CA1 on El Salvador, Gang Membership, Jurisdiction, Hardship, Evidence: Perez-Trujillo v. Garland

Perez-Trujillo v. Garland

"At issue are Nestor Perez-Trujillo's petitions for review of two decisions by the Board of Immigration Appeals ("BIA"): its 2011 ruling affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"); and its 2017 ruling reversing the grant of his application for adjustment of status. We deny his 2011 petition and grant his 2017 petition. ...  [B]ecause Perez-Trujillo has not shown that his proposed group is "generally recognized in the community as a cohesive group," Larios, 608 F.3d at 109 (quoting Mendez-Barrera, 602 F.3d at 26), we must deny his 2011 petition for review as to his application for asylum. And, that being so, we must also deny his petition with respect to his application for withholding of removal [and CAT.] ... Having found no merit to any of the challenges that Perez-Trujillo advances in his 2011 petition for review in support of his asylum, withholding of removal, and CAT claims, we now turn to the 2017 petition. Here, Perez-Trujillo challenges the denial of his application for adjustment of status. ...  Perez-Trujillo's first argument in his 2017 petition is that the BIA's past precedent in Matter of Arai, 13 I. & N. Dec. 494 (B.I.A. 1970), requires the agency to consider the hardship an individual will suffer if denied adjustment of status and that it failed to do so here. And, an argument that the BIA has "departed from its settled course of adjudication" in the process of making a discretionary determination is a type of legal challenge that we have previously reviewed. See Thompson v. Barr, 959 F.3d 476, 490 (1st Cir. 2020). We thus see no basis for concluding that Perez-Trujillo's first argument is not a legal one insofar as it is premised on the contention that the BIA failed to consider a factor it was legally required to consider. ... [T]he government is right that we have no jurisdiction to re-weigh the evidence of hardship. But, a reweighing could only occur if there had been a weighing of that evidence in the first place. And, here, we conclude that there was no weighing of that evidence at all. We thus reject the government's argument that the BIA, in overturning the immigration judge's ruling granting Perez-Trujillo adjustment of status, did consider hardship as he contends that it was required to do under Matter of Arai. And, as the government offers no argument as to how the BIA's ruling may be sustained notwithstanding that failure on its part, we must vacate and remand it for further consideration. ... Perez-Trujillo's 2011 petition is denied, but his 2017 petition is granted. We thus vacate the BIA's 2017 decision overturning the ruling by the immigration judge granting him adjustment of status and remand it to the agency for further proceedings."

[Hats off to Gregory Romanovsky and SangYeob Kim, with whom Gilles Bissonnette, Romanovsky Law Offices, and American Civil Liberties Union of New Hampshire were on brief, for petitioner; Nancy Kelly and John Willshire-Carrera on brief for Greater Boston Legal Services, amicus curiae; and Deirdre M. Giblin on brief for Massachusetts Law Reform Institute, amicus curiae!]