                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 19-2942


                             DELROY RICARDO TOOMER,
                                 a/k/a Rick Toomer,
                                      Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA


                               On Petition for Review of a
                      Decision of the Board of Immigration Appeals
                                     (A206-192-324)
                       Immigration Judge: Kuyomars Q. Golparvar


                    Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                     April 2, 2020

           Before: GREENAWAY, JR., PORTER, and MATEY, Circuit Judges.

                              (Opinion filed: April 17, 2020)


                                         OPINION ∗




       ∗
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
MATEY, Circuit Judge.

      After an Immigration Judge (“IJ”) determined he was removable from this country,

Delroy Toomer applied to adjust his status to that of a lawful permanent resident. The IJ

denied that application, and the Board of Immigration Appeals (“BIA”) affirmed. Toomer

now petitions for review of the BIA’s decision. We will deny that petition.

                                     I. BACKGROUND

      Toomer is a citizen of Jamaica. He came to the United States lawfully in 2011 but

overstayed his visa. So the Department of Homeland Security (“DHS”) issued a Notice to

Appear charging him as removable. The IJ sustained the charge and released Toomer on

bond. But while released, Toomer was convicted of carrying an unlicensed firearm. DHS

argued that this conviction was another ground for removability, and the IJ agreed.

       Toomer then applied to adjust his status to that of a lawful permanent resident. After

a two-day hearing, the IJ held that Toomer met all the statutory requirements for

adjustment. But the IJ concluded that Toomer failed to demonstrate sufficient positive

factors to counterbalance the “many negative factors that weigh against him,” (A.R. at 62),

such as his gang affiliations, his involvement in drug trafficking, domestic violence

incidents involving an ex-girlfriend, and the firearm conviction. The IJ therefore denied

the application. On appeal, the BIA affirmed. Toomer now petitions this Court for review. 1



      1
         We generally lack jurisdiction to review the BIA’s decisions on adjustment-of-
status applications. 8 U.S.C. § 1252(a)(2)(B)(i). We may, however, review “colorable
claims or questions of law, . . . such as whether the BIA misapplied [a] legal standard”
when considering such applications. Alimbaev v. Att’y Gen., 872 F.3d 188, 194 (3d Cir.
2017).
                                             2
                                      II. DISCUSSION

A.     The BIA Did Not Violate Its Own Precedent When Weighing the Equities

       Toomer argues that the agency violated its decision in Matter of Arreguin De

Rodriguez, 21 I. & N. Dec. 38 (BIA 1995), when balancing the equitable factors in his case.

We disagree.

       In Arreguin, a woman applied for a waiver of inadmissibility. Id. at 38. When

balancing the equities, the IJ considered an arrest report noting the applicant’s prior arrest

for alien smuggling. Id. at 42. On appeal, the BIA said that report deserved “little weight”

since the arrest did not lead to a conviction and since there was no corroboration of the

report’s underlying allegations. Id. The BIA also concluded that the IJ undervalued the

applicant’s positive factors. Id. This rebalancing complete, the BIA reversed the IJ’s

decision and granted the woman’s application. Id. at 43.

       Toomer argues that the agency violated Arreguin when it considered police reports

revealing that he had been involved in domestic violence incidents. But “Arreguin did not

indicate that it was per se improper to consider” such reports. Sorcia v. Holder, 643 F.3d

117, 126 (4th Cir. 2011); see also Arias-Minaya v. Holder, 779 F.3d 49, 54 (1st Cir. 2015)

(“[Arreguin] does not create an ironclad rule that an arrest without a subsequent conviction

may never be considered in the discretionary relief context.”). Instead, Arreguin stands at

most for the proposition that such reports do not deserve “substantial weight” in an




       Our review of such claims and questions is plenary. Id. And where the BIA
“deferred to or adopted the IJ’s reasoning,” we review the IJ’s decision rather than the
BIA’s. Cadapan v. Att’y Gen., 749 F.3d 157, 159 (3d Cir. 2014).
                                              3
equitable balancing analysis. Arreguin, 21 I. & N. Dec. at 42; see Avila-Ramirez v. Holder,

764 F.3d 717, 725 (7th Cir. 2014) (remanding under Arreguin where the agency “gave . . .

arrest reports significant weight”); Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 713 (6th Cir.

2004) (vacating under Arreguin where “concerns about [conduct contained in an arrest

report] were the driving force behind the denial of” relief). And the domestic violence

incidents here were only one of many negative factors, with no indication that the agency

attached to them any unwarranted, outsized significance.

       Toomer also argues that the agency violated Arreguin when it considered his gang

affiliations and his involvement with drug trafficking. But Arreguin involved only bare,

written reports. See Arreguin, 21 I. & N. Dec. at 42 (“Just as we will not go behind a record

of conviction to determine the guilt or innocence of an alien, so we are hesitant to give

substantial weight to an arrest report.” (emphasis added)). In contrast, the evidence offered

here in support of the drug and gang related allegations included live testimony from a

federal law enforcement agent which, though hearsay, stemmed from communications with

local law enforcement officials investigating ongoing criminal activity and Toomer’s own

statements to prison officials.

B.     The Agency Did Not Violate Toomer’s Due Process Rights

       Toomer argues that the agency violated his Due Process rights by using hearsay

evidence to prove his gang affiliations. We disagree.

       Toomer bases this argument on Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003).

There, a woman submitted several documents in support of her applications for asylum and

withholding of removal. Id. at 398–99. The Government later presented a letter from the

                                             4
United States Department of State describing “the results of an investigation” concluding

that some of the woman’s documents were fraudulent. Id. at 401–02, 411–12. Relying

“almost entirely” on this letter, the BIA denied her applications. Id. at 405. We vacated,

concluding that the hearsay letter was “neither reliable nor trustworthy,” and that its use

violated the woman’s due process rights. Id. at 408.

       Ezeagwuna is distinguishable in several respects. Toomer’s gang affiliations were

not the sole basis for the agency’s decision. And while hearsay testimony showed some of

his affiliations, the government also offered expert opinion testimony based on an

independent investigation into social media posts. Cf. Ezeagwuna, 325 F.3d at 405 (noting

that “the BIA’s decision was based almost entirely on the [hearsay] letter,” and that

“[w]ithout the . . . letter, the majority of the BIA’s reasoning actually supports [petitioner’s]

case”). The hearsay testimony was also only one level deep,2 with the agent communicating

directly with the local law enforcement officials whose statements he was repeating. Cf. id.

at 406 (noting that the letter was quadruple hearsay, and that the immediate speaker “was

unable to . . . evaluate the credibility of the immediate preceding declarant,” who in turn

may have relied solely on “notations written on [a] document” and thus “would also have

been unable to judge the credibility” of the preceding declarant).

       Toomer notes that the agent provided no information about the local law

enforcement officials’ investigations into his purported gang affiliations. Cf. id. at 408

(noting that, “partially due to the multiple levels of hearsay involved here, we have


       2
        There is no per se bar against hearsay testimony in immigration proceedings. See
Kiareldeen v. Ashcroft, 273 F.3d 542, 549 (3d Cir. 2001).
                                               5
absolutely no information about what the [underlying] investigation consisted of, or how

[it] was conducted”). But Toomer had a chance to inquire into those investigations on cross

examination, so he cannot now raise his failure to do so as a defense. Toomer also notes

that, after the hearing concluded, the Government submitted a memorandum

memorializing statements he made to prison officials about his gang membership. Cf. id.

at 406 (“[W]e are troubled by [the fact that] . . . the INS only provided the . . . letter to the

IJ and [petitioner’s] counsel . . . when it sought to introduce it into evidence.”). But the

agent discussed those statements at the hearing, so Toomer therefore cannot claim to have

been unconstitutionally surprised by them.

C.     The Agency Did Not Violate Toomer’s First Amendment Rights

       Toomer argues that the agency violated his First Amendment rights when it

considered his gang membership as a negative factor. But “the Constitution does not erect

a per se barrier to the admission of evidence concerning one’s beliefs and associations at

sentencing,” Dawson v. Delaware, 503 U.S. 159, 165 (1992), and we see no reason why it

would in this similar, equitable-balancing context. And here, the Government presented

evidence connecting Toomer’s gang membership to the illegal drug trade, an undeniably

relevant consideration for the agency. See id. at 165–66 (holding that the introduction of

evidence of defendant’s membership in the Aryan Brotherhood violated the First

Amendment because it was “totally without relevance to [the] sentencing proceeding”

while noting that “[i]n many cases, . . . associational evidence might serve a legitimate




                                               6
purpose in showing that a defendant represents a future danger to society,” such as when

the defendant’s organization advocates for criminal activity). So we reject this argument.

                                    III. CONCLUSION

       For those reasons, we will deny Toomer’s petition for review.




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