United States Court of Appeals

For the First Circuit

No. 21-1237

FELIX MORENO,

Petitioner,

v.

MERRICK B. GARLAND,

UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge,

Lipez and Gelpí, Circuit Judges.

Randy Olen for petitioner.

Jessica R. Lesnau, Office of Immigration Litigation, Civil 

Division, United States Department of Justice, with whom Brian M. 

Boynton, Assistant Attorney General, and Anna Juarez, Senior 

Litigation Counsel, Office of Immigration Litigation, were on 

brief, for respondent.

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

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

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

status under 8 U.S.C. § 1255(a), which the Immigration Judge ("IJ")

denied. He then appealed the denial of his status adjustment 

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

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

to remand. Petitioner contends before us that the BIA committed 

legal error and abused its discretion in failing to adequately 

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

I. BACKGROUND 

A. MORENO'S ENTRY AND IMMIGRATION STATUS

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

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

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

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

8 U.S.C. § 101(a)(15). 

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

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

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

was a necessary step for Moreno to become eligible for adjustment 

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

resident to sponsor an alien relative's application for permanent 

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

Citizenship and Immigration Services on May 6, 2019. 

B. MORENO'S INITIAL REMOVAL PROCEEDINGS 

In 1995, the Immigration and Naturalization Service 

("INS") initiated removal proceedings charging Moreno with 

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

longer than permitted after being admitted as a nonimmigrant 

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

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

1995, Moreno denied the factual allegations, contested the charges 

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

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

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

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

removable and was granted voluntary departure to take place by

April 29, 1996. 

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

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

2 Moreno was also charged with seeking to procure entry into 

the United States via fraud or misrepresentation under section 

212(a)(6)(C)(i) of the INA. This ground was later withdrawn. 

3 Suspension of deportation was the predecessor to the 

current, and more limited, relief of cancellation of removal. See

Cortez-Felipe v. INS, 245 F.3d 1054, 1056 (9th Cir. 2001) (noting 

that on April 1, 1997, section 304(a) of the Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996 repealed 
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12, 1997, the IJ pretermitted Moreno's application for suspension 

of deportation because the IJ determined that he had not 

demonstrated eligibility for such relief. Instead, Moreno was 

granted voluntary departure for a second time. That decision was 

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

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

Moreno may have been eligible for cancellation of removal under

section 240A(b). 

C. MORENO'S CRIMINAL HISTORY

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

lengthy and serious criminal history. Among these incidents, four 

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

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

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

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

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

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

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

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

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

was placed on probation, ordered to attend a highway safety 

suspension of deportation and replaced it with cancellation 

relief). 
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program, and ordered to thirty days' home confinement and to 

refrain from using alcohol or drugs. 

In 2016, Moreno was again arrested for OUI when his 

vehicle collided with another vehicle while his minor daughter was 

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

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

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

ninety days' imprisonment for the child endangerment while OUI 

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

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

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

Immigration and Customs Enforcement. 

D. REINSTATEMENT OF REMOVAL PROCEEDINGS AGAINST MORENO

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

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

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

its November 2001 order administratively closing the case and 

reinstated proceedings, remanding the case for further 

proceedings. 

1) PROCEEDINGS BEFORE THE IJ

In early 2020, Petitioner appeared at his merits hearing

solely seeking relief under former section 245(a) of the INA, 8 
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U.S.C. § 1255(a)4, for adjustment of status through his

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

eligible for adjustment and proceeded to address the merits of 

such discretionary relief. 

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

serious criminal history" weighed against a favorable exercise of 

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

convictions for driving under the influence, including the one in 

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

on board. 

The IJ further considered that Petitioner: 1) completed 

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

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

license; 4) stated he would attend Alcoholics Anonymous meetings 

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

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

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

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

articulate no coping mechanisms or specific plans for what he will 

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

4 Section 1255(a) provides, in relevant part: "The status of 

an alien who was inspected and admitted or paroled into the United 

States . . . may be adjusted by the Attorney General, in his 

discretion and under such regulations as he may prescribe, to that 

of an alien lawfully admitted for permanent residence . . . ." 
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The IJ moreover highlighted Moreno's lack of candor when asked if 

there had been occasions when he had driven drunk without getting 

caught. He initially denied ever having done so but eventually 

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

The IJ also took into account Moreno's extenuating

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

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

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

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

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

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

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

Type 2 diabetes, carpal tunnel syndrome, severe obesity, 

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

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

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

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

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

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

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

emotionally deleterious for the family; 9) the mother of 

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

always paid child support before being incarcerated" and who used 

to spend "weekends and some weekdays" with his thirteen-year-old 
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child, who has been seeing a psychologist to deal with emotional 

problems as a result of his father's absence. 

The IJ ultimately weighed all of the evidence, noting

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

needed to present unusual or outstanding countervailing equities 

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

positive equities in this case simply cannot outweigh the adverse 

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

multiple drunk-driving arrests in which he repeatedly failed 

sobriety tests, including that with his minor daughter as a 

passenger, in comparison to his extenuating circumstances. The IJ 

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

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

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

denied Moreno's application for adjustment of status. 

2) APPEAL TO THE BIA 

Petitioner appealed to the BIA, which, in turn, 

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

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

not persuasively presented evidence of genuine rehabilitation" and 

that he "could not articulate his plan for rehabilitation with 

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

child." 
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Next, the BIA addressed Petitioner's motion to remand 

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

unavailable evidence that his life-partner had been diagnosed with 

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

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

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

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

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

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

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

additional evidence must conform to the same standards as a motion 

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

unavailable, material, and new evidence that would likely change 

the result of the case." See Matter of Coelho, 20 I. & N. Dec. 

464, 471-72 (BIA 1992).

II. DISCUSSION

A. ADJUSTMENT OF STATUS

As a general principle, this court lacks jurisdiction to 

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

for adjustment of his immigration status. 8 U.S.C. 

§ 1252(a)(2)(B); see Mele v. Lynch, 798 F.3d 30, 31-32 (1st Cir. 

2015); DaCosta v. Gonzales, 449 F.3d 45, 49 (1st Cir. 2006). As 

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

petition raises claims premised on constitutional claims or 
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questions of law." Jaquez v. Holder, 758 F.3d 434, 435 (1st Cir. 

2014) (citing 8 U.S.C. § 1252(a)(2)(D)). However, we have 

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

a colorable constitutional claim or question of law, substance 

must triumph over form." Ramirez-Matías v. Holder, 778 F.3d 322, 

326 (1st Cir. 2015). "An alien cannot 'transform an unreviewable 

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

expedient of cloaking what is essentially a factual claim in the 

raiment of constitutional or legal error." Id. (quoting Alvarado

v. Holder, 743 F.3d 271, 275 (1st Cir. 2014)). Simply put, "we 

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

packaging in which they are wrapped." Id. (citing Ayeni v. Holder, 

617 F.3d 67, 70-71 (1st Cir. 2010)). 

Petitioner acknowledges that this court lacks 

jurisdiction to review the way that the BIA exercised its 

discretion in denying his adjustment of status application. He 

also does not contend that we have jurisdiction to review whether 

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

which that exercise of discretion depends. However, Moreno argues 

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

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

to properly consider evidence constitutes a question of law that 

confers jurisdiction for us to review. We disagree with 

Petitioner. 
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Insofar as Moreno's contention is that the BIA ignored 

evidence in the record or mischaracterized factual findings by the 

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

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

Garland, 47 F.4th 51, 56 (1st Cir. 2022), we see no basis for 

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

reveals that it did consider the evidence that Moreno contends 

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

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

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

contention, his challenge fails. See id. And, insofar as Moreno 

is merely taking issue with the sufficiency of record support for 

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

is not one that we may consider. See Patel v. Garland, 142 S. Ct. 

1614, 1627 (2022).

In particular, Moreno contends that the IJ erred by 

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

evidence to the contrary -- that if the adjustment application 

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

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

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

criminal history shows a pattern of dangerous behavior, and the 

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

chance." The BIA emphasized that Moreno's "assurances and the 
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record evidence are not sufficient to overcome the [IJ]'s concerns 

or establish genuine rehabilitation on Moreno's part, especially 

given his past conduct."

The arguments and challenges Moreno advances as to the 

denial of his application for adjustment of status are neither 

constitutionally cognizable nor legally colorable. His arguments 

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

analysis repackaged as a legal question. See Jaquez, 758 F.3d at

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

which constitutes a purely discretionary decision denying 

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

Petitioner's second issue. 

B. MOTION TO REMAND

Petitioner contests the BIA's refusal to remand the 

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

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

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

his motion to remand.

Requests that the BIA remand to the IJ for consideration 

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

975 F.3d 69, 75 (1st Cir. 2020). This court has jurisdiction to 

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

ultimate goal before the agency was to garner some form of 

discretionary relief as to which this court's jurisdiction has 
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been substantially curtailed by statute. See Pandit v. Lynch, 824 

F.3d 1, 4 n.3 (1st Cir. 2016) (citing Mazariegos v. Lynch, 790 

F.3d 280, 285 (1st Cir. 2015) and Mata v. Lynch, 576 U.S. 143, 148

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

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

difference to the jurisdictional issue.") (alteration in 

original)). 

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

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

Adeyanju v. Garland, 27 F.4th 25, 51 (1st Cir. 2022) (quoting 

Tay-Chan v. Barr, 918 F.3d 209, 212 (1st Cir. 2019)). Within the 

abuse-of-discretion 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." Id. 

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

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

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

characterizable as arbitrary and capricious.'" Lee, 975 F.3d at 

76 (quoting Falae v. Gonzáles, 411 F.3d 11, 14 (1st Cir. 2005)). 

To prevail, Petitioner must make three showings. First, 

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

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

discovered or presented at the former hearing." Matter of Coelho, 
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20 I. & N. Dec. at 471 n.3; Rivera-Medrano v. Garland, 47 F.4th 

29, 35 (1st Cir. 2022). Second, the petitioner must show that 

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

case." Matter of Coelho, 20 I. & N. Dec. at 473. Lastly, the 

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

relief [sought]." Rivera-Medrano, 47 F.4th at 35 (quoting Falae, 

411 F.3d at 14); see also Matter of Coelho, 20 I. & N. Dec. at 472 

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

establish prima facie eligibility for the relief sought). 

Petitioner claims that the BIA's decision is legally 

insufficient, and constitutes an abuse of discretion, because it 

does not provide a reasonable explanation or analysis in support 

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

ignores Lafleur's dramatically changed circumstances as a result 

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

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

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

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

those circumstances have dramatically changed given she "can no 

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

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

in concluding that the new evidence would not change the outcome

of the case. 
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In declining to remand, the BIA concluded that the 

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

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

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

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

Coelho, 20 I. & N. Dec. at 473 ("[I]f we conclude that our decision 

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

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

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

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

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

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

BIA's decision to deny the motion to remand. 

III. CONCLUSION

For the reasons explained above, Moreno's petition is

DENIED.