                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 17-3713
                       ___________________________

                             Pedro Olea Camacho

                                   Petitioner

                                       v.

       Matthew G. Whitaker, Acting Attorney General of the United States

                                 Respondent
                                ____________

                     Petition for Review of an Order of the
                         Board of Immigration Appeals
                                 ____________

                        Submitted: September 26, 2018
                           Filed: December 6, 2018
                                ____________

Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.
                          ____________

ERICKSON, Circuit Judge.

      Pedro Olea Camacho petitions for review of the Board of Immigration
Appeals’s (“BIA”) denial of his motion to reconsider the BIA’s previous order
denying him a discretionary adjustment of status. We deny the petition.
      I.     Background

        Pedro Olea Camacho is a Mexican citizen who first entered the United States
without inspection in 1987. He has been married twice since entering the country. He
adjusted his status to lawful permanent resident on December 7, 2000, on the basis of
his first marriage. During his application process for adjustment of status, Camacho
failed to disclose that he was convicted of fifth-degree theft in Iowa on September 17,
1993.

       In March of 2015, Camacho was convicted in Iowa of two counts of indecent
contact with a child. The charges related to alleged sexual misconduct between 1999
and 2002. The victims were the grandchildren of his first wife. Camacho pled guilty
to both counts. Following Camacho’s conviction, the Department of Homeland
Security (“DHS”) served Camacho a Notice to Appear charging him with
removability under: 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an
aggravated felony (his sexual abuse of a child conviction); § 1227(a)(2)(E)(i), as an
alien convicted of a crime of domestic violence; § 1227(a)(2)(A)(ii), as an alien
convicted of two crimes involving moral turpitude; and § 1227(a)(1)(A), as an alien
who obtained admission via fraud in 2000 by failing to disclose his 1993 theft
conviction. Camacho responded by disputing his prior conviction for theft and
denying all grounds for removability. On May 26, 2015, the Immigration Judge (“IJ”)
issued a decision finding Camacho removable as an alien convicted of an aggravated
felony. Camacho then applied to adjust status through his second wife (a US citizen),
and sought a waiver of his inadmissibility.

      At the hearing to evaluate Camacho’s application, Camacho testified that he
was innocent of the underlying conduct of indecent contact with a child. Camacho
explained that he pled guilty to the charges in order to avoid the possibility of a
lengthy mandatory minimum sentence if convicted at trial, but that he had not actually



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engaged in the alleged activity. He said the charges were the result of a plot by his ex-
wife to frame him. Other members of his community testified to his good character.

      The IJ granted Camacho’s application, finding that Camacho merited a
favorable exercise of discretion. The IJ acknowledged that ordinarily a conviction for
sexual abuse of a minor would weigh heavily against granting discretionary relief.
However, the IJ found that Camacho’s testimony and that of his witnesses “render[ed]
the conduct underlying the [sexual contact] conviction dubious.” As a result, the IJ
announced he would not afford the conviction its ordinary “full adverse weight.”

       Neither would the IJ ignore the conviction. Testimony elicited by the
government suggested that one of Camacho’s victims had attempted suicide following
the alleged sexual misconduct. In particular, Camacho’s wife acknowledged the
attempted suicide during her testimony:

      Q: What happened was one of the victims tried to kill herself,
      right?

      A: Uh-huh.

The IJ did not directly quote Ms. Camacho’s testimony. The IJ explained, however,
that testimony mentioning an “apparent suicide attempt by one of the victims in
concert with the accusations” led him to consider the conviction (while still giving it
less weight to account for the possibility that Camacho was innocent). The IJ found
that the other equities, including Camacho’s long ties to his community and family,
merited relief. The IJ also considered the possibility that Camacho’s wife could
commit suicide if the pair were separated, writing that “the potential suicide that
completes this analysis balances the alleged suicide that began it.”




                                          -3-
       DHS successfully appealed the grant of discretionary relief to the BIA. The
BIA found that the IJ, in crediting testimony suggesting that Camacho may not have
committed his crime, impermissibly went “behind a record of conviction to reassess
[Camacho’s] ultimate guilt or innocence.” Matter of Roberts, 20 I. & N. Dec. 294,
301 (B.I.A. 1991) (citing Matter of Edwards, 20 I. & N. Dec. 191 (B.I.A. 1990)). The
BIA considered Camacho’s denial of the underlying conduct a negative factor
weighing against relief, as it demonstrated that he had failed to take responsibility for
his misconduct. The BIA also “found significant” that one of Camacho’s victims
“attempted suicide following this offense.” The BIA concluded that Camacho was not
entitled to a discretionary grant of adjustment of status.

        Camacho filed a motion asking the BIA to reconsider its decision. In particular,
Camacho argued that the BIA’s statement that one of his victims “attempted suicide
following this offense” was not supported by the IJ’s fact-finding and that the BIA had
violated the clear error standard of review. See 8 C.F.R. §§ 1003.1(d)(3)(i) and (iv).
The BIA denied the motion. The BIA disagreed that its original order committed error
in stating that one of Camacho’s victims attempted suicide, citing the IJ’s discussion
of testimony relating to the suicide attempt, as well as Camacho’s testimony. This
petition followed.

      II.    Discussion

       We ordinarily do not possess jurisdiction “to review discretionary denials of
adjustment of status, unless the petition for review raises a constitutional claim or
question of law.” Hailemichael v. Gonzales, 454 F.3d 878, 886 (8th Cir. 2006) (citing
8 U.S.C. § 1252(a)(2)(B)(i),(ii) and (a)(2)(D)). However, we “have held repeatedly
that we have jurisdiction to review the denial of a motion to reconsider even when we
lack jurisdiction to review the denial of the underlying motion.” Averianova v. Holder,
592 F.3d 931, 935 (8th Cir. 2010); see also Al Milaji v. Mukasey, 551 F.3d 768,
773-74 (8th Cir. 2008). Our precedent compels the conclusion that we have

                                          -4-
jurisdiction to review Camacho’s petition, even though: 1) our review may “require
us to consider the validity of [the underlying] order,” Al Milaji, 551 F.3d at 774
(alteration in original) (internal quotation mark omitted) (quoting Aneyoue v.
Gonzales, 478 F.3d 905, 907 (8th Cir. 2007)), and, 2) we are statutorily barred from
reviewing the factual claims in the underlying order in this case, which involves
discretionary relief.1 See 8 U.S.C. § 1252(a)(2)(B)(i).

       We review the agency’s denial of a motion to reconsider for an abuse of
discretion. Al Milaji, 551 F.3d at 774 (citing Aneyoue, 478 F.3d at 907). When
reviewing the denial of a motion to reconsider, “we will find an abuse of discretion
if the denial was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis (such as race).” Boudaguian
v. Ashcroft, 376 F.3d 825, 828 (8th Cir. 2004) (quoting Zhang v. INS, 348 F.3d 289,
293 (1st Cir. 2003)). To satisfy the requirement to offer a “rational explanation,” the
BIA need not revisit in detail every issue raised concerning the original order. See
Averianova, 592 F.3d at 936 (quoting Barragan–Verduzco v. INS, 777 F.2d 424, 426
(8th Cir. 1985)) (explaining that the BIA has “no duty to write an exegesis on every
contention”). Instead, the BIA’s obligation is to “consider the issues raised and

      1
        In Averianova we noted that the circuits are split on this issue. 592 F.3d at 935
n.5 (“Compare Martinez–Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006)
(“[W]e lack jurisdiction over motions to reopen and reconsider in cases where we lack
jurisdiction to review the underlying order.”), Daud v. Gonzales, 207 Fed.Appx. 194,
204 (3d Cir. 2006) (unpublished) (same), Santos–Salazar v. DOJ, 400 F.3d 99, 103
(2d Cir. 2005), Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004), Patel v.
U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003), and Sarmadi v. INS, 121 F.3d
1319, 1322 (9th Cir. 1997), with Onwuamaegbu v. Gonzales, 470 F.3d 405, 406-07
(1st Cir. 2006) (reviewing the BIA’s denial of a motion for reconsideration even
though the court lacked jurisdiction to review the underlying order), and Stone v. INS,
13 F.3d 934, 935 (6th Cir. 1994) (“While we have no jurisdiction to review the
underlying deportation order, we do have jurisdiction to determine whether the Board
abused its discretion in denying the petitioner’s motion to reconsider the order.”), aff’d
on other grounds, 514 U.S. 386 (1995).”).
                                           -5-
announce its decision in terms sufficient to enable a reviewing court to perceive that
it has heard and thought and not merely reacted.” Camarillo-Jose v. Holder, 676 F.3d
1140, 1143 (8th Cir. 2012) (internal quotation mark omitted) (quoting Averianova,
592 F.3d at 936).

       We conclude that the BIA satisfied its obligation to provide a “rational
explanation” for its original decision to deny Camacho relief when it denied
Camacho’s motion to reconsider.2 In the BIA’s original consideration of DHS’s
appeal it was required to review for clear error findings of fact, including
determinations of credibility, made by the Immigration Judge. 8 C.F.R. §
1003.1(d)(3)(i). The BIA could review de novo issues of law, judgment, and
discretion. 8 C.F.R. § 1003.1(d)(3)(ii).

       The BIA’s explanation that it did not violate the clear error standard of review
in its weighing of the attempted suicide of one of Camacho’s victims qualifies as a
“rational explanation.” It is important to remember that the IJ balanced two
considerations when deciding the weight he would afford Camacho’s conviction: 1)
the IJ’s doubts that the underlying charges were true, and 2) testimony suggesting that
one of Camacho’s victims attempted suicide “in concert with” the allegations. The
IJ explicitly admitted that the testimony concerning the attempted suicide would
weigh into his consideration of the equities, so that he would not “ignore” the
conviction. At the same time, the IJ stated that he was unsure the sexual misconduct
had, in fact, occurred. Read in context, the only plausible conclusion that can be


      2
        The dissent suggests that the BIA committed an abuse of discretion by
“inexplicably departing from established policies” that prohibit additional fact-finding
and require the BIA to apply the clear error standard when reversing findings of fact.
See 8 C.F.R. § 1003.1(d)(3)(i), (iv). Our conclusion that the BIA did not engage in
fact-finding (since the IJ explicitly noted that he was considering Camacho’s
conviction because of testimony regarding an alleged suicide attempt) means that it
also did not depart from an established policy.
                                          -6-
drawn from the IJ’s analysis is that he partially credited testimony regarding the
existence of the attempt but was unsure how much weight to give it in his analysis,
given his underlying suspicion that Camacho had not actually committed the offense.

       However, the IJ was not entitled to go behind Camacho’s record of conviction
to reassess his “ultimate guilt or innocence” (as the BIA correctly pointed out when
considering DHS’s appeal). See Roberts, 20 I. & N. Dec. at 301 (citing Edwards, 20
I. & N. Dec. 191); see also Trench v. INS, 783 F.2d 181, 184 (10th Cir. 1986)
(quoting Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir. 1981)) (“Immigration
authorities must look solely to the judicial record of final conviction and may not
make their own independent assessment of the validity of [a] guilty plea.”).
Removing the possibility that Camacho was innocent of the underlying offense
immediately alters the “balancing” the IJ performed regarding the conviction. When
evaluating the IJ’s initial finding of facts, the BIA could correctly reject the IJ’s
suppositions regarding whether the offense occurred as erroneous as a matter of law.
At the same time, the BIA was entitled to weigh other facts—including the evidence
regarding the attempted suicide—that the IJ relied on in conducting his analysis.
Furthermore, the BIA could give greater weight to those facts in its de novo review
than the IJ had in his original review. See 8 C.F.R. § 1003.1(d)(3)(ii).

       The BIA’s order denying Camacho’s motion to reconsider directly addressed
the question of sufficiency of the evidence regarding the suicide attempt and whether
the BIA violated the clear error standard. In response to Camacho’s arguments, the
BIA cited the portion of its original order explaining why it weighed the conviction
and its attendant circumstances differently than the IJ had in his original review, along
with record testimony on that subject. While brief, the BIA’s explanation is “rational”
and reveals that it sufficiently considered the issues raised by Camacho. See
Camarillo-Jose, 676 F.3d at 1143 (quoting Averianova, 592 F.3d at 936). To the
extent Camacho now raises other issues related to the factual equities surrounding his



                                          -7-
case, the BIA previously provided a sufficient explanation of why it viewed the
equities as meriting a denial of discretionary relief.

      III.   Conclusion

      We deny the petition for review.

KELLY, Circuit Judge, dissenting.

       I agree that our jurisdiction is limited to a review of the BIA’s denial of
Camacho’s motion to reconsider, Averianova, 592 F.3d at 935, which we review for
an abuse of discretion, Aneyoue, 478 F.3d at 907. An abuse of discretion may be
found where “a decision is without rational explanation, departs from established
policies, invidiously discriminates against a particular race or group, or where the
agency fails to consider all factors presented by the alien or distorts important aspects
of the claim.” Habchy v. Gonzales, 471 F.3d 858, 861–62 (8th Cir. 2006) (quoting
Hernandez-Moran v. Gonzales, 408 F.3d 496, 499 (8th Cir. 2005)).

       While the court’s opinion discusses whether the BIA provided a sufficient
“rational explanation” for its decision, it fails to address Camacho’s argument that the
BIA departed from established policy by engaging in factfinding on appeal. The
regulations governing the scope of the BIA’s review prohibit it from overturning facts
found by the IJ, except upon clear error, or from engaging in any additional
factfinding. 8 C.F.R. § 1003.1(d)(3)(i), (iv). If additional factfinding is needed, the
BIA must remand the case to the IJ. Id. § 1003.1(d)(3)(iv); see Waldron v. Holder,
688 F.3d 354, 360–61 (8th Cir. 2012) (granting petition for review based on BIA’s
impermissible factfinding); Padmore v. Holder, 609 F.3d 62, 68–69 (2d Cir. 2010)
(per curiam); Nabulwala v. Gonzales, 481 F.3d 1115, 1119 (8th Cir. 2007).




                                          -8-
       Weighing heavily in the BIA’s analysis was its conclusion that Camacho’s 2015
indecent contact offense “only came to light after one of his victims attempted to
commit suicide.” As the court acknowledges, the BIA’s finding that Camacho’s
actions caused one of his victims to attempt suicide was “significant” to the BIA’s
overall determination of Camacho’s case. But the IJ made no factual findings about
the alleged suicide attempt. The IJ simply stated: “[T]estimony mentioned an
apparent suicide attempt by one of the victims in concert with the accusations leveled
against [Camacho].” This is not a factual finding, much less a finding that Camacho’s
actions caused a suicide attempt. Indeed, the IJ’s choice of language—later referring
to the “alleged” suicide attempt—suggests a deliberate effort to avoid making a
finding on this issue.3

        The alleged suicide attempt was mentioned only twice at the hearing. The IJ
likely avoided evaluating this testimony because it was so limited and unreliable.
Camacho was asked, “Do you remember in your criminal case that they told that story
after [the victim] attempted suicide?” To which he replied, “I don’t remember that,
because when I went to court, that’s when they told me everything. That’s it.”
Camacho’s current wife, Ms. Olea, was also asked about the victim’s apparent suicide
attempt. Although Ms. Olea acknowledged that she had heard about the apparent
suicide attempt, she “wasn’t there” to hear the child’s allegations firsthand so only
reported what she had heard from others. Even if it were proper for the BIA to engage
in factfinding, its conclusion would not have been supported by the evidence.

      3
       I respectfully disagree with the court’s statement that “the IJ explicitly noted
that he was considering Camacho’s conviction because of testimony regarding an
alleged suicide attempt.” What the IJ said was that, although “credible testimony
renders the conduct underlying the conviction dubious,” this mitigating evidence only
“damaged the weight the [IJ] would otherwise give to such a serious conviction,” and
was not sufficient to “persuade the [IJ] to ignore the conviction” entirely. The IJ said
nothing about whether the suicide attempt allegation factored into its analysis of
Camacho’s conviction. As noted above, the IJ made no factual finding at all about the
alleged suicide attempt.
                                          -9-
       On reconsideration, the BIA stated simply that the record supported its finding
“that one of [Camacho’s] victims attempted suicide following his offense.” This
unsupported factual finding was not made by the IJ, violating 8 C.F.R. § 1003.1(d)(3).
Nonetheless, the BIA afforded the fact significant weight in overturning the IJ’s
decision. The BIA’s failure to correct its improper factfinding on reconsideration
constitutes a departure from established policies and an abuse of discretion. See
Waldron, 688 F.3d at 361.

      Because I would grant Camacho’s petition, I respectfully dissent.
                     ______________________________




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