Lima v. Holder, Jr.

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [14-2119]

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Document: 00117017735

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Date Filed: 06/21/2016

Entry ID: 6010451

United States Court of Appeals
For the First Circuit
No. 14-2119
MOISÉS ENRIQUE LIMA,
Petitioner,
v.
LORETTA E. LYNCH,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before
Torruella, Selya, and Thompson,
Circuit Judges.

Jeffrey B. Rubin and Rubin Pomerleau P.C., on brief for
petitioner.
Jennifer R. Khouri, Trial Attorney, Office of Immigration
Litigation,
Civil
Division,
U.S.
Department
of
Justice,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, and Jennifer P. Levings, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for
respondent.

*

Pursuant to Fed. R. App. P. 43(c)(2),
Loretta E. Lynch is substituted for former
Eric H. Holder, Jr. as respondent.

Attorney
Attorney

General
General

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June 21, 2016

Entry ID: 6010451

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TORRUELLA, Circuit Judge.

Date Filed: 06/21/2016

Entry ID: 6010451

Moisés Enrique Lima ("Lima")

petitioned this court for review of a final removal order entered
by the Board of Immigration Appeals ("BIA").

As Lima's challenge

to the underlying discretionary denial of relief under Section 203
of the Nicaraguan Adjustment and Central American Relief Act
("NACARA"), Pub. L. No. 105–100, §§ 201–204, 111 Stat. 2160, 2193–
2201, as amended by Pub. L. No. 106–386, § 1510(b), 114 Stat. 1464,
1531 (2000), fails to raise a colorable legal or constitutional
claim, we dismiss for lack of jurisdiction.
I.
A native of El Salvador now fifty years old, Lima entered
the United States via California on or about either September 25,
1989, or October 10, 1989.

He filed an application for asylum

with the Immigration and Naturalization Service ("INS") in 1992,
which he subsequently withdrew.

Lima was arrested on various

charges in 1992, 1993, 2002, 2003, and 2005.

A 1993 arrest led

to charges of armed burglary, indecent assault and battery, and
attempted rape and resulted in a conviction for assault and battery
following a bench trial.

After his 2003 arrest, Lima was charged

with assault with intent to commit murder, assault and battery
with a dangerous weapon, assault and battery, and threat to commit
a crime; he pleaded guilty to the latter three charges, receiving
probation, which terminated in June 2005.

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Lima
Immigration
permanent

applied

Services

residence

to

Page: 4

the

Date Filed: 06/21/2016

United

("USCIS"),
in

December

States

successor
2005

under

Entry ID: 6010451

Citizenship

to

the

the

INS,

special

cancellation of removal provision of Section 203 of NACARA.

and
for
rule
In

2006, USCIS denied his application on the basis of his criminal
record.
Lima was placed in removal proceedings in 2007 via a
Notice to Appear charging him as removable under the Immigration
and Nationality Act, § 212(a)(6)(A)(i), 8 U.S.C. § 1182.
immigration

judge

("IJ")

rejected

his

application

for

An

NACARA

special rule cancellation of removal in October 2009, citing his
2003 conviction for assault and battery with a dangerous weapon,1
and the BIA dismissed Lima's appeal in October 2010.

In November

2010, Lima filed a petition for review and request for stay of
removal with this court and a motion to vacate convictions with
the Framingham District Court in Massachusetts, arguing that his
2003 counsel did not adequately advise him as to the immigration
consequences of his guilty plea and thus claiming ineffective

1

Assault and battery under Mass. Gen. Laws ch. 265, § 15A(b)
constitutes a crime of moral turpitude under 8 U.S.C. § 1182(a)(2)
and 8 C.F.R. § 1240.66(b). See Thomas v. INS, 976 F.2d 786, 787
(1st Cir. 1992); In the Matter of N-----, 2 I. & N. Dec. 201, 204
(BIA 1944). Such a conviction makes a perpetrator ineligible for
special rule cancellation of removal under NACARA. See Mejía v.
Holder, 756 F.3d 64, 67 (1st Cir. 2014).
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assistance of counsel under Padilla v. Kentucky, 559 U.S. 356
(2010).

The state court vacated his convictions, and in February

2011 the charges were dismissed for failure to prosecute.

Lima

then filed a motion to voluntarily dismiss his case before this
court, and we dismissed his initial petition in March 2011.
A February 2011 motion to reopen BIA proceedings was
rejected

as

untimely

and,

regarding

convictions' vacation, inadequate.

the

evidence

of

the

A subsequent June 2011 motion

for reconsideration that included Lima's motion to vacate the 2003
convictions, however, succeeded in persuading the BIA to vacate
its

prior

decision

reconsideration.

and

remand

Lima's

case

to

the

IJ

for

After two continuances, Lima testified before

the IJ in August 2013.

At the hearing, Lima's account of the

events leading to the subsequently vacated 2003 conviction for
assault with a deadly weapon differed substantially from police
reports from that night.

For example, Lima testified that he was

not intoxicated, had not been drinking any alcohol, and could not
think of a reason that he would have smelled of alcohol or acted
intoxicated.

In contrast, the police reports indicated that Lima

was "highly intoxicated" and that the victim of his assault,
Rosaura González, his then-estranged partner and the mother of his
then-eight-year-old daughter, told an officer that he was "drunk."
Lima

offered

no

explanation

for

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why

police

would

have

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misrepresented his state of sobriety.

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Entry ID: 6010451

Lima also denied holding a

knife to González's throat or making contact with her, further
contradicting the police reports and next-day interview with Lima.
The IJ acknowledged, as the parties had agreed, that
Lima was eligible for relief from removal under Section 203 of
NACARA, but noted that such relief is discretionary and that, under
the REAL ID Act of 2005, Pub. L. No. 109–13, § 101(d)(2), 119 Stat.
231, 304, Lima had to show he merited a favorable exercise of
discretion.

The IJ found the 2003 police reports to be "probative

and reliable."

He discounted an affidavit2 from González stating

that she would not testify to the facts contained in the 2003
police reports because González did not appear in person, nor offer
an explanation for why she did not appear, and the police reports
contradicted

her

affidavit.

The

IJ

found

Lima

testified

incredibly in several respects, most significantly regarding the
2003 incident, undermining his credibility altogether.

The IJ

reviewed both positive and negative factors at length, noting that
Lima has one child who is a lawful permanent resident and another
who is a citizen; that neither child testified for Lima; the length
of Lima's residence in the United States; his lack of credibility

2

The affidavit was signed November 11, 2010, and submitted as
part of Lima's second motion to reopen proceedings along with his
motion to vacate convictions.
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as a witness; discrete instances of negative conduct, contacts
with law enforcement, and criminal history, as well as recidivism
and refusal to admit culpability; his age at the time of entry and
at the time he committed negative conduct; and that one of his
children, then eight years old, was nearby during the conduct
leading

to

Lima's

2003

conviction

for

assault

and

battery.

Finding that the "positive factors" for Lima were "limited" by his
lack of credibility and that the "negative factors . . . far
outweigh[ed] the positive," the IJ declined to grant Lima relief.
The BIA reviewed the IJ's "factual findings for clear
error and all other issues de novo."

It found no clear error in

the IJ's credibility determination, a factual finding, based on
the inconsistencies between the 2003 police reports and Lima's
testimony,

and

affirmed

the

IJ's

decision

not

to

grant

discretionary relief.
II.
"When the BIA adopts the IJ's opinion and discusses some
of the bases for the IJ's decision, we . . . review both the IJ's
and the BIA's opinions."
Cir. 2006).

Ouk v. Gonzales, 464 F.3d 108, 110 (1st

However, "[r]eview of a decision invoking special

rule cancellation of removal under NACARA is subject to the
jurisdiction-stripping provision codified at 8 U.S.C. § 1252."
González-Ruano v. Holder, 662 F.3d 59, 63 (1st Cir. 2011).

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Under

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that provision, we may not "review 'any judgment regarding the
granting of relief' relative to cancellation of removal," id.
(citing 8 U.S.C. § 1229b), but only "constitutional claims and
questions of law raised in the petition."

Id. (citing 8 U.S.C.

§ 1252(a)(2)(D)); see also Ramírez-Matías v. Holder, 778 F.3d 322,
326 (1st Cir. 2015); Castro v. Holder, 727 F.3d 125, 128 (1st Cir.
2013).

Thus,

"we

cannot

review

discretionary

determinations

regarding requests for special rule cancellation of removal under
NACARA, absent legal or constitutional error."

González-Ruano,

662 F.3d at 63.
"The traditional rules of evidence do not apply in
immigration hearings, and arrest reports historically have been
admissible in such proceedings."
Cir. 1996) (citations omitted).

Henry v. INS, 74 F.3d 1, 6 (1st
"[W]hile an arrest, without more,

is simply an unproven charge, the fact of the arrest, and its
attendant circumstances, often have probative value in immigration
proceedings."

Id.

There is no "black-letter" rule as to the

relative probative value of arrest records based on their age.
Cf. id. at 6-8.

An IJ may determine an applicant's credibility

on the basis of the "totality of the circumstances," including
"the

consistency

of

[the

applicant's]

statements

with

other

evidence of record . . . and any inaccuracies or falsehoods in
such

statements,

without

regard

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to

whether

an

inconsistency,

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inaccuracy, or falsehood goes to the heart of the applicant's
claim, or any other relevant factor."
Determinations

of

factual in nature.

credibility,

and

8 U.S.C. § 1229a(c)(4)(C).
relative

credibility,

are

Ramírez-Matías, 778 F.3d at 326.
III.

The case before us rings familiar: an apparent successor
to Ramírez-Matías, in which the petitioner argued "that the IJ
bungled the decision on special rule cancellation of removal by
relying on hearsay evidence (particularly the police reports) to
determine that the petitioner did not deserve a favorable exercise
of discretion," giving the reports "too much weight" and "fail[ing]
to assess the 'probative value' of the police reports properly" in
light of testimony contradicting the reports.

778 F.3d at 326.

We labeled his challenge "hopelessly factbound" and sans any "hint
of any cognizable constitutional claim or question of law."

Id.

It is no less true here that "a challenge to the way in which the
agency weighed the evidence and balanced negative and positive
factors is not a claim that raises a legal question."

Id. (citing

Santana-Medina v. Holder, 616 F.3d 49, 52-53 (1st Cir. 2010);
Elysee v. Gonzales, 437 F.3d 221, 223-24 (1st Cir. 2006)).

And

that is all that Lima claims here: He argues that the IJ should
not have found the 2003 police reports credible and should instead
have credited his own testimony and González's affidavit, as a

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result of which, presumably, the IJ would have found more positive
factors favoring Lima and granted him relief.

There is, of course,

no problem with the IJ's reliance on police reports, Henry, 74
F.3d at 6, nor the BIA's adoption of the IJ's reasoning.
464 F.3d at 110.
point."3

Gonzales,

Lima himself concedes that Ramírez-Matías is "on

We find Lima's challenge to the IJ's determination of

the reports' probative value and the BIA's affirmance does not
constitute a legal challenge, thus we do not have jurisdiction.
IV.
We dismiss this petition for lack of jurisdiction.
Dismissed.

3

Lima asks us to "reconsider" Ramírez-Matías. Of course, one
panel cannot overrule another panel's decision "absent supervening
authority or some other singular event," United States v. DePierre,
599 F.3d 25, 31 (1st Cir. 2010), and Lima identifies no such
"supervening authority" or "singular event" here.
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