PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
E. Estrada, Ashley M. Barkoudah, and Estrada Law Office, on
brief for petitioner.
H. Hunt, Assistant Attorney General, Civil Division, Kiley
Kane, Senior Litigation Counsel, Office of Immigration
Litigation, and Katherine A. Smith, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
BARRON, Circuit Judge.
Perez, a citizen of Mexico who entered the United States
without admission or parole, petitions for review of the
denial of his application for cancellation of removal under 8
U.S.C. § 1229b(b). We dismiss the petition for lack of
April 17, 2012, the Department of Homeland Security served
Perez with a Notice to Appear and charged him with
removability under 8 U.S.C. § 1182(a)(6)(A)(i). Perez
conceded removability but filed an application for
cancellation of removal under 8 U.S.C. § 1229b(b). Perez
claimed in his application that he had lived in the United
States since 1986 and that his removal would cause undue
hardship to his children, who are United States citizens.
Immigration Judge ("IJ") held a hearing on
Perez's application on August 29, 2016. Perez and his
wife, Jennifer Lavalley, testified at the hearing in support
of his application and submitted numerous documents. The
government, for its part, also submitted documents. Those
documents showed that Perez had two prior felony convictions
-- one in 1994 for drunk driving and one in 2000 for assault
-- as well as four prior arrests. The documents included a
2006 police report that showed that Perez had been arrested
on charges of, among other things, aggravated assault and
battery for allegedly assaulting Lavalley and a 2012 police
report that showed that Perez had been arrested on charges
of, among other things, assault and attempted murder for
allegedly attempting to strangle Lavalley.
September 6, 2017, the IJ issued a 32-page written decision
denying Perez's application. The IJ "assum[ed]
arguendo" that Perez met the statutory
requirements for cancellation of removal, see 8
U.S.C. § 1229b(b)(1), but found "that [Perez] has
not met his burden of proving that he merits this form of
relief as a matter of discretion." The IJ concluded that
Perez's "positive equities" -- most
significantly, hardship to his family -- "are outweighed
by significant adverse factors" -- specifically,
"his history of physical abuse against his wife" as
well as "the inconsistencies in [Perez's] and
[Lavalley's] testimony and [his] lack of remorse or
rehabilitation." The IJ also concluded that Perez
"failed to provide adequate evidence to meet his burden
of proof" in part because the Lavalley family, whom both
police reports showed "ha[d] played an important role in
fully reporting [Perez's] abusive behavior to the
police," "have been largely absent from these
proceedings." Perez timely appealed the IJ's denial
of his application for cancellation of removal to the Board
of Immigration Appeals ("BIA").
September 20, 2018, the BIA "adopt[ed] and affirm[ed]
the decision of the Immigration Judge for the reasons stated
therein." The BIA also rejected Perez's argument
that "the Immigration Judge improperly relied on the
police reports as they are unreliable and their use was
fundamentally unfair." The BIA concluded that "the
evidence is probative, as it is relevant to the issue of the
respondent's discretionary application for relief, and
its admission is fundamentally fair as the documents were
created by government officials and there is no indication of
bias or that their contents are unreliable." Perez then
filed this petition for review.
jurisdiction to review "any judgment regarding the
granting of relief under [8 U.S.C. § 1229b]." 8
U.S.C. § 1252(a)(2)(B)(i); see also Rivera v.
Sessions, 903 F.3d 147, 150 (1st Cir. 2018);
Cruz-Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir.
2007). But, although we may not review the discretionary
decision that an applicant does not merit the requested
relief, we retain jurisdiction with respect to a denial of
such relief to "review . . . constitutional claims or
questions of law raised upon a petition for review." 8
U.S.C. § 1252(a)(2)(D); see also Castro v.
Holder, 727 F.3d 125, 128 (1st Cir. 2013);
Santana-Medina v. Holder, 616 F.3d 49, 52 (1st Cir.
2010). "[T]o confer jurisdiction," however, the
petitioner's "'claim of constitutional or legal
error must at least be colorable.'"
Rivera, 903 F.3d at 150 (emphasis added) (quoting
Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010)).
sole legal claim to us is that the BIA erred in adopting and
affirming the IJ's decision because the IJ "relied
almost exclusively on hearsay police reports in determining
that [Perez] did not warrant a favorable exercise of
discretion." To the extent that Perez means to contend
that the BIA erred because the IJ's findings gave too
much weight to the police reports and not enough weight to
his and Lavalley's testimony, "well settled First
Circuit precedent" is clear that such a
"challenge [to] a determination about the sufficiency
of the evidence to meet [the applicant's] burden of
proof" is not a "colorable legal or constitutional
claim." Fabian-Soriano v. Barr, No. 18-2052,
2019 WL 2314383, at *3 (1st Cir. May 31, 2019) (citing
Ayeni, 617 F.3d at 70-71; Conteh v.
Gonzales, 461 F.3d 45, 63 (1st Cir. 2006); Elysee v.
Gonzales, 437 F.3d 221, 223-24 (1st Cir. 2006);
Rashad v. Mukasey, 554 F.3d 1, 5 (1st Cir. 2009));
see also Lima v. Lynch, 826 ...