Hernandez v. Garland

19-2044, 21-6533
Hernandez v. Garland

United States Court of Appeals
for the Second Circuit

August Term 2022
Argued: September 12, 2022
Decided: April 21, 2023

Nos. 19-2044, 21-6533

OSCAR HERNANDEZ, AKA JORGE CORRIENTEZ PEREZ,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.

On Appeal from the Board of Immigration Appeals

Before: WALKER, POOLER, and PARK, Circuit Judges.

Petitioner Oscar Hernandez appeals from the denial of his
application for cancellation of removal by the Board of Immigration
Appeals (“BIA”). After an immigration judge (“IJ”) initially granted
cancellation, the BIA reversed, determining that Hernandez was
statutorily eligible for cancellation but did not merit a favorable
exercise of the agency’s discretion in light of his criminal history—
namely, his two convictions for domestic violence. Hernandez
objects to the BIA’s characterization of his criminal history, arguing
that it impermissibly engaged in factfinding and reevaluated the IJ’s
factual findings. But the BIA did not second-guess the IJ’s factual
findings or find facts of its own—it conducted a de novo reweighing of
the equities based on the facts found by the IJ. The BIA thus
properly exercised its discretion to deny cancellation of removal, and
we DISMISS the petition because we lack jurisdiction to review that
discretionary decision.
Judge Pooler dissents in a separate opinion.

MARIA DA SILVA, Skadden, Arps, Slate, Meagher & Flom
LLP and Affiliates, New York, N.Y. (Colm McInerney,
Skadden, Arps, Slate, Meagher & Flom LLP and
Affiliates, New York, N.Y.; Massiel Leiva, Skadden,
Arps, Slate, Meagher & Flom LLP and Affiliates,
Washington, D.C.; Julie Dona, Julia Timerman, The Legal
Aid Society, New York, N.Y., on the brief), for Petitioner.

ALANNA THANH DUONG, Trial Attorney, Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C. (Brian Boynton,
Principal Deputy Assistant Attorney General, Civil
Division, United States Department of Justice,
Washington, D.C.; Jessica A. Dawgert, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.,
on the brief), for Respondent.

PARK, Circuit Judge:

Petitioner Oscar Hernandez appeals from the denial of his
application for cancellation of removal by the Board of Immigration

2
Appeals (“BIA”). After an immigration judge (“IJ”) initially granted
cancellation, the BIA reversed, determining that Hernandez was
statutorily eligible for cancellation but did not merit a favorable
exercise of the agency’s discretion in light of his criminal history—
namely, his two convictions for domestic violence. Hernandez
objects to the BIA’s characterization of his criminal history, arguing
that it impermissibly engaged in factfinding and reevaluated the IJ’s
factual findings. But the BIA did not second-guess the IJ’s factual
findings or find facts of its own—it conducted a de novo reweighing of
the equities based on the facts found by the IJ. The BIA thus
properly exercised its discretion to deny cancellation of removal, and
we dismiss the petition because we lack jurisdiction to review that
discretionary decision.

I. BACKGROUND

Hernandez, a Mexican citizen married to a U.S. citizen, last
entered the United States in 2001. On December 20, 2016, the
Department of Homeland Security served Hernandez with a notice to
appear alleging that he was removable because he was present in the
United States without being admitted or paroled. The notice to
appear followed Hernandez’s second arrest for domestic violence,
which was the latest of several arrests and convictions in Hernandez’s
criminal history.

A. Hernandez’s Criminal History

Hernandez’s most serious criminal convictions both involve
domestic violence. First, Hernandez pleaded guilty to third-degree
assault in 2009 after his former partner reported that he had beaten
her “numerous times with a belt about her body, causing welts,
swelling, bruising and scratches to the back of her legs, thighs and

3
wrist.” App’x at 380. His partner was hospitalized for her injuries.
Hernandez was subjected to an order of protection that required him
to avoid coming within one hundred yards of or communicating with
his partner. The court also ordered Hernandez to participate in
domestic violence prevention classes.

Second, Hernandez pleaded guilty to disorderly conduct after
his wife accused him of domestic violence in 2016. His wife reported
two different incidents. On April 15, 2016, she told police that
Hernandez had “pushed her towards the wall” during an argument,
“causing [her] to fall on the ground.” App’x at 365. Then
Hernandez “kick[ed] [her] about her body,” “punched her in the chest
multiple times,” and strangled her. Id. The attack caused
“substantial pain,” “bruises,” and “redness to the . . . neck.” Id.

Hernandez’s wife also told the police that during a different
argument on October 10, 2016, Hernandez “threw his cell phone
towards [her] face, striking [her] under the eye and causing
substantial pain, bruises and swelling.” Id. The altercation
occurred in front of the couple’s two-year-old daughter. After his
conviction in 2016, Hernandez was again subjected to an order of
protection in favor of his wife and children, which prevented him
from seeing his children for a time.

In addition to his domestic violence convictions, Hernandez
has been convicted once for driving under the influence and three
times for driving with a suspended license. Hernandez was also
once arrested following an argument with an employee at a
supermarket.

4
B. Initial Immigration Proceedings

Following his conviction in 2016, the Department of Homeland
Security sought to remove Hernandez. Hernandez conceded his
removability but applied for cancellation of removal. The IJ denied
Hernandez’s application, finding that his 2009 domestic-violence
conviction was a crime of moral turpitude that made him statutorily
ineligible for relief. That conviction, however, was subsequently
vacated and substituted with a conviction for attempted reckless
assault. As a result, the BIA vacated the IJ’s decision.

On remand, the IJ granted Hernandez’s application for
cancellation of removal. The IJ found that Hernandez was
statutorily eligible for cancellation of removal and merited such relief
as a matter of discretion. The IJ referenced Hernandez’s explanation
of the 2016 domestic-violence conviction at his hearing. Specifically,
Hernandez testified that his wife had “confronted [him]” with “a
picture on his cellphone from some co-workers that were having a
‘stripper show’ at the restaurant they work[ed] at.” Id. at 229. They
had an argument during which Hernandez “thr[ew] his cellphone,
but it did not hit [his wife].” Id. at 230. Hernandez’s wife told him
that he “was going to regret it.” Id. “[T]he next morning[,] [he]
woke up to two police officers at his house who then arrested him.”
Id.

The IJ also cited an affidavit from Hernandez’s wife in support
of his application for cancellation of removal. The affidavit
described the 2016 arrest as follows:

In October 2016, I told the police that Oscar harmed me
because I was very jealous and angry about a picture I
saw of him with some dancers. But Oscar has never

5
 hurt me or our children and we desperately want him to
be able to live with us again. He is never violent and
when I lose my temper, he always tries to walk away
until I am more calm.
Id. at 430. Hernandez’s wife did not testify. The IJ found that
Hernandez “testified credibly” without elaboration. Id. at 234. The
IJ concluded that “based on the totality of the circumstances, the
positive equities outweigh the negative factors” such that Hernandez
“merit[ed] a favorable exercise of discretion.” Id. at 238. The IJ
found that “[d]espite his criminal history, [Hernandez] . . . made
ongoing efforts to rehabilitate himself . . . [and] demonstrated sincere
remorse for his arrests.” Id.

C. BIA Proceedings

The Department of Homeland Security appealed the IJ’s
decision to grant cancellation of removal. The BIA explained that it
“review[ed] the findings of fact, including the determination of
credibility . . . under the ‘clearly erroneous’ standard . . . [and] all
other issues, including issues of law, discretion, or judgment, under
the de novo standard.” Special App’x at 7 (citations omitted). The
BIA then found “upon . . . de novo review” that Hernandez did not
“warrant[] relief in the exercise of discretion.” Id. at 10.

The BIA based its decision on Hernandez’s criminal history. It
explained that “[Hernandez’s] six criminal convictions, and the
circumstances surrounding those convictions, are extremely serious,”
especially because two “occurred after [Hernandez] exhibited violent
conduct toward his spouse, resulting in protective orders.” Id.
After the 2009 arrest, Hernandez “continued to engage in violent
behavior,” as demonstrated by “his most recent arrest in 2016, which

6
included abusive behavior toward his spouse.” Id. The BIA “d[id]
not find” Hernandez’s explanation of the 2016 incident “convincing”
because Hernandez “admitted . . . that he threw his phone at his wife,
but did not think the phone would harm her,” and “plead[ed] guilty
to, and was convicted of, disorderly conduct.” Id. The BIA also
discounted Hernandez’s wife’s affidavit because it “d[id] not claim
that [she] misrepresented [Hernandez’s] conduct to the police, which
resulted in his arrest.” Id. at 11.

Hernandez moved for reconsideration, arguing that the BIA
“engaged in impermissible fact finding” and found certain of the IJ’s
factual findings “clearly erroneous” without “explain[ing] why.”
App’x at 17. Specifically, Hernandez argued that the BIA’s
descriptions of his 2016 arrest as involving “abusive behavior,”
“violent conduct toward his spouse,” or “violent behavior”
constituted impermissible factfinding or reversal of the IJ’s findings
of fact absent clear error. Id. at 29 (citation omitted). Hernandez
also pointed to the BIA’s statement that it did not find Hernandez’s
explanation of the incident “convincing,” id. at 35 (citation omitted),
and its characterization of his wife’s affidavit as not admitting
deception, id. at 37.

The BIA denied the motion for reconsideration. It
“disagree[d] with [Hernandez’s] characterization of [its] decision as
engaging in fact-finding,” and explained that its decision “weigh[ed]
[Hernandez’s] equities with his negative factors, taking into account
the Immigration Judge’s factual findings regarding [Hernandez’s]
criminal history.” Special App’x at 3 (emphasis added). In
particular, the BIA explained that it had relied on Hernandez’s
“admi[ssion]” that he “thr[ew] his phone at his wife when he was last

7
arrested,” as well as his guilty plea to “disorderly conduct,” in
weighing the 2016 arrest. Id. at 3 n.1.

Hernandez timely petitioned this Court for review. 1

II. DISCUSSION

A. Legal Standards

“[C]ancellation of removal is a two-step process,” requiring
both “statutory eligibility” and the agency’s favorable exercise of its
“discretion.” Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir. 2006).
No party contests Hernandez’s statutory eligibility on appeal, so only
the second step is at issue. “[U]nder BIA precedent, the agency
regularly balances many positive and adverse factors in deciding how
to exercise its discretion.” Argueta v. Holder, 617 F.3d 109, 113 (2d
Cir. 2010). “Among the factors deemed adverse to an alien is the
existence of a criminal record.” Id. (quoting In re C-V-T, 22 I. & N.
Dec. 7, 11 (B.I.A. 1998)) (alterations omitted). “[A]ctual granting of
relief is not a matter of right under any circumstances but rather . . . a
matter of grace.” Rodriguez, 451 F.3d at 62 (quoting I.N.S. v. St. Cyr,
533 U.S. 289, 307-08 (2001)) (alterations omitted).

When reviewing an IJ’s decision, the BIA reviews factual
findings for clear error and “questions of law, discretion, and
judgment and all other issues . . . de novo.” 8 C.F.R. § 1003.1(d)(3).
The BIA should “not engage in factfinding in the course of deciding

1 Hernandez initially petitioned for review of the BIA’s decision
before the BIA had resolved his motion for reconsideration. We stayed the
case pending the BIA’s decision. After the BIA denied the motion,
Hernandez petitioned for review again. We consolidated the petitions
and now resolve both.

8
cases, except that the Board may take administrative notice of facts
that are not reasonably subject to dispute.” Id.

The BIA may reconsider an IJ’s discretionary decisions de novo.
“In determining whether established facts are sufficient to meet a
legal standard, the Board is entitled to weigh the evidence in a manner
different from that accorded by the Immigration Judge.” Alom v.
Whitaker, 910 F.3d 708, 712 (2d Cir. 2018) (cleaned up); see also Hui Lin
Huang v. Holder, 677 F.3d 130, 138 (2d Cir. 2012) (noting that the
weight of the evidence “lies largely within the discretion of the
agency” (quoting Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 342
(2d Cir. 2006)) (alterations omitted)). But “if incomplete findings of
fact are entered by an IJ and the BIA cannot affirm the Immigration
Judge’s decision on the basis that he or she decided the case and if the
dispositive issue is not sufficiently clear,” the BIA should “remand to
the IJ for further fact-finding.” Padmore v. Holder, 609 F.3d 62, 67 (2d
Cir. 2010) (cleaned up).

Our jurisdiction to review the denial of cancellation of removal
is limited to constitutional claims and questions of law. 8 U.S.C.
§ 1252(a)(2)(B)(i), (D); accord Barco-Sandoval v. Gonzales, 516 F.3d 35,
39-40 (2d Cir. 2008). “[W]e are obliged to dismiss any claim . . . that
‘essentially disputes the correctness of the agency’s factfinding or the
wisdom of its exercise of discretion.’” Alvarez v. Garland, 33 F.4th
626, 637 (2d Cir. 2022) (quoting Barco-Sandoval, 516 F.3d at 39)
(alterations omitted). But we may review “a claim that the agency
applied ‘a legally erroneous standard’ in denying discretionary
relief,” id. (quoting Barco-Sandoval, 516 F.3d at 39), as long as it is not
an “insubstantial or frivolous . . . attempt to overcome a lack of
jurisdiction” by rhetoric alone, Argueta, 617 F.3d at 113 (cleaned up).

9
 “[W]hen analysis of the arguments raised by the petition for
judicial review reveals that they do not in fact raise any reviewable
issues, the petitioner cannot overcome this deficiency” merely by
invoking “the rhetoric of a ’constitutional claim’ or ‘question of law.’”
Xiao Ji Chen, 471 F.3d at 329-30; accord Barco-Sandoval, 516 F.3d at 39.
Otherwise, “legal alchemy” alone could generate a reviewable
question. Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir. 2006).

B. Analysis

Hernandez argues that the BIA conducted its own factfinding
and impermissibly overruled the IJ’s factual findings without
applying the clear-error standard. Hernandez points to four
statements by the BIA: (1) it “d[id] not find [Hernandez’s]
explanation” of the 2016 incident “convincing,” (2) Hernandez
“admitted . . . that he threw his phone at his wife,” (3) Hernandez
“engage[d] in . . . harmful conduct” and “violent” or “abusive
behavior,” and (4) Hernandez’s wife “d[id] not claim that [she]
misrepresented [his] conduct to the police.” App’x at 115-16. We
disagree and conclude that the BIA did nothing more than reweigh
the evidence.

10
 1. Hernandez’s Unconvincing Explanation

Hernandez’s primary argument is that the BIA’s description of
his “explanation” of the 2016 arrest as not “convincing”
impermissibly overruled the IJ’s decision to credit his testimony.
Appellant’s Br. at 22 (citation omitted). But the BIA’s use of the
word “convincing” does not mean that it questioned Hernandez’s
credibility.

The parties’ arguments turn on an ambiguity in the BIA’s initial
decision. “Convincing” means “[c]ausing one to believe that
something is true or right; persuasive.” Convincing, Black’s Law
Dictionary (11th ed. 2019). Hernandez argues that the BIA meant
that his explanation that the 2016 arrest was based on nonviolent
conduct was not convincing (i.e., truthful). But according to the
government, the BIA meant that it was not convinced (i.e., persuaded)
that Hernandez warranted discretionary relief.

When the BIA’s language is ambiguous, we read the relevant
language “in the context of the rest of the BIA’s opinion.” Noble v.
Keisler, 505 F.3d 73, 80 (2d Cir. 2007). Here, the context clarifies that
the BIA did not overturn the IJ’s factual findings.

First, the BIA “adhered to the IJ’s credibility determination”
rather than questioning it. Id. The BIA did not mention, much less
rely on, the serious allegations surrounding the 2016 arrest that
Hernandez denied. These included allegations that Hernandez
pushed, kicked, punched, and strangled his wife in one incident, then
threw a cell phone at her with such force that it caused bodily injury
in another. If the BIA had credited these factual allegations, it would
have relied on them as compelling evidence of his unfitness for
discretionary relief. But it did not. Instead, it cited only aspects of

11
Hernandez’s conduct that the IJ referenced and that Hernandez
affirmatively admitted—i.e., his throwing of his phone, guilty plea,
and protective order. Compare Wallace v. Gonzalez, 463 F.3d 135, 141
(2d Cir. 2006) (“declin[ing] to construe [a] statement as an
impermissible finding of facts” when “[t]he BIA did not reject any
factual determination of the IJ” but instead “recounted the IJ’s
findings”), with Padmore, 609 F.3d at 68 (holding that the BIA relied on
“impermissible appellate factfinding” when it “reverse[d] the IJ . . .
based on disputed material facts with respect to which the IJ reached
no resolution”).

Second, the context clarifies that the BIA doubted Hernandez’s
discretionary merit, not his truthfulness. The BIA began by stating
that “upon [its] de novo review, [it did] not agree with the
Immigration Judge that [Hernandez] warrant[ed] relief in the exercise
of discretion.” Special App’x at 10. It concluded that “[i]n light of
the foregoing, [it did] not agree . . . that [Hernandez] demonstrated
sufficient rehabilitation and remorse” to “warrant relief in the
exercise of discretion.” Id. at 11. Between those statements, the BIA
weighed many of the equities, including Hernandez’s explanation
that did not convince the BIA that the equities weighed in his favor.
See id. at 10-11. 2 The context thus included a discussion of the factors
relevant to discretionary relief, not credibility, which indicates that
the object of the BIA’s doubt was the former. Cf. Noble, 505 F.3d at
79-80 (affirming because an ambiguous statement, in context, was

2 In the same three-paragraph discussion, the BIA noted
Hernandez’s five other criminal convictions (particularly the disturbing
facts of his 2009 conviction), his decision to turn himself in following the
2009 incident, his efforts to rehabilitate himself by seeking substance abuse
treatment, his familial ties, and his employment history.

12
merely “part of the process by which the BIA” permissibly weighed
equities, rather than finding facts).

Third, the BIA resolved any remaining doubt by explaining the
basis for its decision when denying Hernandez’s motion for
reconsideration. The BIA responded to the same arguments
Hernandez raises now on appeal by “disagree[ing] with [his]
characterization of [the BIA’s] decision.” Special App’x at 3. It
explained that it “exercised [its] de novo review authority to
determine whether [Hernandez] . . . merit[ed] relief in the exercise of
discretion” rather than “engaging in fact-finding.” Id. As
evidence, the BIA noted that its decision relied only on the aspects of
the 2016 incident that Hernandez admitted. Id. at 3 n.1. Of course,
the BIA must not only state the correct standard, but apply it. See
Chen v. Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 515 (2d Cir.
2006) (remanding when “the BIA used the phrase ‘clearly erroneous’
in its opinion” but “in fact” assessed credibility de novo). But when
there is genuine ambiguity, the BIA’s clarification is helpful. See
Noble, 505 F.3d at 79-80 (crediting the BIA’s explanation of its own
decision); Wallace, 463 F.3d at 140-41 (same).

We conclude that Hernandez’s argument rests on
“mischaracteriz[ations]” of “the nature of the agency’s decision” to
generate a legal issue, and thus lies “beyond our jurisdiction.” Noble,
505 F.3d at 78. “[A] review of the factual record by the BIA does not
convert its discretionary determination as to whether a petitioner
warrants discretionary relief into improper factfinding.” Padmore,
609 F.3d at 68 (quoting Wallace, 463 F.3d at 141) (alterations omitted).

13
 2. Hernandez’s Cell Phone

Hernandez also argues that the BIA erred by stating that he had
“admitted . . . that he threw his phone at his wife,” App’x at 115, when
the IJ’s finding was “simply” that he “threw the phone,” Appellant’s
Br. at 24. But the BIA did not so err, and if it had, any error would
be harmless.

The BIA drew a logical inference from the IJ’s factfinding and
Hernandez’s own testimony. According to the IJ, Hernandez
“testified that he did throw his cellphone, but it did not hit” his wife.
App’x at 230. In his cross-examination, Hernandez said that he
“threw the phone, but . . . [his wife] didn’t even catch the phone or
touch the phone.” Id. at 326. He also told the police that he “didn’t
think [the phone] was going to hit [his wife].” Id. at 327. These
statements make sense only if—at a minimum—Hernandez threw his
phone in his wife’s general direction. If he had thrown his phone at
a wall or to the ground, he would have said so. We see no error in
the BIA’s drawing this logical inference.

Even if the BIA’s description were wrong, any inconsistency
would be inconsequential. “[T]he agency does not commit an ‘error
of law’ every time an item of evidence . . . is described with imperfect
accuracy.” Mendez v. Holder, 566 F.3d 316, 323 (2d Cir. 2009)
(contrasting evidence that is “totally overlooked” or “seriously
mischaracterized”); accord Banegas Gomez v. Barr, 922 F.3d 101, 110 (2d
Cir. 2019). Hernandez’s argument amounts to a complaint that the
BIA used an incorrect preposition—i.e., throwing his phone “at” his

14
wife, instead of “around”—and does not bring his petition within our
jurisdiction to consider questions of law. 3

Moreover, “[m]inor errors . . . do not require remand” when
remand “would be pointless or futile, such as where there is an
alternative and sufficient basis for the result, [or] the error is
tangential to non-erroneous reasoning.” De La Rosa v. Holder, 598
F.3d 103, 108 (2d Cir. 2010). “The general rule is that the Court must
be confident that the agency would reach the same result upon a
reconsideration cleansed of errors.” Id. (cleaned up). Here, it is
clear that the BIA would not reevaluate its weighing of the equities
based on the correction that Hernandez proposes, as it already
explained in denying his motion for reconsideration. The BIA found
the 2016 incident troubling because of Hernandez’s throwing of a
phone during an argument, guilty plea to disorderly conduct, and
subjection to a protective order—not just the direction in which the
phone was thrown. See Special App’x at 10-11. In addition, the BIA
considered other factors, including Hernandez’s previous “extremely
serious” convictions. Id. at 10.

3. Hernandez’s Harmful, Violent, or Abusive Conduct

Hernandez next argues that the BIA incorrectly characterized
the 2016 incident as reflecting “harmful,” “violent,” or “abusive”
conduct. Appellant’s Br. at 24-27. But the record supported the
BIA’s characterization. Taking only the allegations to which
Hernandez admitted—which, again, were the only allegations on

3 See, e.g., Banegas Gomez, 922 F.3d at 110; Medrano Medrano v.
Garland, 852 F. App’x 586, 587-89 (2d Cir. 2021); Roldan v. Barr, 820 F. App’x
77, 78-79 (2d Cir. 2020); Barros v. Barr, 797 F. App’x 635, 638-39 (2d Cir. 2020).

15
which the BIA relied—Hernandez threw his phone in an argument
with his wife, leading to his arrest, his guilty plea to a charge, and his
subjection to a protective order that prevented him from seeing his
children. This conduct was undoubtedly “harmful,” and the BIA
could permissibly view it as abusive and violent, especially in light of
Hernandez’s history of domestic violence. Special App’x at 10.

4. Hernandez’s Wife’s Statement

Finally, Hernandez argues that the BIA erred by noting that his
wife did “not claim that [she] misrepresented [his] conduct to the
police.” Id. at 11. But this was correct. Her affidavit stated that
she reported Hernandez to the police “because [she] was very
jealous,” but that Hernandez “never hurt [her] or [their] children” and
“is never violent.” App’x at 430. Those statements are in tension
with her police report, but they do not admit deceiving the police.
The BIA merely observed that that failure diminished the persuasive
value of the affidavit, especially because Hernandez had already
admitted to some of the conduct that the police report alleged. See
Special App’x at 11. The BIA has discretion to evaluate the weight
of the evidence, which includes the discretion to consider both its
strengths and weaknesses. See Hui Lin Huang, 677 F.3d at 138.

III. CONCLUISON

Hernandez’s arguments attempt to use the “nomenclature” of
a legal claim to obtain review of a “mere quarrel over the . . .
discretionary choices made by the agency, a quarrel that we lack

16
jurisdiction to review.” Barco-Sandoval, 516 F.3d at 42 (cleaned up).
We thus dismiss his petitions. 4

4 Respondent clarified at oral argument that he seeks dismissal, not
just denial, of Hernandez’s petitions. We conclude that the BIA did not
err in reversing the IJ’s grant of cancellation of removal, so we also conclude
that the BIA did not err in denying Hernandez’s motion for reconsideration.

17
 1 POOLER, Circuit Judge, dissenting:

2 Standards matter. A standard of review is the essential mechanism that

3 defines an appellate court’s proper role in reviewing the record presented. All

4 appellate courts must adhere to the proper standard of review. The Board of

5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA

6 applied a standard that substantially deviated from the clear error standard and

7 improperly made factual findings that contradicted those made by the

8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is

9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108

10 (2d Cir. 2010). Accordingly, I respectfully dissent.

11 This Court lacks jurisdiction to review purely discretionary decisions by

12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over

13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d

14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will

15 not engage in de novo review of findings of fact determined by an immigration

16 judge. Facts determined by the immigration judge, including findings as to the

17 credibility of testimony, shall be reviewed only to determine whether the

18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §

1
 1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8

2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]

3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also

4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will

5 vacate BIA decisions “that result from flawed reasoning or the application of

6 improper legal standards”). Though the BIA “may review questions of law” and

7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred

8 from “engag[ing] in factfinding in the course of deciding cases” aside from

9 taking “administrative notice of facts that are not reasonably subject to dispute,”

10 § 1003.1(d)(3)(iv)(A).

11 Here, the BIA recited the precise legal standard at the beginning of its May

12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply

13 “rely on the Board’s invocation of the clear error standard; rather, when the issue

14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed

15 the clear error standard or engaged in improper de novo review of the IJ’s factual

16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.

17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that

18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]

2
 1 failed to apply this deferential standard of review”). Despite its invocation of the

2 clear error standard, the BIA did not ultimately apply this standard of review to

3 Oscar Hernandez’s case. Merely reciting the standard does not transform the

4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip

5 service should not suffice.

6 The majority opinion characterizes the BIA’s impermissible factfinding as a

7 simple “de novo reweighing of the equities based on the facts found by the IJ.”

8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as

9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and

10 substituted the facts found by the IJ with its own factual findings. If the BIA

11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”

12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).

13 The BIA completely disregarded the IJ’s credibility determination when it

14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]

15 explanation convincing” regarding the circumstances of his 2016 arrest. Special

16 App’x at 10. This divergence in characterization of the 2016 incident was central

17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”

18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the

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 1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s

2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an

3 unconvincing distinction. Next, the majority suggests the BIA doubted that

4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.

5 Id. at 12. That clarification, however, does not do much to support the majority’s

6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a

7 favorable exercise of discretion was premised on its factual determination that he

8 had “continued to engage in violent behavior” following his first arrest and

9 conviction in 2009. Special App’x at 10. The only evidence cited for this

10 determination was that Hernandez’s “most recent arrest in 2016 . . . included

11 abusive behavior toward his spouse”—a characterization directly at odds with

12 the IJ’s findings. Special App’x at 10.

13 During Hernandez’s hearing, the IJ spent significant time probing the

14 allegations of the 2016 incident that resulted in the disorderly conduct violation.

15 In his testimony, Hernandez vigorously disputed harming his wife, and testified

16 that his lawyer advised him to plead to disorderly conduct, “whether it’s true or

17 it’s not true,” so that he could return home. App’x at 325. The IJ probed

18 Hernandez’s testimony, posing numerous follow-up questions about the

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 1 underlying allegations. When the IJ asked specifically about the allegation that

2 Hernandez threw his phone at his wife’s face, Hernandez acknowledged

3 throwing the phone in frustration during the dispute. But he consistently

4 maintained he did not intend for the phone to hit her, and the phone did not, in

5 fact, touch her. After considering this testimony, as well as Hernandez’s

6 demeanor, candor, and responsiveness, the IJ noted Hernandez’s “consisten[cy]

7 on direct and cross-examination” and found him to be credible. App’x at 234. In

8 summarizing the 2016 incident, the IJ wrote, “[Hernandez] testified that he did

9 throw his cellphone, but it did not hit her.” App’x at 230.

10 Regarding the 2016 incident, the BIA engaged in prohibited fact-finding by

11 adding additional words and making unsubstantiated logical leaps when it

12 stated that Hernandez “admitted on cross-examination that he threw his phone

13 at his wife.” Special App’x at 10 (emphasis added). The BIA inappropriately

14 added a pivotal and directional word: “at.” The majority maintains that the BIA

15 “drew a logical inference,” and that even if an “incorrect preposition” was used,

16 “any inconsistency would be inconsequential.” Maj. Op. at 14. However, the

17 BIA’s insertion of the preposition serves as definitive proof that the BIA made its

18 own determination about Hernandez’s conduct and credibility. See De La Rosa,

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 1 598 F.3d at 107 (stating that the BIA “appears to have made its own factual

2 findings” where its “characterization of facts deriving from the evidentiary

3 record is demonstratively at odds with factual findings made by the IJ, including

4 several directly inconsistent findings”).

5 In addition to its characterization of the 2016 incident, the BIA also

6 misconstrued a letter that Hernandez’s wife, Johana Hernandez Vasquez,

7 submitted in support of her husband’s character to the IJ. Her statement stated:

8 I told the police that Oscar harmed me because I was very jealous and
9 angry about a picture I saw of him with some dancers. But Oscar has never
10 hurt me or our children and we desperately want him to be able to live
11 with us again. He is never violent and when I lose my temper, he always
12 tries to walk away until I am more calm.
13 App’x at 430 (emphasis added). The BIA noted that “while the respondent’s wife

14 wrote a statement in support of the respondent’s character, she does not claim

15 that [she] misrepresented the respondent’s conduct to the police, which resulted

16 in his arrest.” Special App’x at 11. The court documents for the incident stated

17 that Hernandez “pushed her towards the wall,” “punched her in the chest

18 multiple times,” and “placed his hands on [Hernandez Vasquez’s] neck and

19 applied pressure.” App’x at 365. Therefore, the BIA’s statement that Hernandez

20 Vasquez did not “misrepresent” the conduct she had reported completely

21 mischaracterizes what her statement said. See Special App’x at 11. Hernandez

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 1 Vasquez’s written statement that “Oscar has never hurt me” serves as a complete

2 retraction of her past statement to the police. App’x at 430.

3 The BIA is not permitted to substitute its own view of the facts by filling in

4 gaps, thereby rejecting the IJ’s factual findings without overtly doing so. By

5 disregarding the IJ’s credibility determination without holding it to be clearly

6 erroneous, the BIA exceeded the bounds of its appropriate review. See Chen, 470

7 F.3d at 514. The majority asserts that the BIA properly relied on the IJ’s factual

8 findings and merely “conducted a de novo reweighing of the equities.” Maj. Op.

9 at 3. It argues that the BIA is permitted to weigh the impact of the evidence

10 differently from the IJ. See Maj. Op. at 9. However, as support for the BIA’s

11 finding that Hernandez’s “violent conduct” and “abusive behavior” gave rise to

12 his 2016 disorderly conduct violation, the BIA did not cite to the IJ’s decision, but

13 rather to allegations that the IJ found credibly refuted. Special App’x at 10. The

14 BIA even accepted uncorroborated statements from the 2016 disorderly conduct

15 violation charging documents as fact. See Padmore, 609 F.3d at 69 (articulating

16 that the IJ may not base denial “upon the assumption that the facts contained in

17 [charging] documents are true”). But the Department of Justice has explained

18 that immigration judges—not the BIA—“are generally in the best position to

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 1 make determinations as to the credibility of witnesses,” as they are “aware of

2 variations in demeanor and tone of voice that bear so heavily on the listener’s

3 understanding of and belief in what is said.” Board of Immigration Appeals:

4 Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,889

5 (Aug. 26, 2002) (“BIA Procedural Reforms”).

6 The majority’s argument works better in theory than in application. Had

7 the BIA rested its reweighing of the factors only on facts found by the IJ—for

8 instance, the fact that Hernandez has six criminal convictions—there would be

9 no issue. The problem is that the BIA denied discretionary relief not because

10 Hernandez had been convicted, but because it characterized the facts underlying

11 those convictions—specifically, its determination that the 2016 arrest “included

12 abusive behavior” and “violent conduct;” that the IJ’s “accept[ance of

13 Hernandez’s] explanation that he peacefully went to bed and woke up to the

14 police arresting him” was at odds with Hernandez’s “admi[ssion] on cross-

15 examination that he threw his phone at his wife;” that “despite his testimony that

16 he was asleep and did not engage in any harmful conduct, [Hernandez] plead

17 [sic] guilty to, and was convicted of, disorderly conduct;” and that “while

18 [Hernandez Vasquez] wrote a statement in support of [Hernandez’s] character,

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 1 she does not claim that [she] misrepresented [his] conduct to the police.” Special

2 App’x at 10-11. This is not a case where the BIA “adher[ed] to the IJ’s credibility

3 determination,” yet deviated from the IJ’s weighing of the equitable factors. See

4 Noble, 505 F.3d at 76; see also Lin, 813 F.3d at 127 (“If the [IJ’s] account of the

5 evidence is plausible in light of the record viewed in its entirety, the [BIA] may

6 not reverse it even though convinced that had it been sitting as the trier of fact, it

7 would have weighed the evidence differently.” (internal quotation marks

8 omitted)). The decision whether to credit Hernandez’s explanation of the 2016

9 arrest was for the IJ to make, not the BIA. There is, after all, “a difference

10 between weighing the factual findings of the IJ and reweighing the underlying

11 evidence and testimony behind those factual findings to reach new factual

12 conclusions.” Waldron v. Holder, 688 F.3d 354, 361 (8th Cir. 2012); see also BIA

13 Procedural Reforms, 67 Fed. Reg. at 54,890 (“What have historically been referred

14 to as ‘equities’ are facts that the respondent establishes in his . . . case, and these

15 factual determinations by an immigration judge may be reviewed by the Board

16 only to determine if they are clearly erroneous.”). Though the BIA’s

17 characterization of Hernandez’s 2016 arrest may be reasonable, it does not excuse

18 the BIA from applying the improper standard of review. The BIA is permitted to

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1 “consider[] and reject[] the evidence,” Wang v. Bd. of Immigr. Appeals, 437 F.3d

2 270, 275 (2d Cir. 2006); what the BIA categorically cannot do is supplement and

3 alter the evidence to suit its reasoning. That is precisely the situation that

4 occurred in this case. For these reasons, I respectfully dissent from the majority

5 opinion.

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