2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-4-2013

Santos Moises Tejada Tejada v. Attorney General

United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1239

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_____________

No. 12-1239

_____________

SANTOS MOISES TEJADA TEJADA,

 Petitioner

v.

ATTORNEY GENERAL 

OF THE UNITED STATES OF AMERICA,

 Respondent

_____________

On Petition for Review of a Final Order 

of the Board of Immigration Appeals 

(Agency No. A094-163-406)

(DETAINED)

_____________

Argued

January 7, 2013 

Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.

(Opinion Filed: February 4, 2013)

Francisco S. Guzmán, Esq. (ARGUED)

Guzmán Law Practice, P.C. 

665 Newark Avenue

Jersey City, New Jersey 07306

Counsel for Petitioner, Santos Moises Tejada Tejada

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

Edward J. Duffy, Senior Litigation Counsel, Office of Immigration Litigation
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Zoe J. Heller, Trial Attorney, Office of Immigration Litigation (ARGUED)

Aaron R. Petty, Trial Attorney, Office of Immigration Litigation

Civil Division

United States Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044 

Counsel for Respondent, Attorney General of the United States of America 

_____________

OPINION OF THE COURT

_____________

FUENTES, Circuit Judge:

Petitioner, Santos Moises Tejada Tejada (“Tejada”), a native and citizen of El 

Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”). 

We will grant the petition and remand to the BIA. 

I.

Because we write primarily for the parties, we set forth only those facts that are 

relevant to our conclusion. Tejada is a native and citizen of El Salvador. He entered the 

United States without inspection in 1989. In 1991, he was afforded temporary protected 

status by the former Immigration and Naturalization Service. Tejada renewed that status 

each year until he became a lawful permanent resident on September 27, 2004. He has 

numerous family ties to the United States, including a daughter with U.S. citizenship, 

siblings who are legally present in the United States, and parents with lawful permanent 

resident status. He and his teenage daughter maintain a close relationship, and he 

provides her with financial assistance of $100 per week and emotional support. He has 
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maintained stable employment since 1992 and also provides financial support to his exwife whenever she is in need. 

 In 1992, Tejada was arrested for simple assault and false imprisonment in 2003

but each of these charges was dismissed. In 2006, Tejada was convicted of driving while 

intoxicated, and his driver‟s license was suspended for ninety days. On June 14, 2007, 

Tejada was convicted of second-degree eluding of the police in violation of N.J. STAT.

ANN. § 2C:29-2(b) (2000). On the night of his arrest for this offense, Tejada was 

drinking and he struck another vehicle. He then left the scene of the accident and failed

to stop when directed by the police. Tejada pled guilty to this offense. Although Tejada 

was sentenced to three years‟ imprisonment, he was only required to serve seven months 

and to fulfill certain probation conditions, which he completed. During his time in 

prison, Tejada‟s young daughter was sexually assaulted by an adult male relative, and she 

subsequently received counseling for about a year after this traumatic event.

Tejada has been detained by Immigration and Customs Enforcement since March 

2, 2011. On that day, Tejada was returning from a brief trip abroad and was found to be 

inadmissible for having committed a crime of moral turpitude under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) for his 2007 eluding conviction. Tejada applied for cancellation of 

removal under 8 U.S.C. § 1229(b) and a waiver of inadmissibility under 8 U.S.C. 

§1182(h) (a “Section 212(h) waiver”). 

On July 14, 2011, an Immigration Judge (“IJ”) denied Tejada‟s application for 

cancellation of removal but granted his application for a Section 212(h) waiver after 

finding that his daughter would suffer extreme hardship if he were removed. The IJ also 
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found that the positive equities of Tejada‟s life in the United States outweighed the 

adverse factors of his criminal record. The Government appealed to the BIA, which 

sustained the appeal and reversed the IJ‟s decision. The BIA found that Tejada‟s eluding 

conviction constituted a “violent or dangerous crime” under 8 C.F.R. § 1212.7(d). BIA 

Decision at 2. Therefore, Tejada must establish that a denial of relief would result in 

“exceptional and extremely unusual hardship” to his qualifying relatives to be eligible for 

such relief. Id. The BIA held that even if Tejada‟s conviction was not violent or 

dangerous as to merit the higher hardship standard, Tejada had not established that his 

daughter would suffer the lower standard of extreme hardship if he were removed. 

Finally, the BIA determined that even if Tejada could show extreme hardship to his 

daughter from his removal, he had not established that he warrants a Section 212(h) 

waiver as a matter of discretion. Having determined that Tejada‟s past criminal record 

outweighed his positive equities, the BIA ordered Tejada removable to El Salvador. 

II.

This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of 

removal issued by the BIA. The Government contends that we lack jurisdiction to hear 

the case before us, as it relates to the BIA‟s discretionary decision to deny a Section 

212(h) waiver. Although we agree that this Court generally lacks jurisdiction to review 

the BIA‟s factual and discretionary rulings, we retain jurisdiction to review constitutional 

claims or questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D);

Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). While the BIA may not 

reverse an IJ‟s factual findings unless they are clearly erroneous, it reviews the IJ‟s legal 
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conclusions de novo. 8 C.F.R. § 1003.1(d)(3). We have jurisdiction to review the legal 

question of whether the BIA applied the correct standard of review in its decision to deny 

Tejada relief. See Kaplun v. Att‟y Gen., 602 F.3d 260, 268-69 (3d Cir. 2010) (granting a 

petition for review upon consideration of the BIA‟s application of an incorrect standard 

of review).

A.

We hold that the BIA failed to apply the correct standard of review in making its 

determination that Tejada was not eligible for relief. “[W]hen the BIA reaches a different 

conclusion than the IJ, either on the facts or the law, its review must reflect a meaningful 

consideration of the record as a whole. It is not enough for the BIA to select a few facts 

and state that, based on them, it disagrees with the IJ‟s conclusion.” Huang v. Att‟y Gen., 

620 F.3d 372, 387 (3d Cir. 2010). The BIA is required to demonstrate that it reviewed 

the record and considered all of the evidence on which the IJ relied—“it must explain 

why the record warrants a different conclusion than the one reached by the IJ.” Id. 

When the IJ granted Tejada a Section 212(h) waiver, it relied on the fact that 

Tejada‟s daughter would suffer extreme hardship if her father were removed. Noting that 

this case “presents exacerbating, magnifying circumstances,” the IJ gave significant 

weight to the fact that Tejada‟s daughter is the victim of a sex crime, as she offered 

“compelling” testimony regarding her reliance on her father‟s presence and support in 

overcoming the abuse that she has suffered. IJ Oral Decision at 9. In finding that Tejada 

was eligible for relief, the IJ also emphasized the considerable financial support that 

Tejada offers his daughter and ex-wife and relied on Tejada‟s positive equities, such as 
6

maintaining stable employment, supporting his family, close family ties to the United 

States, and the lack of any criminal activity since 2006.

The BIA only briefly mentioned the sexual abuse that Tejada‟s daughter suffered,

and failed to provide a meaningful explanation as to why this factor and the removal of 

Tejada‟s financial and emotional support would not result in extreme hardship for her. 

We agree with Tejada‟s assertion that the BIA selected only a few pieces of evidence to 

diminish why his daughter would suffer extreme hardship if her father were deported, 

such as the fact that Tejada was incarcerated while his daughter was abused and that her 

mother brought her to counseling at that time. The BIA applied an incorrect standard of 

review by “fail[ing] to address any evidence that, if credited, would lend support to” 

Tejada‟s position, “and thus the decision does not reflect a consideration of the record as 

a whole.” Id. at 388. Put another way, the BIA‟s decision falls short under Huang

because it failed to provide specific reasoning as to why it reached a conclusion that was 

different from that of the IJ. Id. at 387 (citing Awolesi v. Ashcroft, 341 F.3d 227, 232 

(3d Cir. 2003)). 

In addition, the IJ acknowledged Tejada‟s prior criminal activity but noted that 

two of his arrests did not lead to convictions and were dismissed. The IJ considered the 

fact that Tejada has been free of any criminal activity since 2006, and that the positive 

equities of his life in the United States outweighed the adverse factor of his criminal 

record. In contrast, the BIA failed to consider that Tejada has been compliant with the 

law for a significant period of time and placed emphasis on his prior arrests as weighing 

negatively in his favor. The BIA appears to have made its own factual findings by 
7

referring to Tejada‟s “various incarcerations” and “multiple arrests” despite the fact that 

the IJ referred only to one period of incarceration and noted that two of Tejada‟s prior 

charges were dismissed. BIA Decision at 3. By failing to defer to the IJ‟s factual 

conclusions as to Tejada‟s criminal past without an explanation of why such findings are 

clearly erroneous, the BIA again failed to apply the appropriate standard of review. 

Yusupov v. Att‟y Gen., 650 F.3d 968, 979 (3d Cir. 2011). Although the BIA has 

discretion to accord Tejada‟s past criminal activity more weight in its analysis than did 

the IJ, it must consider the factors upon which the IJ relied in deciding to grant relief. 

B.

We also note that the BIA relied on 8 C.F.R. § 1212.7(d)1to state an alternative 

method for which Tejada may be denied relief—that his eluding conviction constitutes a 

violent or dangerous crime that would allow relief only if his “qualifying relatives” 

would suffer “exceptional and extremely unusual hardship” if Tejada were removed. 

BIA Decision at 2 (citing 8 C.F.R. § 1212.7(d)). Although we will not address whether a 

conviction of eluding constitutes a violent or dangerous crime, we will note that, even if 

 

1

8 C.F.R. § 1212.7(d) states as follows:

(d) Criminal grounds of inadmissibility involving violent or dangerous crimes. The Attorney 

General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 

U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the 

United States, or adjustment of status, with respect to immigrant aliens who are inadmissible 

under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in 

extraordinary circumstances, such as those involving national security or foreign policy 

considerations, or cases in which an alien clearly demonstrates that the denial of the application 

for adjustment of status or an immigrant visa or admission as an immigrant would result in 

exceptional and extremely unusual hardship. 

8 C.F.R. § 1212.7(d). 
8

it does, we interpret the language in 8 C.F.R. § 1212.7(d) to allow for a favorable 

exercise of discretion in circumstances beyond a showing of “exceptional and extremely 

unusual hardship.” See 8 C.F.R. § 1212.7(d). 

The Attorney General may still grant relief even if an immigrant has committed a 

violent or dangerous crime in “extraordinary circumstances.” 8 C.F.R. § 1212.7(d). 

Although such circumstances may include, as the statute notes, those involving national 

security or foreign policy considerations or instances of exceptional and extremely

unusual hardship, these examples are not exhaustive and there may be other 

circumstances in which relief may be warranted. See Samuels v. Chertoff, 550 F.3d 252, 

262 (2d Cir. 2008) (remanding to the BIA when the BIA had considered only whether the 

hardship that would accrue to an immigrant‟s family was exceptional and extremely 

unusual, and it failed to consider whether the other equities of the immigrant‟s life 

constituted extraordinary circumstances to merit relief). Because the BIA made only a 

passing reference to Tejada‟s positive equities without a full analysis as to why these 

would outweigh his criminal past, we hold that further consideration of such factors is 

warranted. 

Further, 8 C.F.R. § 1212.7(d) directs the BIA to consider hardship not only to 

qualifying relatives but also to the immigrant. Rivera-Peraza v. Holder, 684 F.3d 906, 

910-11 (9th Cir. 2012). Therefore, the “exceptional and extremely unusual hardship”

analysis need not relate to Tejada‟s daughter only but may also be applied to Tejada 

himself. Id. The BIA noted that Tejada “must establish an „exceptional and extremely 

unusual hardship‟ to his qualifying relatives for a waiver of inadmissibility,” BIA 
9

Decision at 3 (emphasis added), but it must also consider whether Tejada himself would 

suffer a hardship of this nature if removed to El Salvador. Rivera-Peraza, 684 F.3d at 

910-11. 

III.

For the foregoing reasons, we will grant the petition for review and remand to the 

BIA for further proceedings consistent with this opinion.