                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 12-1239
                                    _____________

                        SANTOS MOISES TEJADA TEJADA,
                                                Petitioner

                                           v.

                             ATTORNEY GENERAL
                      OF THE UNITED STATES OF AMERICA,
                                               Respondent
                                _____________

                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                             (Agency No. A094-163-406)
                                     (DETAINED)
                                    _____________

                                        Argued
                                    January 7, 2013

              Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.

                           (Opinion Filed: February 4, 2013)


Francisco S. Guzmán, Esq. (ARGUED)
Guzmán Law Practice, P.C.
665 Newark Avenue
Jersey City, New Jersey 07306

      Counsel for Petitioner, Santos Moises Tejada Tejada


Stuart F. Delery, Acting Assistant Attorney General, Civil Division
Edward J. Duffy, Senior Litigation Counsel, Office of Immigration Litigation


                                           1
Zoe J. Heller, Trial Attorney, Office of Immigration Litigation (ARGUED)
Aaron R. Petty, Trial Attorney, Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

      Counsel for Respondent, Attorney General of the United States of America
                                   _____________

                              OPINION OF THE COURT

                                     _____________

FUENTES, Circuit Judge:

      Petitioner, Santos Moises Tejada Tejada (“Tejada”), a native and citizen of El

Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”).

We will grant the petition and remand to the BIA.

                                            I.

      Because we write primarily for the parties, we set forth only those facts that are

relevant to our conclusion. Tejada is a native and citizen of El Salvador. He entered the

United States without inspection in 1989. In 1991, he was afforded temporary protected

status by the former Immigration and Naturalization Service. Tejada renewed that status

each year until he became a lawful permanent resident on September 27, 2004. He has

numerous family ties to the United States, including a daughter with U.S. citizenship,

siblings who are legally present in the United States, and parents with lawful permanent

resident status. He and his teenage daughter maintain a close relationship, and he

provides her with financial assistance of $100 per week and emotional support. He has




                                            2
maintained stable employment since 1992 and also provides financial support to his ex-

wife whenever she is in need.

        In 1992, Tejada was arrested for simple assault and false imprisonment in 2003

but each of these charges was dismissed. In 2006, Tejada was convicted of driving while

intoxicated, and his driver‟s license was suspended for ninety days. On June 14, 2007,

Tejada was convicted of second-degree eluding of the police in violation of N.J. STAT.

ANN. § 2C:29-2(b) (2000). On the night of his arrest for this offense, Tejada was

drinking and he struck another vehicle. He then left the scene of the accident and failed

to stop when directed by the police. Tejada pled guilty to this offense. Although Tejada

was sentenced to three years‟ imprisonment, he was only required to serve seven months

and to fulfill certain probation conditions, which he completed. During his time in

prison, Tejada‟s young daughter was sexually assaulted by an adult male relative, and she

subsequently received counseling for about a year after this traumatic event.

       Tejada has been detained by Immigration and Customs Enforcement since March

2, 2011. On that day, Tejada was returning from a brief trip abroad and was found to be

inadmissible for having committed a crime of moral turpitude under 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) for his 2007 eluding conviction. Tejada applied for cancellation of

removal under 8 U.S.C. § 1229(b) and a waiver of inadmissibility under 8 U.S.C.

§1182(h) (a “Section 212(h) waiver”).

       On July 14, 2011, an Immigration Judge (“IJ”) denied Tejada‟s application for

cancellation of removal but granted his application for a Section 212(h) waiver after

finding that his daughter would suffer extreme hardship if he were removed. The IJ also


                                            3
found that the positive equities of Tejada‟s life in the United States outweighed the

adverse factors of his criminal record. The Government appealed to the BIA, which

sustained the appeal and reversed the IJ‟s decision. The BIA found that Tejada‟s eluding

conviction constituted a “violent or dangerous crime” under 8 C.F.R. § 1212.7(d). BIA

Decision at 2. Therefore, Tejada must establish that a denial of relief would result in

“exceptional and extremely unusual hardship” to his qualifying relatives to be eligible for

such relief. Id. The BIA held that even if Tejada‟s conviction was not violent or

dangerous as to merit the higher hardship standard, Tejada had not established that his

daughter would suffer the lower standard of extreme hardship if he were removed.

Finally, the BIA determined that even if Tejada could show extreme hardship to his

daughter from his removal, he had not established that he warrants a Section 212(h)

waiver as a matter of discretion. Having determined that Tejada‟s past criminal record

outweighed his positive equities, the BIA ordered Tejada removable to El Salvador.

                                             II.

       This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of

removal issued by the BIA. The Government contends that we lack jurisdiction to hear

the case before us, as it relates to the BIA‟s discretionary decision to deny a Section

212(h) waiver. Although we agree that this Court generally lacks jurisdiction to review

the BIA‟s factual and discretionary rulings, we retain jurisdiction to review constitutional

claims or questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D);

Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). While the BIA may not

reverse an IJ‟s factual findings unless they are clearly erroneous, it reviews the IJ‟s legal


                                              4
conclusions de novo. 8 C.F.R. § 1003.1(d)(3). We have jurisdiction to review the legal

question of whether the BIA applied the correct standard of review in its decision to deny

Tejada relief. See Kaplun v. Att‟y Gen., 602 F.3d 260, 268-69 (3d Cir. 2010) (granting a

petition for review upon consideration of the BIA‟s application of an incorrect standard

of review).

                                             A.

       We hold that the BIA failed to apply the correct standard of review in making its

determination that Tejada was not eligible for relief. “[W]hen the BIA reaches a different

conclusion than the IJ, either on the facts or the law, its review must reflect a meaningful

consideration of the record as a whole. It is not enough for the BIA to select a few facts

and state that, based on them, it disagrees with the IJ‟s conclusion.” Huang v. Att‟y Gen.,

620 F.3d 372, 387 (3d Cir. 2010). The BIA is required to demonstrate that it reviewed

the record and considered all of the evidence on which the IJ relied—“it must explain

why the record warrants a different conclusion than the one reached by the IJ.” Id.

       When the IJ granted Tejada a Section 212(h) waiver, it relied on the fact that

Tejada‟s daughter would suffer extreme hardship if her father were removed. Noting that

this case “presents exacerbating, magnifying circumstances,” the IJ gave significant

weight to the fact that Tejada‟s daughter is the victim of a sex crime, as she offered

“compelling” testimony regarding her reliance on her father‟s presence and support in

overcoming the abuse that she has suffered. IJ Oral Decision at 9. In finding that Tejada

was eligible for relief, the IJ also emphasized the considerable financial support that

Tejada offers his daughter and ex-wife and relied on Tejada‟s positive equities, such as


                                             5
maintaining stable employment, supporting his family, close family ties to the United

States, and the lack of any criminal activity since 2006.

       The BIA only briefly mentioned the sexual abuse that Tejada‟s daughter suffered,

and failed to provide a meaningful explanation as to why this factor and the removal of

Tejada‟s financial and emotional support would not result in extreme hardship for her.

We agree with Tejada‟s assertion that the BIA selected only a few pieces of evidence to

diminish why his daughter would suffer extreme hardship if her father were deported,

such as the fact that Tejada was incarcerated while his daughter was abused and that her

mother brought her to counseling at that time. The BIA applied an incorrect standard of

review by “fail[ing] to address any evidence that, if credited, would lend support to”

Tejada‟s position, “and thus the decision does not reflect a consideration of the record as

a whole.” Id. at 388. Put another way, the BIA‟s decision falls short under Huang

because it failed to provide specific reasoning as to why it reached a conclusion that was

different from that of the IJ. Id. at 387 (citing Awolesi v. Ashcroft, 341 F.3d 227, 232

(3d Cir. 2003)).

       In addition, the IJ acknowledged Tejada‟s prior criminal activity but noted that

two of his arrests did not lead to convictions and were dismissed. The IJ considered the

fact that Tejada has been free of any criminal activity since 2006, and that the positive

equities of his life in the United States outweighed the adverse factor of his criminal

record. In contrast, the BIA failed to consider that Tejada has been compliant with the

law for a significant period of time and placed emphasis on his prior arrests as weighing

negatively in his favor. The BIA appears to have made its own factual findings by


                                             6
referring to Tejada‟s “various incarcerations” and “multiple arrests” despite the fact that

the IJ referred only to one period of incarceration and noted that two of Tejada‟s prior

charges were dismissed. BIA Decision at 3. By failing to defer to the IJ‟s factual

conclusions as to Tejada‟s criminal past without an explanation of why such findings are

clearly erroneous, the BIA again failed to apply the appropriate standard of review.

Yusupov v. Att‟y Gen., 650 F.3d 968, 979 (3d Cir. 2011). Although the BIA has

discretion to accord Tejada‟s past criminal activity more weight in its analysis than did

the IJ, it must consider the factors upon which the IJ relied in deciding to grant relief.

                                               B.

          We also note that the BIA relied on 8 C.F.R. § 1212.7(d)1 to state an alternative

method for which Tejada may be denied relief—that his eluding conviction constitutes a

violent or dangerous crime that would allow relief only if his “qualifying relatives”

would suffer “exceptional and extremely unusual hardship” if Tejada were removed.

BIA Decision at 2 (citing 8 C.F.R. § 1212.7(d)). Although we will not address whether a

conviction of eluding constitutes a violent or dangerous crime, we will note that, even if

1
    8 C.F.R. § 1212.7(d) states as follows:

 (d) Criminal grounds of inadmissibility involving violent or dangerous crimes. The Attorney
General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8
U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the
United States, or adjustment of status, with respect to immigrant aliens who are inadmissible
under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in
extraordinary circumstances, such as those involving national security or foreign policy
considerations, or cases in which an alien clearly demonstrates that the denial of the application
for adjustment of status or an immigrant visa or admission as an immigrant would result in
exceptional and extremely unusual hardship.

8 C.F.R. § 1212.7(d).


                                                7
it does, we interpret the language in 8 C.F.R. § 1212.7(d) to allow for a favorable

exercise of discretion in circumstances beyond a showing of “exceptional and extremely

unusual hardship.” See 8 C.F.R. § 1212.7(d).

       The Attorney General may still grant relief even if an immigrant has committed a

violent or dangerous crime in “extraordinary circumstances.” 8 C.F.R. § 1212.7(d).

Although such circumstances may include, as the statute notes, those involving national

security or foreign policy considerations or instances of exceptional and extremely

unusual hardship, these examples are not exhaustive and there may be other

circumstances in which relief may be warranted. See Samuels v. Chertoff, 550 F.3d 252,

262 (2d Cir. 2008) (remanding to the BIA when the BIA had considered only whether the

hardship that would accrue to an immigrant‟s family was exceptional and extremely

unusual, and it failed to consider whether the other equities of the immigrant‟s life

constituted extraordinary circumstances to merit relief). Because the BIA made only a

passing reference to Tejada‟s positive equities without a full analysis as to why these

would outweigh his criminal past, we hold that further consideration of such factors is

warranted.

       Further, 8 C.F.R. § 1212.7(d) directs the BIA to consider hardship not only to

qualifying relatives but also to the immigrant. Rivera-Peraza v. Holder, 684 F.3d 906,

910-11 (9th Cir. 2012). Therefore, the “exceptional and extremely unusual hardship”

analysis need not relate to Tejada‟s daughter only but may also be applied to Tejada

himself. Id. The BIA noted that Tejada “must establish an „exceptional and extremely

unusual hardship‟ to his qualifying relatives for a waiver of inadmissibility,” BIA


                                             8
Decision at 3 (emphasis added), but it must also consider whether Tejada himself would

suffer a hardship of this nature if removed to El Salvador. Rivera-Peraza, 684 F.3d at

910-11.

                                           III.

      For the foregoing reasons, we will grant the petition for review and remand to the

BIA for further proceedings consistent with this opinion.




                                            9
