Sanabria Morales v. Barr

United States Court of Appeals
For the First Circuit

No. 17-1634

LUIS ELIAS SANABRIA MORALES,

Petitioner,

v.

WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.

Ilana Etkin Greenstein, American Immigration Lawyers'
Association, Gregory Romanovsky, and Romanovsky Law Offices, on
brief for petitioner.
Enitan Omotayo Otunla, Trial Attorney, Office of Immigration
Litigation, Joseph H. Hunt, Assistant Attorney General, Civil
Division, and Zoe J. Heller, Senior Litigation Counsel, on brief
for respondent.

July 24, 2020
 LYNCH, Circuit Judge. Luis Elias Sanabria Morales

petitions for review of a decision by the Board of Immigration

Appeals ("BIA") to deny his application for deferral of removal

under the United Nations Convention Against Torture ("CAT"). We

deny the petition.

I.

Sanabria was born in Venezuela on August 7, 1972. He

last entered the United States on November 5, 2012, and was

convicted of heroin trafficking in 2014.

On January 21, 2015, the Department of Homeland Security

("DHS") served Sanabria with a notice of intent to issue a final

administrative removal order that informed him that he was subject

to administrative removal under 8 U.S.C. § 1228(b). The notice

alleged that Sanabria was removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony

as defined by 8 U.S.C. § 1101(a)(43)(B).

On February 2, 2015, Sanabria requested withholding of

removal under 8 U.S.C. § 1231(b)(3) or CAT protection. He

submitted a statement that claimed he feared that drug traffickers

who forced him to smuggle drugs to the United States would

retaliate against him if he returned to Venezuela. He also claimed

he feared persecution, torture, and death because of his earlier

membership in a Venezuelan opposition political party called

COPEI. On February 17, 2015, DHS issued a final administrative

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removal order and warrant of removal against Sanabria that found

him removable based on his aggravated felony conviction and

ineligible for any discretionary relief.

On June 30, 2016, a DHS asylum officer conducted a

reasonable fear interview of Sanabria. The officer found that

Sanabria's "testimony was sufficiently detailed, consistent and

plausible in material respects" and found it credible. Sanabria

was placed into withholding-only proceedings and referred to an

immigration judge ("IJ").

On August 29, 2016, the IJ gave Sanabria a two-week

continuance to file his application and suggested that he find a

lawyer. On September 14, 2016, the IJ gave Sanabria another two-

week continuance because he was still looking for a lawyer. On

September 28, 2016, Sanabria told the IJ that he "talked to one

attorney and he promised to visit me this week." The IJ gave

Sanabria another three-week continuance. On October 19, 2016, the

IJ asked Sanabria if he was still looking for a lawyer. Sanabria

answered, "I'm going to do this myself, your honor." He then

repeated, "I'm going to represent myself."

On the same day, Sanabria filed an asylum application

seeking withholding of removal and submitted documentation in

support of his application. On January 17, 2017, he submitted

further documentation. On January 26, 2017, an IJ heard the merits

of Sanabria's application. Although Sanabria had been provided a

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list of attorneys offering pro bono services and granted three

continuances to seek counsel, he represented himself.

At the outset of the hearing, the IJ noted that

Sanabria's application would be considered an application for CAT

deferral of removal because Sanabria's conviction made him

ineligible for withholding of removal, either statutory or under

the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R.

§§ 1208.17(a), 1208.18(a)(1). Sanabria replied that he was trying

to withdraw his guilty plea and instead go to trial, but he did

not otherwise dispute the IJ's statement that the conviction

limited his application to deferral of removal.

At the hearing, Sanabria testified as follows. Since

1999, Sanabria owned an electronics and clothing store in San

Antonio, Venezuela, his hometown. He made numerous trips to the

United States to buy inventory for the store. He is married and

has one son.

In September 2012, Isaac Alcorcon, the owner of an auto

parts store in a nearby town, approached Sanabria to buy a laptop

and an iPad. Alcorcon then asked Sanabria if he wanted to work

as a drug trafficker. Sanabria refused. Alcorcon later bought

another iPad from Sanabria and then called Sanabria to tell him

that it was not working and to demand its repair or a refund.

When Sanabria went to Alcorcon's business for the repair, Alcorcon

was with two individuals, one named Jorge and one wearing a police

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uniform. When Sanabria began to use the supposedly broken iPad,

he saw that it had been loaded with photos of his wife and child.

Alcorcon told Sanabria that he should reconsider his refusal to

work as a drug trafficker.

Sanabria ultimately agreed to do so. Alcorcon told

Sanabria not to worry because "he own[ed] the police." Sanabria

did not report Alcorcon to the police because he believed the

police were corrupt and worked with criminals like Alcorcon.

On November 5, 2012, Sanabria traveled from Venezuela to

Boston via Aruba after ingesting balloons of heroin. Jorge drove

him to the airport in Caracas. Officers from the Venezuelan

National Guard escorted Sanabria to his gate so that he could avoid

security.

In Boston, an individual called Chiquito met Sanabria.

They checked into a hotel in Chelsea, Massachusetts, so that

Sanabria could expel the balloons of heroin. Before he had

expelled the balloons, Sanabria collapsed in the hotel room, where

hotel staff found him. While being taken to the emergency room

in an ambulance, Sanabria vomited plastic condoms containing

heroin.

Sanabria stayed in the hospital in a coma for four days.

After he woke up, he spoke to his wife in Venezuela, who passed on

instructions from Alcorcon that he was to waive his right to an

attorney, decline assistance from the Venezuelan consulate, and

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confess to the police that he had been carrying drugs. Sanabria

followed these instructions and was arrested. After his arrest,

Alcorcon contacted Sanabria's wife to say that she had done "the

right thing."

Sanabria's wife and son then moved twice within

Venezuela to hide from Alcorcon. Neither Alcorcon nor other drug

traffickers made contact with them after November 2012.

Sanabria was charged in Massachusetts court with

conspiracy to transport heroin. He attempted to plead guilty in

November 2013, but the plea was rejected when Sanabria raised the

possibility of a duress defense. Ultimately, on April 18, 2014,

he pleaded guilty to the lesser offense of trafficking in eighteen

grams or more of heroin and sentenced to not less than three and

a half years and not more than six years. He was the only one

arrested or prosecuted, either in the United States or Venezuela.

Shortly after Sanabria's conviction, in 2014, his

brother-in-law was killed at Sanabria's store, which was then

burned. Sanabria testified that he suspected the drug traffickers

killed his brother-in-law and burned his store to threaten him.

Sanabria testified that he feared that he would be

persecuted, tortured, or killed if he returned to Venezuela. He

said the drug traffickers would learn of his return to Venezuela

from connections at the airport.

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 The IJ denied Sanabria's application. After carefully

recounting Sanabria's testimony, the IJ held that Sanabria's

conviction was an aggravated felony as defined by 8 U.S.C.

§ 1101(a)(43)(B) and presumptively a particularly serious crime

that barred him from withholding of removal. See 8 U.S.C.

§ 1231(b)(3)(B)(ii).

With respect to deferral of removal, the IJ then held

that Sanabria had not established that it was more likely than not

that he would be tortured by or with the acquiescence of the

Venezuelan government if he were removed. He noted that Sanabria

was unaware of the location of Alcorcon and his collaborators and

that Sanabria's wife, son, and mother continued to live in

Venezuela, unharmed by drug traffickers or by the government. He

also noted that Sanabria had no evidence that Alcorcon was

responsible for burning Sanabria's store or killing his brother-

in-law, and that the drug traffickers had not contacted Sanabria

since his arrest in 2012. For these reasons, the IJ concluded

that Sanabria's claim that he would be tortured was speculative.

On February 27, 2017, Sanabria appealed to the BIA. On

the basis that his computer access in jail was limited, Sanabria

sought and received a one-month extension to file his brief with

the BIA. He did not ask for more time to find counsel and

ultimately filed his BIA brief pro se on May 8, 2017. He did not

argue that his conviction was not for a particularly serious crime

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or otherwise challenge the IJ's finding that his conviction

rendered him eligible only for deferral of removal. He argued

that his fear was not speculative, citing to the country condition

report's description of the Venezuelan government's ties to drug

cartels. He also submitted new evidence, including an email from

his tenant to his wife, recounting a January 2017 incident in which

three men in Venezuelan National Guard uniforms entered Sanabria's

apartment, asked about Sanabria's whereabouts, and beat the

tenant's husband; a police report lodged by the tenant's husband;

and a medical report about the husband's treatment after the

incident.

On May 24, 2017, the BIA dismissed Sanabria's appeal.

It held that Sanabria had not "meaningfully dispute[d] that, as a

result of a conviction for a particularly serious crime, he is

precluded from being granted either form of withholding of

removal." It then "agree[d] with the Immigration Judge that

[Sanabria] ha[d] not established eligibility for deferral of

removal under the CAT." It found that Sanabria's claim that he

would be tortured was "based upon a series of assumptions and

speculations." It found that his claims that drug traffickers had

burned his store and killed his brother-in-law and that his past

political activity would jeopardize his safety lacked support from

"any documentary evidence." It noted that his wife, son, and

mother continued to live unharmed in Venezuela. Although the BIA

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"recognize[d] that human rights abuses occur in Venezuela," it

found that Sanabria's own fear was "too speculative in nature and

insufficiently corroborated to establish that" he would be

tortured by, at the instigation of, or with the acquiescence of a

public official or someone acting in an official capacity.

As to Sanabria's new evidence, the BIA found that,

although it could support Sanabria's fear of returning to his

hometown, it did not establish that he could not avoid harm by

relocating within Venezuela, as his family had done. Finally, it

found that Sanabria's "speculation" that drug traffickers would

monitor his return to Venezuela was unsupported by the record. It

denied Sanabria's request to remand the record to the IJ for

consideration of the new evidence because it would not "affect the

outcome of [Sanabria's] case."

On June 2, 2017, Sanabria filed separate motions to

reconsider and remand with the BIA. The record does not establish

whether the BIA addressed these motions.

On June 22, 2017, Sanabria timely filed a petition for

review with this court. Sanabria filed his opening brief and

reply to the government's brief pro se. After counsel agreed to

represent Sanabria pro bono in August 2019, the parties filed a

round of supplemental briefing.

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 II.

We must uphold the agency's factual findings as long as

they are "supported by reasonable, substantial, and probative

evidence on the record considered as a whole." Thapaliya v.

Holder, 750 F.3d 56, 59 (1st Cir. 2014) (quoting Sunarto Ang v.

Holder, 723 F.3d 6, 10 (1st Cir. 2013)). Although "we review the

agency's legal interpretations de novo, subject to appropriate

principles of administrative deference," we may not entertain

arguments not made to the BIA, which "fail[] for lack of

exhaustion." Molina De Massenet v. Gonzales, 485 F.3d 661, 664

(1st Cir. 2007). Where, as here, "the BIA adopts and affirms the

IJ's ruling but also examines some of the IJ's conclusions, this

Court reviews both the BIA's and IJ's opinions." Perlera-Sola v.

Holder, 699 F.3d 572, 576 (1st Cir. 2012) (citing Matovu v. Holder,

577 F.3d 383, 386 (1st Cir. 2009)).

To be entitled to deferral of removal under the CAT, an

alien must show that it is "more likely than not that he or she

would be tortured if removed to the proposed country of removal."

8 C.F.R. § 1208.16(c)(2); Ruiz-Guerrero v. Whitaker, 910 F.3d 572,

575 (1st Cir. 2018). "As part of this showing, [the alien] must

establish that the harm would be 'inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.'" Ruiz-

Guerrero, 910 F.3d at 575 (quoting 8 C.F.R. § 1208.18).

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 In his petition, Sanabria advances three challenges to

the BIA's decision. First, he filed new evidence with his opening

brief to this court that he argues demonstrates the likelihood

that he will be tortured. Second, he argues that the IJ failed

to conduct a mandatory factual analysis of whether Sanabria's

conviction was for a particularly serious crime and limited his

application to deferral of removal. Third, he argues that the IJ

misadvised him of the relevant law at his merits hearing by

conflating statutory withholding of removal, withholding of

removal under the CAT, and deferral of removal under the CAT.

The government urges that we lack jurisdiction to review

the BIA's denial of Sanabria's CAT claim, relying on 8 U.S.C.

§ 1252(a)(2)(C), which provides that "no court shall have

jurisdiction to review any final order of removal against an alien

who is removable by reason of having committed a [qualifying]

criminal offense." But, after briefing concluded, the Supreme

Court rejected this argument, holding that because "[a] CAT order

is distinct from a final order of removal and does not affect the

validity of a final order of removal[,] . . . §[] 1252(a)(2)(C)

. . . do[es] not preclude judicial review of a noncitizen's factual

challenges to a CAT order." Nasrallah v. Barr, 140 S. Ct. 1683,

1694 (2020). We have jurisdiction to review Sanabria's petition.

We conclude that the record does not compel the

conclusion that Sanabria demonstrated eligibility for deferral of

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removal under the CAT. See Morris v. Sessions, 891 F.3d 42, 48

(1st Cir. 2018) (taking the same approach). The two documents

Sanabria submitted for the first time with his opening brief in

this court are a September 1, 2017, letter to Sanabria from the

logistics director of COPEI, the opposition party with which

Sanabria was involved, and an internal organizational chart for

the international airport in Caracas that shows Jorge Alcorcon as

the chief of security.

It is clear that we cannot consider these documents.

Our review is limited to "the administrative record on which the

order of removal is based." 8 U.S.C. § 1252(b)(4)(A). We do not

consider documents that are not contained within that record.

See, e.g., Nantume v. Barr, 931 F.3d 35, 39 n.4 (1st Cir. 2019)

("[W]e are constrained to consider only the record that was before

the agency."); Cabas v. Barr, 928 F.3d 177, 181 n.1 (1st Cir. 2019)

(declining to consider materials submitted for the first time with

the opening appellate brief).

With respect to the administrative record itself, "we

focus our review on whether the record compels a contrary

conclusion to the one reached by the [BIA]." Ruiz-Guerrero, 910

F.3d at 575. We conclude that it does not. The BIA specifically

noted that Sanabria did not establish that he could not avoid harm

by relocating within Venezuela, as his wife, son, and mother

already had. Since 2012, the drug traffickers have not tried to

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make contact with Sanabria or his relocated family members, much

less to harm them. Although Sanabria offered evidence that men

wearing Venezuelan National Guard uniforms went to his house in

San Antonio, this does not undermine the IJ's finding that he could

avoid harm by relocating within Venezuela.

The BIA also correctly noted that Sanabria offered no

direct evidence to the IJ, beyond his conjecture that drug

traffickers would immediately become aware of his return to

Venezuela and would seek to harm him, that he would be tortured.

He admitted that he did not know who was responsible for the damage

to his store and murder of his brother-in-law, and provided no

evidence that it was drug traffickers. And he did not demonstrate

that any harm to him would be caused by or with the acquiescence

of the Venezuelan government. These shortcomings preclude a

conclusion that the record compels a finding that Sanabria is

eligible for deferral of removal under the CAT.

Second, there was no error in the BIA's conclusion that

the IJ properly found that Sanabria's conviction was for a

particularly serious crime. An alien "convicted . . . of a

particularly serious crime" is ineligible for withholding of

removal. 8 U.S.C. § 1231(b)(3)(B)(ii). The statute further

provides that

an alien who has been convicted of an
aggravated felony (or felonies) for which the
alien has been sentenced to an aggregate term

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 of imprisonment of at least 5 years shall be
considered to have committed a particularly
serious crime. The previous sentence shall not
preclude the Attorney General from determining
that, notwithstanding the length of sentence
imposed, an alien has been convicted of a
particularly serious crime.

Id. § 1231(b)(3)(B). The Attorney General has determined that an

aggravated felony conviction for drug trafficking is presumptively

a particularly serious crime under 8 U.S.C. § 1231(b)(3)(B)(ii)

absent "circumstances that are both extraordinary and compelling."

Matter of Y-L-, 23 I&N Dec. 270, 274 (A.G. 2002). Although Y-L-

did not

define the precise boundaries of what those
unusual circumstances would be, they would
need to include, at a minimum: (1) a very small
quantity of controlled substance; (2) a very
modest amount of money paid for the drugs in
the offending transaction; (3) merely
peripheral involvement by the alien in the
criminal activity, transaction, or
conspiracy; (4) the absence of any violence or
threat of violence, implicit or otherwise,
associated with the offense; (5) the absence
of any organized crime or terrorist
organization involvement, direct or indirect,
in relation to the offending activity; and (6)
the absence of any adverse or harmful effect
of the activity or transaction on juveniles.
Only if all of these criteria were
demonstrated by an alien would it be
appropriate to consider whether other, more
unusual circumstances (e.g., the prospective
distribution was solely for social purposes,
rather than for profit) might justify
departure from the default interpretation that
drug trafficking felonies are "particularly
serious crimes." . . . [S]uch commonplace
circumstances as cooperation with law
enforcement authorities, limited criminal

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 histories, downward departures at sentencing,
and post-arrest (let alone post-conviction)
claims of contrition or innocence do not
justify such a deviation.

Id. at 276–77.

The BIA noted that Sanabria did "not meaningfully

dispute" the IJ's conclusion that his conviction was for a

particularly serious crime in his appeal to the BIA. The only

discussion of his conviction in his brief to the BIA states:

The only criminal conviction I have is the
very same reason for my [CAT] request. I
would have never committed such a crime if it
wasn't for the death threats against my
family. This crime jeopardized my freedom and
was opposed to the moral and values that are
instilled in me. The Judge rejected my
petition because he just saw the nature of the
conviction without overlooking the acts in
which I was obligated to commit.

Sanabria did not otherwise argue that the IJ should have concluded

that his conviction was not for a particularly serious crime or

specifically refer to that portion of the IJ's decision.

Even assuming arguendo that this argument is not waived

for failure to exhaust administrative remedies, Sanabria's

challenge fails on its merits. The IJ correctly recounted the

circumstances that led to Sanabria's conviction and invoked the

presumption that his conviction constituted a particularly serious

crime, referring specifically to Y-L-. The record does not compel

the conclusion that Sanabria's conviction was not for a

particularly serious crime under the test set forth in Y-L-.

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Sanabria agreed to carry the drugs on behalf of an international

drug smuggling ring. Although Sanabria was convicted of

trafficking in eighteen grams or more of heroin, evidence before

the IJ showed that the total drug weight exceeded 200 grams, a

much more significant drug quantity. The record also shows that

Sanabria received $8,000 as a payment for his services after

arriving in Boston. The Attorney General's decision in Y-L- makes

clear that "a very small quantity of controlled substance," "a

very modest amount of money paid for the drugs in the offending

transaction," "merely peripheral involvement by the alien in the

criminal activity," and "the absence of any organized crime or

terrorist organization involvement" are "all" required "at a

minimum" to qualify for the "extraordinary and compelling

circumstances" exception. 23 I&N Dec. at 276-77. Even assuming

arguendo that Sanabria's sentence of not less than three and a

half years but not more than six does not trigger the automatic

statutory inclusion of any conviction that resulted in a sentence

of at least five years, this record does not compel a conclusion

that Sanabria's conviction met each of these factors and

demonstrated "extraordinary and compelling circumstances." The

six factors give content to the "extraordinary and compelling

circumstances" test, and we must abide by them.

Sanabria further argues that the IJ failed to perform

the fact-bound analysis required by Y-L-. We assume arguendo that

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Sanabria sufficiently argued to the IJ that his conviction did not

render him ineligible for withholding of removal. Even so,

Sanabria's argument fails.

The IJ's decision thoroughly recited the facts from

Sanabria's testimony and then invoked the presumption in Y-L-.

The IJ was "not required to dissect in minute detail every

contention that" Sanabria advanced. Raza v. Gonzales, 484 F.3d

125, 128 (1st Cir. 2007). Rather, the IJ was required only to

"fairly consider[] the points raised by [Sanabria] and

articulate[] its decision in terms adequate to allow a reviewing

court to conclude that the agency has thought about the evidence

and the issues and reached a reasoned conclusion." Id. The IJ

was not required on this record to set forth a detailed analysis

of the "extraordinary and compelling circumstances" exception.1

Nor, as explained, did the BIA err by affirming the IJ's decision.

1 By analogy, in the context of clear error review, where
a lower court has issued only a brief order in which "specific
findings are lacking, we view the record in the light most
favorable to the ruling, drawing all reasonable inferences in
support of the challenged ruling." United States v. Owens, 167
F.3d 739, 743 (1st Cir. 1999). We do so because "in many
situations, the [lower] court's findings or reasons can be
reasonably inferred" despite an order's brevity. Cotter v. Mass.
Ass'n of Minority Law Enf't Officers, 219 F.3d 31, 34 (1st Cir.
2000). Doing so here in the application of the similar substantive
evidence standard, we conclude that the IJ's finding that the
presumption was not rebutted was supportable for the reasons
described above.

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 Sanabria does not argue that the IJ's analysis of

Sanabria's conviction prejudiced Sanabria's ability to demonstrate

the likelihood that he would be tortured. Because the record does

not compel a finding that Sanabria's conviction was not for a

particularly serious crime, Sanabria's argument that the IJ should

have considered his eligibility for withholding of removal fails.

Finally, the record refutes Sanabria's argument that the

IJ misadvised him on the law. The IJ correctly advised Sanabria

that the application Sanabria had to file for deferral of removal

and both kinds of withholding of removal was the same. The IJ did

not tell Sanabria that the standards of proof were the same for

each kind of relief. Nor does this exchange suggest that the IJ

misapplied the standards when considering Sanabria's application.

III.

Sanabria's petition for review is denied.

-Dissenting Opinion Follows-

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 THOMPSON, Circuit Judge, dissenting. Unlike my

colleagues in the majority, I see merit in Sanabria's preserved

argument that the IJ failed to evaluate properly whether Sanabria's

underlying conviction was for a "particularly serious crime," a

term of art in this context that, as the majority discussed and as

applied by the IJ and BIA here, had the effect of cutting Sanabria

off from certain relief he was pursuing. In my view, the IJ and

BIA erred by incorrectly applying the Matter of Y-L- test to assess

fully Sanabria's eligibility for relief. And so I write

separately to explain why I believe this matter should be

remanded.2

Before diving in, I want to briefly revisit the law that

is so central to my disagreement with my colleagues in the

majority. An aggravated felony conviction for drug trafficking

is presumptively a particularly serious crime under 8 U.S.C.

§ 1231(b)(3)(B)(ii), and that presumption is a rebuttable one

because it applies only absent "circumstances that are both

extraordinary and compelling." Matter of Y-L-, 23 I&N Dec. at

2
I pause briefly at the outset to note that, while my
colleagues assume arguendo that this particular argument is
properly before us, I would explicitly so find: both before the
IJ and then on appeal to the BIA, Sanabria did plenty to raise,
and thereby exhaust, the argument that the particularly-serious-
crime designation should not apply due to his extraordinary and
compelling circumstances. And, therefore, the BIA's conclusion
that Sanabria had failed to "meaningfully dispute" the IJ's
conclusion that he was ineligible for "either form of withholding
of removal" was incorrect.

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274. Put differently, the presumptive particularly-serious-crime

label automatically affixed to someone who committed an aggravated

felony like drug trafficking is not irremovable -- and the way to

peel it off is to show that the crime involved extraordinary and

compelling circumstances.

But neither the IJ first, nor the BIA later, bothered to

assess whether the particularly-serious-crime presumption had been

rebutted by Sanabria by way of his efforts to demonstrate

extraordinary and compelling circumstances. This, pure and

simple, was error. And not only was this error, but this was

error we cannot remedy from our appellate perch. I explain.

The IJ certainly was aware of the entirety of the Matter

of Y-L- test -- he cited it in his decision and purported to apply

it in rendering his decision. Even so, the IJ made no mention of

the extraordinary-and-compelling-circumstances piece of the Matter

of Y-L- test he relied on. Instead, he let the particularly-

serious-crime presumption stand without ever making any

extraordinary-and-compelling-circumstances determination, and, by

extension, certainly never weighed Sanabria's testimony and other

evidence to assess the six Matter of Y-L- considerations. He was

dutybound to make those findings because the case he cited required

him to do just that.3 His failure to do so constitutes error.

3
By the way, the government does not bother to dispute that
the back end of the "presumptively particularly serious unless

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 The same goes for the BIA, which applied the presumption

and went no further. Indeed, like the IJ's decision before it,

the BIA's decision offers no analysis at all on the extraordinary-

and-compelling-circumstances part of the Matter of Y-L- test.

Both simply applied the presumption that Sanabria's offense was a

particularly serious crime, took withholding of removal off the

table, and that was that. No reference to or discussion of the

rest of the Matter of Y-L- test and its caveat with respect to

extraordinary and compelling circumstances. And so, no conclusion

as to whether the showing had been made.

The majority writes that it was not necessary for the IJ

"to dissect in minute detail every contention that" Sanabria

advanced, but rather he needed only to "fairly consider[] the

points raised by [Sanabria] and articulate[] [a] decision in terms

adequate to allow a reviewing court to conclude that the agency

has thought about the evidence and the issues and reached a

reasoned conclusion." Raza, 484 F.3d at 128. I don't disagree

with any of this. The disconnect here is that the majority thinks

assessing the extraordinary-and-compelling-circumstances angle

(i.e., applying the Matter of Y-L- test in full, rather than just

the default particularly-serious-crime presumption) required some

extraordinary and compelling circumstances are shown" test was not
undertaken by either the IJ or BIA, and that that failure does not
constitute error. Instead, it simply states its position that
such a showing of the requisite circumstances was not made below.

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legally unnecessary, painstaking dissection by the IJ, and that

engaging in that dissection would have amounted to more than was

necessary to give us enough to review. The majority then concludes

that the IJ wasn't required to provide "detailed analysis" of the

extraordinary-and-compelling-circumstances component of the test.

I, on the other hand, think the interplay of the particularly-

serious-crime presumption and extraordinary-and-compelling-

circumstances exception in the Matter of Y-L- test required only

the fair consideration and "articulat[ion of a] decision in terms

adequate to allow [us] to conclude that the [IJ and BIA] thought

about the evidence and the issues and reached a reasoned

conclusion," which is what Raza contemplates. 484 F.3d at 128.

In view of the extraordinary-and-compelling-circumstances prong

being completely ignored, it plainly got none of this: zero

consideration, and nothing even approaching a "reasoned

conclusion." Perhaps the IJ wasn't required to provide detailed

analysis -- but here, there is no analysis whatsoever, never mind

detailed analysis.

And very much tied to this is my colleagues' decision to

infer a no-extraordinary-and-compelling-circumstances finding by

the IJ that fuels their overall conclusion on this issue.

The majority explains that it's permissible to infer

that the IJ found "that the presumption was not rebutted."

Pointing analogously to clear-error situations in the district

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court, the majority explains that when "specific findings are

lacking [from the lower court's order], we view the record in the

light most favorable to the ruling, drawing all reasonable

inferences in support of the challenged ruling," Owens, 167 F.3d

at 743, and this makes sense to do because, "in many situations,

the [lower] court's findings or reasons can be reasonably

inferred," Cotter, 219 F.3d at 34, despite an order's brevity.

But here's the thing: Sanabria's case represents the

proverbial apples, and Owens and Cotter, taken together, along

with any other case out of the district court, are oranges. Both

Owens and Cotter involved the clear-error review of a district

court order; Sanabria's case doesn't involve a clear-error review

of a district court's fact decision, it involves a review of agency

action, meaning the IJ and BIA needed to give some reasoned

explanation for the conclusions they reached.

Indeed, we review immigration agency decisions quite

differently than we do district court decisions: "we apply

'normal principles of administrative law governing the role of

courts of appeals when reviewing agency decisions for substantial

evidence.'" Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) ("The

need for clear administrative findings is implicit in the statute

under which we review the BIA's decision." (quoting Cordero-Trejo

v. INS, 40 F.3d 482, 487 (1st Cir. 1994))). And "[w]hile the IJ

need not address each and every piece of evidence put forth by a

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petitioner, he must at least 'make findings, implicitly if not

explicitly, on all grounds necessary for decision.'" Sok v.

Mukasey, 526 F.3d 48, 54 (1st Cir. 2008) (quoting Un v. Gonzales,

415 F.3d 205, 209 (1st Cir. 2005)). This court "'must judge the

propriety of [administrative] action solely by the grounds invoked

by the agency,' and 'that basis must be set forth with such clarity

as to be understandable.'" Gailius, 147 F.3d at 44 (citing SEC

v. Chenery Corp., 332 U.S. 194, 196 (1947)). "Typically, we have

found the absence of specific findings problematic in cases in

which such a void hampers our ability meaningfully to review the

issues raised on judicial review." Renaut v. Lynch, 791 F.3d 163,

169 (1st Cir. 2015) (quoting Rotinsulu v. Mukasey, 515 F.3d 68, 73

n.1 (1st Cir. 2008)).

A driving principle behind all this is that it ensures

"that a reviewing court is able to provide intelligent review on

issues over which it has appellate jurisdiction." Tillery v.

Lynch, 821 F.3d 182, 185 (1st Cir. 2016) (citations omitted); see

also Chenery Corp., 332 U.S. at 196–97 ("We must know what [an

agency] decision means before the duty becomes ours to say whether

it is right or wrong." (quoting United States v. Chicago, M., St.

P. & P.R. Co., 294 U.S. 499, 511 (1935))); Harrington v. Chao, 280

F.3d 50, 61 (1st Cir. 2002) (vacating and remanding "is a proper

remedy when an agency fails to explain its reasoning adequately.").

In Tillery, this court explained that the BIA's decision didn't

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"adequately explain its conclusion" -- it provided the legal

framework, but then stated only a cursory conclusion with no

explanation or legal reasoning. 821 F.3d at 185. And so, in

vacating and remanding, the Tillery court concluded that "[i]t is

within the agency's realm to elucidate its rationale, and the BIA's

failure to do so hinders meaningful judicial review in this case."

Id. at 186-87. Indeed, as we've said, "we will accept less than

ideal clarity in administrative findings," but "we ought not to

have to speculate as to the basis for an administrative agency's

conclusion." Renaut, 791 F.3d at 171 (cleaned up).

For me, all of this comes together quite forcefully here

not only to support my own point that the IJ and BIA dropped the

ball in ignoring the extraordinary-and-compelling-circumstances

part of the Matter of Y-L- test, providing no analysis or mention

of it at all, but also to underscore the flawed analogy the

majority strives to make using Owens and Cotter.

Moreover, totally aside from the fact that Owens and

Cotter are horses of completely different colors by virtue of not

resulting from agency action, Cotter involved an order in which

"the district judge ma[de] no findings and [gave] no reasons" at

all, Cotter, 219 F.3d at 34; here, the same can hardly be said for

the IJ and BIA in Sanabria's case because the decisions issued by

those agencies did offer findings and reasons, just not on the

extraordinary-and-compelling-circumstances exception to the test

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each purported to deploy. And remember, in Tillery, we vacated

when the BIA had identified the legal framework for its analysis

but then offered only a cursory conclusion, failing to provide any

reasoning from there -- here, the IJ and BIA provided the legal

framework, but then didn't even offer a cursory conclusion on the

issue as in Tillery, which the court there still deemed inadequate.

821 F.3d at 185.

And beyond that, in Owens, this court, under the "view

the record in the light most favorable to the ruling, drawing all

reasonable inferences in support of the challenged ruling"

standard, inferred enough facts to connect the dots that allowed

affirmance of the denial of a motion to suppress evidence. 167

F.3d at 747. Here, the majority is doing far more than inferring

some connective facts to support a conclusion: rather, a minimum-

showing six-part test went totally ignored by the IJ and BIA, and

the majority performed its own analysis of that test, made its own

findings, and reached its own conclusion.4 That's a far cry from

deferentially reviewing the matter and upholding a district

court's denial of a suppression motion because "it is supported by

4 And to the extent my colleagues in the majority would be
content to conclude the IJ had "implicitly if not explicitly" made
findings on the extraordinary-and-compelling-circumstances issue
here, Sok, 526 F.3d at 54, I still cannot get on board -- as I
just wrote, this was a minimum-showing six-part list of factors
that got no mention by the IJ and BIA, and chalking the ignorance
of that part of the test by both the IJ and BIA up to an implicit
finding is not something this caselaw contemplates.

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any reasonable view of the evidence," Owens, 167 F.3d at 743, and

in a case like this, it is not permitted, see Makieh v. Holder,

572 F.3d 37, 41 (1st Cir. 2009) (instructing that "we should 'judge

the action of the BIA based only on reasoning provided by the

agency, not on grounds constructed by the reviewing court,'" and

"we will remand if the agency fails to state with sufficient

particularity . . . legally sufficient reasons for its decision"

(emphasis added) (quoting Mihaylov v. Ashcroft, 379 F.3d 15, 21

(1st Cir. 2004))). See also Sagaydak v. Gonzales, 405 F.3d 1035,

1040 (9th Cir. 2005) (reasoning that IJs and the BIA are not free

to ignore arguments raised, and so the IJ erred by failing to

consider extraordinary circumstances proffered to excuse an

untimely asylum application).

Along these lines, the majority delves into a discussion

of what Sanabria's evidence and testimony did and did not

demonstrate. In my view, on the facts of this case and in line

with the caselaw I've laid out to this point, this simply goes too

far -- it clearly was the IJ's and BIA's responsibility to do this,

not ours. As everyone seems to agree, we don't have any findings

at all on those circumstances, and it's not our role to jump in

and supply them. Nevertheless, the majority runs through the six

Matter of Y-L- factors, determining this minimum showing was not

met and, as a result, "this record does not compel a conclusion

that Sanabria's conviction met each of these factors and

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demonstrated 'extraordinary and compelling circumstances.'" The

majority elaborates: "The six factors give content to the

"extraordinary and compelling circumstances" test, and we must

abide by them."

Again, this goes much too far. For starters, as I've

said, we, as appellate judges, aren't in the business of making

findings that we then use as a springboard to craft the legal

analysis that should have been conducted below. It is completely

backwards -- and circular, too -- for us to make our own findings

so as to reach our own legal conclusion on an element, then use

that conclusion to determine that the record doesn't compel a

conclusion contrary to the IJ's and BIA's when, by our own

analysis, the IJ's and BIA's conclusions were incomplete. In

other words, we've supplied the complete conclusion to fill the

IJ's and BIA's void below -- that Sanabria had not shown

extraordinary and compelling circumstances -- and we use that to

then say the record below doesn't compel a different conclusion

than the IJ's and BIA's (incomplete) conclusion. This is

nonsensical. And not for nothing, but why is it that we must

"abide by" these six factors that "give content to the

'extraordinary and compelling circumstances' test," but condone

the IJ and BIA ignoring both the complete test and the six factors

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altogether?5 All in all, this approach undertaken by the majority

is very troubling.

In the end, I'd remand. As I've said: the IJ and BIA

erred by not determining whether Sanabria has shown extraordinary

and compelling circumstances, it's not for us to say whether he

made that showing, and we certainly shouldn't be getting into the

business of inferring findings in a case like this. We cannot say

whether the record compels a contrary conclusion on this issue

unless the conclusion we're given in the first place is complete

and offered with the support of analytical reasoning. Remand is

not only the appropriate route, but it is critical to the proper

remedy because it would ensure that each of Sanabria's possible

avenues to relief has been fairly assessed.

5 My colleagues in the majority also take the time to point out
that Sanabria represented himself in the proceedings below. But
this only helps his cause. Not only does it support my earlier-
indicated position that I'd explicitly find this argument
exhausted and properly before us, see, e.g., Dutil v. Murphy, 550
F.3d 154, 158 (1st Cir. 2008) (noting that, "as a general rule, we
are solicitous of the obstacles that pro se litigants face," so we
apply "less demanding standards" to pro se litigants), but also
prompts me to point out that his pro se status does not in any way
lessen the immigration agencies' obligations to enunciate the
reasons for rejecting, or in this case ignoring, his sufficiently
raised arguments.

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