BIA Precedent Decisions Volume 26 (2012-2016) Executive Office for Immigration Review

GUZMAN-POLANCO, 26 I&N Dec. 806 (BIA 2016) ID 3871 (PDF)

The crime of aggravated battery in violation of the Puerto Rico Penal Code is not categorically a crime of violence under 18 U.S.C. § 16(a) (2012), but controlling circuit court law should be followed regarding the question whether conduct such as the use or threatened use of poison to injure another person involves sufficient “force” to constitute a crime of violence. Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), clarified.

In assessing whether an offense qualifies as an aggravated felony under section 101(a)(43)(T) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(T) (2012), the categorical approach applies to decide if the offense relates to an alien’s failure to appear before a court, but the circumstance-specific approach applies to determine if the failure to appear was (1) pursuant to a court order (2) to answer to or dispose of a charge of a felony (3) for which a sentence of 2 years’ imprisonment or more may be imposed.


KHAN , 26 I&N Dec. 797 (BIA 2016) ID 3870 (PDF)

Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3)(A)(ii) (2012), by a petitioner for U nonimmigrant status.

CHAIREZ and SAMA, 26 I&N Dec. 796 (A.G. 2016) ID 3869 (PDF)

The Attorney General lifted the stay and remanded these cases to the Board of Immigration Appeals for appropriate action.

FATAHI, 26 I&N Dec. 791 (BIA 2016) ID 3868 (PDF)

In determining whether an alien presents a danger to the community at large and thus should not be released on bond pending removal proceedings, an Immigration Judge should consider both direct and circumstantial evidence of dangerousness, including whether the facts and circumstances present national security considerations.

RICHMOND, 26 I&N Dec. 779 (BIA 2016) ID 3867 (PDF)

(1) A false claim to United States citizenship falls within the scope of section 212(a)(6)(C)(ii)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (2012), where there is direct or circumstantial evidence that the false claim was made with the subjective intent of obtaining a purpose or benefit under the Act or any other Federal or State law, and where United States citizenship actually affects or matters to the purpose or benefit sought.

(2) There is a distinction between achieving a “purpose” and obtaining a “benefit” under section 212(a)(6)(C)(ii)(I) of the Act.

(3) Avoiding removal proceedings qualifies as a “purpose” within the meaning of section 212(a)(6)(C)(ii)(I) of the Act.

M-J-K-, 26 I&N Dec. 773 (BIA 2016) ID 3866 (PDF)

In cases involving issues of mental competency, an Immigration Judge has the discretion to select and implement appropriate safeguards, which the Board of Immigration Appeals reviews de novo.

GOMEZ-BELTRAN, 26 I&N Dec. 765 (BIA 2016) ID 3865 (PDF)

An alien cannot establish good moral character under section 101(f)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(6) (2012), if, during the period for which it is required, he or she gives false testimony under oath in proceedings before an Immigration Judge with the subjective intent of obtaining immigration benefits.

M-H-Z-, 26 I&N Dec. 757 (BIA 2016) ID 3864 (PDF)

The “material support bar” in section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2012), does not include an implied exception for an alien who has provided material support to a terrorist organization under duress.

H. ESTRADA, 26 I&N Dec. 749 (BIA 2016) ID 3863 (PDF)

(1) In analyzing whether a conviction is for a crime of domestic violence under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012), the circumstance-specific approach is properly applied to determine the domestic nature of the offense.

(2) Where the respondent’s original sentence for his Georgia conviction was ambiguous as to whether he was sentenced to probation or a probated term of imprisonment, a clarification order issued by the sentencing judge to correct an obvious discrepancy in her original order will be given effect in determining whether the respondent was sentenced to a term of imprisonment of at least 1 year.

GONZALEZ ROMO, 26 I&N Dec. 743 (BIA 2016) ID 3862 (PDF)

Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a returning lawful permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that section refers only to attempt and conspiracy to commit a crime involving moral turpitude, and is therefore properly considered to be an arriving alien under section 101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N Dec. 426 (BIA 2011), clarified.


GARZA-OLIVARES, 26 I&N Dec. 736 (BIA 2016) ID 3861 (PDF)
RUZKU, 26 I&N Dec. 731 (BIA 2016) ID 3860 (PDF)

Direct sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty or higher that a full sibling biological relationship exists should be accepted and considered to be probative evidence of the relationship.


ADENIYE, 26 I&N Dec. 726 (BIA 2016) (as amended) ID 3859 (PDF)

An “offense relating to a failure to appear by a defendant for service of sentence” is an aggravated felony under section 101(a)(43)(Q) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(Q) (2012), if the underlying offense was “punishable by” imprisonment for a term of 5 years or more, regardless of the penalty actually ordered or imposed.


VILLALOBOS, 26 I&N Dec. 719 (BIA 2016)

ID 3858 (PDF)

(1) Although the Department of Homeland Security has exclusive jurisdiction over applications for adjustment of status under the legalization provisions of section 245A of the Immigration and Nationality Act, 8 U.S.C. § 1255a (2012), the Immigration Judges and the Board of Immigration Appeals have jurisdiction to determine whether an alien was eligible for a previous adjustment under section 245A(b)(1) for purposes of assessing the alien’s removability and current eligibility for relief from removal.

(2) An alien seeking to acquire lawful permanent resident status through the legalization provisions of section 245A of the Act must establish admissibility, both at the time of the initial application for temporary resident status and again when applying for adjustment to permanent resident status under section 245A(b)(1).

(3) An alien who was inadmissible at the time of adjustment of status from temporary resident to permanent resident under section 245A(b)(1) of the Act was not lawfully admitted for permanent residence and is therefore ineligible for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994).


GUZMAN-POLANCO, 26 I&N Dec. 713 (BIA 2016)

ID 3857 (PDF)

(1) For a State offense to qualify as a crime of violence under 18 U.S.C. § 16(a) (2012), the State statute must require as an element the use, attempted use, or threatened use of violent physical force. Matter of Martin, 23 I&N Dec. 491 (BIA 2002), withdrawn.

(2) The crime of aggravated battery under the Puerto Rico Penal Code, which may be committed by means that do not require the use of violent physical force, is not categorically a crime of violence under 18 U.S.C. § 16(a).


MENDOZA OSORIO, 26 I&N Dec. 703 (BIA 2016)

ID 3856 (PDF)

The offense of endangering the welfare of a child in violation of section 260.10(1) of the New York Penal Law, which requires knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child, is categorically a “crime of child abuse, child neglect, or child abandonment” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012).


CALVILLO GARCIA, 26 I&N Dec. 697 (BIA 2015)

ID 3855 (PDF)

A term of confinement in a substance abuse treatment facility imposed as a condition of probation pursuant to article 42.12, section 14(a) of the Texas Code of Criminal Procedure constitutes a “term of confinement” under section 101(a)(48)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(B) (2012), for purposes of determining if an offense is a crime of violence under section 101(a)(43)(F) of the Act.


CASTRO-LOPEZ, 26 I&N Dec. 693 (BIA 2015)

ID 3854 (PDF)

The 10 years of continuous physical presence required by 8 C.F.R. § 1240.66(c)(2) (2015) for aliens seeking special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), should be measured from the alien’s most recently incurred ground of removal, at least where that ground is among those listed in 8 C.F.R. § 1240.66(c)(1).


Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015)

ID 3853 (PDF)

(1) The requirements of the Federal Rules of Evidence with respect to the admission of expert testimony are inapposite to a respondent’s testimony regarding events of which he or she has personal knowledge.

(2) Conduct by an Immigration Judge that can be perceived as bullying or hostile is never appropriate, particularly in cases involving minor respondents, and may result in remand to a different Immigration Judge.


Chairez and Sama, 26 I&N Dec. 686 (A.G. 2015)

ID 3852 (PDF)

The Attorney General referred the decisions of the Board of Immigration Appeals to herself for review of an issue relating to the application of Descamps v. United States, 133 S. Ct. 2276 (2013), ordering that those cases be stayed and not be regarded as precedential or binding as to the issue under review during the pendency of her review.


J-S-S-, 26 I&N Dec. 679 (BIA 2015)

ID 3851 (PDF)

(1) Neither party bears a formal burden of proof in immigration proceedings to establish whether or not the respondent is mentally competent, but where indicia of incompetency are identified, the Immigration Judge should determine if a preponderance of the evidence establishes that the respondent is competent.

(2) An Immigration Judge’s finding of competency is a finding of fact that the Board of Immigration Appeals reviews to determine if it is clearly erroneous.


GARCIA-RAMIREZ, 26 I&N Dec. 674 (BIA 2015)

ID 3850 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing, regardless of whether the encounter occurred at or near the border. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence. Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015), followed.


CASTREJON-COLINO, 26 I&N Dec. 667 (BIA 2015)

ID 3849 (PDF)

(1) Where an alien has the right to a hearing before an Immigration Judge, a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under section 240A(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(A) (2012), in the absence of evidence that he or she was informed of and waived the right to such a hearing. Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), clarified.

(2) Evidence that an alien who had the right to a hearing before an Immigration Judge was fingerprinted and/or photographed before being allowed to voluntarily depart is not enough, in itself, to demonstrate a waiver of the right to a hearing or to show a process of sufficient formality to break continuous physical presence.


R-K-K-, 26 I&N Dec. 658 (BIA 2015)

ID 3848 (PDF)

(1) Significant similarities between statements submitted by applicants in different proceedings can be considered by an Immigration Judge in making an adverse credibility determination if certain procedural steps are undertaken to preserve the fairness of the proceedings.

(2) When relying on inter-proceeding similarities, the Immigration Judge should give the applicant meaningful notice of the similarities and a reasonable opportunity to explain them prior to making a credibility determination that is based on the totality of the circumstances.


M-A-F-, 26 I&N Dec. 651 (BIA 2015)

ID 3847 (PDF)

(1) Where an applicant has filed an asylum application before the May 11, 2005, effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302, and, on or after that date, submitted a subsequent application that is properly viewed as a new application, the later filing date controls for purposes of determining the applicability of section 208(b)(1)(B)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(iii) (2012), to credibility determinations.

(2) A subsequent asylum application is properly viewed as a new application if it presents a previously unraised basis for relief or is predicated on a new or substantially different factual basis.

(3) Where an alien has filed more than one application for asylum and the subsequent one is deemed to be a new application, the filing date of the later application controls for purposes of determining whether the 1-year statutory time bar applies under section 208(a)(2)(B) of the Act.


D-M-C-P-, 26 I&N Dec. 644 (BIA 2015)

ID 3846 (PDF)

(1) Neither an Immigration Judge nor the Board of Immigration Appeals has jurisdiction to consider whether asylum-only proceedings were improvidently instituted pursuant to a referral under the Visa Waiver Program.

(2) It is improper to deem an application for relief abandoned based on the applicant’s failure to comply with the biometrics filing requirement where the record does not reflect that the applicant received notification advisories concerning that requirement, was given a deadline for submitting the biometrics, and was advised of the consequences of his or her failure to comply.


ORDAZ, 26 I&N Dec. 637 (BIA 2015)

ID 3845 (PDF)

A notice to appear that was served on an alien but never resulted in the commencement of removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (2012).


R. HUANG, 26 I&N Dec. 627 (BIA 2015)

ID 3844 (PDF)

The beneficiary of a visa petition who was adopted pursuant to a State court order that was entered when the beneficiary was more than 16 years old, but with an effective date prior to his or her 16th birthday, may qualify as an adopted child under section 101(b)(1)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(E)(i)(2012), so long as the adoption petition was filed before the beneficiary’s 16th birthday and the State in which the adoption was entered expressly permits an adoption decree to be dated retroactively. Matter of Cariaga, 15 I&N Dec. 716 (BIA 1976), and Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), modified.


P. SINGH, 26 I&N Dec. 623 (BIA 2015)

ID 3843 (PDF)

An attorney who admitted to engaging in conduct prejudicial to the administration of justice by enlisting his legal assistant to impersonate him during multiple telephonic appearances before Immigration Judges was appropriately suspended from practice before the Immigration Courts, the Board of Immigration Appeals, and the Department of Homeland Security for a period of 16 months and prohibited from appearing telephonically in the Immigration Courts for 7 years.


PENA, 26 I&N Dec. 613 (BIA 2015)

ID 3842 (PDF)

An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished.


J-R-R-A-, 26 I&N Dec. 609 (BIA 2015)

ID 3841 (PDF)

If an applicant for asylum has competency issues that affect the reliability of his testimony, the Immigration Judge should, as a safeguard, generally accept his fear of harm as subjectively genuine based on the applicant’s perception of events.


FAJARDO ESPINOZA , 26 I&N Dec. 603 (BIA 2015)

ID 3840 (PDF)

A grant of Family Unity Program benefits does not constitute an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012), for purposes of establishing that an alien has accrued the requisite 7 years of continuous residence after having been “admitted in any status” to be eligible for cancellation of removal under section 240A(a)(2) of the Act, 8 U.S.C. § 1229b(a)(2) (2012). Matter of Reza, 25 I&N Dec. 296 (BIA 2010), reaffirmed. Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006), not followed.


FRANCISCO-ALONZO, 26 I&N Dec. 594 (BIA 2015)

ID 3839 (PDF)

In determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b) (2012), the proper inquiry is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”


Z-Z-O-, 26 I&N Dec. 586 (BIA 2015)

ID 3838 (PDF)

(1) An Immigration Judge’s predictive findings of what may or may not occur in the future are findings of fact, which are subject to a clearly erroneous standard of review. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008), and Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008), overruled.

(2) Whether an asylum applicant has an objectively reasonable fear of persecution based on the events that the Immigration Judge found may occur upon the applicant’s return to the country of removal is a legal determination that is subject to de novo review.


AGOUR, 26 I&N Dec. 566 (BIA 2015)

ID 3837 (PDF)

Adjustment of status constitutes an “admission” for purposes of determining an alien’s eligibility to apply for a waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012). Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), distinguished.


J-H-J, 26 I&N Dec. 563 (BIA 2015)

ID 3836 (PDF)

An alien who adjusted status in the United States, and who has not entered as a lawful permanent resident, is not barred from establishing eligibility for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), as a result of an aggravated felony conviction. Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), and Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), withdrawn.


FITZPATRICK, 26 I&N Dec. 559 (BIA 2015)

ID 3835 (PDF)

An alien who has voted in an election involving candidates for Federal office in violation of 18 U.S.C. § 611(a) (2012) is removable under section 237(a)(6)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(6)(A) (2012), regardless of whether the alien knew that he or she was committing an unlawful act by voting.


MONTIEL, 26 I&N Dec. 555 (BIA 2015)

ID 3834 (PDF)

Removal proceedings may be delayed, where warranted, pending the adjudication of a direct appeal of a criminal conviction. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), followed.


SILVA-TREVINO, 26 I&N Dec. 550 (A.G. 2015)

ID 3833 (PDF)

The Attorney General vacated the opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).


SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015)

ID 3832 (PDF)

(1) A change in the place of employment of a beneficiary to a geographical area requiring a corresponding Labor Condition Application for Nonimmigrant Workers (“LCA”) be certified to the U.S. Department of Homeland Security with respect to that beneficiary may affect eligibility for H-1B status; it is therefore a material change for purposes of 8 C.F.R. §§ 214.2(h)(2)(i)(E) and (11)(i)(A) (2014).

(2) When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H-1B petition with the corresponding LCA.


CHRISTO’S, INC., 26 I&N Dec. 537 (AAO 2015)

ID 3831 (PDF)

(1) An alien who submits false documents representing a nonexistent or fictitious marriage, but who never either entered into or attempted or conspired to enter into a marriage, may intend to evade the immigration laws but is not, by such act alone, considered to have “entered into” or “attempted or conspired to enter into” a marriage for purposes of section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012). Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976), followed.

(2) Misrepresentations relating to a nonexistent marriage may render the beneficiary inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when the Director adjudicates the application for adjustment of status.


LEACHENG INTERNATIONAL, INC., 26 I&N Dec. 532 (AAO 2015)

ID 3830 (PDF)

(1) The definition of “doing business” at 8 C.F.R. § 204.5(j)(2) (2014) contains no requirement that a petitioner for a multinational manager or executive must provide goods and or services to an unaffiliated third party.

(2) A petitioner may establish that it is “doing business” by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.


CERDA REYES, 26 I&N Dec. 528 (BIA 2015)

ID 3829 (PDF)

The rules for applying for a bond redetermination at 8 C.F.R. § 1003.19(c) (2014) relate to venue, not jurisdiction.


L-A-C-, 26 I&N Dec. 516 (BIA 2015)

ID 3828 (PDF)

(1) Where an Immigration Judge finds that an applicant for asylum or withholding of removal has not provided reasonably available corroborating evidence to establish his claim, the Immigration Judge should first consider the applicant’s explanations for the absence of such evidence and, if a continuance is requested, determine whether there is good cause to continue the proceedings for the applicant to obtain the evidence.

(2) Although an Immigration Judge should consider an applicant’s explanation for the absence of corroborating evidence, section 208(b)(1)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(ii) (2012), does not require the Immigration Judge to identify the specific evidence necessary to meet the applicant’s burden of proof and to provide an automatic continuance for the applicant to obtain that evidence prior to rendering a decision on the application.


VIDES CASANOVA, 26 I&N Dec. (BIA 2015)

ID 3827 (PDF)

The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2012), where the totality of the record supported the conclusion that, through his “command responsibility” in his role as Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, he participated in the commission of particular acts of torture and extrajudicial killing of civilians in El Salvador, in that they took place while he was in command, he was aware of these abuses during or after the fact, and through both his personal interference with investigations and his inaction, he did not hold the perpetrators accountable.


CROSS, 26 I&N Dec. 485 (BIA 2015)

ID 3826 (PDF)

A person born out of wedlock may qualify as a legitimated “child” of his or her biological parents under section 101(c)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1101(c)(1) (2012), for purposes of citizenship if he or she was born in a country or State that has eliminated all legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States), if otherwise eligible. Matter of Hines, 24 I&N Dec. 544 (BIA 2008), and Matter of Rowe, 23 I&N Dec. 962 (BIA 2006), overruled in part. Matter of Clahar, 18 I&N Dec. 1 (BIA 1981), and Matter of Goorahoo, 20 I&N Dec. 782 (BIA 1994), reaffirmed.


CHAIREZ, 26 I&N Dec. 478 (BIA 2015)

ID 3825 (PDF)

(1) With respect to aggravated felony convictions, Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of divisibility, so the interpretation of Descamps reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as there is no controlling authority to the contrary in the relevant circuit.

(2) Because the United States Court of Appeals for the Tenth Circuit has taken an approach to divisibility different from that adopted in Matter of Chairez, the law of the Tenth Circuit must be followed in that circuit.


ESQUIVEL-QUINTANA, 26 I&N Dec. 469 (BIA 2015)

ID 3824 (PDF)

(1) For a statutory rape offense that may include a 16- or 17-year-old victim to be categorically “sexual abuse of a minor” under section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), the statute must require a meaningful age differential between the victim and the perpetrator. Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999), and Matter of V-F-D-, 23 I&N Dec. 859 (BIA 2006), clarified.

(2) The offense of unlawful intercourse with a minor in violation of section 261.5(c) of the California Penal Code, which requires that the minor victim be “more than three years younger” than the perpetrator, categorically constitutes “sexual abuse of a minor” and is therefore an aggravated felony under section 101(a)(43)(A) of the Act.


O. A. HERNANDEZ, 26 I&N Dec. 464 (BIA 2015)

ID 3823 (PDF)

The offense of “deadly conduct” in violation of section 22.05(a) of the Texas Penal Code, which punishes a person who “recklessly engages in conduct that places another in imminent danger of serious bodily injury,” is categorically a crime involving moral turpitude.


VELASQUEZ-CRUZ, 26 I&N Dec. 458 (BIA 2014)

ID 3822 (PDF)

An alien’s departure from the United States following a criminal conviction for illegal entry under section 275(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1325(a)(1) (2012), interrupts the 10-year period of continuous physical presence required to establish eligibility for cancellation of removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1) (2012).


UNITED FARM WORKERS FOUNDATION, 26 I&N Dec. 454 (BIA 2014)

ID 3821 (PDF)

A recognized organization need only apply for its representative’s accreditation at one location, and if approved, that representative may thereafter practice at any branch location of the organization that has been recognized by the Board of Immigration Appeals. Matter of EAC, Inc., 24 I&N Dec. 563 (BIA 2008), modified.


AYUDA, 26 I&N Dec. 449 (BIA 2014)

ID 3820 (PDF)

When assessing an organization’s application for recognition, the Board of Immigration Appeals makes an individualized determination whether the applicant’s fees qualify as “nominal charges” and whether its fee structure is true to the goal of providing competent low-cost legal services. Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986), clarified.


ST. FRANCIS CABRINI IMMIGRATION LAW CENTER, 26 I&N Dec. 445 (BIA 2014)

ID 3819 (PDF)

Where an organization is physically colocated or financially associated with, or otherwise attached to, a for-profit venture, the Board of Immigration Appeals will not approve an application for recognition unless it is confident that the organization will not be influenced, either explicitly or implicitly, by the pecuniary interests of the commercial affiliate.


BETT, 26 I&N Dec. 437 (BIA 2014)

ID 3818 (PDF)

A Form I-9 (Employment Eligibility Verification) is admissible in immigration proceedings to support charges of removability against an alien and to determine his or her eligibility for relief from removal.


MUNROE, 26 I&N Dec. 428 (BIA 2014)

ID 3817 (PDF)

For purposes of establishing an alien’s eligibility for a waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) (2012), the relevant period for determining whether an alien’s removal would result in extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident.


PINA-GALINDO, 26 I&N Dec. 423 (BIA 2014)

ID 3816 (PDF)

An alien is ineligible for cancellation of removal under section 240A(b)(1)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2012), if he or she falls
within the scope of section 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (2012), as
having been convicted of two or more offenses for which the aggregate sentences
imposed were 5 years or more.


FERREIRA, 26 I&N Dec. 415 (BIA 2014)

ID 3815 (PDF)

Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach.


DOMINGUEZ-RODRIGUEZ, 26 I&N Dec. 408 (BIA 2014)

ID 3814 (PDF)

For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(B)(i) (2012), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), distinguished. Matter of Davey, 26 I&N Dec. 37 (BIA 2012), reaffirmed.


PAEK, 26 I&N Dec. 403 (BIA 2014)

ID 3813 (PDF)

An alien who was admitted to the United States at a port of entry as a conditional
permanent resident pursuant to section 216(a) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(a) (2012), is an alien “lawfully admitted for permanent residence” who
is barred from establishing eligibility for a waiver of inadmissibility under section 212(h)
of the Act, 8 U.S.C. § 1182(h) (2012), if he or she was subsequently convicted of an
aggravated felony.


HERNANDEZ, 26 I&N Dec. 397 (BIA 2014)

ID 3812 (PDF)

Malicious vandalism in violation of section 594(a) of the California Penal Code with a gang enhancement under section 186.22(d) of the California Penal Code, which requires that the underlying offense be committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members, is categorically a crime involving moral turpitude.


A-R-C-G-, 26 I&N Dec. 388 (BIA 2014)

ID 3811 (PDF)

Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).


C-C-I-, 26 I&N Dec. 375 (BIA 2014)

ID 3810 (PDF)

(1) Reopening of removal proceedings for a de novo hearing to consider termination of an alien’s deferral of removal pursuant to 8 C.F.R. § 1208.17(d)(1) (2014), is warranted where the Government presents evidence that was not considered at the previous hearing if it is relevant to the possibility that the alien will be tortured in the country to which removal has been deferred.

(2) The doctrine of collateral estoppel does not prevent an Immigration Judge from reevaluating an alien’s credibility in light of additional evidence presented at a hearing under 8 C.F.R. § 1208.17(d)(3).


L-G-H-, 26 I&N Dec. 365 (BIA 2014)

ID 3809 (PDF)

Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012).


M-L-M-A-, 26 I&N Dec. 360 (BIA 2014)

ID 3808 (PDF)

(1) Because an application for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), is a continuing one, false testimony given by the respondent more than 3 years prior to the entry of a final administrative order should not be considered in determining whether she is barred from establishing good moral character under section 101(f)(6) of the Act, 8 U.S.C. § 1101(f)(6) (2006). Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), followed.

(2) Although the respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted special rule cancellation of removal based on her abusive marriage and had significant equities that merited a favorable exercise of discretion. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009), distinguished.


CHAIREZ, 26 I&N Dec. 349 (BIA 2014)

ID 3807 (PDF)

(1) The categorical approach, which requires a focus on the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, is employed to determine whether the respondent’s conviction for felony discharge of a firearm under section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the respondent’s removability as an alien convicted of an aggravated felony where it did not show that section 76-10-508.1 of the Utah Code was divisible with respect to the mens rea necessary to constitute a crime of violence. Descamps v. United States, 133 S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah Code, which contains no exception for “antique firearms” as defined by 18 U.S.C. § 921(a)(16) (2012), the statute was not shown to be categorically overbroad relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), clarified.


G-G-S-, 26 I&N Dec. 339 (BIA 2014)

ID 3806 (PDF)

An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a “particularly serious crime” for immigration purposes.


P-S-H-, 26 I&N Dec. 329 (BIA 2014)

ID 3805 (PDF)

To terminate a grant of asylum pursuant to 8 C.F.R. § 1208.24 (2013), the Department of Homeland Security must establish, by a preponderance of the evidence, that (1) there was fraud in the alien’s asylum application and (2) the fraud was such that the alien was not eligible for asylum at the time it was granted; however, proof that the alien knew of the fraud in the application is not required in order to satisfy the first criterion. Matter of A-S-J-, 25 I&N Dec. 893 (BIA 2012), clarified.


DUARTE-LUNA and LUNA, 26 I&N Dec. 325 (BIA 2014)

ID 3804 (PDF)

A parent’s continuous physical presence and continuous residence in the United States
cannot be imputed to a child for purposes of establishing the child’s eligibility for
Temporary Protected Status.


E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

ID 3803 (PDF)

In the ordinary course of removal proceedings, an applicant for asylum or for withholding or deferral of removal is entitled to a hearing on the merits of those applications, including an opportunity to provide oral testimony and other evidence, without first having to establish prima facie eligibility for the requested relief. Matter of Fefe, 20 I&N Dec. 116 (BIA 1989), followed.


JACKSON AND ERANDIO, 26 I&N Dec. 314 (BIA 2014)

ID 3802 (PDF)

Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition
filed by a petitioner who has been convicted of a “specified offense against a minor” and
has not shown that he poses “no risk” to the beneficiary, does not have an impermissible
retroactive effect when applied to convictions that occurred before its enactment.


INTROCASO, 26 I&N Dec. 304 (BIA 2014)

ID 3801 (PDF)

(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving
that he has not been convicted of a “specified offense against a minor.”

(2) In assessing whether a petitioner has been convicted of a “specified offense against a
minor,” adjudicators may apply the “circumstance-specific” approach, which permits
an inquiry into the facts and conduct underlying the conviction to determine if it is for
a disqualifying offense.


ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014)

ID 3800 (PDF)

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks
jurisdiction to review a “no risk” determination by the United States Citizenship and
Immigration Services, including the appropriate standard of proof to be applied.


SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.”

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”) must be pled and proved beyond a reasonable doubt and thus is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.

M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.

PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should
evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be"grandfathered" must be the beneficiary of an application for labor certification that was "approvable when filed."

(2) An alien will be presumed to be the beneficiary of a "meritorious in fact" labor certification if the application was "properly filed" and "non-frivolous" and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.



BIA Precedent Decisions Volume 26 (2012-2014) Executive Office for Immigration Review

Posted in 26 I&N Dec. 415 (BIA 2014), BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

CA7 lacked jurisdiction to review BIA denial of discretionary 212(h) waiver where alien was involved in violent or dangerous crime

Bd. did not err in reversing IJ’s grant of alien’s application for waiver of inadmissibility under section 212(h) of INA, where: (1) alien became removable based on his prior conviction on charge of unarmed bank robbery, which, in turn, resulted in alien’s loss of his legal permanent resident status; and (2) Bd. found that regulation (8 CFR section 1217(d)), that precluded any discretionary exercise of waiver where alien was involved in violent or dangerous crime unless extreme hardship was established, applied to circumstances of alien’s application. Moreover, while IJ found that alien’s removal would cause extreme financial hardship on his children, Bd. found that said hardship was not extreme. Ct. further noted that it lacked jurisdiction to review instant section 212(h) waiver denial and rejected alien’s argument that: (1) instant regulation was in conflict with congressional intent set forth in section 212(h); (2) Bd. applied said regulation improperly; (3) his conviction was not crime of violence; and (4) Bd. improperly failed to consider certain hardship evidence.

Cisneros came to the U.S. in 1988 at age 17 and stayed after the expiration of his visa. In 1995, he married U.S. citizen; his status was adjusted to lawful permanent resident. They divorced in 2002. Cisneros consistently supported his ex-wife and the couple’s children and now has grandchildren. He has a history of alcoholism. In 2012, Cisneros committed unarmed robbery, an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), resulting in loss of his legal permanent resident status and making him inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), because robbery is a crime of moral turpitude. Cisneros applied for a waiver under 8 U.S.C. 1182(h)(1)(B), which gives the Attorney General the discretionary power to waive inadmissibility for the spouse, parent, or child of a U.S. citizen who would suffer “extreme hardship” if removed. An immigration judge granted Cisneros’s application. DHS appealed; the BIA revoked the waiver. The Seventh Circuit denied a petition for review, noting that its authority extends only to legal or constitutional issues, not discretionary determinations.

JOSÉ ANTONIO CISNEROS, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-3238.

United States Court of Appeals, Seventh Circuit.
Argued May 26, 2016.
Decided August 25, 2016.

Petition for Review of an Order of the Board of Immigration Appeals No. A073-393-696.

Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

WOOD, Chief Judge.

José Antonio Cisneros, who had been a lawful permanent resident of the United States since 1996, had the bad judgment to commit unarmed robbery in 2012. This is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and so one result of his conviction was the loss of his legal permanent resident status. His conviction also made him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I)— that is, unable to adjust his status back to that of a lawful permanent resident—because robbery is a crime of moral turpitude. In order to regain eligibility for relief from removal through adjustment of status, Cisneros needed to deal with the problem of his inadmissibility. He therefore applied for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(h)(1)(B), which gives the Attorney General the discretionary power to waive inadmissibility based on several grounds, including a crime of moral turpitude, if the person is a spouse, parent, or child of a U.S. citizen who would suffer “extreme hardship” if removed.

The Attorney General has promulgated regulations implementing this authority. The regulations state that with respect to inadmissibility based on “violent or dangerous crimes,” she “in general, will not favorably exercise discretion under section 212(h)(2) of the Act . . . 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.” 8 C.F.R. § 1212.7(d). The regulation identifies, as one example of such extraordinary circumstances, “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.” Id.

An immigration judge granted Cisneros’s application for a waiver and adjustment of status, finding that his U.S.-citizen family would suffer “exceptional and extremely unusual hardship” as a result of his removal. The Department of Homeland Security appealed, and the Board of Immigration Appeals (“the Board”) overturned that decision and revoked the waiver. Cisneros now petitions for review from the Board’s decision. Our authority, however, extends only to legal or constitutional issues, not discretionary determinations. Finding no cognizable error, we deny the petition for review.

I

Cisneros came to the United States in 1988 at age 17 and stayed after the expiration of his visa. In 1995, he married U.S. citizen Melissa Cisneros, and in 1996 his status was adjusted to lawful permanent resident. They were divorced in 2002, but remained on good terms. Cisneros’s oldest child, Maria Esmeralda, was 24 years old at the time of the removal proceeding; Marissa, his first child with Melissa, was 17 years old; and Marsea, their second daughter, was 15. Cisneros also has two stepsons from Melissa’s previous marriage. Maria had three children of her own, only two of whom are now living. According to the testimony, Cisneros consistently supported the children financially and supported Melissa after their divorce.

On a darker note, Cisneros has a history of alcoholism and a criminal record that includes robbery, battery, a 1998 DUI, and assorted convictions for driving without a license. He has enrolled in rehabilitation programs several times, most recently in 2008. The immigration judge described his testimony about the 2012 conviction:

[H]e was depressed, his car was broken, so he went on a bicycle and tried to look for a used car, something that was inexpensive that maybe his family can lend him some money, or some friends, in order to buy a new vehicle. As he was riding his bicycle, he passed by a bank that he had not entered before and told the teller to give him all her money. She gave him all the money. He then walked out of the bank and rode back to his home.

The probable-cause affidavit for Cisneros’s arrest adds that his demand for money was on a written note that he handed the teller that read, “Give me all the money.” Cisneros represents that he got just $75.

The immigration judge heard testimony from Cisneros and Melissa. Maria was unable to appear at the proceeding, for the grim reason that her boyfriend at the time had beaten her three-year-old daughter Anabel, Cisneros’s granddaughter, to death on December 23, 2014, and Maria herself was in jail on felony neglect charges. The judge described Cisneros’s history with alcoholism and his attempts to get better, as well as his close relationships with his children, stepchildren, grandchildren, and ex-wife. She went through the details of his prior convictions. She examined the circumstances that led up to the 2012 robbery. She noted his current sobriety and church attendance. She concluded, given his earning potential, the recent family tragedy, and the fact that all of the U.S. citizen family members would remain in the United States even if Cisneros was removed, that the “profound and far reaching” “economic and emotional hardship” that would result from his removal warranted an exercise of discretion in his favor. Cisneros’s removal, the immigration judge concluded, “would result in exceptional and extremely unusual hardship to his qualifying relatives, particularly his young children.”

The Board disagreed. It held that 8 C.F.R. § 1212.7(d) applies to Cisneros’s conviction because, despite the absence of any weapon or harm caused to anyone, “the potential for a physical altercation in committing” robbery renders it a dangerous crime. The Board found that Cisneros’s younger daughters—the oldest, Maria, was not a child within the meaning of the Act and therefore not a qualifying family member—would “suffer the emotional and financial hardship of separation from their father,” but it would not be exceptional or extremely unusual. The children would soon be old enough to visit him on their own, the Board added. The Board also explained that hardship is only one factor, and even if Cisneros demonstrated exceptional and extremely unusual hardship to his qualifying relatives, his “negative factors. . . far outweigh the positive.”

II

Unless a constitutional claim or question of law is present, we have no authority to review either the Attorney General’s discretionary grant or denial of a section 212(h) waiver, 8 U.S.C. § 1182(h)(2), or a final order finding a person removable because of the commission of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Vaca-Tellez v. Mukasey, 540 F.3d 665, 668 (7th Cir. 2008).

Our review of the Board’s constitutional and legal determinations is de novo. Surganova v. Holder, 612 F.3d 901, 903 (7th Cir. 2010). We give deference to the Board’s interpretation of immigration statutes. Cano-Oyarzabal v. Holder, 774 F.3d 914, 916 (7th Cir. 2014) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). If a statute is unambiguous, we implement its plain meaning. If it is unclear, we defer to the Board’s interpretation so long as its interpretation is reasonable. Hamlin v. Holder, 755 F.3d 506, 511 (7th Cir. 2014).

Cisneros’s petition for review presents four arguments: (1) that section 1212.7(d) is an invalid regulation in conflict with congressional intent and the relevant statute, (2) that even if the regulation is valid, the Board applied it improperly, (3) that his crime was not violent or dangerous, and (4) that the Board committed legal error by failing to consider certain material facts in its hardship analysis.

A

We begin with his argument about the validity of the regulation. He contends that it impermissibly narrows the statutory language. Section 212(h)(1)(B) allows the Attorney General to waive inadmissibility if removal would result in “extreme hardship” to a citizen or lawful resident spouse, parent, or child. Yet the regulation, section 1212.7(d), significantly narrows the scope for discretion with respect to violent or dangerous crimes. We must decide whether the regulation has permissibly cabined the executive branch’s own authority, or if instead it is an impermissible refusal to exercise the discretion that Congress has required the executive to exercise. We note that Cisneros has not waived this argument by failing to ask the Board to set aside the Attorney General’s regulation. Such an action would lie beyond the Board’s power. See Matter of Anselmo, 20 I. & N. Dec. 25, 30 (BIA 1989) (“Neither this Board nor an immigration judge has authority to consider a challenge to the Attorney General’s determination[.]”). He thus had no duty to present this argument to the Board. Isaaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010).

Section 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B), sets out the “extreme hardship” waiver. Section 212(h)(2) states that once the terms of 212(h)(1)(A) or (B) or (C) are met and the Attorney General has, using the “discretion . . . pursuant to such terms, conditions and procedures as he may by regulations prescribe,” consented to the petitioner’s application, waiver can occur. The Attorney General argues that section 1212.7(d) is just that: a “term,” “procedure,” or “condition” prescribed by regulation in order to implement the authority granted by the statute. Congress expressly left it up to the Attorney General to promulgate regulations to guide the discretion granted in the statute, and she has done so. Chevron, 467 U.S. at 843-44 (“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.”). Cisneros responds that there is no gap to fill—rather, section 1212.7(d)’s “exceptional and extremely unusual hardship” language conflicts with and replaces section 1182(h)(2), and therefore is invalid.

The Attorney General has the better of this debate. The plain language of the statute grants the Attorney General discretion over inadmissibility waivers and the authority to regulate that discretion. She has chosen to decline, as a matter of policy, to exercise her discretion in favor of a petitioner who has committed a “violent or dangerous” crime, unless that person can demonstrate a hardship even greater than that which those who commit non-violent, non-dangerous crimes must show. Granting Cisneros’s point that “extreme hardship” is a lower threshold than “exceptional and extremely unusual hardship,” the fact remains that the statute permits the Attorney General to fine-tune her discretion in this way. Indeed, in Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court came to much the same conclusion with respect to a regulation promulgated by the Bureau of Prisons on the subject of early release. The statute there denied early release to inmates convicted of violent offenses, but the regulation added an additional category of ineligible inmates—those whose current offense is a felony involving a firearm. Id. at 238. The statute merely described eligibility for early release, not an entitlement to it, and so the Bureau was within its rights to identify another group for whom release was inappropriate. The Attorney General’s regulation in our case does the same thing, and so the same result should follow.

The regulation in our case does not render it impossible for persons who have committed violent or dangerous crimes to obtain relief. It just imposes a higher bar. We are not sure, nor could the government enlighten us, about how many people might fail the stricter regulatory test yet qualify for the more lenient statutory test. In the end, however, this does not matter. This is a regulation formally promulgated through statutory authority, and so it qualifies for Chevron deference. In accordance with Chevron’s two-part test, we first ask whether Congress “directly spoke[] to the precise question at issue,” and if not, we ask whether the Attorney General’s construction of the statute is permissible. Yi Di Wang v. Holder, 759 F.3d 670, 673 (7th Cir. 2014) (quoting Chevron, 467 U.S. at 842-43 & n.9).

Congress spoke directly to the question how a petitioner can show he is eligible for a discretionary inadmissibility waiver: by demonstrating extreme hardship to a qualifying family member. 8 U.S.C. § 1182(h)(1)(B). Just as in Lopez, Congress did not constrain the Attorney General’s authority to draw lines within the set of people identified by the statute.

Cisneros quibbles about the source of the “exceptional and extremely unusual” phrase, which comes from a case involving a refugee waiver, not a section 1182(h) waiver. In re Jean, 23 I. & N. Dec. 373 (U.S. Att’y Gen. 2002), but we see no significance in the source of the language the Attorney General chose to adopt. We approved of the heightened In re Jean standard for refugee waivers in Ali v. Achim, 468 F.3d 462 (7th Cir. 2006), finding that it did not conflict with section 1159(c) because section 1159(c) does not require, but only allows, waiver in the listed circumstances. Nothing in section 212(h) compels a different result.

This regulation differs from the one at issue in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), where the First Circuit found invalid a rule categorically barring people on parole from inadmissibility waivers. The First Circuit noted that “[t]he Supreme Court itself has ruled that the two questions of discretion as to the ultimate relief and discretion as to eligibility exclusions are distinct.” Id. at 23 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 433-34 (1987)). Even if no petitioner who meets “extreme hardship” but not “exceptional and extremely unusual hardship” is ever granted a waiver under section 1212.7(d), the regulation is nonetheless not a categorical bar of the kind in Succar. It does not render people convicted of violent or dangerous crimes ineligible; it raises the threshold for obtaining the ultimate relief.

Our conclusion is in accord with five of our sister circuits. See Perez Pimentel v. Mukasey, 530 F.3d 321, 325 (5th Cir. 2008) (“Congress has not spoken to the standards the Attorney General may employ under § 1182(h)(2), and the regulation is directed only to the Attorney General’s discretion under that subsection”); Samuels v. Chertoff, 550 F.3d 252, 257 (2d Cir. 2008) (“Because proof of `extreme hardship’ constitutes only a threshold showing, Section 1212.7(d) is not inconsistent with Section 212(h)”); Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007) (“The Attorney General has not changed or altered the statutory `extreme hardship’ standard. Instead, he has promulgated a regulation to guide [immigration judges] in the way they exercise their relatively unfettered grant of discretion after the statutory requirements are met.”); Talavera v. U.S. Att’y Gen., 628 F. App’x 997, 999 (11th Cir. 2015) (nonprecedential holding that the Attorney General was empowered to “issue regulation 1212.7(d) to provide guidance about how to weigh an alien’s criminal offense against any hardships caused by his removal”); Idowu v. U.S. Att’y Gen., 512 F. App’x 222, 226 (3d Cir. 2013) (nonprecedential, citing Samuels and Mejia). We see no reason to create a conflict with them.

B

Cisneros next urges that even if the regulation is valid, the Board improperly applied it in his case. He points to the following sentence from the Board’s decision: “the respondent has not demonstrated the kind of extraordinary circumstances that would render him eligible for a waiver under 212(h) of the Act.” Therefore, he claims, the agency decision does not warrant deference because it did not focus on the right question. See Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010) (“Chevron deference . . . assumes that an agency has taken a careful look at the general legal issue and has adopted a reasonably consistent approach to it.”).

The government responds that Cisneros takes the sentence out of context. The full sentence reads: “As the respondent has not demonstrated the kind of extraordinary circumstances that would render him eligible for a waiver under 212(h) of the Act in light of his conviction, he does not merit a favorable discretionary determination.” The Board’s decision continues by noting that “the hardship presented is but one factor to consider in making a discretionary determination,” and concludes that “the respondent does not merit the relief he seeks in the exercise of discretion . . . Although the respondent has several notable equities, the negative factors in his case far outweigh the positive.”

The Board’s decision shows that it followed the regulation and asked whether, given Cisneros’s eligibility for relief, a favorable exercise of discretion was merited. Finding no “exceptional and extremely unusual” hardship, it said no. The Board did not consider Cisneros “ineligible” because of his violent or dangerous crime and did not commit any error in applying section 1212.7(d).

C

Cisneros next argues that his crime should not have been classified as “violent or dangerous.” If this was wrong, then it would have been error to apply section 1212.7(d) to him. His argument is that the Board improperly applied a categorical approach to determine that his crime fell in that category; it should instead have analyzed the facts and circumstances underlying his robbery conviction. See Taylor v. United States, 495 U.S. 575 (1990) (establishing a categorical approach to classify state crimes); Shepard v. United States, 544 U.S. 13 (2005) (clarifying the modified categorical approach); see also Descamps v. United States, 133 S. Ct. 2276 (2013) (describing modified categorical approach).

The categorical approach is a method often used to determine whether a prior conviction should be used, usually for purposes of sentencing enhancement. Critically, the court looks only at the elements of the crime, not at the particular way in which it was committed. Section 1212.7(d) does not explicitly state whether a facts-and-circumstances approach or a categorical approach (or a modified categorical approach) is appropriate for determining whether a crime is “violent or dangerous” for purposes of the regulation. Cisneros draws support for his argument that a facts-and-circumstances approach is required from In re Jean, where the Attorney General described the crime in some detail. 23 I. & N. Dec. at 383. But in the end, the Attorney General there concluded that it made no difference whether the crime was a violent one, because the applicant was unfit in any event for discretionary relief. Id.

Neither does our decision in Ali clarify whether the categorical approach is required. 468 F.3d 462. Ali did not address the appropriate way for immigration judges and the Board to determine whether a crime was “violent or dangerous.” Cisneros claims that we rejected the categorical approach in that case, but he conflates our rejection of a categorical bar on certain petitioners with a categorical approach to analyzing the crime of conviction.

The Ninth Circuit requires the Board to “mak[e] a determination based on the facts underlying [the] conviction that [the] crime was violent or dangerous” before applying the heightened regulatory standard. See Rivas-Gomez v. Gonzales, 225 F. App’x 680, 683 (9th Cir. 2007) (nonprecedential); cf. Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015) (finding the Board had discretion not to apply a categorical approach in determining whether a crime was “violent or dangerous”). The Eleventh Circuit has stated that “Jean required neither a `categorical’ nor a `fact-based’ approach to determining whether a refugee’s conviction renders him a `violent or dangerous individual,'” but rather only “an adequate consideration of the nature of the refugee’s crime.” Makir-Marwil v. U.S. Att’y Gen., 681 F.3d 1227, 1235 (11th Cir. 2012). The Eleventh Circuit seems to favor an elements approach for very serious crimes and a facts-and-circumstances approach for others. Id. The Board has suggested, in dictum, that a “facts” approach might be preferable to a categorical one for “violent or dangerous” crime determinations. See Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408, 413 n.9 (BIA 2014).

We see nothing in the statute that compels the Attorney General to adopt one or the other of these methodologies. Because she created the regulation to guide her own discretion, she retains the authority to decide how to interpret the term “violent or dangerous” crime, as long as the interpretation is permissible under the INA. Chevron, 467 U.S. at 843; see also Makir-Marwil, 681 F.3d at 1235 (“all Jean requires is an adequate consideration of the nature of the refugee’s crime”).

We need not pursue this argument further, because the Board does not seem to have applied a strict categorical approach here. It noted that Cisneros’s crime “did not involve a weapon and did not cause harm to any individual,” but it concluded that “the potential for a physical altercation in committing such a crime is itself sufficient to determine it is a dangerous crime.” The Board thus did consider Cisneros’s specific acts and found that the crime met the regulation based on those acts. It did not end its analysis simply by pointing to robbery as the crime of conviction. Given that the Attorney General created the category of crime at issue here, and given her broad discretion, we cannot say that the Board’s determination that Cisneros’s crime was “violent or dangerous” was impermissible.

D

Last, Cisneros argues that the Board erred by failing to consider certain material facts in its hardship analysis. He takes issue with the fact that the Board did not mention his infant granddaughter’s recent traumatic and horrific death, nor the fact that his ex-wife testified that she might be homeless without his financial support. But the Board is not required to recite every fact that Cisneros raised as evidence of extreme hardship to his family. While Cisneros tries to characterize the issue as a legal error, it is really a challenge to the Board’s exercise of discretion and thus one that we are not permitted to review. See Papazoglou v. Holder, 725 F.3d 790, 794 (7th Cir. 2013) (because the Board applied the correct legal standards, the petitioner’s argument “ultimately constitute[d] a disagreement with the Board’s exercise of discretion in refusing to grant the waiver.”). While the “wholesale failure to consider evidence” would be an error of law, see Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008) (citation and quotation marks omitted), the Board did not ignore “wholesale” Cisneros’s evidence of hardship.

III

Because the Board made no legal error in reversing the immigration judge’s grant of relief from removal, we DENY the petition for review.

Posted in 212 (h) waiver, 7th Circuit, 7th Circuit Cases- Aliens, Uncategorized, Waivers, Waivers of Inadmissibility | Leave a comment

CA7 upholds IJ denial of Kyrgyzstan political asylum application

Record contained sufficient evidence to support IJ’s denial of alien’s asylum petition on grounds that alien was not credible, even though alien claimed that he faced persecution for his political activism as member of youth wing of political opposition party in Kyrgyzstan. Record supported IJ’s and Bd.’s finding that alien was not credible with respect to certain important factual allegations regarding identify of individual who allegedly was member of different political party and who had allegedly detained and beaten alien on several occasions. Moreover, alien presented implausible story as to why said individual would travel 400 kilometers to persecute alien and proffered inconsistent testimony as to when he had joined his own political party. As such, IJ could deny application, even if said inconsistencies and implausible stories did not go to heart of asylum application.

In 2013, Santashbekov applied for asylum claiming that he faced persecution for his political activism as a member of the youth wing of the Ata Meken party in his native Kyrgyzstan, 8 U.S.C. 1101(a)(42), 1158(b)(1)(A). After the 2010 revolution, according to the U.S. State Department, Kyrgyzstan continued to face instability and human rights problems, including arbitrary arrests and torture by law enforcement and security forces. The immigration judge characterized Santashbekov’s testimony about his own situation as “vague” and “extremely confusing.” Santashbekov testified that he had experienced persecution by Kurmanov, who Santashbekov believes is a member of an opposing political party and a police or government official; Kurmanov and his associates asked him to repudiate Ata Meken and detained and beat him several times in 2011. Santashbekov changed his address and his name, which was formerly Sultanhodzhaev. He submitted hospital paperwork that confirms that he received medical treatment in Kyrgyzstan corresponding to the beatings he described. He submitted criminal court documents showing that Kurmanov was prosecuted and that Santashbekov was named as a “plaintiff” in the proceeding. The Board affirmed the immigration judge’s denial, also noting inconsistencies in Santashbekov’s testimony. The Seventh Circuit upheld the denial as supported by substantial evidence.

DANIIAR SANTASHBEKOVICH SANTASHBEKOV, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2359.

United States Court of Appeals, Seventh Circuit.
Argued April 6, 2016.
Decided August 24, 2016.

Richard Harvey Trais, for Petitioner.

Joseph A. O’Connell, for Respondent.

OIL, for Respondent.

Timothy G. Hayes, for Respondent.

Jennifer L. Bennett, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals No. A205-800-334.

Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Daniiar Santashbekov petitions for review of an order of the Board of Immigration Appeals denying his application for asylum. The immigration judge found that Santashbekov’s claims of political persecution were not credible, and the Board affirmed. We deny Santashbekov’s petition because substantial evidence supports the judge’s and Board’s credibility findings.

I. Factual and Procedural Background

In early 2013, Daniiar Santashbekov filed an application for asylum claiming that he faced persecution for his political activism as a member of the youth wing of the Ata Meken party in his native Kyrgyzstan. His asylum application was denied, and he was served with a Notice to Appear for removal proceedings on April 24, 2013. Santashbekov admitted his removability but renewed his application for asylum.

The Attorney General or Secretary of Homeland Security may grant asylum to an immigrant who has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” in his home country. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). The applicant for asylum has the burden of proof, which may be satisfied by the applicant’s own testimony if it is credible. 8 U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C). A trier of fact may base a credibility determination on a wide variety of factors, “using whatever combination of considerations seems best in the situation at hand.” Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir. 2008); see 8 U.S.C. § 1158(b)(1)(B)(iii). The trier of fact may base an adverse credibility decision on inconsistencies, inaccuracies, or falsehood, and there is no longer any requirement that an “inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim. . . .” 8 U.S.C. § 1158(b)(1)(B)(iii).

Santashbekov’s application stems from political unrest in Kyrgyzstan. In April 2010, opposition parties protested and ousted the then-president. Ata Meken was one of the opposition parties, and it became part of a new coalition government. After the 2010 revolution, according to the U.S. State Department, Kyrgyzstan continued to face instability and human rights problems, including arbitrary arrests and torture by law enforcement and security forces.

The immigration judge characterized Santashbekov’s testimony about his own situation as “vague” and “extremely confusing.” In essence, Santashbekov testified that he had joined the youth wing of the Ata Meken party at his university in Bishkek in October 2010. After he gave a political speech at his university in December 2010, he began experiencing persecution by a man named Kurmanov, who Santashbekov believes is a member of an opposing political party and a police or government official. Santashbekov testified that Kurmanov and his associates asked him to repudiate the Ata Meken party and detained and beat him several times in 2011. He testified that after the beatings, he was afraid to leave his home and changed his address in Bishkek. Santashbekov also changed his name, which was formerly Sultanhodzhaev. Santashbekov testified that his supervisor at the Ata Meken party, Zhoomart Saparbaev, recommended that he flee the country and helped him.

Santashbekov also submitted documentary evidence to the immigration judge. He submitted hospital paperwork that confirms that he received medical treatment in Kyrgyzstan corresponding to the beatings he described. He submitted criminal court documents showing that Kurmanov was prosecuted and that Santashbekov was named as a “plaintiff” in the proceeding. And Santashbekov submitted a document confirming that he legally changed his name in December 2011. Finally, he submitted a letter from Saparbaev saying that Santashbekov had “helped us working with young people in various activities.” The letter does not mention the Ata Meken party or detail Santashbekov’s political involvement, but it is on letterhead from the Jogorku Kenesh, Kyrgyzstan’s national legislature.

The immigration judge did not believe Santashbekov’s testimony. He made an adverse credibility determination based on the vague and sometimes contradictory nature of Santashbekov’s testimony. The judge also found that Santashbekov’s documentary evidence was insufficient to support his claims of political activity or persecution. The judge concluded that Santashbekov did not carry his burden of proof and denied the application for asylum. The Board affirmed the immigration judge’s denial, also noting inconsistencies in Santashbekov’s testimony.[1]

II. Analysis

Where the Board affirms the immigration judge’s decision and adds its own analysis, as it did here, we review the immigration judge’s decision and the Board’s additional reasoning. Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015). Our review is deferential. We review administrative findings of fact, including credibility determinations, for substantial evidence. Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). Under that standard, we must uphold factual determinations “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). We may not reverse an administrative finding of fact “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). An immigration judge’s credibility findings should be overturned only under “extraordinary circumstances.” Balogun, 374 F.3d at 498, citing Pop v. INS, 270 F.3d 527, 531 (7th Cir. 2001). Still, an adverse credibility finding must be supported by specific and cogent reasons, and the judge must consider explanations offered for gaps and inconsistencies. See Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir. 2015) (granting relief); Tawuo v. Lynch, 799 F.3d at 726 (denying relief).

Here, substantial evidence supports the Board’s and the immigration judge’s finding that Santashbekov’s testimony was not credible. The Board and the judge noted that Santashbekov testified vaguely about Kurmanov’s identity. He could not identify the political party to which Kurmanov belonged or the part of the government in which he worked. Similarly, as the Board and the judge noted, despite being prompted by the immigration judge, Santashbekov did not explain why Kurmanov would travel the 400 kilometers from Bishkek to Karakol to persecute him, as Santashbekov had claimed he had. Immigration authorities may discredit testimony for lack of “inherent plausibility.” 8 U.S.C. § 1158(b)(1)(B)(iii). Santashbekov’s vagueness and his failure to clarify the parts of his story the judge found implausible provided sufficient grounds to support an adverse credibility finding. See Shmyhelskyy v. Gonzales, 477 F.3d 474, 479 (7th Cir. 2007) (affirming adverse credibility determination where, among other things, testimony about fear of persecution was “vague and unconvincing”).

There are also inconsistencies in Santashbekov’s story. Despite a request for clarification at the hearing, Santashbekov did not explain to the judge why his new name appeared on a criminal court document dated August 2011, though he testified that he began using his new name in December 2011 and a name-change document showed the same date. Santashbekov also gave different years for when he joined the Ata Meken party in his asylum application and in his testimony before the immigration judge. He testified that he joined the Ata Meken party in October 2010, but his asylum application said he joined in October 2009.

An inconsistency need not go to the heart of an applicant’s claims to justify an adverse credibility determination, but “the inconsistencies spotted by the [judge] should not be trivial.” Tawuo, 799 F.3d at 727, 728 (inconsistencies in story not “earthshaking,” but provided substantial evidence for credibility determination nonetheless); see also Chun Sui Yuan v. Lynch, No. 15-2834, ___ F.3d ___, ___, 2016 WL 3536667, at *7 (7th Cir. June 28, 2016) (granting petition; inconsistencies identified by Board were “either so easily explained or so trivial as to call into doubt the Board’s decision”); Shmyhelskyy, 477 F.3d at 480 (“We have not hesitated to reverse an [immigration judge’s] credibility assessment when grounded in trivial details or easily explained discrepancies.”). Here, Santashbekov’s mistakes regarding important dates and his vague testimony support the adverse credibility determination.

While Santashbekov’s documentary evidence may corroborate some aspects of his testimony, it does not undermine the judge’s credibility finding. As the Board noted, the letter from Saparbaev does not mention any of the particulars of Santashbekov’s claimed political activity or persecution (although a letter from a member of the national legislature may suggest that Santashbekov was somehow involved in politics). As the judge noted, Santashbekov did not submit other evidence from any other party members verifying his political activities. And as the Board noted, the medical evidence corroborates that Santashbekov was injured at the relevant times, but it does not independently establish that political persecution was the cause. The judge did not err by giving the medical records limited weight because of the vague testimony about how they were obtained. See Tawuo, 799 F.3d at 729 (it was asylum applicant’s burden to authenticate documents; no error in refusing to let applicant submit more documents to corroborate testimony after immigration judge found initial round of documents “wanting”).

Some aspects of the Board’s and judge’s decisions, however, are troubling. For example, the judge wrote that Santashbekov’s parents and sibling in Kyrgyzstan remain “well and intact.” But in his asylum application and in the hearing before the judge, Santashbekov said the same people who persecuted him had also beaten his brother and broken his brother’s leg. Santashbekov submitted a medical document corroborating his brother’s injury (although, as noted above, the judge did not err by giving medical records limited weight).

Similarly, the Board and immigration judge found that Santashbekov’s testimony that he was not involved in the April 2010 protests, and that nothing bad happened to him as a result of the protests, was inconsistent with his asylum application. The application indicated that his political persecution was due “to the incidents related to the April 7, 2010 protests and the following chaos” (emphasis added). We are mindful of our deference to the Board and immigration judge in the area of credibility, but Santashbekov’s asylum application did not claim he was involved directly in the April 2010 protests. His asylum application made clear that his persecution was due to the chaos related to and following the April 2010 protests that led to the then-president’s ouster. We do not see a basis for discrediting Santashbekov here.

We are also troubled by the Board’s and immigration judge’s concern that Santashbekov’s asylum application did not include many of the details in his testimony before the judge, such as his December 2010 political speech. Material omissions may certainly support an adverse credibility finding. Shmyhelskyy, 477 F.3d at 480 (we may uphold adverse credibility findings when petitioner is “unable to explain a significant discrepancy between her hearing testimony and her asylum application”), citing Korniejew v. Ashcroft, 371 F.3d 377, 386 (7th Cir. 2004). However, the I-589 asylum application form provides small boxes to detail an applicant’s experiences, containing space for about ten lines of text. We caution against drawing adverse credibility conclusions from an applicant providing differing levels of detail in such different contexts. The limited space on the I-589 form provides a readily apparent reason why Santashbekov was able to provide a more detailed account of his alleged persecution at the hearing than on the application. Cf. Shmyhelskyy, 477 F.3d at 481 (applicant “provided no reason for his failure to allege this beating in his asylum application”). The Board’s and the immigration judge’s decisions were thus not flawless, but both considered Santashbekov’s claims and evidence, made reasoned decisions, and supported their decisions with substantial evidence.

Finally, Santashbekov argues that the Board and immigration judge violated his due process rights by dismissing his arguments “with no analysis” and failing to “give fair and proper weight to the evidence at hand . . . .” See Reno v. Flores, 507 U.S. 292, 306 (1993) (Fifth Amendment entitles aliens to due process of law in deportation proceedings). This argument is wide of the mark. The Board and the judge provided ample analysis to justify their decisions. Santashbekov’s argument that the Board and judge incorrectly weighed the evidence “is indistinguishable from a straightforward claim that [their decisions were] not supported by substantial evidence on the record.” Albu v. Holder, 761 F.3d 817, 822 (7th Cir. 2014). That argument fails both as a due process claim and on the merits.

Accordingly, Santashbekov failed to carry his burden of proof to establish his eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). The petition for review of the Board’s decision is DENIED.

[1] Santashbekov also applied for withholding of removal and protection under the United Nations Convention Against Torture. He has not argued for withholding of removal in his petition for judicial review, and he did not raise the torture claim before the Board or on judicial review. An unauthorized immigrant who does not meet burden of proof for an asylum claim necessarily fails to meet the more stringent requirements for withholding of removal and relief under the Convention Against Torture. Shmyhelskyy v. Gonzales, 477 F.3d 474, 481-82 (7th Cir. 2007).

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CA7 upholds IJ finding that family members perceived as having money is not ‘membership in a particular social group’

Record contained sufficient evidence to support IJ’s denial of alien’s application for withholding of removal to Mexico based on his proposed social group of Mexican nationals whose family members have suffered persecution at hands of Zetas gang and other drug cartels in Veracruz, Mexico. Alien was removable based on his Wisconsin drug possession conviction, and record showed that alien had not experienced past persecution prior to his entry into U.S. Moreover, although alien presented evidence of pervasive drug violence by drug cartels in Mexico, he failed to present any evidence that Zetas gang would target him because of his family ties. Also, alien had failed to present evidence that he could not reasonably relocate to another part of Mexico to avoid persecution.

Salgado unlawfully entered the U.S. in 1996 and stayed continuously for 20 years. He has children, born in 2001 and 2003, who are U.S. citizens. In 2005 Salgado was convicted in Wisconsin of possessing cocaine. In 2013, when Salgado was arrested for driving under the influence, DHS charged him with removability for having been convicted of a controlled-substance offense, 8 U.S.C. 1182(a)(2)(A)(i)(II), and for being present in the U.S. unlawfully, 1182(a)(6)(A)(i). An IJ ordered removal but the BIA remanded for consideration of Salgado’s claim that his lawyer had provided ineffective assistance by neglecting to seek relief from removal. On remand, Salgado applied for statutory withholding of removal and withholding under the Convention Against Torture, arguing that he has a well-founded fear of persecution on account of his membership in “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz” and “Mexican nationals who have lived in the U.S. for many years and who, upon being removed to Mexico, are perceived as having money.” The IJ found his asylum application untimely because he did not file it within a year of entering the U.S. and no changed or extraordinary circumstances excused the late filing, The Seventh Circuit dismissed a petition for review, rejecting claims that the BIA improperly rejected the proposed social group and misapplied the CAT legal standard. Gutierrez v. Lynch, Court of Appeals, 7th Circuit 2016

EBER SALGADO GUTIERREZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 16-1534.

United States Court of Appeals, Seventh Circuit.
Argued August 9, 2016.
Decided August 24, 2016.

Petition for Review of an Order of the Board of Immigration Appeals, No. A205-154-421.

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Eber Salgado Gutierrez, a 40-year-old citizen of Mexico, was ordered removed from the United States for being unlawfully present in the country and for having been convicted of a drug crime. He petitions for review of an order of the Board of Immigration Appeals upholding the immigration judge’s denial of withholding of removal (based on social-group membership) and relief under the Convention Against Torture. We have jurisdiction to review only two of his arguments: (1) his claim that the agency improperly rejected his proposed social group, and (2) his claim that the agency misapplied the legal standard under the CAT. Because these arguments are without merit, we dismiss in part and deny in part Salgado’s petition for review.

I. Background.

Salgado unlawfully entered the United States in 1996 and lived in this country continuously for the next 20 years. In 2001 he met his current girlfriend, Mariela Rico Cuervas, also a Mexican citizen without lawful status in the United States. They have two children, a daughter born in 2001 and a son born in 2003—both U.S. citizens.

In 2005 Salgado was convicted in Wisconsin of possessing cocaine. See WIS. STAT. § 961.41(3g)(c). The Department of Homeland Security got wind of the drug conviction eight years later, in mid-2013, when Salgado was arrested for driving under the influence. The agency detained him in early 2014 and issued a Notice to Appear charging him with removability for having been convicted of a controlled-substance offense, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and for being present in the United States unlawfully, id. § 1182(a)(6)(A)(i). Salgado admitted through his attorney that he was removable on both grounds and sought no relief from removal; the IJ ordered him removed to Mexico, but the Board of Immigration Appeals later remanded the case so that the immigration court could address Salgado’s claim that his lawyer had provided ineffective assistance by neglecting to seek relief from removal. On remand the IJ concluded that Salgado had been prejudiced by his first lawyer’s ineffective assistance and permitted him to apply for relief.

Salgado applied for both statutory withholding of removal, see id. § 1231(b)(3)(A), and withholding under the Convention Against Torture, see 8 C.F.R. §§ 1208.16(c), 1208.18.[1] He argued that he has a well-founded fear of persecution on account of his membership in two social groups: (1) “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz” and (2) “Mexican nationals who have lived in the U.S. for many years and who, upon being removed to Mexico, are perceived as having money.” (Salgado also sought withholding of removal based on political opinion but has abandoned that argument.)

Salgado and his girlfriend testified at the removal hearing about why he feared returning to Mexico, and the IJ found them largely credible. They provided the following account: Before moving to the United States, Salgado lived with his parents in Tres Valles, a town in the Mexican state of Veracruz, and worked at the butcher shops owned by his father. The family closed the shops sometime after Salgado went to the United States because the Zetas, a Mexican drug cartel, extorted them and pressured all local businesses to sell drugs on the gang’s behalf.

Salgado testified that three of his family members had been harmed by Mexican drug traffickers. In 1995, shortly before Salgado left Mexico, his cousin was killed by a local drug gang, purportedly for having witnessed a murder by members of the gang. Ten years later, when Salgado’s half-brother was visiting Tres Valles from the United States, Zetas tried to kidnap him while he was walking down the street. The kidnapping was foiled when the brother resisted and witnesses called for help, but the Zetas beat him up before fleeing. Finally, one of Salgado’s nephews was kidnapped in Tres Valles in 2014 and found alive three days later, having been left for dead. Salgado attributed the kidnapping to the Zetas.

Salgado said that he feared he would be kidnapped or even killed by the Zetas if he returned to Mexico. He testified that the Zetas identify people who have returned from the United States and target them for kidnapping. Three of Salgado’s siblings still live in Tres Valles, and he maintained that they, too, would be endangered if he returned. Salgado also has two sisters who live elsewhere in Mexico—one in Mexico City, the other in the state of Oaxaca—but he stated that the Zetas would target him even if he relocated to those areas. Salgado insisted that he would not be safe anywhere in Mexico and that the Mexican authorities could not protect him from the Zetas.

In support of his claims for relief, Salgado also submitted documentary evidence, including (among other things) letters from family members and friends stating that he would be targeted by drug gangs in Mexico, especially if he returned to Tres Valles; newspaper articles describing the criminal activities of the Zetas (including murders of journalists and other citizens) in Tres Valles and the rest of Veracruz; and country-conditions reports chronicling violence by drug cartels across Mexico.

In a comprehensive 18-page opinion, the IJ concluded that Salgado was ineligible for both statutory withholding of removal and withholding under the CAT. The IJ began by finding that Salgado had not established past persecution. The IJ then determined that Salgado’s proposed social group—”Mexican nationals who have lived for a long time in the United States and will be perceived as wealthy individuals by the Zetas upon return to Mexico”—was not cognizable because “wealth alone is not an immutable characteristic.” Even if this social group were cognizable, the IJ continued, Salgado did not have a well-founded fear of persecution because the country-conditions documents “do not show that drug cartels or organized criminal groups in Mexico have specifically targeted Mexican citizens returning from the United States because of their perceived wealth.”

Likewise, the IJ stated, there was no evidence that the Zetas would target Salgado because of his family ties. The IJ acknowledged that there was pervasive violence by drug cartels in Mexico and that Salgado had a subjective fear that the Zetas would harm him. But the “general civil strife” in Mexico did not constitute persecution, the IJ reasoned, and moreover, Salgado’s “fear of future persecution [was] speculative and based on conjecture.”

The IJ added that even if Salgado had established that he would face persecution on account of a protected status, he nonetheless was ineligible for withholding because he had not met his burden of establishing that he could not reasonably relocate to another part of Mexico to avoid persecution. Finally, the IJ concluded that Salgado was ineligible for CAT relief because his fear of being harmed by the Zetas with the acquiescence of government officials was only speculative.

The Board upheld the IJ’s decision, echoing much of the IJ’s reasoning and concluding that the IJ’s findings were not clearly erroneous. The Board added that to the extent that Salgado feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group. The Board also agreed with the IJ’s denial of Salgado’s claim for CAT relief. The Board acknowledged our recent holdings that the proper inquiry in CAT cases is whether the alien faces a substantial risk of torture if removed, see Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015), and that the government-acquiescence standard is satisfied by showing that a local, state, or federal public official would acquiesce in torture or that the government is unsuccessfully trying to prevent torture by police officers working for drug gangs, id. at 1139; Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1184-85 (7th Cir. 2015). But those decisions did not help Salgado, the Board reasoned, because unlike the petitioners in those cases, Salgado had “not been tortured, harmed, threatened, or even inquired after by gang members.” Moreover, the Board noted that the “random incidents of violence against family members which happened years apart” were unconnected to Salgado, so the IJ did not clearly err by finding that the threat of harm to him was speculative.

Salgado petitioned for review and moved for a stay of removal. A motions panel denied the stay, and Salgado was removed to Mexico in early May 2016. At the time of his removal, he had been detained by the Department of Homeland Security for a little over two years.

II. Analysis.

We begin our analysis by noting that we lack jurisdiction to consider several of Salgado’s arguments because 8 U.S.C. § 1252(a)(2)(C) generally bars judicial review of final orders of removal for aliens who, like Salgado, are removable under § 1182(a)(2) for having been convicted of a controlled-substance offense.[2] See Isunza v. Lynch, 809 F.3d 971, 973 (7th Cir. 2016); Guevara v. Gonzales, 472 F.3d 972, 974 (7th Cir. 2007). Although we retain jurisdiction to review questions of law and constitutional claims, see 8 U.S.C. § 1252(a)(2)(D); Isunza, 809 F.3d at 973, most of Salgado’s arguments do not meet this standard. Salgado argues that the Board erred in finding (1) that his fear of future persecution was not well-founded; (2) that he could reasonably relocate within Mexico; and (3) that he does not face a substantial risk of being tortured by or with the acquiescence of government officials in Mexico. These are not questions of law; Salgado simply disagrees with the weight that the agency assigned to particular evidence. See Kiorkis v. Holder, 634 F.3d 924, 929 (7th Cir. 2011); Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1119 (7th Cir. 2008); Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008).

Salgado attempts to get around the jurisdictional bar by recasting his objections to the agency’s factual findings as legal errors. He asserts, for instance, that the Board “ignored” and “did not fully consider” the evidence, see Jawad v. Holder, 686 F.3d 400, 403-04 (7th Cir. 2012) (recognizing that a claim that the agency ignored evidence is a claim of legal error). We reject this attempt to manufacture a legal issue because the record reveals that the IJ thoroughly considered Salgado’s evidence before concluding that he was ineligible for relief. See id. at 404; Chavez-Vasquez, 548 F.3d at 1119. And because the IJ’s discussion of the evidence was comprehensive, Salgado’s argument that the Board did not mention every piece of evidence misses the mark. Where, as here, the Board agrees with the IJ but adds observations of its own, we review the IJ’s decision as supplemented by the Board’s opinion. See Wang v. Holder, 759 F.3d 670, 673 (7th Cir. 2014); Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013); Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011); Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir. 2010).

Salgado raises two arguments that we do have jurisdiction to consider, but both lack merit. First, he maintains that the Board applied the wrong legal standard when it concluded that one of his proposed social groups—Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico—is not cognizable.[3] Specifically, he challenges the Board’s conclusion that to the extent he feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group under the Board’s decision in In re W—-G—-R—-, 26 I. & N. Dec. 208 (BIA 2014). Relatedly, he contends that the Board mischaracterized his proposed social group “by referring to only half of its attributes”—namely, the attribute of having lived in the United States but not the attribute of being perceived as wealthy.

Salgado is correct that the Board wrongly rejected his proposed social group simply because it is too broad and diverse; we have “specifically rejected `broadness’ as a per se bar to protected status.” N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014); see Cece v. Holder, 733 F.3d 662, 674 (7th Cir. 2013) (en banc). But this error doesn’t help Salgado because even if his proposed social group were cognizable, he would not be entitled to relief given the agency’s finding that he could avoid harm by relocating to another part of Mexico. See Kaharudin v. Gonzales, 500 F.3d 619, 624 (7th Cir. 2007); 8 C.F.R. § 1208.16(b)(2), (b)(3)(i). Because the agency’s determination about relocation is a factual finding that does not present a legal question, § 1252(a)(2)(C) bars judicial review of the agency’s conclusion. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 806 n.12 (11th Cir. 2016).

The other problem with Salgado’s challenge is that we recently declined to recognize a social group nearly identical to the one he proffers. In Dominguez-Pulido v. Lynch, the petitioner proposed a social group “made up of individuals deported from the United States who have money or who are perceived to have money, and who have family members in the United States who could pay ransom.” 821 F.3d 837, 844-45 (7th Cir. 2016). We concluded that this group is not cognizable for purposes of asylum and statutory withholding of removal “because its primary characteristic is wealth or perceived wealth, specifically the ability to pay a ransom,” and further that the petitioner’s “attempt to narrow his proposed group by adding the trait of `being deported from the U.S.’ does not render his group cognizable.” Id. at 845 (citing Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); In re W—-R—-G—-, 26 I. & N. Dec. at 223).

Salgado does not attempt to distinguish Dominguez-Pulido, nor does he argue that it was wrongly decided and should be revisited; instead, he contends in his reply brief that the Chenery doctrine bars the government from relying on Dominguez-Pulido because “the agency did not consider or rely upon it.” That argument misapprehends Chenery, which prohibits defending an administrative decision on a new ground not set forth in the agency’s original decision. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); see Lara v. Lynch, 789 F.3d 800, 805-06 (7th Cir. 2015). There is no Chenery violation here because by citing Dominguez-Pulido, the government is not relying on a new ground but rather providing additional legal authority to support the Board’s conclusion that Salgado is ineligible for withholding of removal because his proposed social group is not cognizable.

Finally, turning to the denial of his request for CAT relief, Salgado argues that the Board failed to apply Rodriguez-Molinero v. Holder, in which we clarified that the “more likely than not” standard articulated in many CAT opinions “cannot be and is not taken literally” to the extent that it suggests attaching a numerical probability to the likelihood of torture; the proper inquiry is simply whether “there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.” 808 F.3d at 1135-36. He maintains that the Board should have granted CAT relief based on his documentary evidence about the Zetas and this court’s statements in Rodriguez-Molinero regarding the inability of the Mexican government to control the Zetas— statements that he says are “binding in [his] case.”

This argument lacks merit for two reasons. First, there is no indication that the Board misapplied the legal standard for CAT relief. The Board set out the correct legal standard, quoting the standard we articulated in Rodriguez-Molinero. But the Board then distinguished Salgado’s circumstances from those of the petitioners in Rodriguez-Molinero and Mendoza-Sanchez v. Lynch: Unlike the petitioners in those cases, Salgado “has not been tortured, harmed, threatened, or even inquired after by gang members.” Instead, the Board stated, Salgado’s evidence consisted of “random incidents of violence against family members which happened years apart and are unrelated and not connected in any way to the respondent.” No step of the Board’s analysis suggests that it misunderstood or misapplied the legal standard for obtaining CAT relief. Second, our statements in Rodriguez-Molinero about the Mexican government’s inability to control the Zetas do not establish that the Zetas are likely to single out Salgado for torture if he returns to Mexico. See Lenjinac v. Holder, 780 F.3d 852, 856 (7th Cir. 2015).

Accordingly, Salgado’s petition for review is DISMISSED in part and DENIED in part.

POSNER, Circuit Judge, concurring.

I agree with the panel’s conclusion that the petitioner is not entitled to relief because, deported to Mexico in May of this year and residing in Veracruz, where members of his extended family live—but which is also where the fearsome Mexican drug gang known as the Zetas is centered—he’s failed to make any showing that he can’t relocate from Veracruz to some place in Mexico in which he won’t be persecuted either by the Zetas or by some other gang. In addition he’s failed to show that in Veracruz or elsewhere the Zetas have targeted his family or him. (Compare Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1183 (7th Cir. 2015) (petitioner had snitched on La Linea, another powerful Mexican drug gang); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1136-37 (7th Cir. 2015) (petitioner owed the Zetas $30,000).) Members of his family have it is true had violent, in one instance fatal, encounters with Zetas, but for reasons that don’t appear to have been related to their family membership or identity. The Board of Immigration Appeals described these encounters as “random incidents of violence against family members which happened years apart” and were not connected to the petitioner, and the petitioner has failed to rebut this assessment.

The petitioner might find it difficult to relocate even to a part of Mexico where, unlike Veracruz where he currently resides, the Zetas are as yet inactive; for wherever he relocates in Mexico he is bound to be asked questions about his origin, and his 20 years of living in the United States may make him recognizable as an alien and prevent his obtaining employment. But he doesn’t argue that, and I write separately only to address a proposition in the immigration court’s opinion (and echoed I regret to say in opinions of this court) that seems to me palpably false, though not determinative in this case.

The proposition is that the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long-established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members. The ground on which the immigration court rejected wealth as a characteristic that can define a social group is that wealth is not an “immutable characteristic.” “[T]he phrase `persecution on account of membership in a particular social group’ [has been] interpreted to mean `persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.'” Matter of M—-E—-V—-G—-, 26 I. &

EBER SALGADO GUTIERREZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 16-1534.

United States Court of Appeals, Seventh Circuit.
Argued August 9, 2016.
Decided August 24, 2016.

Maria T. Baldini-Potermin, for Petitioner.

Gregory Michael Kelch, for Respondent.

OIL, for Respondent.

Kerry A. Monaco, for Respondent.

Walter Bocchini, for Respondent.

Sarah Abigail Byrd, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A205-154-421.

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Eber Salgado Gutierrez, a 40-year-old citizen of Mexico, was ordered removed from the United States for being unlawfully present in the country and for having been convicted of a drug crime. He petitions for review of an order of the Board of Immigration Appeals upholding the immigration judge’s denial of withholding of removal (based on social-group membership) and relief under the Convention Against Torture. We have jurisdiction to review only two of his arguments: (1) his claim that the agency improperly rejected his proposed social group, and (2) his claim that the agency misapplied the legal standard under the CAT. Because these arguments are without merit, we dismiss in part and deny in part Salgado’s petition for review.

I. Background.

Salgado unlawfully entered the United States in 1996 and lived in this country continuously for the next 20 years. In 2001 he met his current girlfriend, Mariela Rico Cuervas, also a Mexican citizen without lawful status in the United States. They have two children, a daughter born in 2001 and a son born in 2003—both U.S. citizens.

In 2005 Salgado was convicted in Wisconsin of possessing cocaine. See WIS. STAT. § 961.41(3g)(c). The Department of Homeland Security got wind of the drug conviction eight years later, in mid-2013, when Salgado was arrested for driving under the influence. The agency detained him in early 2014 and issued a Notice to Appear charging him with removability for having been convicted of a controlled-substance offense, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and for being present in the United States unlawfully, id. § 1182(a)(6)(A)(i). Salgado admitted through his attorney that he was removable on both grounds and sought no relief from removal; the IJ ordered him removed to Mexico, but the Board of Immigration Appeals later remanded the case so that the immigration court could address Salgado’s claim that his lawyer had provided ineffective assistance by neglecting to seek relief from removal. On remand the IJ concluded that Salgado had been prejudiced by his first lawyer’s ineffective assistance and permitted him to apply for relief.

Salgado applied for both statutory withholding of removal, see id. § 1231(b)(3)(A), and withholding under the Convention Against Torture, see 8 C.F.R. §§ 1208.16(c), 1208.18.[1] He argued that he has a well-founded fear of persecution on account of his membership in two social groups: (1) “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz” and (2) “Mexican nationals who have lived in the U.S. for many years and who, upon being removed to Mexico, are perceived as having money.” (Salgado also sought withholding of removal based on political opinion but has abandoned that argument.)

Salgado and his girlfriend testified at the removal hearing about why he feared returning to Mexico, and the IJ found them largely credible. They provided the following account: Before moving to the United States, Salgado lived with his parents in Tres Valles, a town in the Mexican state of Veracruz, and worked at the butcher shops owned by his father. The family closed the shops sometime after Salgado went to the United States because the Zetas, a Mexican drug cartel, extorted them and pressured all local businesses to sell drugs on the gang’s behalf.

Salgado testified that three of his family members had been harmed by Mexican drug traffickers. In 1995, shortly before Salgado left Mexico, his cousin was killed by a local drug gang, purportedly for having witnessed a murder by members of the gang. Ten years later, when Salgado’s half-brother was visiting Tres Valles from the United States, Zetas tried to kidnap him while he was walking down the street. The kidnapping was foiled when the brother resisted and witnesses called for help, but the Zetas beat him up before fleeing. Finally, one of Salgado’s nephews was kidnapped in Tres Valles in 2014 and found alive three days later, having been left for dead. Salgado attributed the kidnapping to the Zetas.

Salgado said that he feared he would be kidnapped or even killed by the Zetas if he returned to Mexico. He testified that the Zetas identify people who have returned from the United States and target them for kidnapping. Three of Salgado’s siblings still live in Tres Valles, and he maintained that they, too, would be endangered if he returned. Salgado also has two sisters who live elsewhere in Mexico—one in Mexico City, the other in the state of Oaxaca—but he stated that the Zetas would target him even if he relocated to those areas. Salgado insisted that he would not be safe anywhere in Mexico and that the Mexican authorities could not protect him from the Zetas.

In support of his claims for relief, Salgado also submitted documentary evidence, including (among other things) letters from family members and friends stating that he would be targeted by drug gangs in Mexico, especially if he returned to Tres Valles; newspaper articles describing the criminal activities of the Zetas (including murders of journalists and other citizens) in Tres Valles and the rest of Veracruz; and country-conditions reports chronicling violence by drug cartels across Mexico.

In a comprehensive 18-page opinion, the IJ concluded that Salgado was ineligible for both statutory withholding of removal and withholding under the CAT. The IJ began by finding that Salgado had not established past persecution. The IJ then determined that Salgado’s proposed social group—”Mexican nationals who have lived for a long time in the United States and will be perceived as wealthy individuals by the Zetas upon return to Mexico”—was not cognizable because “wealth alone is not an immutable characteristic.” Even if this social group were cognizable, the IJ continued, Salgado did not have a well-founded fear of persecution because the country-conditions documents “do not show that drug cartels or organized criminal groups in Mexico have specifically targeted Mexican citizens returning from the United States because of their perceived wealth.”

Likewise, the IJ stated, there was no evidence that the Zetas would target Salgado because of his family ties. The IJ acknowledged that there was pervasive violence by drug cartels in Mexico and that Salgado had a subjective fear that the Zetas would harm him. But the “general civil strife” in Mexico did not constitute persecution, the IJ reasoned, and moreover, Salgado’s “fear of future persecution [was] speculative and based on conjecture.”

The IJ added that even if Salgado had established that he would face persecution on account of a protected status, he nonetheless was ineligible for withholding because he had not met his burden of establishing that he could not reasonably relocate to another part of Mexico to avoid persecution. Finally, the IJ concluded that Salgado was ineligible for CAT relief because his fear of being harmed by the Zetas with the acquiescence of government officials was only speculative.

The Board upheld the IJ’s decision, echoing much of the IJ’s reasoning and concluding that the IJ’s findings were not clearly erroneous. The Board added that to the extent that Salgado feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group. The Board also agreed with the IJ’s denial of Salgado’s claim for CAT relief. The Board acknowledged our recent holdings that the proper inquiry in CAT cases is whether the alien faces a substantial risk of torture if removed, see Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015), and that the government-acquiescence standard is satisfied by showing that a local, state, or federal public official would acquiesce in torture or that the government is unsuccessfully trying to prevent torture by police officers working for drug gangs, id. at 1139; Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1184-85 (7th Cir. 2015). But those decisions did not help Salgado, the Board reasoned, because unlike the petitioners in those cases, Salgado had “not been tortured, harmed, threatened, or even inquired after by gang members.” Moreover, the Board noted that the “random incidents of violence against family members which happened years apart” were unconnected to Salgado, so the IJ did not clearly err by finding that the threat of harm to him was speculative.

Salgado petitioned for review and moved for a stay of removal. A motions panel denied the stay, and Salgado was removed to Mexico in early May 2016. At the time of his removal, he had been detained by the Department of Homeland Security for a little over two years.

II. Analysis.

We begin our analysis by noting that we lack jurisdiction to consider several of Salgado’s arguments because 8 U.S.C. § 1252(a)(2)(C) generally bars judicial review of final orders of removal for aliens who, like Salgado, are removable under § 1182(a)(2) for having been convicted of a controlled-substance offense.[2] See Isunza v. Lynch, 809 F.3d 971, 973 (7th Cir. 2016); Guevara v. Gonzales, 472 F.3d 972, 974 (7th Cir. 2007). Although we retain jurisdiction to review questions of law and constitutional claims, see 8 U.S.C. § 1252(a)(2)(D); Isunza, 809 F.3d at 973, most of Salgado’s arguments do not meet this standard. Salgado argues that the Board erred in finding (1) that his fear of future persecution was not well-founded; (2) that he could reasonably relocate within Mexico; and (3) that he does not face a substantial risk of being tortured by or with the acquiescence of government officials in Mexico. These are not questions of law; Salgado simply disagrees with the weight that the agency assigned to particular evidence. See Kiorkis v. Holder, 634 F.3d 924, 929 (7th Cir. 2011); Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1119 (7th Cir. 2008); Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008).

Salgado attempts to get around the jurisdictional bar by recasting his objections to the agency’s factual findings as legal errors. He asserts, for instance, that the Board “ignored” and “did not fully consider” the evidence, see Jawad v. Holder, 686 F.3d 400, 403-04 (7th Cir. 2012) (recognizing that a claim that the agency ignored evidence is a claim of legal error). We reject this attempt to manufacture a legal issue because the record reveals that the IJ thoroughly considered Salgado’s evidence before concluding that he was ineligible for relief. See id. at 404; Chavez-Vasquez, 548 F.3d at 1119. And because the IJ’s discussion of the evidence was comprehensive, Salgado’s argument that the Board did not mention every piece of evidence misses the mark. Where, as here, the Board agrees with the IJ but adds observations of its own, we review the IJ’s decision as supplemented by the Board’s opinion. See Wang v. Holder, 759 F.3d 670, 673 (7th Cir. 2014); Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013); Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011); Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir. 2010).

Salgado raises two arguments that we do have jurisdiction to consider, but both lack merit. First, he maintains that the Board applied the wrong legal standard when it concluded that one of his proposed social groups—Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico—is not cognizable.[3] Specifically, he challenges the Board’s conclusion that to the extent he feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group under the Board’s decision in In re W—-G—-R—-, 26 I. & N. Dec. 208 (BIA 2014). Relatedly, he contends that the Board mischaracterized his proposed social group “by referring to only half of its attributes”—namely, the attribute of having lived in the United States but not the attribute of being perceived as wealthy.

Salgado is correct that the Board wrongly rejected his proposed social group simply because it is too broad and diverse; we have “specifically rejected `broadness’ as a per se bar to protected status.” N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014); see Cece v. Holder, 733 F.3d 662, 674 (7th Cir. 2013) (en banc). But this error doesn’t help Salgado because even if his proposed social group were cognizable, he would not be entitled to relief given the agency’s finding that he could avoid harm by relocating to another part of Mexico. See Kaharudin v. Gonzales, 500 F.3d 619, 624 (7th Cir. 2007); 8 C.F.R. § 1208.16(b)(2), (b)(3)(i). Because the agency’s determination about relocation is a factual finding that does not present a legal question, § 1252(a)(2)(C) bars judicial review of the agency’s conclusion. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 806 n.12 (11th Cir. 2016).

The other problem with Salgado’s challenge is that we recently declined to recognize a social group nearly identical to the one he proffers. In Dominguez-Pulido v. Lynch, the petitioner proposed a social group “made up of individuals deported from the United States who have money or who are perceived to have money, and who have family members in the United States who could pay ransom.” 821 F.3d 837, 844-45 (7th Cir. 2016). We concluded that this group is not cognizable for purposes of asylum and statutory withholding of removal “because its primary characteristic is wealth or perceived wealth, specifically the ability to pay a ransom,” and further that the petitioner’s “attempt to narrow his proposed group by adding the trait of `being deported from the U.S.’ does not render his group cognizable.” Id. at 845 (citing Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); In re W—-R—-G—-, 26 I. & N. Dec. at 223).

Salgado does not attempt to distinguish Dominguez-Pulido, nor does he argue that it was wrongly decided and should be revisited; instead, he contends in his reply brief that the Chenery doctrine bars the government from relying on Dominguez-Pulido because “the agency did not consider or rely upon it.” That argument misapprehends Chenery, which prohibits defending an administrative decision on a new ground not set forth in the agency’s original decision. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); see Lara v. Lynch, 789 F.3d 800, 805-06 (7th Cir. 2015). There is no Chenery violation here because by citing Dominguez-Pulido, the government is not relying on a new ground but rather providing additional legal authority to support the Board’s conclusion that Salgado is ineligible for withholding of removal because his proposed social group is not cognizable.

Finally, turning to the denial of his request for CAT relief, Salgado argues that the Board failed to apply Rodriguez-Molinero v. Holder, in which we clarified that the “more likely than not” standard articulated in many CAT opinions “cannot be and is not taken literally” to the extent that it suggests attaching a numerical probability to the likelihood of torture; the proper inquiry is simply whether “there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.” 808 F.3d at 1135-36. He maintains that the Board should have granted CAT relief based on his documentary evidence about the Zetas and this court’s statements in Rodriguez-Molinero regarding the inability of the Mexican government to control the Zetas— statements that he says are “binding in [his] case.”

This argument lacks merit for two reasons. First, there is no indication that the Board misapplied the legal standard for CAT relief. The Board set out the correct legal standard, quoting the standard we articulated in Rodriguez-Molinero. But the Board then distinguished Salgado’s circumstances from those of the petitioners in Rodriguez-Molinero and Mendoza-Sanchez v. Lynch: Unlike the petitioners in those cases, Salgado “has not been tortured, harmed, threatened, or even inquired after by gang members.” Instead, the Board stated, Salgado’s evidence consisted of “random incidents of violence against family members which happened years apart and are unrelated and not connected in any way to the respondent.” No step of the Board’s analysis suggests that it misunderstood or misapplied the legal standard for obtaining CAT relief. Second, our statements in Rodriguez-Molinero about the Mexican government’s inability to control the Zetas do not establish that the Zetas are likely to single out Salgado for torture if he returns to Mexico. See Lenjinac v. Holder, 780 F.3d 852, 856 (7th Cir. 2015).

Accordingly, Salgado’s petition for review is DISMISSED in part and DENIED in part.

POSNER, Circuit Judge, concurring.

I agree with the panel’s conclusion that the petitioner is not entitled to relief because, deported to Mexico in May of this year and residing in Veracruz, where members of his extended family live—but which is also where the fearsome Mexican drug gang known as the Zetas is centered—he’s failed to make any showing that he can’t relocate from Veracruz to some place in Mexico in which he won’t be persecuted either by the Zetas or by some other gang. In addition he’s failed to show that in Veracruz or elsewhere the Zetas have targeted his family or him. (Compare Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1183 (7th Cir. 2015) (petitioner had snitched on La Linea, another powerful Mexican drug gang); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1136-37 (7th Cir. 2015) (petitioner owed the Zetas $30,000).) Members of his family have it is true had violent, in one instance fatal, encounters with Zetas, but for reasons that don’t appear to have been related to their family membership or identity. The Board of Immigration Appeals described these encounters as “random incidents of violence against family members which happened years apart” and were not connected to the petitioner, and the petitioner has failed to rebut this assessment.

The petitioner might find it difficult to relocate even to a part of Mexico where, unlike Veracruz where he currently resides, the Zetas are as yet inactive; for wherever he relocates in Mexico he is bound to be asked questions about his origin, and his 20 years of living in the United States may make him recognizable as an alien and prevent his obtaining employment. But he doesn’t argue that, and I write separately only to address a proposition in the immigration court’s opinion (and echoed I regret to say in opinions of this court) that seems to me palpably false, though not determinative in this case.

The proposition is that the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long-established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members. The ground on which the immigration court rejected wealth as a characteristic that can define a social group is that wealth is not an “immutable characteristic.” “[T]he phrase `persecution on account of membership in a particular social group’ [has been] interpreted to mean `persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.'” Matter of M—-E—-V—-G—-, 26 I. & N. Dec. 227, 230-31 (BIA 2014). “The common characteristic that defines the group must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. at 231. And a group consisting of people whose “primary characteristic is wealth or perceived wealth, specifically the ability to pay a ransom” does not qualify because “wealth, standing alone, is not an immutable characteristic of a cognizable social group.” Dominguez-Pulido v. Lynch, 821 F.3d 837, 844-45 (7th Cir. 2016).

That is a mistake, for a variety of reasons, one being that wealth doesn’t stand alone in the definition of the social group urged by the petitioner; it must be wealth available for payment of a ransom. But a more serious mistake was the invocation of “immutability” as a touchstone of eligibility for being a member of a “social group.” Very few characteristics of a group or individual are immutable any more. For example, modern medical techniques enable people to change their sex, though doubtless sex is one of the mutable characteristics that the Board of Immigration Appeals would concede that a person “should not be required to change” as a condition of avoiding persecution. But getting back to wealth, I note that wealth does not often “stand alone” in these cases. In Tapiero de Orejuela v. Gonzalez, 423 F.3d 666, 672 (7th Cir. 2005), we said that Colombian cattle farmers were not defined merely by their wealth but also by their land, their profession, and their education. And similarly Salgado-Gutierrez is defined by his having lived in the United States for twenty years—for being, as a consequence, to a degree American—a fact of his personal history that he can’t escape from.

Furthermore, having or being thought to have wealth is in an important practical sense “immutable.” Suppose a person facing deportation from the United States gives away all his money and arrives in his country of origin, which in this case is Mexico, penniless. The Zetas seize him and demand money. He explains that he has none. Are the Zetas likely to leave him alone? No, they’re likely to torture him, and if unable by that route to extract any money from him they are very likely to kill him.

Suppose finally that a deportee is the only wealthy person from the country to which he is to be deported. He thus is not a member of the social group to which the petitioner in this case belongs, and suppose he’s not a member of any other social group either. Does that mean he can’t avoid deportation even if he proves that he’s certain to be persecuted if deported? That would be ridiculous, though it is the implication of the statute, 8 U.S.C. § 1231(b)(3)(A), that ties deferral or cancellation of deportation to membership in a social group, and of the BIA decisions approvingly cited in the majority opinion in the present case.

[1] Salgado also applied for asylum, but the IJ concluded (and the Board agreed) that his asylum application was untimely because he did not file it within a year of entering the United States and no changed or extraordinary circumstances excused the late filing. See 8 U.S.C. § 1158(a)(2)(B), (D); 8 C.F.R. § 1208.4(a)(2), (4), (5). Salgado has not pursued his asylum claim, so we do not discuss it further.

[2] Salgado was ineligible to apply for deferral of removal under the CAT—the denial of which we would retain jurisdiction to review, see Moral-Salazar v. Holder, 708 F.3d 957, 962 (7th Cir. 2013); Wanjiru v. Holder, 705 F.3d 258, 263-65 (7th Cir. 2013)—because that form of relief is available only to certain persons who, unlike Salgado, are barred from withholding due to a conviction for a particularly serious crime and other crimes not relevant here, see 8 C.F.R. §§ 1208.17(a), 1208.16(d)(2) & (3).

[3] Salgado has abandoned his claim that he faces persecution because he belongs to the social group of “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz.” He does not mention this proposed social group anywhere in his brief.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture, membership in a particular social group, withholding of removal | Leave a comment

CA7 finds that use of false social security number in order to work may not be crime of moral turpitude

Arias v. Lynch, No. 14-2839 (August 24, 2016) Petition for Review, Order of Bd. of Immigration Appeals Petition granted. Arias v. Lynch, Court of Appeals, 7th Circuit 2016

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Arias came to the U.S. without authorization in 2000. She has raised three children here and has consistently paid income tax. Her longtime employer calls her an “excellent employee.” Her sole criminal conviction, falsely using a social security number to work (42 U.S.C. 408(a)(7)(B)), was classified as a “crime involving moral turpitude” by the BIA, which disqualified Arias from seeking discretionary cancellation of removal under 8 U.S.C. 1229b(b)(1). The Seventh Circuit remanded for reconsideration. Many violations of the cited statute would amount to crimes involving moral turpitude, but for both legal and pragmatic reasons, it is unlikely that every violation of the statute necessarily qualifies as a crime involving moral turpitude. The BIA misapplied the framework for identifying crimes involving moral turpitude that it was bound to apply at the time of its decision; after the BIA’s decision, the Attorney General vacated that framework in its entirety. The court noted the current vacuum of authoritative guidance on how the Board should determine whether a crime involves moral turpitude.

Ct. of Appeals granted alien’s petition for review of Bd.’s order, which affirmed IJ’s denial of alien’s application for cancelation of removal, where: (1) said removal was based on alien’s conviction under 42 USC section 408(a)(7)(B) for use of false social security number in order to work for employer; and (2) IJ and Bd. found that said conviction was crime of moral turpitude that precluded alien from obtaining any cancelation of removal relief. Ct. doubted that said offense was categorically crime of moral turpitude in all factual settings, and in any event, remand was required, since: (1) framework used by IJ and Bd. under Silva-Trevino I was subsequently vacated by Attorney General, and thus reconsideration was warranted under new framework/standard; and (2) it is uncertain under any new framework whether IJ and Bd. will be able to look beyond elements of alien’s offense in order to find that said offense is crime of moral turpitude.

“It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude. A rule that all crimes that involve any element of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude as conduct that is “inherently base, vile, or depraved.” At the same time, there is significant precedent indicating that deceptive conduct is morally turpitudinous. In the end, though, we do not need to try to resolve this conflict definitively in this case.”

POSNER, Circuit Judge, concurring in the judgment. “It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals. To prosecute and deport such a harmless person (to Ecuador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous.”

_________________________________________________

MARIA EUDOFILIA ARIAS, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 14-2839.

United States Court of Appeals, Seventh Circuit.
Argued October 30, 2015.
Decided August 24, 2016.

Linda T. Coberly, for Petitioner.

Edward C. Durant, for Respondent.

OIL, for Respondent.

Juria L. Jones, for Respondent.

Lisa Katharine Koop, for Petitioner.

John Frederick Stanton, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A087 774 871.

Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner Maria Eudofilia Arias came to this country without authorization in 2000. She has raised three children here. Her longtime employer calls her an “excellent employee.” She now faces removal from the United States after the Board of Immigration Appeals characterized her sole criminal conviction—falsely using a social security number to work—as a “crime involving moral turpitude.” This characterization bars Arias from seeking discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1). Arias has petitioned for review of the removal order.

We grant the petition and remand the case to the Board for further proceedings. Arias was convicted under a statute making it a federal crime to misrepresent a social security number to be one’s own “for any . . . purpose.” 42 U.S.C. § 408(a)(7)(B) (emphasis added). Many violations of that statute would amount to crimes involving moral turpitude. For both legal and pragmatic reasons, though, we doubt that every violation of the statute necessarily qualifies as a crime involving moral turpitude.

We remand this case on two narrower grounds. First, the Board misapplied the framework for identifying crimes involving moral turpitude that it was bound to apply at the time of its decision. See Matter of Silva-Trevino (Silva-Trevino I), 24 I. & N. Dec. 687 (Att’y Gen. 2008) (establishing framework). Then, after the Board’s decision but before Arias’s petition for our review became ripe for decision, the Attorney General vacated the Silva-Trevino I framework in its entirety. See Matter of Silva-Trevino (Silva-Trevino II), 26 I. & N. Dec. 550, 554 (Att’y Gen. 2015). Given the Board’s legal error and the current vacuum of authoritative guidance on how the Board should determine whether a crime involves moral turpitude, we remand to the Board to reconsider Arias’s case.

In Part I, we recount the factual and procedural background of this case. In Part II, we examine the difficulty in treating violations of § 408(a)(7)(B) categorically as crimes involving moral turpitude. In Part III, we explain the reasons for our remand based on the Board’s legal error and the current uncertainty about how the Board should decide whether a conviction is for a crime involving moral turpitude.

I. Factual and Legal Background

Since coming to the United States from Ecuador without authorization in 2000, Arias has worked for the Grabill Cabinet Company in Grabill, Indiana. The company called Arias an “excellent employee” in a letter Arias submitted to the immigration court in support of her application for cancellation of removal. To work for Grabill Cabinet, Arias provided a false social security number. She has presented evidence that she has filed an income tax return for every year she has been in the United States through 2012.

Arias has also raised a family in the United States. Arias and her husband have been married since 1989. Their three children have grown up in the United States. The two younger children, five and fourteen years old, are United States citizens. Her oldest child, twenty-six years old, was born in Ecuador but has received relief from removal through the Deferred Action for Childhood Arrivals program.

In 2010, Arias was charged in federal court with falsely using a social security number to work for Grabill Cabinet in violation of 42 U.S.C. § 408(a)(7)(B). Section 408(a)(7)(B) makes it a crime to misrepresent a social security number to be one’s own to obtain a benefit or “for any other purpose.” Arias pled guilty and was sentenced to just about the lightest felony sentence one is likely to find in modern federal practice: one year of probation and a $100 special assessment. After Arias completed her probation successfully, she received employment authorization and Grabill Cabinet rehired her. In the letter from the company that Arias submitted to the immigration court, Grabill Cabinet said that it “did not have any problems” welcoming her back to her old job. Her indictment charged Arias with an “intent to deceive Grabill,” although it is evident that Grabill itself did not have a problem with Arias’s deception and does not view itself as a victim. There is no indication in the record that Arias has broken any state or federal laws other than her unauthorized immigration into this country and false use of a social security number to work.

In 2010, Arias received a notice to appear for removal proceedings. She admitted removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Attorney General may cancel the removal of unauthorized immigrants who have been in the United States for at least ten years and who can show that their removal would cause “exceptional and extremely unusual hardship” to their children, spouses, or parents who are United States citizens, among other requirements. Id.

Such discretionary cancellation is barred, however, if the immigrant has been convicted of a “crime involving moral turpitude.” 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C). “Moral turpitude” is not defined in the statute. The Board and federal courts have labored for generations to provide a workable definition. See generally Jordan v. De George, 341 U.S. 223, 227-29 (1951) (holding that conspiracy to evade payment of liquor tax was crime involving moral turpitude, and noting that all varieties of fraud are treated likewise); id. at 232-45 (Jackson, J., dissenting) (“moral turpitude” is too vague to support deportation).

The immigration judge held that Arias’s crime of conviction was a crime involving moral turpitude. The judge relied on two of this circuit’s cases: Marin-Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013), and Miranda-Murillo v. Holder, 502 F. App’x 610 (7th Cir. 2013), a non-precedential order. A one-member panel of the Board affirmed. The Board said it was using the categorical approach, the first step in the now-vacated Silva-Trevino I framework, to determine that a violation of § 408(a)(7)(B) necessarily involves moral turpitude. See Silva-Trevino I, 24 I. & N. Dec. at 689-90. Citing this court’s opinion in Marin-Rodriguez, 710 F.3d at 738, the Board held: “An intent to deceive for the purpose of wrongfully obtaining a benefit is an element of the offense, and therefore the offense is categorically a crime involving moral turpitude.”

Arias petitioned for judicial review of the Board’s decision denying cancellation of removal. Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review the legal question whether a crime involves moral turpitude. Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009). Arias argues that her crime of conviction does not categorically involve moral turpitude because, while the statute requires deception, it does not always require fraud, which necessarily involves detriment to the person or entity defrauded. Arias presented these arguments to the Board sufficiently to allow our review, and, in any case, the Board’s discussion of deceit in the context of moral turpitude opens up that issue for our review. See Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011); Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th Cir. 2010).

II. Crimes Involving Moral Turpitude

The issue is whether a violation of 42 U.S.C. § 408(a)(7)(B) is a crime involving moral turpitude. We have not decided the issue in a precedential opinion, and other circuits are split. The Fifth and Eighth Circuits have said yes (including opinions regarding the closely related subparagraph, § 408(a)(7)(A)). Guardado-Garcia v. Holder, 615 F.3d 900, 901-02 (8th Cir. 2010); Lateef v. Department of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth Circuit has said no. Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000).

The Board has defined a crime involving moral turpitude as “conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007) (citation and internal quotation marks omitted). We have adopted definitions substantively in line with the Board’s. See, e.g., Sanchez v. Holder, 757 F.3d 712, 715 (7th Cir. 2014); see also Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005) (“We have recently stated that a crime of moral turpitude is one that is deliberately committed and `serious,’ either in terms of the magnitude of the loss that it causes or the indignation that it arouses in the law-abiding public.”), overruled on other grounds by Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008); see generally Julia Ann Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev. 1001, 1044-68 (2012) (recounting history of moral turpitude as a concept in immigration law).

Taking the Board’s definition at face value, it is difficult to see how a violation of § 408(a)(7)(B) is categorically a crime involving moral turpitude. In fact, the Board reached its decision in this case by misstating the provisions of the statute. The Board wrote incorrectly that § 408(a)(7)(B) has as a necessary element an “intent to deceive for the purpose of wrongfully obtaining a benefit.” That is not correct. The statute criminalizes falsely representing a social security number to be one’s own for purposes of obtaining various social security benefits but also “for any other purpose.”

It is not difficult to imagine some purposes for which falsely using a social security number would not be “inherently base, vile, or depraved.” For example, hospitals and other health care providers often ask for patients’ social security numbers. Would it be “inherently base, vile, or depraved” for a person without a social security number to take a child who has fallen ill to a hospital and to give a false social security number to obtain treatment for her sick child, knowing she is ready, willing, and able to pay for the care? Not unless the terms “base, vile, or depraved” have ceased to have any real meaning.

Courts and the Board do not always apply the above definition according to its literal terms. They instead often use two heuristics to decide what is “inherently base, vile, or depraved” and what is not. First, crimes that are malum in se (inherently wrong), as opposed to malum prohibitum (wrong only because prohibited), are often said to involve moral turpitude. See, e.g., Padilla, 397 F.3d at 1020; In re Fualaau, 21 I. & N. Dec. 475, 477 (BIA 1996) (“Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.”); Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980). Second, courts and the Board have focused on the presence of a “vicious motive” or an “evil intent” to determine whether a crime involves moral turpitude. See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir. 2006); Partyka v. Attorney General, 417 F.3d 408, 413 (3d Cir. 2005); Flores, 17 I. & N. Dec. at 227 (“The test to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.”); see generally Simon-Kerr, supra, 2012 Utah L. Rev. at 1059-68 (recounting history of scienter test for moral turpitude).

The broad “any other purpose” term in § 408(a)(7)(B) makes it difficult to see how a violation of the statue could categorically involve evil intent or be malum in se. There need not be any evil intent in the hypothetical about a parent using a false social security number to secure medical care for a sick child, unless deception without more, no matter how admirable the goal, involves evil intent (i.e., moral turpitude). Along those same lines, it seems like giving a false social security number “for any . . . purpose” should not be categorically malum in se or inherently wrong. The Ninth Circuit has held that a violation of § 408(a)(7)(B) is not malum in se. Beltran-Tirado, 213 F.3d at 1183-84 (reasoning that Congress could not have intended violations of § 408(a)(7)(B) to be crimes involving moral turpitude because of legislative history indicating that unauthorized immigrants exempt from prosecution under § 408 under an amnesty program should not be considered to have exhibited moral turpitude). But see Marin-Rodriguez, 710 F.3d at 740-41 (rejecting Beltran-Tirado’s legislative history argument).

We acknowledge that the Board’s holding that Arias’s violation of § 408(a)(7)(B) categorically is a crime involving moral turpitude does have a basis in law. Despite the confusion about how to determine what moral turpitude is, there is a consensus that fraud is close to the core of moral turpitude. In Jordan v. De George, the Supreme Court rejected an argument that the moral turpitude standard was unconstitutionally vague in the case of an immigrant facing deportation for conspiring to defraud the United States of liquor taxes. The Court reasoned: “Whatever else the phrase `crime involving moral turpitude’ may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.” 341 U.S. at 232; see also Simon-Kerr, supra, 2012 Utah L. Rev. at 1008 (arguing that legal concept of moral turpitude developed from eighteenth- and nineteenth-century “honor norms” and therefore includes “oath-breaking, fraud, and their extensions” as part of its “core of settled meaning”) (internal quotation marks omitted).

We and other courts have sometimes used broader language, writing that any crime involving the larger concept of “deception,” in contrast to the narrower concept of fraud, involves moral turpitude. See, e.g., Marin-Rodriguez, 710 F.3d at 738 (“Crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous.”); Guardado-Garcia, 615 F.3d at 902 (“Crimes involving the intent to deceive or defraud are generally considered to involve moral turpitude.”) (citation and internal quotation marks omitted); Hyder, 506 F.3d at 391 (“We have repeatedly emphasized that crimes whose essential elements involve fraud or deception tend to be CIMTs.”); Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005) (“Crimes entailing deceit or false statement are within the core of the common-law understanding of `moral turpitude.'”). In Padilla, in deciding that obstruction of justice was a crime involving moral turpitude, we wrote: “Crimes that do not involve fraud, but that include dishonesty or lying as an essential element also tend to involve moral turpitude.” 397 F.3d at 1020 (citation and internal quotation marks omitted).

But note the qualifier, “tend to.” Despite the broad language, cases finding crimes of moral turpitude based on deception rely on other aggravating factors, especially actual or intended harm to others. See Abdelqadar, 413 F.3d at 670 (buying food stamps for cash from proper recipients); Padilla, 397 F.3d at 1017-18 (obstruction of justice by giving false information to police officer); see also Guardado-Garcia, 615 F.3d at 902 (using false social security number to gain access to secure area of major airport).

There is also a basis in Board precedents, which are also entitled to our deference, for the idea that a crime involving moral turpitude requires more than simple dishonesty. In tort law, liability for fraud requires loss to the person defrauded. See Restatement (Second) of Torts § 531. Some Board precedents seem to follow this distinction. For example, in Matter of Delagadillo, the Board held that the violation of a Mexican anti-fraud statute was not categorically a crime involving moral turpitude. 15 I. & N. Dec. 395, 396-97 (BIA 1975). The Board reasoned that the statute as written did not “require the taking of another’s property.” Id. at 396. Because the statute “could therefore punish any act of deception used in retrieving one’s own property” it did not categorically involve moral turpitude. Id. The Board then looked to the specific facts of the conviction at issue. The Board held that the immigrant’s actions—fabrication of a property transfer “in an unsuccessful attempt to reduce his wife’s potential settlement in a divorce action”—was not “so base or vile as to be deemed morally turpitudinous under United States standards.” Id. at 397. Similarly, in Matter of B—-M—-, the Board held that making a false statement to an immigration inspector was not a crime involving moral turpitude because “the offense may have consisted only of a false and not a fraudulent statement.” 6 I. & N. Dec. 806, 808 (BIA 1955). But see Matter of P—-, 6 I. & N. Dec. 795, 798 (BIA 1955) (holding that conviction under statute containing “inherent intent to deceive or mislead” was crime involving moral turpitude).

Arias’s case brings into focus the troubling results that would follow from a rule that every crime that involves any element of deception involves moral turpitude. As of 2014, unauthorized immigrants made up about five percent of the United States labor force. Jens Manuel Krogstad & Jeffrey S. Passel, 5 Facts About Illegal Immigration in the U.S., Pew Research Center (November 19, 2015), available at http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-immigration-in-the-u-s. Has every one of those millions of workers who gives a social security number to her employer committed a crime involving moral turpitude? Those persons are removable because they are not in the United States lawfully. The issue for Arias and all the others is whether they are barred from even discretionary relief because they have provided false social security numbers so that they can work and pay taxes.

It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude. A rule that all crimes that involve any element of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude as conduct that is “inherently base, vile, or depraved.” At the same time, there is significant precedent indicating that deceptive conduct is morally turpitudinous. In the end, though, we do not need to try to resolve this conflict definitively in this case. As we explain next, we remand because of the unsettled state of the law regarding how the Board must go about determining which crimes involve moral turpitude.

III. The Changing Legal Framework

Given the difficulty that courts and the Board have had in defining the boundaries of moral turpitude, perhaps we should not be surprised to find great uncertainty regarding how the Board should decide whether an immigrant has been convicted of a crime involving moral turpitude. In between the Board’s order and the briefing in Arias’s petition for our review, the Attorney General vacated the order that had set the approach the Board used to determine that Arias’s crime involved moral turpitude. No replacement framework has yet emerged. The current uncertainty about method and an error the Board made in applying the old framework warrant a remand to the Board to reconsider Arias’s conviction under a new framework the Board adopts or the Attorney General mandates. See Mata-Guerrero v. Holder, 627 F.3d 256, 257 (7th Cir. 2010) (remanding to the Board a decision that a crime involved moral turpitude because Board had used an approach that had since been replaced by Silva-Trevino I framework).

In 2008, the Attorney General established a three-step process for determining whether a crime involved moral turpitude. See Silva-Trevino I, 24 I. & N. Dec. 687 (Att’y Gen. 2008). Step one of Silva-Trevino I used the categorical approach, looking to the elements of the statute of conviction to determine whether there is a “realistic probability” that the statute could be applied to conduct that does not involve moral turpitude. Where step one was inconclusive, step two looked beyond the statutory elements to records of conviction, such as charging documents, jury instructions, and guilty plea agreements and transcripts to see if the defendant’s crime involved moral turpitude. Where that was also inconclusive, step three allowed an immigration judge or the Board to consider additional evidence regarding the defendant’s actual conduct.

We approved the Silva-Trevino I approach. Sanchez v. Holder, 757 F.3d 712, 718 (7th Cir. 2014); Mata-Guerrero, 627 F.3d at 260; see also Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012). Some other circuits, however, held that allowing an immigration judge to look beyond the record of conviction violated the unambiguous language of the statute. See, e.g., Silva-Trevino v. Holder, 742 F.3d 197, 198 (5th Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907, 916 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012). In light of these other circuits’ decisions, the Attorney General vacated Silva-Trevino I and directed the Board to address in appropriate cases how “adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude” under the Immigration and Nationality Act. Silva-Trevino II, 26 I. & N. Dec. 550, 553 (Att’y Gen. 2015). The Board has not yet acted on that instruction, leaving a vacuum of authority regarding how it should determine whether a crime involves moral turpitude.

To add to the confusion, the Board did not correctly apply the Silva-Trevino I framework in its opinion holding that Arias’s violation of § 408(a)(7)(B) involved moral turpitude. The Board selectively quoted the statute and then stated: “An intent to deceive for the purpose of wrongfully obtaining a benefit is an element of the offense, and therefore the offense is categorically a crime involving moral turpitude.” As noted above, § 408(a)(7)(B) criminalizes false use of a social security number not only to obtain a benefit but also “for any other purpose.” The Board rephrased the statute to fit Arias’s particular circumstances, which indicates that the Board looked beyond the statute to determine that Arias’s crime of conviction involved moral turpitude. This was permissible under Silva-Trevino I, but only if examination of the statute proved inconclusive. Silva-Trevino I, 24 I. & N. Dec. at 690.[1]

The Board failed to analyze whether the statute was inconclusive before looking beyond the elements of the statute. This was an error under Silva-Trevino I. It is unclear whether it would be an error now. Since Silva-Trevino II, it is uncertain whether and under what circumstances the Board will be permitted to look beyond the elements of the statute. In addition, in light of Silva-Trevino II, our decision today does not amount to overruling our earlier opinion in Marin-Rodriguez. 710 F.3d 734. That decision was grounded in the now-vacated framework of Silva-Trevino I. Because the Silva-Trevino I framework has since been vacated and the Attorney General has directed the Board to determine a new framework for judging which crimes involve moral turpitude, we REMAND to the Board to consider Arias’s case under an appropriate legal framework for judging moral turpitude.

POSNER, Circuit Judge, concurring in the judgment.

I agree that we should grant the petition and therefore remand the case to the Board of Immigration Appeals for reconsideration of the Board’s refusal to cancel the order that the petitioner be removed (deported) from the United States.

I do not however agree with the respect that Judge Hamilton’s opinion accords the concept of “moral turpitude.” It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals.

The concept plays a particularly malign role in immigration adjudication, as this case illustrates, because conviction of a crime involving moral turpitude bars the Attorney General from canceling the removal, or adjusting the status, of an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I).

The term “crime involving moral turpitude” first appeared in Brooker v. Coffin, 5 Johns. 188 (N.Y. 1809); see Note, “Crimes Involving Moral Turpitude,” 43 Harv. L. Rev. 117, 118 n. 7 (1929). Without defining the term, the court concluded that prostitution and other disorderly-conduct offenses were not crimes of moral turpitude, and therefore falsely accusing someone of such an offense could not support a suit for slander. Brooker v. Coffin, supra, 5 Johns. at 191-92. But the term appeared rarely in case law until legislators began to invoke it, notably in the closing years of the nineteenth century, when in the Act of March 3, 1891, ch. 551, 51st Cong., 2d Sess., Congress, worried by the swelling tide of immigration to the United States, forbade the admission, among other categories of disfavored aliens (such as polygamists), of aliens “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Why Congress chose the term “moral turpitude” to describe crimes that should bar aliens is unclear because there was no attempt to explain it either in the statute itself or in the legislative history. See Staff of House Committee on the Judiciary, 100th Cong., Grounds for Exclusion of Aliens Under the Immigration and Nationality Act: Historical Background and Analysis 10 (Comm. Print. 1988).

Congress has never defined “moral turpitude,” but courts and the immigration agencies have tended to adopt a slight variant of the definition in Black’s Law Dictionary: an “act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general. . . . [An] act or behavior that gravely violates moral sentiment or accepted moral standards of [the] community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others.” Black’s Law Dictionary 1008-09 (6th ed. 1990). Thus Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009), remarked that “the BIA has described a crime of moral turpitude as including `conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'” The most recent edition of Black’s offers a simpler but broader definition: “conduct that is contrary to justice, honesty, or morality; esp., an act that demonstrates depravity.” Black’s Law Dictionary 1163 (10th ed. 2014).

It’s difficult to make sense of these definitions, which approach gibberish yet are quoted deferentially in countless modern opinions. See, e.g., Blake v. Carbone, 489 F.3d 88, 103 (2d Cir. 2007); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 636 (3d Cir. 2002); Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996); In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007); In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). What does “the public conscience” mean? What does “inherently base, vile, or depraved”—words that have virtually dropped from the vocabulary of modern Americans—mean and how do any of these terms differ from “contrary to the accepted rules of morality”? How for that matter do the “accepted rules of morality” differ from “the duties owed between persons or to society in general”? And—urgently—what is “depravity”? A partial list of its synonyms, according to a Google search, includes corruption, vice, perversion, deviance, degeneracy, immorality, debauchery, dissipation, profligacy, licentiousness, lechery, prurience, obscenity, indecency, a wicked or morally corrupt act, the innate corruption of human nature due to original sin, moral perversion, bestiality, flagitiousness, and putrefaction.

The definitions constitute a list of antiquated synonyms for bad character, and why does the legal profession cling to antiquated synonyms? Why are we so backward-looking? The answer lies in the American legal culture—in the fact that law is backward-looking, that the legal profession revels in antiquity, cherishes jargon, and lacks respect for proper English usage—”base or vile” is not an expression used by sophisticated speakers of modern English, or for that matter unsophisticated, and the word “turpitude” has disappeared from the language as spoken and written today. The language I quoted from Black’s—who talks like that? Who needs to talk like that? Lawyers apparently, and they go a step further into the lexical mud by intoning an adjectival form of “turpitude”: “turpitudinous.”

We suggested in Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir. 2004)—a case that hinted at misgivings about the utility of moral turpitude as a criminal category—that the distinction between crimes that are and crimes that are not crimes of moral turpitude corresponds, as noted in Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000), and Orlando v. Robinson, 262 F.2d 850, 851 (7th Cir. 1959), to the distinction between crimes that are malum in se and crimes that are malum prohibitum. The former refer to crimes that because they violate the society’s basic moral norms are known by everyone to be wrongful, the latter to crimes that are not intuitively known to be wrongful. United States v. Urfer, 287 F.3d 663, 666 (7th Cir. 2002); United States v. Beavers, 206 F.3d 706, 710 (6th Cir. 2000) (“the lack of intuitive wrongfulness is the hallmark of all laws that are malum prohibitum”). In application, however, the distinction turns out to be paper thin. In South Carolina, for example, simple possession of cocaine is classified as a crime involving moral turpitude, State v. Major, 301 S.C. 181, 391 S.E.2d 235, 237 (1990), but simple possession of marijuana is not. State v. Harvey, 275 S.C. 225, 268 S.E.2d 587, 588 (1980). An alien convicted of making false statements on an employment application and using a fake Social Security number was held in Beltran-Tirado v. INS, supra, not to have committed a crime involving moral turpitude, but the crime of making false statements in a driver’s license application was held in Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993), to involve moral turpitude. The holdings of the Board of Immigration Appeals are consistent with regard to some crimes but “there are a number of miscellaneous cases involving indecent acts, gambling, perjury, and other crimes where the findings of moral turpitude vary widely.” Toutounjian v. INS, 959 F. Supp. 598, 603 (W.D.N.Y. 1997).

The background that I have sketched may help prepare the reader for the mysterious ways in which the federal government classifies crimes against itself (for that is the nature of the crime that the petitioner in this case, Maria Arias, committed—a crime against the government) as “turpitudinous” or not.

The U.S. Department of State Foreign Affairs Manual (FAM), in Volume 9 Visas, 9 FAM 40.21(a) N2.3-2 Crimes Committed Against Governmental Authority (2015), divides crimes against government into those that are, and those that are not, crimes of moral turpitude:

a. Crimes committed against governmental authority which fall within the definition of moral turpitude include:

(1) Bribery;

(2) Counterfeiting;

(3) Fraud against revenue or other government functions;

(4) Mail fraud;

(5) Perjury;

(6) Harboring a fugitive from justice (with guilty knowledge); and

(7) Tax evasion (willful).

b. Crimes committed against governmental authority, which would not constitute moral turpitude for visaissuance purposes, are, in general, violation of laws which are regulatory in character and which do not involve the element of fraud or other evil intent. The following list assumes that the statutes involved do not require the showing of an intent to defraud, or evil intent:

(1) Black market violations;

(2) Breach of the peace;

(3) Carrying a concealed weapon;

(4) Desertion from the Armed Forces;

(5) Disorderly conduct;

(6) Drunk or reckless driving;

(7) Drunkenness;

(8) Escape from prison;

(9) Failure to report for military induction;

(10) False statements (not amounting to perjury or involving fraud);

(11) Firearms violations;

(12) Gambling violations;

(13) Immigration violations;

(14) Liquor violations;

(15) Loan sharking;

(16) Lottery violations;

(17) Possessing burglar tools (without intent to commit burglary);

(18) Smuggling and customs violations (where intent to commit fraud is absent);

(19) Tax evasion (without intent to defraud); and

(20) Vagrancy.

The division between the two lists is arbitrary. The first is open-ended and therefore provides incomplete guidance on how to avoid committing a crime of moral turpitude against the government. The second list, the list of crimes that do not involve moral turpitude, includes a number of crimes that are as serious, as “turpitudinous”—one steeped in the jargon of crimes of moral turpitude might say—as those in the first list: desertion from the Armed Forces, prison escape, smuggling, and failure to report for military induction (i.e., draft dodging, when there is a draft). Some of the crimes in the second list make no sense, such as possessing burglar tools without intent to commit burglary and committing tax evasion without intent to defraud. Others are defined so broadly as to include criminal behavior serious enough to belong on the first list, examples being breach of the peace, firearms violations, and loan sharking. The pair of lists seems the product of a disordered mind. They make no sense.

The petitioner’s crime was the use of a social security number that had been assigned to another person by the Social Security Administration. That was a felony. 42 U.S.C. § 408(a)(7)(B). She had used the number to obtain a job. There is no indication that had she not done this, an American citizen would have gotten the job in her stead rather than one of the 10 or 11 million other illegal aliens who live in the United States and like Arias need to work in order to support themselves. The statute does not require proof of intent to cause harm—an absence that one would think would negate an inference of moral turpitude. Nor is it required that the violation be material; nor was there proof in this case that the violation wrongfully deprived anyone of social security benefits or increased the expenses of government. Unsurprisingly Arias was punished very lightly: she was merely placed on probation for a year and assessed $100, which is the mandatory assessment for felony convictions. See 18 U.S.C. § 3013. So: no incarceration, no fine, just a year’s probation and an assessment equivalent to the amount of money she earns in 9.1 hours of work (for her wage is $10.97 per hour).

Conceivably her very light sentence reflects in part the fact that she has two young children, has worked without incident since coming to the United States in 2000, and has paid federal income tax. Or may be the judge thought her crime trivial, as do I. (Has the Justice Department nothing better to do with its limited resources than prosecute a mouse? Has prosecutorial discretion flown out the window?) She did not steal or invent the social security number; it was given her by the persons who smuggled her into the United States.

After completing her probation she was allowed to resume her employment with the same company she’d worked for until her arrest, and she obtained a glowing letter of support from the general manager. She does manual work for the company, described by the general manager as “sealer sanding doors, wear thru and working with specialty paints.” It is the kind of work that illegal immigrants typically do, because it is not pleasant work and it is not well paid.

To prosecute and deport such a harmless person (to Ecuador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous. The crime she committed does not appear in the State Department’s list of crimes of moral turpitude, and it is less serious than many of the crimes in the second list (those that are not crimes of moral turpitude). It is somewhat similar to crime category 13 in the second list—”immigration violations”—but she was not convicted of violating immigration law, but instead of violating a section of 42 U.S. Code, Chapter 7, Subchapter II. The title of the subchapter is “Federal Old-Age, Survivors, and Disability Insurance Benefits.” Her crime could also be placed in category 10 on the second list—”false statements (not amounting to perjury or involving fraud).” The State Department explicitly tells us that false statements do not constitute crimes of moral turpitude.

And yet the government argues that the petitioner’s conduct was “deceptive” and therefore a crime of “moral turpitude.” But glance again at the second list, the list of crimes that are not crimes of moral turpitude. In addition to crime 10—”false statements”—which by definition involves deception, crimes 1, 3, 4, 15, 18, and 19 on that list may also involve deception. When a panel of this court said in Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013), a case factually almost identical to this one, that “crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous,” it was deviating from the Manual without explanation.

Interestingly, the immigration judge in our case said that “unfortunately” the Seventh Circuit had ruled in Marin-Rodriguez that the type of conviction involved in Arias’s case was “inherently turpitudinous.” The judge’s instincts were sound, but she felt bound by our decision. The Board of Immigration Appeals affirmed her ruling primarily on the authority of Marin-Rodriguez. But Marin-Rodriguez was wrong and should be overruled. The court had no basis for rejecting what for a change was proper guidance from the State Department’s Manual.

The idea that fraudulent intent colors any crime “turpitudinous” had received its authoritative modern statement in Jordan v. De George, 341 U.S. 223 (1951), like this a deportation case, where we read for example that “fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.” Id. at 229. But notice that the word used by the Court to describe a crime of moral turpitude was “fraud,” not “deception,” and De George was a fraud case in the core sense of “fraud”: it was a conspiracy to defraud the federal government of tax revenues.

Yet, though it was a much stronger case for deportation than this case, the majority opinion evoked a remarkable dissent by Justice Jackson, id. at 232-245, joined by Justices Black and Frankfurter. The dissent picked apart the concept of “moral turpitude.” It exposed its emptiness (“Congress did not see fit to state what meaning it attributes to the phrase `crime involving moral turpitude.’ It is not one which has settled significance from being words of art in the profession. If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity and moral turpitude seems to mean little more than morally immoral. The Government confesses that it is `a term that is not clearly defined,’ and says: `the various definitions of moral turpitude provide no exact test by which we can classify the specific offenses here involved.’ Except for the Court’s opinion, there appears to be universal recognition that we have here an undefined and undefinable standard”). Id. at 234-235. And the dissent argued convincingly that deportation was an extreme sanction to impose on De George, the alien, without a more definite standard guiding its imposition. See id. at 240-242.

Alas, a great dissent by a great Justice has been forgotten. The concept of moral turpitude, in all its vagueness, rife with contradiction, a fossil, an embarrassment to a modern legal system, continues to do its dirty work. Even so, and despite the precedent of Marin-Rodriguez, there is a route to justice in this case. It is to recognize that this is not a fraud case. Although convicted of a crime against the government, the petitioner, unlike her predecessor De George, was not seeking any money from the government. So far as appears her crime harmed no one, least of all the government though it is the “victim” of her crime, and so even the muddled overbroad Foreign Affairs Manual provides no basis for classifying her crime as one of moral turpitude. This case is identical to Beltran-Tirado v. INS, supra, where the Ninth Circuit held that using a false social security number on an employment verification form in order to obtain employment was not a crime of moral turpitude. Consider, too, In re Delagadillo, 15 I. & N. Dec. 395 (BIA 1975), where the Board of Immigration Appeals held that an applicant for admission to the United States who had “fabricated a property transfer in an unsuccessful attempt to reduce his wife’s potential settlement in a divorce action” had not committed a crime “so base or vile as to be deemed morally turpitudinous.” The Ninth Circuit and the Board of Immigration Appeals recognized in these cases, as the State Department does in its manual, that deception alone is not enough to make a crime one of moral turpitude. Our prior cases that have purported to extend De George’s fraud rule to cover any deception have generally done so in dicta, because the cases involved more than simple deception. See Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005); Padilla v. Gonzales, 397 F.3d 1016, 1017-18, 1020-21 (7th Cir. 2005).

In Lagunas-Salgado v. Holder, 584 F.3d 707 (7th Cir. 2009), an alien had been convicted of making “false Social Security and alien registration cards so that others could find employment.” Id. at 708. The Board of Immigration Appeals deemed his crime one of moral turpitude and a panel of this court affirmed. It was a more serious crime than our petitioner’s, because Lagunas-Salgado had sold false papers to about 50 people, some for as much as $100; and he was sentenced to five months in prison and two years of probation, a much heavier sentence than Arias received. The panel opinion in Lagunas-Salgado remarks with apparent approval the BIA’s conclusion “that petty larceny and issuing a worthless check involve moral turpitude” but that “crimes such as importing, selling, or possessing drugs do not involve moral turpitude because evil intent is not an element of the offense.” Id. at 710. That is an absurd distinction, given that the congressional mandate is to identify crimes that are morally reprehensible and thus a proper ground for deportation.

Yet the approach I’m suggesting derives support from Lagunas-Salgado. The panel was emphatic that it was a fraud case, 584 F.3d at 711-12, and I read Jordan v. De George to hold that crimes of fraud are ipso facto crimes of moral turpitude. Lagunas-Salgado gave away some of his false documents but sold others, and was “deceiving the government” because “he knew the persons receiving the false documents would use them in an attempt to obtain work that they could not otherwise lawfully obtain.” Id. at 712. The petitioner in our case did not forge documents, let alone for gift or sale to other persons. The impact of her conduct on her “victim,” the U.S. Government, was negligible, as reflected in the nominal sentence that she received relative to the heavier (though still light) sentence imposed on Lagunas-Salgado.

Marin-Rodriguez is closer to our case, but the alien in that case had been convicted under a different statute, 18 U.S.C. § 1546, which is entitled “Fraud and misuse of visas, permits, and other documents,” authorizes sentences of up to 10 years in prison (even longer if the offense was committed in connection with drug trafficking or terrorism), and thus punishes more heavily conduct more reprobated than the conduct in which the petitioner in this case engaged. The court in Marin-Rodriguez was mistaken, however, as I’ve said, in assuming that all deceptive acts, no matter how harmless, are crimes of moral turpitude. See 710 F.3d at 738. It based that proposition on De George, Abdelqadar, and Padilla, despite the fact that none of those cases involved harmless deception.

If anything is clear it’s that “crime of moral turpitude” shouldn’t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that’s what the Board of Immigration Appeals did in this case, in upholding the immigration judge’s conclusion that the petitioner had committed a crime of moral turpitude; it said that a violation of 42 U.S.C § 408(a)(7)(B) is “categorically a crime involving moral turpitude.”

[1] Although the Board’s interpretation of whether a crime involves moral turpitude for the purposes of the Immigration and Nationality Act is often entitled to Chevron deference, Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008), Chevron deference does not protect clear legal errors such as the Board’s misapplication of the Silva-Trevino I framework or misstatement regarding the contents of 42 U.S.C. § 408(a)(7)(B).
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