discretionary relief, concluding that this question was so

factbound as to fall outside the scope of judicial review. See id.

at 1246-47.

Nor is this the first time that we have considered a

single petition for judicial review that presents related claims

that arguably fall on different sides of the jurisdictional divide. 

In Gonzalez-Ruano v. Holder, 662 F.3d 59 (1st Cir. 2011), the

petitioner assigned error to the BIA's consideration of a prior

state court criminal conviction in the discretionary evaluation of

his request for special rule cancellation of removal. See id. at

64. We exercised jurisdiction to review the petitioner's legal

claim concerning the BIA's interpretation of the relevant statute

to ensure that the statute permitted consideration of the prior

conviction. See id. Once we determined that the conviction was

appropriately considered, however, we ruled that we lacked

jurisdiction to review the agency's weighing of that conviction in

the discretionary decisionmaking calculus. See id. at 64-65.

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The issue in this case, however, is whether the legal

standard claim advanced by the petitioner is colorable. That issue

is close, but we need not grapple with it. Assuming, for

argument's sake, that the petitioner's claim is colorable and that

we therefore have jurisdiction to consider it, the claim is easily

repulsed on the merits.

On this understanding, we review de novo the putatively

colorable legal question of whether it was permissible for the

agency to consider the police report. See Gonzalez v. Holder, 673

F.3d 35, 38 (1st Cir. 2012). We hold that there was no error in

considering the police report even though it contained hearsay and

the petitioner's arrest did not result in a conviction.

We do not write on a pristine page. As an initial

matter, it is settled beyond hope of contradiction that in

reviewing requests for discretionary relief, immigration courts may

consider police reports even when they rest largely on hearsay. 

See Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996). There are, of

course, limits — but those 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. See Matter of Teixeira,

21 I&N Dec. 316, 321 (BIA 1996); Matter of Grijalva, 19 I&N Dec.

713, 721-22 (BIA 1988). The applicable precedents were properly

applied here. To begin, the IJ determined (and the BIA confirmed)

that the police report was reliable and probative of the

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petitioner's character. Similarly, both the IJ and the BIA

determined that use of the police report was not fundamentally

unfair since the petitioner was given an opportunity to challenge

its veracity and refute its contents.

As long as the nature and stage of the proceedings are

taken into account — as they were here — the case law does not

categorically preclude the agency from considering a police report

simply because the arrest detailed therein has not resulted in a

conviction. See Henry, 74 F.3d at 6-7; White v. INS, 17 F.3d 475,

479-80 (1st Cir. 1994); Matter of Thomas, 21 I&N Dec. 20, 23-24

(BIA 1995). In Henry, for example, we sanctioned the agency's

reliance on facts contained in a police report though the charges

were still pending. See 74 F.3d at 5-7. We reasoned that, in the

context of determining whether an alien warrants discretionary

relief from removal, the fact of an arrest and its attendant

circumstances, without more, may have probative value in assessing

his character (and, thus, his suitability for discretionary

relief).3 See id. at 6.

3 We note that both Henry and White were decided before

Congress stripped the federal courts of the power to review

discretionary decisions in immigration cases. See Illegal

Immigration Reform & Immigrant Responsibility Act of 1996, Pub. L.

No. 104-208, Div. C, Title III, § 306(a)(2), 110 Stat. 3009-546,

3009-607. Though decided under an earlier regime, those decisions

remain apposite insofar as they construe BIA precedent relevant to

the legal question of whether the agency may consider police

reports in making discretionary determinations.

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The petitioner asserts that Matter of Arreguin, 21 I&N

Dec. 38 (BIA 1995), requires a different result. This assertion is

groundless. While the BIA in that case afforded little weight to

an arrest that did not result in prosecution, see id. at 42, we

previously have explained that the decision in Arreguin rested on

idiosyncratic facts and the case surely does not create an ironclad

rule that an arrest without a subsequent conviction may never be

considered in the discretionary relief context. See Henry, 74 F.3d

at 6.

We conclude, therefore, that there is no per se bar to

the agency's consideration of hearsay-laden police reports where

convictions have not followed.4 Other courts have reached the same

conclusion. See, e.g., Paredes-Urrestarazu v. INS, 36 F.3d 801,

810 (9th Cir. 1994); Parcham v. INS, 769 F.2d 1001, 1005 (4th Cir.

1985). It follows that neither the IJ nor the BIA committed any

legal error by considering the police report describing the

petitioner's arrest as a negative factor weighing against

discretionary relief.

4

 We note that such a rule seems especially uncontroversial

where, as here, the charges against the petitioner were dropped

only because the complaining witness failed to appear for trial and

any concern for fundamental fairness was fully addressed by

affording the petitioner ample opportunity to challenge or refute

the report.

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

the petition for review is denied in part and dismissed in part.

So Ordered.

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