Sergio Waldmir Billeke-Tolosa v. JOHN ASHCROFT, Attorney General

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0333P (6th Cir.)
File Name: 04a0333p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SERGIO WALDMIR
BILLEKE-TOLOSA,
Petitioner-Appellant,
v.
JOHN ASHCROFT, Attorney
General,
Respondent-Appellee.
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No. 02-4395
On Appeal from the Board of Immigration Appeals.
No. A29 971 713.
Submitted: August 12, 2004
Decided and Filed: September 30, 2004
Before: MOORE and COLE, Circuit Judges; MARBLEY,
District Judge.*
2 Billeke-Tolosa v. Ashcroft No. 02-4395
_________________
COUNSEL
ON BRIEF: Barry L. Frager, FRAGER LAW FIRM,
Memphis, Tennessee, for Appellant. Deborah Misir, Mary
Jane Candaux, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant
Sergio Billeke-Tolosa contends that the Board of Immigration
Appeals (“BIA”), in affirming the decision of the Immigration
Judge (“IJ’), violated its own rules by peering behind Billeke-
Tolosa’s convictions for the lesser offenses of simple assault
and disorderly conduct to use the underlying allegations of
sexual impropriety as the basis for denying his petition for an
adjustment of status. The Government rejoins that we lack
jurisdiction to review the BIA’s decision, and that in any
event, all procedural rules were followed. Because the
Government’s first contention is refuted by our own
precedent, and its second by that of the BIA, the order of
removal is VACATED and the case is REMANDED.
I. BACKGROUND
In early 1990, courtesy of a student visa, Billeke-Tolosa
arrived in the United States from his native Chile. Although
the visa required him to enroll at the University of Southern
Mississippi, Billeke-Tolosa subsequently transferred to the
University of Memphis, and eventually retired altogether
from his studies. On June 14, 1995, the Immigration and
Naturalization Service mailed a show cause notice to Billeke-
Tolosa, alleging that his failure to pursue a higher education
violated the terms of his visa. At a hearing before the IJ in

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No. 02-4395 Billeke-Tolosa v. Ashcroft 3
March 1997, Billeke-Tolosa conceded his deportability, but
asked for an adjustment of his status, such that he could
lawfully remain in the United States with his wife, a native-
born American citizen whom he married in 1995.
A hearing on Billeke-Tolosa’s request for adjustment of
status commenced in July 2000, and focused primarily on his
criminal history. In addition to a few traffic offenses (one of
which stemmed from charges of driving while impaired by
alcohol), Billeke-Tolosa had twice been accused of sexual
misconduct involving young girls. The first criminal
complaint alleged that, while at a Christmas party, he “pulled
down the garment of [a five year old girl], exposing her
genital area, and then unlawfully and intentionally touched
[her] genital area with his hand.” The second charged that he
exposed himself to the four-year old granddaughter of his
landlady.
Billeke-Tolosa denied both charges. The first allegation, he
maintained, was motivated by a husband who was jealous that
his wife had been socializing with Billeke-Tolosa at the
Christmas party. The second allegation, he contended, was
hatched by his landlady, who was on the losing end of a
dispute about the rent, and who had access to his criminal
record—and therefore knew that he was vulnerable to charges
of child-sex abuse—because her daughter was dating a police
officer. Purportedly advised by his attorney in each case that
a “he-said/she-said” confrontation with a young child was a
risky proposition, Billeke-Tolosa admitted to lesser charges
in each instance. In the first, he pled guilty to misdemeanor
assault, for which he was sentenced to time served and fined
$1,000. In the second, he pled guilty to disorderly conduct,
and received a suspended sentence based on the court’s
determination that “the Defendant is not likely again to
engage in a criminal course of conduct.”
Concerned that “where there’s smoke, there’s fire,” the IJ
appointed Linda Shoun, a licensed clinical social worker, to
evaluate Billeke-Tolosa. Shoun, who was trained in the
4 Billeke-Tolosa v. Ashcroft No. 02-4395
diagnosis of pedophilia, opined to the IJ that Billeke-Tolosa
was not a pedophile and presented no danger to children or
society at large. However, the IJ decided against granting the
adjustment of status. Although acknowledging that “the
Court cannot go behind [Billeke-Tolosa]’s guilty plea[s]”—in
which he did not admit to any sexual crime—the IJ focused
on the “two convictions stemming from improper touching or
improper exchanges of some type with young girls.” As to
the fact that Billeke-Tolosa had not been convicted of any
charges involving sex abuse, the IJ noted “the difficulties in
proving [child-sex offenses] to the State. A child would have
to testify about what had happened several years before.”
Similarly, the IJ rejected the possibility that Billeke-
Tolosa’s landlady had, with the help of a police officer,
concocted the allegations for mischievous ends, wondering
“would it not have been easier for [the child’s] [grand]mother
to say that [Billeke-Tolosa] exposed himself to her? Then,
instead of dragging her child into this, she herself would
simply have gone to Court and testified.” Indeed, counseled
the IJ, “[i]f one is engaged in an act to frame a neighbor, and
if the person engaged in the framing is a police officer, the
scheme should expose the actors to as little risk as possible.”
The IJ ordered Billeke-Tolosa removed, and the BIA
affirmed without opinion.
II. ANALYSIS
Billeke-Tolosa argues that in denying his request for
adjustment of status, the IJ impermissibly considered
unproven allegations that did not result in convictions, in
violation of BIA precedent. Because the BIA affirmed
without explanation, “we review the IJ’s decision to
determine whether the BIA [erred].” Denko v. INS, 351 F.3d
717, 723 (6th Cir. 2003).

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No. 02-4395 Billeke-Tolosa v. Ashcroft 5
A. Appellate Jurisdiction
The Government urges us to stop short of the merits,
maintaining that we lack jurisdiction to review the BIA’s
discretionary denial of a request for status adjustment. The
parties agree that the “transitional rules” of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) govern our review. One such rule decrees
that “there shall be no appeal of any discretionary decision [to
grant or deny adjustment of status].” IIRIRA § 309(c)(4)(E).
From the Government’s vantage point, because Billeke-
Tolosa seeks review of the denial of such discretionary relief,
there is simply nothing for us to review.
But Billeke-Tolosa does not challenge the IJ’s exercise of
discretion per se; rather, he argues that the IJ made a legal
error in the course of exercising his discretion. A prohibition
against the review of a discretionary decision need not extend
to non-discretionary decisions upon which the discretionary
decision is predicated. See, e.g., Skutnik v. I.N.S., 128 F.3d
512, 514 (7th Cir. 1997) (Easterbrook, J.) (“[D]oes the
prohibition of judicial review apply when the [BIA]’s
decision is said to violate the Constitution because (for
example) it is based on religion or speech?”). Whether we
may consider Billeke-Tolosa’s challenge—which asserts that,
in the course of exercising its discretion, the BIA violated one
of its nondiscretionary duties—“depend[s] on whether it is
best to emphasize the word ‘decision’ (all decisions under
§ 244 could be based on an exercise of discretion) or the word
‘discretionary’ (only a subset of actions under § 244 reflect an
exercise of discretion).” Id.
We have chosen the latter course—holding that we may
review the non-discretionary decisions that underlie
determinations that are ultimately discretionary. See
Valenzuela-Alcantar v. INS, 309 F.3d 946, 949 (6th Cir.
2002) (prohibition on review applies when the specific
decision is “discretionary, demanding an exercise of
judgment”). Our approach is echoed by every other circuit,
6 Billeke-Tolosa v. Ashcroft No. 02-4395
save for the Seventh, which has considered the question. See
Mickeviciute v. INS, 327 F.3d 1159, 1164 n.4 (10th Cir.
2003); Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001); Najjar
v. Ashcroft, 257 F.3d 1262, 1297 (11th Cir. 2001); Bernal-
Vallejo v. INS, 195 F.3d 56, 62 (1st Cir. 1999); Kalaw v. INS,
133 F.3d 1147, 1150 (9th Cir. 1997); but see Pilch v.
Ashcroft, 353 F.3d 585, 587 (7th Cir. 2003).
In short, we lack jurisdiction over this appeal—which seeks
to redress the IJ and BIA’s failure to follow binding BIA
rules—only if the IJ was free to ignore the BIA’s binding
rules. This appears unlikely, given that “[i]t is an elemental
principal of administrative law that agencies are bound to
follow their own regulations.” Wilson v. Comm’r of Social
Security, 378 F.3d 541, 545 (6th Cir. 2004). Here, of course,
Billeke-Tolosa is claiming that the BIA ignored its
precedential case law, rather than an agency regulation. But
the Government offers no reason why the BIA should be
bound by its regulations yet free to ignore its own precedents.
See also Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir.
2003) (“A nonprecedential decision by the BIA in defiance of
its own precedential case law simply cannot be classified as
discretionary.”). Nor would the BIA itself endorse such a
view, as its own regulations provide that “[e]xcept as Board
decisions may be modified or overruled by the Board or the
Attorney General, decisions of the Board, and decisions of the
Attorney General, shall be binding on all officers and
employees of the Department of Homeland Security or
immigration judges in the administration of the immigration
laws of the United States.” 8 C.F.R. § 1003.1(g).
The consistent application of an agency’s precedents, like
the consistent application of its regulations, serves a critical
purpose: the provision of fair notice to those subject to the
agency’s decisions. As its regulations provide, “the Board,
through precedent decisions, shall provide clear and uniform
guidance to the Service, the immigration judges, and the
general public on the proper interpretation and administration
of the Act and its implementing regulations.” 8 C.F.R.

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No. 02-4395 Billeke-Tolosa v. Ashcroft 7
§ 1003.01(d)(1) (emphasis added). Because the BIA’s
precedential decisions are expressly prepared for the public’s
consumption, the BIA’s ability to ignore its own precedents
at will would “tend[] to cause unjust discrimination and deny
adequate notice’ and consequently may result in a violation of
an individual’s constitutional right to due process.” Wilson,
378 F.3d at 545 (internal quotations omitted).
All of this is a roundabout way of saying that the BIA had
no discretion to ignore its own precedent. Billeke-Tolosa’s
appeal—which asserts that the BIA did so—falls within our
purview.
B. Whether BIA Precedent was Followed
Billeke-Tolosa argues that the IJ’s consideration of the
unproven allegations of sexual misconduct contravened the
BIA’s resolution of In re Catalina Arreguin de Rodriguez,
21 I. & N. Dec. 38 (1995). In that case, on the way to
denying discretionary relief from deportation following a drug
conviction, the IJ had considered the “applicant’s arrest in
1980 on suspicion of smuggling aliens,” which the petitioner
denied and for which the petitioner was never convicted. Id.
at 42. In reversing the IJ’s decision, the BIA noted that:
The Immigration Judge concluded that this incident was
a negative factor to be considered in exercising
discretion. 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, absent a conviction or corroborating
evidence of the allegations contained therein. Here, the
applicant conceded that the arrest took place but admitted
to no wrongdoing. Considering that prosecution was
declined and that there is no corroboration, from the
applicant or otherwise, we give the apprehension report
little weight.
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Id. The facts in our case are materially the same, suggesting
that the IJ erred. Although the IJ was concerned that Billeke-
Tolosa had a history of sexually abusing young children, he
was not convicted of any such crime, denied committing such
a crime, and was confronted with no independent evidence
suggesting otherwise.
Arreguin de Rodriguez does not apply, asserts the
Government, for three reasons. First, the Government argues
that “[i]n that case, the issue was whether or not to provide a
discretionary waiver of criminal conduct under the former
Section 212(c) of the INA.” But the uncorroborated
allegations relied upon by the IJ in that case had nothing to do
with the conviction that prompted the petitioner’s initial
exposure to deportation. Like the IJ in our case, the IJ had
“concluded that this incident was a negative factor to be
considered in exercising discretion.” Id. at 42. In short, that
the trigger for the deportation proceedings was an unrelated
criminal conviction, rather than noncompliance with a student
visa, is a distinction without a difference.
Second, the Government insists that “while the alien in
Arreguin de Rodriguez was not prosecuted for the conduct
alleged in the arrest report, petitioner, in contrast, was
prosecuted and pled guilty.” This would certainly be relevant
if Billeke-Tolosa had pled guilty to the sex crimes with which
he was initially charged. But Billeke-Tolosa pled to simple
assault in one case and disorderly conduct in the other; the IJ
denied relief due to his concern that Billeke-Tolosa was a
sexual deviant. That he was convicted of lesser crimes is
beside the point.
Third, the Government contends that the above-mentioned
passage was dicta. Dicta, of course, is language that is only
“incidental to th[e] holding.” United States v. De John, 368
F.3d 533, 539 (6th Cir. 2004). The BIA’s prohibiting
consideration of unproven allegations that lack any other
corroboration, however, was necessary to its reversal of the
IJ: in that case, the rule it announced undermined the key

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No. 02-4395 Billeke-Tolosa v. Ashcroft 9
basis upon which the IJ had denied the petitioner
discretionary relief.
Finally, because an agency’s failure to follow its own
procedural rules will rarely constitute harmless error, see
Wilson, 378 F.3d at 547 (“We do not decide the question of
whether a de minimis violation may qualify as harmless
error.”), the BIA’s failure to follow its precedent subjected
Billeke-Tolosa to substantial prejudice. There was no
independent evidence of the allegations against him, and
Shoun, the court-retained social worker, concluded that
Billeke-Tolosa probably had not committed either of the
offenses and likely was not a pedophile. And as noted above,
when Billeke-Tolosa pled guilty to disorderly conduct, his
sentence was suspended because the court determined that
“Defendant is not likely again to engage in a criminal course
of conduct.”
Moreover, the record clearly reflects that the IJ’s concerns
about Billeke-Tolosa’s sexual conduct were the driving force
behind the denial of his petition for adjusted status. Even
before Billeke-Tolosa was examined by Shoun, the IJ
announced that:
I’m satisfied at this time that [Billeke-Tolosa] and his
wife are very hard-working. I’m satisfied that they have
a very stable economic life in the United States. I’m
satisfied that they have what appears to be a more marital
relationship. Mrs. [Billeke-Tolosa] has stood by her
husband through a number of run-ins with the police in
a very stressful, difficult situation with a . . . landlady.
I’m satisfied that they pay their taxes. I’m satisfied that
he’s making financial contributions to the community
through paying his taxes. I’m also satisfied that he has
some community involvement. He testified about
helping build this house through a local Presbyterian
Church. If I don’t hear anything about indecent
exposure charges in . . . Nasvhille and [sexual battery
10 Billeke-Tolosa v. Ashcroft No. 02-4395
charges] in Germantown I would have adjusted three
hours ago, but I want to know more.
(emphasis added). Because the IJ suggested that Billeke-
Tolosa would have received discretionary relief, but for
factors that the IJ was not permitted to consider, the IJ’s
erroneous consideration of these factors was necessarily
prejudicial.
III. CONCLUSION
For the preceding reasons, the order of deportation is
VACATED and the case is REMANDED for additional
consideration, consistent with this opinion.

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