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w . v i l l a no v a . e du/thir dc ir c uit_2013/12551 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT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 , R espondent

_____________ 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. Guzmá n, 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. Duf

fy, Senior Litigation Counsel, Office of Immigration Litigation2

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
Counse l 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 th ose facts that are relevant to our conclusion. Tejada is a native and citize n 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 Naturalizatio n 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 da ughter maintain a close relationship , and he provides her with financial assistance of $100 per week and emotional support. He has3

maintained stable employment since 1992 and also provides financial support to his ex

wife whenever she is in need

. In 1 992, T ejada was arre sted 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 licens e was suspended for ninety days. On June 14, 2007, Teja da was convicted of second

- degree eluding of the police in violation of N.J. S TAT
. A NN . § 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

an d 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 sinc e March 2, 2011

. On that day , Tejada was returning from a brief trip abroad and was foun d 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

rem oval 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 Im migration Judge (“IJ”) denied Tejada‟s application for cancellation of removal but granted his application for a Sec tion 212(h) waiver after finding that his daughter would suffer extreme hardship if he were removed

. The IJ also4

found that the positive equities of Tejada‟s life in the United States outweigh ed the adverse factors of his criminal record. The G overnment 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 tha t 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 s tandard, Tejada ha d not established that his daughter would suffer the lower standard of extrem e 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 establis hed that he warrants a Section 212(h) waiver as a matter of discretion. Having determined that Teja da‟s past criminal record outweigh ed 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 G overnment 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. Gonzal es , 434 F .3d 627, 63 4 (3d Cir. 2006). While t he BIA may not reverse an IJ‟s factual findings unle ss they are clearly erroneous, it reviews the IJ‟s legal5

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 standar d of review). A. We hold that t he BIA failed to apply the correct standard o f review in making its determination that Tejada was not eligible for relief

. “ [W]hen the BIA reaches a different conclu sion than the IJ, either on the facts or the law, its revi ew 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 Sec tion 212(h) waiver, it relied on the fact that Tejada‟ s daughter would suffer extreme hardship if her father were remov ed. Noting that this case “presents exacerbating, magnifying circumstances,” the IJ gave significant weight to the fact that Tejada‟s da ught er 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, t he IJ also emphasized the considerable financial support that Tejada offers his daughter and ex

- wife and relied on Tejada‟s positive equities, such as6

maintaining stable employment, supporting his family, close family ties to the United States, and the lac k 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 hard ship 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 in carcera ted 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 fall s 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 th e fact that Tejada has been free of any criminal activity since 2006 , and that the positive equities of his life in the United States outweigh ed the adverse factor of his criminal record. In contrast, t he BIA failed to consider that Tejada has been compli ant with the law for a significant period of time a nd placed emphasis on his prior arrests as w eighing negatively in his favor . The BIA appears to have made its own factual findings by7

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 explanat ion 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 weig ht 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) 1 to state an alternative method for which Tejada may be denied relief

— that his eluding conviction constitutes a violent or dangerous crime th at would allow relief only if his “ qualifying relative s” 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 inadmissibilit y 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 fo reign 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 b eyond 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 circums tances in which relief may be warranted. See Samuels v. Chertoff , 550 F.3d 252, 262 (2d Cir. 2008) ( remand ing to the BIA when the BIA had considered only whether the hardship that would accrue to an immigrant‟s family was exceptional and extremely

unusua l , and it failed to consider whether the other equities of the immigrant‟s life constitute d extraordinary circumstances to merit reli e f). Because the BIA made only a passing reference to Tejada‟s positi ve equities without a full analysis as to why these

w ould outweigh his criminal past , we hol d 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 an d extremely unusual hardship‟ to his qualifying relatives for a waiver of inadmissibility , ” BIA9

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

- Peraz a , 684 F.3d at 910

- 11.
III . For the foregoing reasons , we will g rant the petition for review and remand to the BIA for further proceedings consistent with this opinion.