United States Court of Appeals
`For the First Circuit
`
`
`
`
`Nos. 21-1045 & 21-1616
`
`ADEKUNLE OLUWABUMWI ADEYANJU,
`
`Petitioner,
`
`v.
`
`MERRICK B. GARLAND, Attorney General of the United States,
`
`
`
`
`
`
`
`
`Respondent.
`
`
`PETITIONS FOR REVIEW OF AN ORDER OF
`THE BOARD OF IMMIGRATION APPEALS
`
`
`
`Before
`
`Thompson, Hawkins,* and Barron,
`Circuit Judges.
`
`
`SangYeob Kim, with whom Ronald L. Abramson, Emily Assunta
`White, Shaheen & Gordon P.A., Gilles Bissonnette, Jennifer Lyon,
`and American Civil Liberties Union of New Hampshire, were on brief,
`for petitioner.
`Lindsay Corliss, Trial Attorney, Office of Immigration
`Litigation, with whom Brian Boynton, Acting Assistant Attorney
`General, Civil Division, John S. Hogan, Assistant Director, Office
`of Immigration Litigation, and Kiley Kane, Senior Litigation
`Counsel, Office of Immigration Litigation, were on brief, for
`respondent.
`
`
`
`* Of the Ninth Circuit, sitting by designation.
`
`

`

`
`February 24, 2022
`February 24, 2022
`
`
`
`
`

`

`THOMPSON, Circuit Judge. When the Board of Immigration
`
`Appeals ("BIA") considers an appeal, it is bound, as we are, by
`
`certain standards of review. It reviews factual findings of an
`
`Immigration Judge ("IJ") only for clear error. But it is free to
`
`conduct discretionary-relief determinations based on those factual
`
`findings afresh without any deference to the IJ's conclusion. In
`
`today's case, the primary question is where the line lies between
`
`an IJ's factual finding, reviewed for clear error, and a
`
`discretionary judgment call, reviewed by the BIA de novo. We must
`
`consider if the BIA properly applied clear-error review to truly
`
`factual findings. We also consider whether the BIA erred in
`
`refusing to remand this case to the IJ. Agreeing with some, but
`
`not all, of the petitioner's contentions, we grant only in part
`
`one of the petitions for review.
`
`BACKGROUND
`
`We begin by exploring how the parties got here, taking
`
`the facts from the administrative record, including Petitioner
`
`Adekunle Oluwabumwi Adeyanju's testimony before the IJ. See
`
`Martínez-Pérez v. Sessions, 897 F.3d 33, 37 n.1 (1st Cir. 2018).
`
`Adeyanju is a native and citizen of Nigeria who entered
`
`the United States on March 7, 2013, using a B-2 tourist visa.1 He
`
`has resided here ever since, now residing in Maine.
`
`
`1 A "B-2 visa" is available, for example, to "tourists and
`those coming for social visits, health reasons, or participation
`
`- 3 -
`
`

`

`Before his arrival from Nigeria, he submitted at least
`
`two applications for a visa, one in 2010, the other in 2011. In
`
`each, Adeyanju represented that he had a live-in domestic partner
`
`in Nigeria to whom he was engaged. Within a month of his arrival
`
`here, though, Adeyanju met, via an online dating site, Miranda
`
`Raymond, who seven months later, in the autumn of 2013, would go
`
`on to become his first U.S.-citizen wife. About six months after
`
`his marriage, Adeyanju was granted conditional resident status
`
`based on his marriage to a U.S. citizen. The couple subsequently
`
`filed a joint I-751 petition to remove the conditions of his
`
`residency.2
`
`Before the I-751 petition was adjudicated, though, the
`
`marriage apparently deteriorated and by 2015, Adeyanju was no
`
`longer living with Raymond. Instead, he was residing with Rebecca
`
`Dyer, whom he said was, at that time, his roommate. During their
`
`time together, Rebecca became pregnant with Adeyanju's child, who
`
`was born in April 2016.
`
`
`in amateur music and sports events." 1 Charles Gordon et al.,
`Immigration Law and Procedure § 1.03 (2021). It doesn't permit
`employment while in the U.S., and it ordinarily stays valid for at
`least six months. Id.
`
`2 An "I-751 petition" is immigration lingo for the form filed
`jointly by a U.S.-citizen spouse and their qualifying immigrant
`spouse to remove the conditional basis of the immigrant spouse's
`residency. See 4 Gordon et al., supra, § 42.04; see also 8 U.S.C.
`§ 1186a(c). It is filed within the 90-day window before the second
`anniversary of the immigrant spouse's obtaining conditional
`residency. 8 C.F.R. § 216.4(a)(1).
`
`- 4 -
`
`

`

`Also in 2014 and 2015, a number of police reports in
`
`Maine were generated for Adeyanju's behavior towards women. In
`
`short, on at least six occasions, Adeyanju was reported as engaging
`
`in harassing or suspicious behavior towards women as young as
`
`seventeen. Women reported that Adeyanju approached them in public
`
`places and asked them personal questions, including whether they
`
`were in high school. He requested their phone numbers or solicited
`
`them to go out with him, persisting even after the women declined.
`
`Nevertheless, none of these incidents resulted in any arrests or
`
`charges.
`
`In January 2018, the United States Customs and
`
`Immigration Service ("USCIS") notified Adeyanju and Raymond that
`
`it intended to deny their jointly filed I-751 petition and did so
`
`in May 2018.3 In issuing the denial, USCIS reasoned that Adeyanju
`
`intended to commit marriage fraud with Raymond. To support its
`
`finding, USCIS relied on the separate living arrangements, records
`
`of Adeyanju's police encounters involving other women, and
`
`evidence suggesting there was not a "bona fide familial
`
`relationship," including: the lack of knowledge about each
`
`spouse's finances, activities, or personal relationships; the
`
`
`3 When USCIS finds potential evidence that the marriage was
`not bona fide, it may issue a "notice of intent to deny" the
`petition, then giving the immigrant the opportunity to rebut the
`information before issuing the formal denial. 4 Gordon et al.,
`supra, § 42.06.
`
`- 5 -
`
`

`

`failure to file joint tax returns; their failure to go on shared
`
`trips or participate in shared activities; and Adeyanju's
`
`relationship and child with Rebecca. Additionally, according to
`
`USCIS, Raymond told the officer at an interview that Adeyanju lied
`
`to her about why he was marrying her -- not for love, but rather,
`
`to gain an immigration benefit. After the notice of intent to
`
`deny was issued, Raymond disputed USCIS's assertion that she told
`
`a USCIS officer that Adeyanju lied about their marriage and claimed
`
`that the officer had twisted her statements. But USCIS was
`
`unconvinced and rejected Raymond's explanation in the final
`
`denial. The same day the I-751 denial was issued, the Department
`
`of Homeland Security ("DHS") initiated removal proceedings against
`
`Adeyanju.
`
`Three months later, Adeyanju divorced Raymond. And two
`
`months after that, he married Rebecca -- a U.S. citizen and mother
`
`of Adeyanju's U.S.-citizen child. Rebecca then filed an
`
`application for adjustment of Adeyanju's status on the basis of
`
`their marriage and an I-751 waiver petition.4
`
`
`4 An "I-751 waiver" refers to the procedure established in 8
`U.S.C. § 1186a(c)(4). As discussed, an immigrant typically files
`her I-751 petition jointly with her U.S. citizen spouse. But
`Congress recognized that some good-faith marriages nonetheless
`still break down. See Gordon et al., supra, § 42.05. So
`§ 1186a(c)(4) sets forth an option for the Secretary of Homeland
`Security to, in her discretion, waive the requirement that the
`I-751 petition be filed jointly if the immigrant can establish
`certain grounds for relief. As relevant here, one of those grounds
`is that the qualifying marriage "was entered into in good faith
`
`- 6 -
`
`

`

`Not long before the new application was filed, Adeyanju
`
`was arrested in Maine. A woman reported that Adeyanju drove her
`
`home from a local bar because she was too drunk to drive. And she
`
`reported that, on the way to her home, Adeyanju pulled the car
`
`over and raped her. Initially, when the police approached Adeyanju
`
`regarding the allegations, he flat-out denied having sexual
`
`intercourse with the victim. Adeyanju told police that he was
`
`married and was on medication that prohibited him from having
`
`sexual intercourse. Later, though, the victim participated in a
`
`sexual-assault evidence collection procedure, which revealed
`
`physical evidence of sexual intercourse and which harvested a DNA
`
`sample of the assailant. Armed with a search warrant for a sample
`
`of Adeyanju's DNA, police were able to match Adeyanju's DNA to the
`
`sample collected. As a result, Adeyanju was indicted for
`
`kidnapping, as well as two different counts of sexual assault.
`
`LEGAL PRIMER
`
`Given the quirkiness of immigration law, before we
`
`explore the proceedings before the BIA and IJ, we will begin with
`
`a primer on some relevant legal principles to offer some context.
`
`The BIA's regulations set up a procedural hierarchy for
`
`immigration proceedings. Within that hierarchy, the IJ and BIA
`
`
`. . . but . . . has been terminated . . . and the [immigrant] was
`not at fault" in failing to file the joint petition. 8 U.S.C.
`§ 1186a(c)(4)(B). The marriage at issue in the I-751 waiver,
`though, is Adeyanju's marriage to Raymond, not Rebecca.
`
`- 7 -
`
`

`

`have different, but sometimes overlapping, roles. "The IJ has the
`
`front-line duty of finding the facts." Chen v. Holder, 703 F.3d
`
`17, 22 (1st Cir. 2012). On appeal, the BIA's review of the IJ's
`
`factual determinations is circumscribed by regulation. BIA
`
`regulations at the time of the appeal provided that the BIA is
`
`prohibited from "engag[ing] in factfinding in the course of
`
`deciding appeals." 8 C.F.R. § 1003.1(d)(3)(iv) (2020). The BIA
`
`"will not engage in de novo review of findings of fact determined
`
`by an immigration judge." Id. § 1003.1(d)(3)(i). Rather, "[f]acts
`
`determined by the immigration judge, including findings as to the
`
`credibility of testimony, shall be reviewed only to determine
`
`whether the findings of the immigration judge are clearly
`
`erroneous." Id.
`
`To find clear error as to the IJ's findings of fact, the
`
`BIA must be "left with the definite and firm conviction that a
`
`mistake has been committed." Board of Immigration Appeals:
`
`Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54878-
`
`01, 54889 (Aug. 26, 2002) [hereinafter "BIA Reforms"]. "A
`
`factfinding may not be overturned simply because the [BIA] would
`
`have weighed the evidence differently or decided the facts
`
`differently had it been the factfinder." Id. Or, as we've put
`
`it, see id. (noting the regulation's clear-error standard mirrors
`
`that employed by the courts of appeals in non-immigration cases),
`
`to show clear error a challenger "must show that the contested
`
`- 8 -
`
`

`

`finding stinks like 'a 5 week old, unrefrigerated, dead fish,'"
`
`United States v. Baptiste, 8 F.4th 30, 42 (1st Cir. 2021) (quoting
`
`United States v. Rivera-Carrasquillo, 933 F.3d 33, 42 (1st Cir.
`
`2019)). To demonstrate clear error, one "must do more than show
`
`that the finding is 'probably wrong,' for [a court] can reverse on
`
`clear-error grounds only if -- after whole-record review -- [it]
`
`ha[s] 'a strong, unyielding belief' that the judge stumbled."
`
`Rivera-Carrasquillo, 933 F.3d at 42 (quoting Toye v. O'Donnell (In
`
`re O'Donnell), 728 F.3d 41, 46 (1st Cir. 2013)).
`
`When it comes to questions of law, discretion, and
`
`judgment, though, the BIA has the authority to review those
`
`determinations of the IJ de novo. 8 C.F.R. § 1003.1(d)(3)(ii)
`
`(2020).
`
`"Adjustment of status," the application at issue here,
`
`"is a matter of grace, not of right, and the evaluation of such
`
`applications is left to the discretion of the Attorney General."
`
`Wallace v. Gonzales, 463 F.3d 135, 137 (2d Cir. 2006); see 8 U.S.C.
`
`§ 1255(a). There are no "restrictive guide lines for the exercise
`
`of discretion." Matter of Arai, 13 I. & N. Dec. 494, 495 (BIA
`
`1970). In general strokes, the Attorney General (or her designee
`
`in the IJ or BIA) balances the negative equities weighing against,
`
`and the positive equities favoring, an exercise of administrative
`
`discretion. See id. at 495–96. In weighing those equities, the
`
`BIA may "assign the weight it sees fit" to them. Alimbaev v. Att'y
`
`- 9 -
`
`

`

`Gen. of the U.S., 872 F.3d 188, 200 n.10 (3d Cir. 2017); see BIA
`
`Reforms, 67 Fed. Reg. at 54890 ("[T]he weight accorded to
`
`individual factors . . . may be reviewed by the Board de novo.").
`
`The petitioner bears the burden of demonstrating in her removal
`
`proceeding that she satisfies the eligibility requirements and
`
`merits a favorable exercise of discretion. 8 U.S.C.
`
`§ 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d).5 As a discretionary call,
`
`the BIA's review of an IJ's decision granting or denying adjustment
`
`of status is de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2020).
`
`In deciding appeals, the BIA is bound to follow its own
`
`regulations. See Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir.
`
`2008) ("An agency has an obligation to abide by its own
`
`regulations."); see also 8 C.F.R. 1003.1(d)(1) (2020) ("The Board
`
`shall resolve the questions before it in a manner that is . . .
`
`consistent with the Act and regulations.").6 Whether an agency
`
`
`5 Neither the statute nor the regulation clarifies what
`exactly that burden entails. See, e.g., Chaidy v. Holder, 458 F.
`App'x 506, 509 (6th Cir. 2012) (noting that the statute requires
`the immigrant "to prove his eligibility for relief from removal,
`such as adjustment of status, by some unspecified burden"); 4
`Gordon et al., supra, § 51.05 (noting that "the extent of th[e]
`burden has not always been clear").
`
`6 The applicable regulations were amended effective January
`15, 2021. But they "apply only to appeals filed, motions to reopen
`or reconsider filed, or cases remanded to the Board by a Federal
`court on or after the effective date of the final rule." Appellate
`Procedures and Decisional Finality in Immigration Proceedings;
`Administrative Closure, 85 Fed. Reg. 81588, 81588 (Dec. 16, 2020).
`The parties do not clarify whether 8 C.F.R. § 1003.1(d)'s legal
`standards concerning factfinding used in deciding the initial
`appeal applies, or whether, in deciding the motions to reconsider
`
`- 10 -
`
`

`

`fails to follow a regulation raises a question of law. Lumataw v.
`
`Holder, 582 F.3d 78, 85 (1st Cir. 2009). And if we determine the
`
`agency failed to follow the regulations, we may vacate and remand.
`
`See Rotinsulu, 515 F.3d at 72. With those principles in the
`
`backdrop, we forge on.
`
`I.
`
`The IJ's Decision
`
`PROCEEDINGS BELOW
`
`After a hearing before an IJ at which Adeyanju testified,
`
`the IJ granted the application for adjustment of status. The IJ
`
`surveyed the record and determined that Adeyanju had a number of
`
`positive equities weighing in his favor. He had been in the United
`
`States for seven years; has a U.S.-citizen daughter; is gainfully
`
`employed and pays his taxes; and has other family ties in the
`
`United States, including two lawful-permanent-resident sisters and
`
`a U.S.-citizen brother. The IJ also found that Adeyanju was a
`
`credible witness and was candid about his criminal record.
`
`The IJ then considered the negative equities weighing
`
`against discretionary relief as argued by the government's
`
`counsel. He first began by finding that Adeyanju did not commit
`
`
`and reopen filed after January 15, 2021, the BIA had to employ the
`new standard articulated in the amended § 1003.1. In any event,
`we assume the 2020 version of § 1003.1 applies here because
`implementation of the 2021 amendments is currently enjoined. See
`Centro Legal de la Raza v. Exec. Office for Immigr. Rev., 524
`F. Supp. 3d 919, 980 (N.D. Cal. 2021); see also James v. Garland,
`16 F.4th 320, 323 n.2 (1st Cir. 2021).
`
`- 11 -
`
`

`

`fraud in the visa-application process in Nigeria where he stated
`
`that he was engaged to his live-in girlfriend. Rather, the IJ
`
`concluded, Adeyanju's explanation of the circumstances concerning
`
`his supposed engagement and the resulting answers he gave on the
`
`application were reasonable.7
`
`Second, the IJ reviewed the evidence of purported
`
`marriage fraud, concluding the evidence was "inconclusive."
`
`According to the IJ, there was evidence refuting DHS's argument
`
`that Adeyanju intended to commit marriage fraud with his marriage
`
`to Raymond. Ultimately, the IJ said that "there is some evidence
`
`of fraud in the previous marriage [to Raymond] in the notice of
`
`intent,"8 and the IJ thus "place[d] some weight on the notice of
`
`
`7 At the hearing before the IJ, Adeyanju explained that the
`mix-up here is rooted in cultural differences between the United
`States and Nigeria. He explained that he was living with a
`girlfriend and they intended to "go to [the] next level, but things
`didn't work out."
`
`8 As a refresher, those details are: separate living
`arrangements; records of Adeyanju's police encounters involving
`other women; and evidence suggesting there was not a "bona fide
`familial relationship" (including the lack of knowledge about each
`spouse's finances, activities, or personal relationships; the
`failure to file joint tax returns; their failure to go on shared
`trips or participate in shared activities; and Adeyanju's
`relationship and child with Rebecca).
`
`Adeyanju did not object to the information contained in
`USCIS's denial letter being used as evidence. In any event, almost
`all the information concerning the alleged indicia of marriage
`fraud contained in the notice (save the information about joint
`activities and trips) is corroborated by other evidence in the
`Administrative Record.
`
`- 12 -
`
`

`

`intent to terminate."9 Still, he found the evidence of fraud in
`
`the prior marriage "inconclusive." The IJ further concluded that
`
`Adeyanju's having a child out of wedlock was "evidence of immoral
`
`and bad behavior."
`
`Third, the IJ went on to review Adeyanju's criminal
`
`record, including a dismissed charge for operating under the
`
`influence. On the subject of his police encounters resulting from
`
`his behavior with young women, the IJ said that "[t]here is
`
`insufficient evidence" that any behavior like that has occurred
`
`since 2016. This behavior, which the court called "creepy," was
`
`given "some negative weight." As to the pending charges for
`
`kidnapping and sexual assault, the IJ took them into consideration
`
`but noted that Adeyanju testified before the IJ and "admit[ted]
`
`his behavior, and . . . assert[ed] a consent defense."10
`
`Ultimately, the IJ found that the positive equities
`
`outweighed the negative equities. So he granted the application
`
`for adjustment of status. As for the pending I-751 waiver, at a
`
`pre-hearing conference Adeyanju had told the IJ that the hearing
`
`on the adjustment-of-status application shouldn't be held up to
`
`
`9 We note that the IJ appears to be referring to USCIS's final
`denial of Adeyanju's joint I-751 petition with Raymond and not
`USCIS's pre-denial notice of intent to deny.
`
`10 Based on a blood draw from the victim on the night of the
`alleged rape, the crime lab estimates that her blood alcohol
`content at the time of the alleged rape would've been about 0.17%.
`
`- 13 -
`
`

`

`wait for the I-751 waiver to be adjudicated by USCIS.
`
`Specifically, the IJ had asked Adeyanju's counsel at an earlier
`
`hearing: "[I]f the 751 waiver has not been adjudicated by [the
`
`date scheduled for the adjustment-of-status hearing], will you be
`
`ready to go forward . . . ?" To which Adeyanju's counsel
`
`responded: "Yes." So the IJ didn't consider it because when he
`
`issued his ruling on Adeyanju's adjustment-of-status application,
`
`the I-751 waiver wasn't ripe as USCIS had not made a final decision
`
`on it.
`
`II. DHS's Appeal
`
`Unhappy with the IJ's decision, DHS appealed to the BIA.
`
`In its final decision, the BIA noted that it reviewed discretionary
`
`calls de novo and factual findings for clear error. It then
`
`pronounced its disagreement with the IJ's determination that the
`
`positive equities outweighed the negatives. After recognizing the
`
`same positive equities the IJ considered, the BIA took a deep dive
`
`into the adverse factors. The BIA began by rehearsing the
`
`"documented history of predatory and criminal behavior towards
`
`women and adolescent girls." According to the BIA, the IJ
`
`"erroneously found that . . . there was no evidence that [Adeyanju]
`
`had engaged in similar behavior since" 2016. Instead, the BIA
`
`observed, "the record reflects that [Adeyanju]'s behavior may have
`
`instead escalated," referring to his pending charges for
`
`kidnapping and sexual assault. The BIA also stated that the IJ
`
`- 14 -
`
`

`

`failed to "mention [Adeyanju] lied to the police to avoid
`
`responsibility, and instead [the IJ] focused on the fact that [he]
`
`eventually admitted that he had sex with the victim." The BIA
`
`concluded that, even though Adeyanju hadn't been convicted of any
`
`crimes, it could still consider the fact that "he lied to the
`
`police" and that Adeyanju's "dishonesty regarding his conduct is
`
`indicative of bad character and is a serious negative factor."
`
`The BIA also regarded as an additional negative factor
`
`the "indicia of past immigration fraud." The BIA stated that
`
`Adeyanju "inaccurately claimed that he was engaged to a woman in
`
`Nigeria" on his visa application. The BIA further recounted the
`
`history with his first wife, Raymond, and noted that the IJ found
`
`the evidence of marriage fraud was "inconclusive."
`
`Weighing these negative factors against the positive
`
`ones, the BIA concluded that Adeyanju failed to show that he
`
`merited adjustment of status. The BIA thus sustained the appeal
`
`and ordered Adeyanju removed. At the same time, it acknowledged
`
`Adeyanju had a pending I-751 waiver but said nothing else about
`
`it. Adeyanju petitioned for our review.
`
`III. Subsequent BIA Decisions
`
`Soon after the first petition for our review was filed,
`
`Adeyanju filed timely motions to reconsider and reopen with the
`
`BIA. The BIA denied those motions in August 2021. The BIA rejected
`
`Adeyanju's legal contention that it had made improper findings of
`
`- 15 -
`
`

`

`fact, reasoning instead that it had only reweighed the positive
`
`and negative factors and reached a determination different than
`
`the IJ's. As to the pending I-751 waiver, the BIA said there was
`
`no need for a remand to the IJ because the IJ still lacked
`
`jurisdiction over the still unadjudicated petition. And, it
`
`stated, regardless, Adeyanju failed to make out a prima facie case
`
`of eligibility for I-751 waiver relief, notwithstanding Adeyanju's
`
`assertion that it was "undisputed that [he] is prima facie
`
`eligible." The BIA gave no explanation for its determination of
`
`ineligibility. Unsuccessful a second time, Adeyanju filed another
`
`petition for our review of the BIA's denial of his motions to
`
`reconsider and reopen, and here we are.
`
`JURISDICTION
`
`We begin by checking our jurisdiction. For petitions
`
`for review of BIA decisions, our jurisdiction is circumscribed by
`
`statute. Under 8 U.S.C. § 1252(a)(2)(B), we typically lack
`
`jurisdiction to review the BIA's discretionary remedy of
`
`adjustment of status. See Tacuri-Tacuri v. Garland, 998 F.3d 466,
`
`471 (1st Cir. 2021); see also Peulic v. Garland, 22 F.4th 340, 346
`
`(1st Cir. 2022). But as a general proposition, we have
`
`jurisdiction over petitions that raise "constitutional claims or
`
`questions of law." 8 U.S.C. § 1252(a)(2)(D); see Tacuri-Tacuri,
`
`998 F.3d at 471.
`
`- 16 -
`
`

`

`In both of his petitions, Adeyanju argues that the BIA
`
`committed two legal errors in adjudicating his appeal. First, he
`
`says that the BIA engaged in impermissible de novo factfinding,
`
`which it isn't allowed to do under its regulations. See 8 C.F.R.
`
`§ 1003.1(d)(3)(i) (2020). And second, he argues that the BIA
`
`should have remanded the case to the IJ for further factfinding
`
`and consideration of his pending I-751 waiver before entering a
`
`final order of removal.
`
`The government, for its part, contends that we lack
`
`jurisdiction over Adeyanju's first petition (from the initial
`
`appeal) because his claims are mere attacks on the BIA's
`
`discretionary decisions cloaked in question-of-law garb. The
`
`government does not appear to dispute, though, that, in general,
`
`if the BIA failed to appropriately apply clear-error review (as
`
`Adeyanju presses it did) then we would retain jurisdiction over
`
`the first petition. Indeed, we have held that if "the BIA has
`
`'departed from its settled course of adjudication' in the process
`
`of making a discretionary determination," we have jurisdiction to
`
`review a petition claiming such a legal error. Perez-Trujillo v.
`
`Garland, 3 F.4th 10, 22 (1st Cir. 2021) (quoting Thompson v. Barr,
`
`959 F.3d 476, 490 (1st Cir. 2020)); see Peulic, 22 F.4th at 346
`
`(claims that the agency applied the incorrect legal standard make
`
`out questions of law over which we have jurisdiction); accord,
`
`e.g., Duncan v. Barr, 919 F.3d 209, 213 (4th Cir. 2019) ("Whether
`
`- 17 -
`
`

`

`the BIA has applied the proper standard of review is a question of
`
`law for purposes of our jurisdiction."); Huang v. Holder, 677 F.3d
`
`130, 135 (2d Cir. 2012) (holding the BIA's failure to apply clear-
`
`error review is a question of law for which § 1252 provides
`
`jurisdiction). Just as a petitioner may not cloak her attacks on
`
`discretion in question-of-law garb, "[t]he BIA cannot reverse an
`
`IJ's findings and cloak its actions in the euphemistic language of
`
`reweighing." Zhou Hua Zhu v. U.S. Att'y Gen., 703 F.3d 1303, 1315
`
`(11th Cir. 2013).
`
`On Adeyanju's second petition (coming from the denial of
`
`his motions to reconsider and to reopen), the government does not
`
`dispute that we have jurisdiction to review the BIA's denial of
`
`those motions. See Saka v. Holder, 741 F.3d 244, 249 & n.3 (1st
`
`Cir. 2013) (motions to reconsider); Mazariegos v. Lynch, 790 F.3d
`
`280, 285 (1st Cir. 2015) (motions to reopen).
`
`There is, however, another jurisdictional wrinkle lying
`
`latent here. Another component of our jurisdiction over petitions
`
`for review in immigration cases is that the petitioner must have
`
`exhausted all of her administrative remedies. See 8 U.S.C.
`
`§ 1252(d)(1). We have suggested in a case raising alleged
`
`impermissible factfinding by the BIA that such a claim "is
`
`unexhausted unless and until the [petitioner] files a timely motion
`
`asking the BIA to reconsider its actions." Meng Hua Wan v. Holder,
`
`776 F.3d 52, 57 (1st Cir. 2015). This exhaustion requirement, we
`
`- 18 -
`
`

`

`opined, "is jurisdictional; that is, it constitutes a limitation
`
`on our power of review." Mazariegos-Paiz v. Holder, 734 F.3d 57,
`
`62 (1st Cir. 2013). Though the government has not argued that
`
`Adeyanju failed to exhaust his administrative remedies here, this
`
`requirement cannot be waived. See García-Cruz v. Sessions, 858
`
`F.3d 1, 7 (1st Cir. 2017).
`
`Tackling the flaw with his first petition head on,
`
`Adeyanju in his second petition contends that we have jurisdiction
`
`over his first petition for review notwithstanding that it came
`
`before he filed a motion to reconsider or reopen because his case
`
`is distinguishable from Meng Hua Wan. As he sees it, because he
`
`told the BIA in the initial appeal's briefing that it was bound by
`
`the clear-error standard, that passing mention to the appropriate
`
`standard of review sufficed to exhaust that issue in the first
`
`petition. But we need not decide whether his distinction carries
`
`the day because Adeyanju ultimately did file a timely motion to
`
`reconsider to the BIA arguing that it engaged in impermissible
`
`factfinding and petitioned for review from the BIA's denial of
`
`that motion. Thus, Meng Hua Wan's exhaustion requirement, assuming
`
`it does apply here, has been met. We therefore have jurisdiction
`
`to consider those clear-error-standard-violation arguments made in
`
`- 19 -
`
`

`

`the motion to reconsider raised in the second petition, and we
`
`will ultimately dismiss his first petition as moot.11
`
`In considering his second petition, though, we note that
`
`the petition re-raises almost all the same legal issues from the
`
`first petition (save for the BIA's failure to explain its
`
`reasoning, which we'll get to below) and supplements the arguments
`
`on those issues, incorporating by reference the arguments made in
`
`his briefs in the first petition. As such, we see no reason not
`
`to address the various legal arguments Adeyanju made in both sets
`
`of briefs on all issues over which we have jurisdiction.
`
`Bottom line, after reviewing the record and examining
`
`Adeyanju's claims, we conclude his petition presents questions of
`
`
`11 The government also does not argue that any of the failure-
`to-remand arguments (which we'll get to later) are not exhausted.
`And though the government contends (separate from an exhaustion
`argument) that the BIA did not address one of Adeyanju's arguments,
`see infra II.C., because he didn't raise it until his reply brief,
`the government points to no authority suggesting that an argument
`raised for the first time in a reply brief at the BIA isn't enough
`to exhaust administrative remedies on that issue. See Singh v.
`Gonzales, 413 F.3d 156, 160 n.3 (1st Cir. 2005) (concluding an
`issue raised even "in a perfunctory manner" before the BIA was
`exhausted); see also Toledo v. Gonzales, 467 F. App'x 723, 724
`(9th Cir. 2012) (finding issue exhausted where it was raised in
`the reply brief to the BIA). And we have not identified any,
`either. Additionally, the government below did not object to
`Adeyanju's filing of the reply brief, and the BIA did not tell us
`that it was not considering the reply brief. See BIA Practice
`Manual § 5.4 (2020) (providing only for an opening brief and a
`brief in opposition, but not a reply); see also id. § 4.6(h)
`(providing that, in deciding an appeal -- not a motion -- the BIA
`"does not normally accept" reply briefs and requiring the party
`file a motion meeting certain requirements to file a reply brief).
`
`- 20 -
`
`

`

`law, and we have jurisdiction to consider the issues exhausted by
`
`the motions to reconsider and reopen.12
`
`DISCUSSION
`
`I.
`
`Whether the BIA Engaged in De Novo Factfinding
`
`Adeyanju argues that the BIA committed legal error when
`
`it failed to employ the clear-error standard of review to the IJ's
`
`adjustment-of-status fact findings and thus erred in denying his
`
`motion to reconsider on this ground.
`
`We review the BIA's denial of Adeyanju's motion to
`
`reconsider for abuse of discretion. See Dimova v. Holder, 783
`
`F.3d 30, 36 n.7 (1st Cir. 2015). A "material error of law
`
`automatically constitutes an abuse of discretion." Aponte v.
`
`Holder, 610 F.3d 1, 4 (1st Cir. 2010). And within the abuse-of-
`
`discretion framework, we review de novo whether the BIA committed
`
`an error of law. Id. So to determine whether the BIA abused its
`
`discretion in denying Adeyanju's motion to reconsider on the
`
`alleged de novo factfinding ground, we ultimately review de novo
`
`whether the BIA properly applied the clear-error standard of review
`
`below. See Rotinsulu, 515 F.3d at 72.
`
`
`12 The government also appears to argue that we lack
`jurisdiction because, even if the petitions present questions of
`law, the claims are not "colorable." See Mehilli v. Gonzales, 433
`F.3d 86, 93 (1st Cir. 2005). But, as we've said before, this
`meshes with the merits, see Perez-Trujillo, 3 F.4th at 22 n.5, so
`if we do find the claims colorable, then we would have
`jurisdiction.
`
`- 21 -
`
`

`

`A.
`
`The existence and nature of the equities
`
`Kicking it off, Adeyanju takes issue with the BIA's
`
`reliance on one of its precedents, Matter of H-L-H- & Z-Y-Z-, 25
`
`I. & N. Dec. 209 (BIA 2010), when it denied his reconsideration
`
`motion. In that case, the BIA said that "[i]n order to determine,
`
`under de novo review, whether specific facts are sufficient to
`
`meet a legal standard . . . the Board has authority to give
`
`different weight to the evidence from that given by the Immigration
`
`Judge." Id. at 212. The BIA cited H-L-H- & Z-Y-Z- for the
`
`proposition that it could "weigh evidence differently than an
`
`Immigration Judge" in finding certain evidence to be a negative
`
`factor.
`
`We understand Adeyanju to offer four reasons why we
`
`should abrogate H-L-H- & Z-Y-Z-'s conclusion that the BIA may "give
`
`different weight to the evidence from that given by the Immigration
`
`Judge":
`
`•
`
`•
`
`•
`
`•
`
`It is inconsistent with the BIA's regulations.
`
`It is inconsistent with BIA precedent.
`
`It is inconsistent with circuit court precedent.
`
`It relies on inapposite caselaw for the conclusion
`it reaches.
`
`We take each in turn, rejecting each.
`
`First, Adeyanju says that H-L-H- & Z-Y-Z