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Arias-Minaya v. Holder

United States Court of Appeals, First Circuit

February 27, 2015

CARLOS MANUEL ARIAS-MINAYA, Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, Respondent

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

Jeffrey B. Rubin, Allan M. Tow, and Rubin Pomerleau, P.C. on brief for petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Eric W. Marsteller, Senior Litigation Counsel, and Juria L. Jones, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before Lynch, Chief Judge, Souter,[1] Associate Justice, and Selya, Circuit Judge.

OPINION

Page 50

SELYA, Circuit Judge.

Petitioner Carlos Manuel Arias-Minaya seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying his request for voluntary departure. After careful consideration, we deny the petition in part and dismiss it in part for want of jurisdiction.

I. BACKGROUND

The relevant facts are easily assembled. The petitioner, a Dominican national, over stayed after entering the United States in 2005 on a six-month visitor's visa. In 2009, the Department of Homeland Security commenced removal proceedings. See 8 U.S.C. § 1227(a)(1)(B). The petitioner conceded removability and cross applied for adjustment of status, see id. § 1255, or voluntary departure, see id. § 1229c.

While the immigration proceedings were pending, the petitioner was arrested and charged in a Massachusetts state court with one count of assault with a dangerous weapon (a knife) and three counts of threatening to commit murder. See Mass. Gen. Laws ch. 265, § 15B(b); id. ch. 275, § 2. The charges arose from a domestic

Page 51

disturbance. The record indicates that when the officers arrived at the scene, the complaining witness (the mother of the petitioner's two children) told the police that the petitioner had repeatedly threatened to kill both her and her children, first by telephone and then in person. The police arrested the petitioner, and a state court thereafter granted the complaining witness a restraining order.

One of the police officers prepared a report documenting the events surrounding the petitioner's arrest. This report chronicled statements made by both the complaining witness and the petitioner.

In the immigration court, the petitioner abandoned his claim for adjustment of status. He continued, however, to press his claim for voluntary departure. The police report was introduced into evidence. At the end of the hearing, the immigration judge (IJ) determined that, even though the criminal charges against the petitioner were still pending in state court, there was no reason to find the police report inaccurate or lacking in probative value. In the IJ's view, the police report reliably disclosed a " very disturbing set of facts" and the petitioner presented a " direct an[d] immediate danger to both his children and the mother of his children." The IJ concluded that these negative factors far outweighed ...


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