CA7 granted Mexican national’s motion to stay his removal pending appeal as trial counsel failed to adequately prepare him for removal proceeding

CA7 granted alien-citizen of Mexico’s motion to stay his removal pending appeal, where alien alleged that Bd. had erred in failing to grant his motion to reopen removal proceeding based on allegations that his trial counsel had failed to adequately prepare him for removal proceeding by presenting evidence that two of alien’s children spoke only little Spanish and other child had serious medical condition requiring months of physical therapy. Stay of removal pending appeal was appropriate since: (1) Board had failed to adequately explain its observation that alien’s new evidence would not have altered outcome of removal proceeding; and (2) government had failed to respond to alien’s claim that his removal would cause severe hardship for his family.

An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal under 8 U.S.C. 1229b(b), which required that he show that he had been physically present in the U.S. for at least 10 years, that during that period he was a person of good moral character, and that his removal would result in “exceptional and extremely unusual hardship” to his U.S.‐citizen children, ages eight years, six years, and 15 months. His wife also lacks legal‐resident status and Sanchez was the primary breadwinner for his family, having worked at the same pizza restaurant for 18 years. He admitted having been convicted four times in the past 16 years of driving under the influence, and that he had twice violated conditions of his bond. The immigration judge denied relief. The BIA dismissed an appeal. The Seventh Circuit stayed his removal pending review of the BIA’s refusal to reopen in light of new evidence in support of Sanchez’ ineffective‐assistance‐of‐counsel claim, including evidence that his children do not speak Spanish and that one child has a disability.

_____________________________________
RICARDO SANCHEZ, Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, Respondent.
No. 17-1673.

United States Court of Appeals, Seventh Circuit.
Submitted May 5, 2017.
Decided May 24, 2017.

Joseph A. O’Connell, for Respondent.

Tiffany Danielle Lipscomb-Jackson, for Petitioner.

Motion to Stay Removal Ordered by the Board of Immigration Appeals. No. A205-830-444.

Before BAUER, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

Before us is a petition for review of the refusal of the Board of Immigration Appeals to reopen its order removing (i.e., deporting) the petitioner, Ricardo Sanchez, and a motion by the petitioner to stay his removal pending a definitive ruling on his petition, and finally a statement by the Department of Justice opposing both the petition and the motion.

An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal for nonpermanent residents. See 8 U.S.C. § 1229b(b). To obtain that relief he had to show that he had been physically present in the United States for at least 10 years and that during that period he was a person of good moral character. Id. He also had to establish that his removal would result in “exceptional and extremely unusual hardship” to his U.S.-citizen children. Id. (He has three children, ages eight years, six years, and fifteen months, and lives with them and his wife, who also lacks legal-resident status.)

He testified that he was the primary breadwinner for his family, having worked at the same pizza restaurant for the past eighteen years, and that he feared that his removal would wreak extreme hardship on his children because he wouldn’t be able to provide for his family with the wages that he would earn in Mexico. He admitted having been convicted four times in the past sixteen years of driving under the influence, and that he had twice violated conditions of his bond.

The immigration judge concluded that because of the DUI convictions Sanchez had failed to demonstrate good moral character. The immigration judge also concluded that Sanchez had failed to establish that his removal would result in exceptional and extremely unusual hardship for his children, because he was unable to answer questions about whether his family would follow him to Mexico. And so the immigration judge denied the application for cancellation of removal.

Sanchez appealed to the Board of Immigration Appeals, which, agreeing with the immigration judge, dismissed the appeal. Sanchez filed a timely motion with the Board to reopen his appeal; represented by new counsel, he argued that his original counsel had failed to prepare him for his hearing before the immigration judge. As a result he had failed to testify that his two older children are native English speakers who speak little Spanish; that his third child, who had not yet been born at the time of the removal hearing, has been diagnosed with delayed motor development, requiring three months of weekly physical therapy; and that he had filed tax returns for the preceding several years. Again the Board rejected his appeal, precipitating the petition and motion now before us for resolution.

There is a threshold question whether this court has jurisdiction to review the denial of Sanchez’s motion to reopen, given that we would not have jurisdiction over the underlying request for relief—cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). But we do have jurisdiction to review questions of law. 8 U.S.C. § 1252(a)(2)(D). And in Mata v. Lynch, 135 S. Ct. 2150, 2155 (2015), the Supreme Court said that “whenever the Board [of Immigration Appeals] denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision.” And the First Circuit, citing Mata, has asserted jurisdiction over a motion to reopen in a case where the petitioner, as in the present case, was seeking a form of discretionary relief (a waiver under 8 U.S.C. § 1182(h)) from removal that would not otherwise be reviewable by the court. Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015). The government has not responded to Sanchez’s invocation of Mata in the present case.

Assuming as we do that we have jurisdiction to review the Board’s denial of Sanchez’s motion to reopen, we shall exercise it, and order Sanchez’s removal stayed pending our review of the Board’s denial of his motion for reconsideration. The Board noted that Sanchez had attached to his motion new evidence in support of his ineffective-assistance-of-counsel claim, including affidavits from Sanchez and others, information about his U.S.-citizen children, and records pertaining to his criminal history. The Board concluded, but without explanation, that none of the evidence “would have likely altered the outcome of this case with regard to the hardship that would accrue to his children.” Although the Board is not required “to write an exegesis on every contention” of an alien fighting removal, a blanket rejection of all the alien’s evidence precludes meaningful review of its decision. Ji Cheng Ni v. Holder, 715 F.3d 620, 625-30 (7th Cir. 2013).

The government also failed to respond to Sanchez’s argument that he and his family will suffer irreparable harm if he is removed to Mexico before his petition to reopen the removal proceeding is resolved. See Nken v. Holder, 556 U.S. 418, 426 (2009). He is his family’s primary breadwinner, supporting his wife and their three young children. Sanchez expresses concern that he won’t be able to support his family, who are expected to remain in Ohio, with whatever wage he can make in Mexico, and that his youngest son will be unable to continue with the therapy he needs if Sanchez’s wife is forced to go back to work to support the family. He further argues that his removal should not be a priority for the Department of Homeland Security because the decision to remove him was not based on his criminal convictions.

Given the irreparable harm that Sanchez’s removal could inflict on his minor U.S.-citizen children, we have decided to stay the order of removal until we rule on his petition for review of the decision of the Board of Immigration Appeals denying his motion to reopen.

So ordered.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, BIA, Cancellation of Removal, Cancellation of Removal for Non LPRS under INA Section 240A(b)(1), ineffective assistance of counsel, Stay of Removal | Leave a comment

CA7 dismissed for lack of jurisdiction appeal of Board’s order dismissing asylum application on ground that reinstated order of removal precluded asylum

CA7 dismissed for lack of jurisdiction alien’s appeal of Board’s order dismissing his asylum application on ground that alien, as individual subject to reinstated order of removal, had no right to seek asylum relief under applicable federal regulations. Under Delgado-Arteaga, No. 16-1816 (May 12, 2017) alien lacked standing to pursue instant appeal because asylum is form of discretionary relief in which there was no liberty issue at stake. Therefore, Garcia lacked standing to challenge in instant appeal application of regulations preventing him from applying for asylum relief.

Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed in absentia and eventually departed in 2005. Garcia claims that he encountered persecution upon his return to Honduras because of his unpopular political views— his opposition to deforestation. He was kidnapped and beaten. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination and referred his case to an Immigration Judge for withholding‐only proceedings. Garcia then filed an asylum application. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order (8 C.F.R. 208.31(e)). The Board of Immigration Appeals rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a). The BIA reasoned that it lacked authority to declare the controlling regulations in violation of the statute, but also noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it.

_____________________________
CIRILO G. GARCIA, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-3234

United States Court of Appeals, Seventh Circuit.
Argued April 20, 2017.
Decided June 8, 2017.

William S. Porterfield, for Petitioner.

Edward F. Malone, for Petitioner.

Carmel A. Morgan, for Respondent.

Keren Zwick, for Petitioner.

Tim Ramnitz, for Respondent.

Rebecca Ann Sharpless, for Amicus Curiae.

Petition for Review of an Order of the Board of Immigration Appeals, No. A096-180-280.

Before MANION and ROVNER, Circuit Judges, and COLEMAN, District Judge.[*]

MANION, Circuit Judge.

Petitioner Cirilo Garcia is a native citizen of Honduras currently subject to a reinstated order of removal. Federal regulations say that aliens in his position have no right to apply for asylum. Garcia argues that these regulations are inconsistent with the general asylum statute, 8 U.S.C. § 1158(a)(1). However, because asylum is a form of discretionary relief, he lacks standing to challenge the regulations prohibiting him from applying for it. Therefore, we dismiss the petition for lack of jurisdiction.

I. Background.

Garcia is a Honduran national who first came to the United States in 2003. He was ordered removed in absentia on October 24, 2003, and eventually departed in 2005. However, Garcia claims that he encountered persecution upon his return to Honduras because of his unpopular political views— specifically, his opposition to deforestation. Eventually, he was kidnapped and beaten. He chose to return to the United States in 2014 and, after being apprehended by Border Patrol, sought asylum.

Garcia expressed a fear of persecution and torture because of his activism if he returned to Honduras. On June 9, 2014, the Chicago Asylum Office issued a positive reasonable fear determination, finding that Garcia was generally credible and had a reasonable fear of torture. The Office referred his case to an Immigration Judge for withholding-only proceedings. See 8 C.F.R. § 208.31(e) (“If an asylum officer determines that an alien described in this section has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a Form I-863, Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only.” (emphasis added)). Garcia then filed an asylum application in Immigration Court on September 8, 2014.

On October 29, 2014, the Immigration Judge granted Garcia statutory withholding of removal after finding that he had been persecuted in the past and it was more likely than not that he would be again if he returned to Honduras. The IJ explained that she lacked the authority to reconsider the reinstatement of Garcia’s removal order. Garcia then appealed to the Board of Immigration Appeals, arguing that he has a statutory right to seek asylum under 8 U.S.C. § 1158(a). On July 25, 2016, the Board dismissed his appeal. It explained that it lacked authority to declare the controlling regulations in violation of the statute, but also noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” This petition followed.

II. Discussion.

The parties presented a straightforward question: may an alien subject to reinstatement of a removal order apply for asylum? The general asylum statute, 8 U.S.C. § 1158(a), says “[a]ny alien who is physically present in the United States or who arrives in the United States, … irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.” Garcia contends that this language grants him the right to apply for asylum. The Attorney General counters with the specific language of 8 U.S.C. § 1231(a)(5), providing that aliens subject to a reinstated order of removal are “not eligible and may not apply for any relief under this chapter.” Since asylum is a form of relief, the Attorney General argues that Section 1235(a)(5) categorically prohibits Garcia’s application.

Three of our sister circuits have agreed with the Attorney General. See Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016); Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir. 2015); Herrera-Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010).[1] But we need not reach the question, because in light of our recent decision in Delgado-Arteaga v. Sessions, No. 16-1816, 2017 WL 2001659, at *4 (7th Cir. May 12, 2017), it is clear that Garcia has not suffered a sufficient Article III injuryin-fact to confer federal jurisdiction. As we explained in that case, “[a]sylum is a form of discretionary relief in which `there is no liberty interest at stake.'” Id. (quoting Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012)). Thus, denial of the opportunity to apply for asylum does not constitute “an invasion of a legally protected interest.” Id. (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)). Garcia lacks standing and this petition must be dismissed.

III. Conclusion.

Because asylum is a form of discretionary relief, Garcia has no legal right to apply for it. Therefore, he lacks standing to challenge the application of regulations preventing him from applying. We dismiss his petition for lack of jurisdiction.

DISMISSED.

[*] The Honorable Sharon Johnson Coleman, of the United States District Court for the Northern District of Illinois, sitting by designation.

[1] The Third and Ninth Circuits reached the same conclusion, but after affording the regulations deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Cazun v. Att’y Gen., 856 F.3d 249, 261 (3d Cir. 2017); Perez-Guzman v. Lynch, 835 F.3d 1066, 1081-82 (9th Cir. 2016).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, reinstated order of removal, Standing | Leave a comment

CA7 dismissed application for withholding of removal for lack of jurisdiction, general fear of crime and extortion activity arising out of gang’s actions not enough

CA7 lacked jurisdiction to review alien’s appeal of Board Order denying his application for withholding of removal. Lopez admitted that he was removable based on his prior conviction on drug offense, and he did nor establish valid claim for withholding of removal where: (1) he claimed that return to El Salvador would subject him to persecution because local gang had previously extorted his business for money based on fact that he was wealthy businessman; (2) Lopez failed to establish membership in recognized social group, where he shared no characteristic with his proposed social group other than his wealth; and (3) he had only general fear of crime and extortion activity arising out of gang’s actions. Ct. further noted that regardless of resolution of alien’s issues on appeal, Board’s order would still stand.

Lopez, a citizen of El Salvador, entered the U.S. without inspection around 1996. In 1997, he was convicted of felony possession of marijuana. In 2015, DHS charged Lopez as removable as an alien present in the U.S. without being admitted or paroled, 8 U.S.C. 1182(a)(6)(A)(i); and as an alien convicted under a controlled substance law, 8 U.S.C. 1182(a)(2)(A)(i)(II). Lopez sought asylum and withholding of removal, alleging extortion by Salvadoran gangs. The IJ denied Lopez’s application because Lopez had not filed his asylum application within one year of his last entry; his lack of knowledge about the process did not constitute changed or extraordinary circumstances. The IJ held that Lopez’s fear of persecution was “[n]either objectively reasonable [n]or on account of any of the statutorily enumerated grounds,” as there was no evidence that any future mistreatment would be on account of Lopez’s race, religion, nationality, political opinion, or social group membership. The BIA dismissed an appeal, rejecting an argument that the gang would target Lopez based on its perception of him as a wealthy business owner who failed to comply with its demands. The Seventh Circuit dismissed an appeal for lack of jurisdiction. Lopez failed to establish that his life or freedom would be threatened based on a protected ground.

_____________________________________________
RENE A. LOPEZ, Petitioner,
v.
JEFFERSON B. SESSIONS, III, Attorney General of the United States, Respondent.
No. 17-1047.

United States Court of Appeals, Seventh Circuit.
Argued June 2, 2017.
Decided June 13, 2017.

Lance L. Jolley, for Respondent.

Colette Jabes Winston, OIL, for Respondent.

Alexander E. Budzenski, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals, No. A208-149-697.

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Rene Alonzo Lopez, a.k.a. Luis Fuentes Alonso, petitions for review of the denial of his application for withholding of removal. We dismiss the petition for lack of jurisdiction.

I. Background.

Lopez is a native and citizen of El Salvador who first entered the United States without inspection in or around 1996. In 1997, he was convicted of felony possession of marijuana in violation of North Carolina General Statute § 90-95(d)(4).

In 2015, the Department of Homeland Security commenced removal proceedings against Lopez, and filed a Notice to Appear with the immigration court charging that he was removable on two grounds: (1) as an alien present in the United States without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i); and (2) as an alien convicted of a controlled substance law, see 8 U.S.C. § 1182(a)(2)(A)(i)(II). Lopez admitted the allegations in the Notice to Appear; and, after the immigration judge sustained the removal charges, Lopez filed an application for asylum and withholding of removal.

Lopez testified before the immigration judge that in 2007, Lopez and his cousin decided to form an agricultural business making feed for livestock in El Salvador. Lopez sent money from the United States as an investment and in order to rent space. He returned to El Salvador in 2011 or 2012 to expand the business to another location in a different village. Lopez stated that approximately three months after the new branch opened, he received a cell phone from a child, and the local leader of the Mara Salvatrucha (“MS-13”) gang called to “start charging rent.” (Apparently the area in which the new branch was located was gang-controlled.) The gang leader told Lopez, “[Y]ou already know what happens to people who don’t pay.” Lopez understood this to mean that the gang would kill, injure, or kidnap someone if Lopez didn’t pay the “rent.”

Lopez initially complied with the gang’s demands, depositing thirty dollars per week into a specified bank account; but after a month or a month and a half, he had to close the business. He explained to the immigration judge that once people learn that a gang controls a business, the business suffers reputational harm and loses standing in the community. Lopez then returned to the United States. Approximately six months later, Lopez sent money to his nephew, who was being pressured in El Salvador to join a gang, to help him travel to the United States.

MS-13 has never harmed Lopez’s family in El Salvador. Additionally, Lopez explained that he had not applied for asylum earlier because he had not known that he could.

A. Immigration judge’s decision

On May 19, 2016, the immigration judge denied Lopez’s application for asylum and withholding of removal. Lopez had not filed his asylum application within one year of his last entry in 2012, as is required under 8 U.S.C. § 1158(a)(2)(B); and the immigration judge found that Lopez’s lack of knowledge about the asylum application process did not constitute changed or extraordinary circumstances excusing his failure to timely file. Lopez was thus statutorily ineligible for asylum.

In denying withholding of removal, the immigration judge found that Lopez’s fear of persecution by MS-13 was “[n]either objectively reasonable [n]or on account of any of the statutorily enumerated grounds,” as the record did not support the conclusion that any future mistreatment by MS-13 would be on account of Lopez’s race, religion, nationality, political opinion, or social group membership. The immigration judge observed that neither “(1) individuals who oppose gang and other criminal activities due to their personal (e.g., religious and/or moral) beliefs,” nor “(2) individuals who have lived in the United States for many years and who are perceived by drug cartels, criminal organizations, and gangs to have money upon their return” comprised sufficiently particular groups to be cognizable social groups for purposes of withholding of removal. The immigration judge also found “no evidence that gang members would be concerned with any characteristic of their victims other than their wealth.”

B. Board of Immigration Appeals’s decision

On June 16, 2016, Lopez appealed the immigration judge’s denial of withholding of removal to the Board of Immigration Appeals (“Board”), claiming that MS-13 would target Lopez based on its perception of him as a “wealthy business owner who failed to comply with [the gang’s] demands for rent,” and submitting that the government of El Salvador is unable to control the MS-13 gang or protect its victims. He requested that the Board either grant him withholding of removal or remand his case so that he could introduce additional evidence.

On December 8, 2016, the Board dismissed Lopez’s appeal, agreeing with the immigration judge that Lopez had not established that it was more likely than not that his life or freedom would be threatened based on a protected ground. The Board explained in relevant part that, “[a]lthough wealth can form a basis of a particular social group if it is combined with other `distinguishing markers,’ no evidence was presented that the gang members in this case would be concerned with any character[istic] other than wealth.” The Board added that a “general fear of crime, extortion, or violence,” and Lopez’s actions in helping his nephew escape El Salvador, likewise were not bases for withholding of removal, and rejected Lopez’s claim that the Salvadoran government is unable or unwilling to control MS-13. Finally, the Board denied Lopez’s request for remand to present additional evidence, explaining that he “did not submit any evidence, specify the evidence that would be presented, or explain why the new evidence could have been presented in the proceedings before the Immigration Judge.”

This petition followed.

II. Discussion.

Because Lopez was found removable based on his controlled-substance conviction and did not challenge this finding before the Board or this Court, the criminal alien bar of 8 U.S.C. § 1252(a)(2)(C) applies. See, e.g., Gutierrez v. Lynch, 834 F.3d 800, 804 (7th Cir. 2016); Aguilar-Mejia v. Holder, 616 F.3d 699, 703 (7th Cir. 2010) (“Congress has stripped courts of appeals of their jurisdiction to review most issues related to removal orders for aliens convicted of certain crimes, including controlled-substance offenses. . . .”) (citations omitted). Although we thus generally lack jurisdiction to review Lopez’s final order of removal, we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review (de novo) questions of law and constitutional claims. See, e.g., Isunza v. Lynch, 809 F.3d 971, 973 (7th Cir. 2016); Antia-Perea v. Holder, 768 F.3d 647, 658-59 (7th Cir. 2014) (citation omitted). We likewise review de novo questions concerning our jurisdiction. E.g., Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012) (citation omitted).

Withholding of removal requires the petitioner to establish that it is more likely than not that he would be persecuted in the country of removal “because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see also Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011) (citation omitted). The inquiry focuses on “whether the danger flows from an ongoing violent struggle affecting the population in a relatively undifferentiated way or if danger exists on account of a protected ground.” Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005) (quoting Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir. 2003)). Lopez raises two legal challenges on appeal: (1) that individuals perceived to be wealthy business owners, or former members of that group who failed to comply with extortion demands, are both cognizable and particular social groups under existing precedent; and (2) that he established, and the Board failed to consider, that the Salvadoran government is unable or unwilling to control MS-13.[1]

The government responds, however, that neither of these arguments invokes our jurisdiction because Lopez has not challenged the Board’s dispositive holding on nexus—that is, that Lopez failed to establish a likelihood of persecution in El Salvador based on membership in a protected group. 8 U.S.C. § 1231(b)(3)(A); see also Rivera v Lynch, 845 F.3d 864, 866 (7th Cir. 2017); Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). Thus, the government reasons, even assuming Lopez could prevail on either or both of his arguments, the agency’s denial of withholding of removal would still stand.

Lopez claims that the government is misreading the immigration judge’s and Board’s decisions,[2] which, according to him, focused on the requisite particularity of a social group, and not on nexus per se. The government relies on: (1) the Board’s statement that, “[a]lthough wealth can form a basis of a particular social group if it is combined with other `distinguishing markers,’ no evidence was presented that the gang members in this case would be concerned with any character[istic] other than wealth”; and (2) the immigration judge’s finding that, “[i]n this case, . . . the danger to the respondent of robbery or extortion by gangs or other criminal elements is shared by all members of [Salvadoran] society who have or are perceived to have wealth, and there is no evidence that the risk faced by the respondent is distinct because of the time he lived in the United States.” While it’s true that both statements come from the agency’s analyses with respect to social groups, crucially, they both center on wealth—and only wealth—as the pertinent marker linked to persecution by MS-13. And as “wealth, standing alone, is not an immutable characteristic [and thus may not be the primary characteristic of a cognizable group],” Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (citing Tapiero, 423 F.3d at 672), both the immigration judge and Board did make dispositive, no-nexus findings.

Lopez alternatively argues that, to the extent the Board addressed the nexus element, the Board failed to consider evidence, raising an issue of reviewable legal error. He claims that because he experienced extortion and threats from MS-13 as a consequence of his business ownership, a conclusion of no nexus “ignores [his own] credible testimony.” His argument misses the point. It’s true that the immigration judge found Lopez generally credible, and observed that “there is some support” for Lopez’s fears of MS-13 given the gang’s proclivity toward violence. However, both the immigration judge and Board concluded that it wasn’t Lopez’s business ownership, or his non-compliance with the gang’s demands, that mattered for purposes of the withholding analysis. It was simply his (perceived) wealth. See generally In re V—-T—-S—-, 21 I. & N. Dec. 792, 792 (BIA 1997) (holding that an applicant’s wealth, in the absence of evidence to suggest other motivations, will not support a finding of persecution within the meaning of the Immigration and Nationality Act). Lopez thus failed to establish that his life or freedom would be threatened based on a protected ground.

“For [§ 1252(a)(2)(D)] review to be permissible, . . . the legal conclusion must make a difference, as otherwise the court would be rendering an advisory opinion.” Jankovic v. Lynch, 811 F.3d 265, 266 (7th Cir. 2016). As the agency’s (no-)nexus finding is dispositive of the decision on withholding of removal, we need not and do not consider either of Lopez’s arguments as to his proposed social groups or the ability or willingness of the Salvadoran government to control MS-13. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”) (citations omitted); Lozano-Zuniga v. Lynch, 832 F.3d 822, 828 (7th Cir. 2016) (finding it unnecessary to determine whether a given group was cognizable under the Immigration and Nationality Act given the immigration court’s finding that petitioner “failed to establish that there is a clear probability that he would be subject to future danger because of his membership in this group”).

III. Conclusion.

For the foregoing reasons, the petition for review of the Board’s decision is DISMISSED for lack of jurisdiction.

[1] As to the second issue, Lopez alternatively argues that even if the Board did consider this evidence, this Court should revisit our conclusion that 8 U.S.C. § 1252(a)(2)(D)’s preservation of jurisdiction does not extend to such issues of mixed law and fact. See Adame v. Holder, 777 F.3d 390, 391 (7th Cir. 2015) (Hamilton, J., concurring in denial of petition for rehearing en banc). We decline to do so, since, as the following analysis makes clear, there would be “no reasonable prospect of changing the outcome of [the] petition for judicial review.” Id.

[2] Where the Board both adopts and supplements the immigration judge’s decision, both orders are subject to review by this Court. E.g., Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014) (citations omitted).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, withholding of removal, withholding of removal; lack of jurisdiction | Leave a comment

CA7 lacked jurisdiction to review asylum denial filed well beyond applicable one-year limitation period and no material changes or extraordinary circumstance

CA7 lacked jurisdiction to consider alien’s appeal of Bd.’s denial of his asylum application, where alien had filed said application well beyond applicable one-year limitation period. While alien argued that his delay was excused because there was evidence of material change in circumstances in Mongolia to justify delay, said argument was only factual in nature, which did not fall within section 1252’s exception to instant jurisdictional bar. CA7 also rejected alien’s challenge to Bd.’s denial of his application for withdrawal of removal based on alien’s claim that his membership in Mongolian Democratic Party subjected him to persecution, where, although alien presented evidence of physical abuse by members of government, alien had failed to show that BIA’s finding that said evidence did not constitute persecution lacked support in record.

Tsegmed, a citizen of Mongolia, overstayed a nonimmigrant visa and has lived in the U.S. since 2004. In 2008, after his second DUI arrest, the government placed him in removal proceedings. He sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Tsemed had been a high-ranking officer in the Mongolian military and had knowledge of the internal workings of the governing Communist regime. He and his friend, Bayarbat, became involved with the pro-democracy movement and were arrested twice. Bayarbat’s family was killed; Tsegmed believes the government caused the deaths of his son and his brother and that agents were still looking for him. The IJ denied relief; the BIA affirmed. The Seventh Circuit denied a petition for review, stating that it lacked jurisdiction to review the denial of his asylum application because Tsegmed had missed the filing deadline and had not established material changes or extraordinary circumstances. The evidence did not compel the conclusion that he is eligible for withholding or CAT relief. Tsegmed had a subjectively genuine fear of persecution is not objectively reasonable. The Democratic Party controls the presidency and a plurality of the Mongolian parliament. The State Department reports that there are no official political prisoners or detainees in Mongolia. TSEGMED v. Sessions, Court of Appeals, 7th Circuit 2017

_______________________________
OTGONBAATAR TSEGMED, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-1036.

United States Court of Appeals, Seventh Circuit.
Argued February 8, 2017.
Decided June 15, 2017.

Paul Fiorino, Zoe J. Heller, Stratton Christopher Strand, OIL, for Respondent.

Isuf Kola, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals. No. A089-272-651.

Before WOOD, Chief Judge, FLAUM, Circuit Judge, and CONLEY, District Judge.[*]

WOOD, Chief Judge.

Otgonbaatar Tsegmed, a citizen of Mongolia, overstayed a non-immigrant visa and has been living in the United States since 2004. He came to the attention of the Department of Homeland Security in 2008, after his second arrest for Driving Under the Influence in Illinois. The government placed him in removal proceedings. He conceded that he was removable, but he filed an application with the immigration court in July 2008 seeking asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied his application and ordered him removed to Mongolia; the Board of Immigration Appeals (BIA) affirmed. Tsegmed now challenges those decisions. Because we lack jurisdiction to review the denial of his asylum application, and the evidence does not compel the conclusion that he is eligible for withholding or relief under the CAT, we deny his petition for review.

I

Tsegmed is a member of the Taij ethnic group, which is reportedly descended from nobility and still privileged in Mongolia. He attended school in the Soviet Union and then became a high-ranking officer in the Mongolian military. In that position, he worked on highly-classified assignments and had knowledge of the internal workings of the governing Communist regime. But he and his close friend, Bayarbat, eventually became involved with the pro-democracy movement in Mongolia while the country was ruled by Mongolia’s Communist Party. The police arrested Tsegmed and Bayarbat in 1989 while the two were distributing pro-democracy pamphlets. After the arrest, the police held Tsegmed for 72 hours, punched him in the face three times, called him names, and gave him no food. The police arrested him again in 1994, along with Bayarbat, during an election protest organized by the Democratic Party.

In 1999, Tsegmed’s young son died a tragic and mysterious death, for which he blames the Mongolian government. The ambulance that Tsegmed called in the midst of his son’s medical emergency never arrived, and, following his son’s death, an unidentified person called and mocked Tsegmed, telling him that such things happened to members of the Democratic Party. In 2001, Bayarbat’s family was murdered. The Communist Party framed Bayarbat for the murders and arrested him; he eventually died in prison. Around this time, the police brought Tsegmed in for questioning, ostensibly related to Bayarbat’s arrest on murder charges. They instead interrogated him about political information that they believed Bayarbat’s father had given him. The police detained him that time for 72 hours, during which they punched him in the face between four and six times. Although Tsegmed relocated to the United States in 2004, Tsegmed’s brother, who remained in Mongolia, told him in 2007 that unidentified people (presumably communists) had come to him looking for his “dirty brother.” A month after reporting this to Tsegmed, his brother died. The death was ruled a heart attack, but Tsegmed believes it may have been caused by something else because his brother was in good physical shape.

Tsegmed provided this information in the Form 1-589 Application for Asylum and for Withholding of Removal he filed in July 2008, and in his testimony at two immigration court hearings conducted in December 2013 and January 2014. The IJ found Tsegmed credible, but the judge noted that much of his testimony lacked corroboration and therefore deserved less weight. The IJ denied relief in July 2014, and the BIA affirmed in December 2015. They rejected Tsegmed’s asylum application because he did not meet any exception to the one year filing deadline. See 8 U.S.C. § 1158(a)(2)(B). The IJ, seconded by the Board, denied withholding of removal and protection under CAT on the merits, finding that the harm that Tsegmed alleged on account of his membership in the Democratic Party was not serious enough to qualify as “persecution,” and that Tsegmed had failed to establish that it was more likely than not that he would be tortured upon return. Tsegmed has petitioned us for review of the BIA’s decision.

Because the IJ denied the application and the BIA affirmed with a written opinion, we review both decisions. N.L.A. v. Holder, 744 F.3d 425, 430 (7th Cir. 2014). We consider legal conclusions de novo, and we review factual issues under the substantial evidence standard, “which requires us to assess whether the Board’s determination is supported by reasonable, substantial, and probative evidence on the record considered as a whole and to reverse only if the evidence compels a contrary conclusion.” Abdoulaye v. Holder, 721 F.3d 485, 490 (7th Cir. 2013) (internal citations omitted).

II

A

Although Tsegmed challenges the BIA’s and IJ’s determinations that he did not meet any exception to the one-year filing deadline for asylum, we lack jurisdiction to reconsider the Board’s finding. The statute requires someone seeking asylum to apply for asylum within one year after entering the United States. 8 U.S.C. § 1158(a)(2)(B). That rule can be relaxed if the applicant can demonstrate “either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within [one year].” § 1158(a)(2)(D). Section 1158(a)(3) further specifies that no court has jurisdiction to review the determination about the timeliness of the application or whether changed or extraordinary circumstances excuse a late filing. Nonetheless, we retain the authority to review “constitutional claims or questions of law related to the timely filing of an asylum application.” Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir. 2013) (citing 8 U.S.C. § 1252(a)(2)(D)). “We have interpreted this exception to apply `to strictly legal controversies,’ by which we `mean[ ] that the parties contest a legal issue, and that the alien wins if the law provides what he says it does and loses if it provides what the agency says it does.'” Id. at 625-26 (quoting Restrepo v. Holder, 610 F.3d 962, 965 (7th Cir. 2010)).

Tsegmed contends that he has shown just such an error of law, because (in his view) the evidence of a material change of circumstances in Mongolia is so strong that a contrary conclusion is inconsistent with the statute. But we rejected exactly this method of showing “material changes” in Viracacha v. Mukasey, 518 F.3d 511, 514-15 (7th Cir. 2008), and “extraordinary circumstances” in Bitsin, 719 F.3d at 626. Making a determination about either “material changes” or “extraordinary circumstances” requires this court only “to apply a legal standard to a given set of facts.” Bitsin, 719 F.3d at 626. This “does not raise a question of law, and [] therefore does not fall within § 1252’s exception to the jurisdictional bar of § 1158.” Id. at 627. Because Tsegmed does not present any constitutional claims or questions of law, we lack jurisdiction to consider the denial of his asylum application.

B

Two other forms of relief are unaffected by the one-year rule: withholding of removal, and relief under the CAT. Tsegmed seeks both.

An alien is entitled to withholding of removal if his “life or freedom would be threatened in [the home] country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Bitsin, 719 F.3d at 628. “A threat to life or freedom is synonymous with persecution, which this Circuit defines as `detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, torture, behavior that threatens the same, and non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe.'” Halim v. Holder, 755 F.3d 506, 511-12 (7th Cir. 2014) (quoting Yi Xian Chen v. Holder, 705 F.3d 624, 629 (7th Cir. 2013)). “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity” such as refusing to allow a person to practice his religion or a credible threat to inflict grave physical harm. Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011).

If an applicant establishes that he has suffered past persecution, he is entitled to a rebuttable presumption of future persecution on the same basis. 8 C.F.R. § 1208.16(b)(1). If he cannot establish past persecution, he still may be entitled to relief if he can demonstrate a “clear probability” of future persecution, meaning that it is more likely than not that he would be subject to persecution if he were returned. Halim, 755 F.3d at 512. The “clear probability” standard for withholding is more stringent than the “well-founded fear of future persecution” standard for asylum applications. Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir. 2005).

Tsegmed argues that his past harms are properly characterized as persecution on account of his Taij ethnicity, his membership in the Democratic Party, and his unique position in the military. He presents no arguments or evidence related to his ethnicity or his military position, however, and so we cannot rely on either of those grounds. This leaves his argument that he was persecuted on account of his membership in the Democratic Party (that is, on the basis of his political opinion or membership in a particular social group).

If we were reviewing his petition as a matter of first impression, we might have come to a different conclusion. But we may reverse the BIA’s determination only if we are compelled by the evidence to conclude that the agency erred. Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir. 2003). The IJ and BIA found insufficient evidence to support the contention that Tsegmed’s son and brother were murdered in 1999 and 2007, respectively. They also ruled that Tsegmed could not rely on “derivative persecution” of Bayarbat, as he had not alleged that Bayarbat had been framed in order to persecute Tsegmed. See Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir. 2011). While Tsegmed’s story is a deeply troubling one, even with these qualifications, we cannot say that the Board’s findings were tainted by legal error or a lack of support in the record.

Tsegmed’s petition describes events that are reminiscent of other cases in which we have affirmed findings of past persecution. See, e.g., Vaduva v. INS, 131 F.3d 689, 690 (7th Cir. 1997) (finding that the BIA reasonably concluded that the petitioner suffered past persecution based on being beaten up by strangers warning him about political activity, but affirming denial of asylum based on the lack of a well-founded fear of future persecution). His claims of arrest, assault, and detention without food on account of his political party membership and activity depict more than “mere” harassment (a disturbingly vague concept). See Stanojkova, 645 F.3d at 948. But we also have affirmed findings that similar physical harms did not warrant a finding of past persecution. See, e.g., Sirbu v. Holder, 718 F.3d 655, 659 n.3 (7th Cir. 2013) (listing cases affirming findings of no past persecution). As we have previously recognized, our past-persecution cases are “all over the lot.” Stanojkova, 645 F.3d at 947. That is why both Tsegmed and the government “are able to cite cases that support their position; [the citations] cancel each other out.” Id. “In the close cases, where a reasonable trier of fact could make a decision either way, we should be able to defer to the judgment of the immigration judges and the Board.” Sirbu, 718 F.3d at 660. That principle guides our decision to accept the Board’s conclusion that Tsegmed did not manage to show past persecution.

Because he has not established past persecution, Tsegmed has the burden of demonstrating a clear probability that he will be persecuted in the future. Although the BIA did not reach this issue, the IJ found that he had not met his burden. The IJ concluded that although Tsegmed had a subjectively genuine fear of persecution if he is sent back to Mongolia, that fear is not objectively reasonable. The Democratic Party controls the presidency and a plurality of the Mongolian parliament. The U.S. State Department reports that there are no official political prisoners or detainees in Mongolia. U.S. Dep’t of State, Mongolia 2015 Human Rights Report, https://www.state.gov/documents/organization/252995.pdf. The IJ noted that there was no evidence that the Communist Party retains the ability to threaten Tsegmed, and that there was insufficient evidence that the party would be motivated to target an opponent who had not been politically active for a long time.

Nothing in the record requires us to conclude that Tsegmed faces a clear probability of future persecution. While Tsegmed argues that he had a “well-founded fear of future persecution” and that he faces a “reasonable possibility of future persecution” if he returns, that is not what he needs to show for withholding of removal. See Prela, 394 F.3d at 519. Showing a “well-founded fear” or “reasonable possibility” of persecution is a far cry from establishing that future persecution is “more likely than not.”

C

Finally, Tsegmed urges that he has demonstrated that he qualifies for relief under the CAT, which requires an applicant to show that it is more likely than not that he will be tortured if returned to the country in question. 8 C.F.R. § 1208.16; Bitsin, 719 F.3d at 631. Torture is defined as “any act by which severe pain or suffering[ ] . . . is intentionally inflicted on a person . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

But Tsegmed presents no arguments in support of this claim. He says only that “the evidence overwhelmingly established that he met his burden for withholding of removal and CAT as well.” This is not sufficient to preserve his claim for our review. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). But even if it were, the evidence we already have reviewed shows that the Board was entitled to find that Tsegmed has not shown that it is more likely than not he will be tortured if returned to Mongolia.

His petition for review is DENIED.

[*] Of the Western District of Wisconsin, sitting by designation.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum | Leave a comment

CA7 lacked jurisdiction and cannot second-guess Bd.’s decision that conviction qualified as “particularly serious”

CA7 lacked jurisdiction to consider alien’s appeal of Bd.’s order finding that she was ineligible for relief on her application for withholding of removal due to her Wisconsin conviction on charge of first-degree reckless injury that arose out of incident in which alien was driver of car containing passenger who shot two bystanders. CA7 cannot second-guess Bd.’s decision that alien’s conviction qualified as “particularly serious” one under section 8 USC section 1252(a)(2)(B)(ii). Moreover, alien had failed to raise legal question for review, since no rule of law prevented Bd. from regarding her conviction as particularly serious.

Herrera-Ramirez is a citizen of Mexico but has lived in the U.S. since she was six years old. She is married and has four U.S.-citizen children. She was at a Milwaukee bar when her friends got into a fight with other patrons. Herrera-Ramirez ushered her friends out of the bar and into her car, intending to leave. At the request of her friend, she drove past the other patrons who were standing outside the bar. Her passenger shot two of the bystanders. After the shooting, Herrera-Ramirez did not contact the police. The police found her, arrested her, and found the gun in her car. She was convicted of first-degree reckless injury and sentenced to 11 months in prison. An IJ and the BIA found that her offense was a “particularly serious crime” and that she was ineligible for withholding of removal (the only possible relief). The Seventh Circuit dismissed her petition for review from that determination for lack of jurisdiction; a court may not second-guess the Board’s decision that a crime is “particularly serious” under 8 U.S.C. 1252(a)(2)(B)(ii), unless the petitioner has raised a question of law. Herrera-Ramirez was disputing only the Board’s discretionary characterization of her offense.

____________________________________________________________________

MARICELA HERRERA-RAMIREZ, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent.
No. 16-4204.

United States Court of Appeals, Seventh Circuit.
Argued May 17, 2017.
Decided June 15, 2017.

David K. Ziemer, for Petitioner.

Benjamin Zeitlin, Robert Dale Tennyson, Jr., OIL, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A 205 153 425.

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

WOOD, Chief Judge.

Maricela Herrera-Ramirez is fighting deportation from the United States. She is a citizen of Mexico, but she has been living in this country without the right to do so since she was six years old. She is married and has four U.S.-citizen children. She found herself facing removal after a violent incident on December 30, 2011, in which she was involved with a drive-by shooting near a Milwaukee bar where she had been with her friends. State criminal proceedings followed, and in time she came to the attention of U.S. Immigration and Customs Service, known as ICE, which instituted removal proceedings against her. First an Immigration Judge (IJ) and then the Board of Immigration Appeals (BIA) found that her offense was a “particularly serious crime” for immigration purposes, and thus that she was ineligible for withholding of removal (the only possible relief). She has filed a petition for review from that determination, but we conclude we lack jurisdiction over it because there is no legal issue before us, and so we dismiss on that basis.

The underlying facts of Herrera-Ramirez’s offense are straightforward. She was at the bar in Milwaukee with her friends when the friends got into a fight with some other patrons. Herrera-Ramirez ushered her friends out of the bar and into her car; she intended to drive away. One of the friends, however, told her to drive past the other patrons who were still standing outside the bar. She did so, and the passenger rolled down the car window and shot two of the bystanders. Herrera-Ramirez claimed that she initially had no idea that the passenger had a gun or what he was planning to do. After the shooting, Herrera-Ramirez drove off and dropped her friends off somewhere. She did not contact the police, but the police found her, arrested her, and found the gun in her car. She was charged with, and convicted for, first-degree reckless injury in violation of Wis. Stat. § 940.23(1)(a). The court sentenced her to 11 months in prison. She came to the attention of ICE a short time after the shooting, and that led to the order of removal she is challenging.

On a petition for review of a decision of the BIA, we have jurisdiction over final orders, but our authority is not unlimited. As relevant here, we may not second-guess the Board’s decision that the crime of which a petitioner has been convicted is a “particularly serious” one, see 8 U.S.C. § 1252(a)(2)(B)(ii), unless the petitioner has raised a question of law, see id. § 1252(a)(2)(D). We must therefore decide whether Herrera-Ramirez has raised a legal question, or if she is disputing only the Board’s discretionary characterization of her offense.

As Herrera-Ramirez sees it, the critical issue is whether the Board correctly interpreted the term “particularly serious crime.” She emphasizes the fact that she was charged as a party to the crime of first-degree reckless injury, not as the principal offender. That much is true, but it does not help her. Under Wisconsin law, all parties to a crime are principals for liability purposes, even if they did not directly commit the crime. Wis. Stat. § 939.05(1). The law defines as a party to a crime any person who (a) directly commits the crime, (b) intentionally aids and abets the commission of the crime, or (c) is a party to a conspiracy to commit the crime or advises another to commit it. Wis. Stat. § 939.05(2). At Herrera-Ramirez’s criminal trial, therefore, the jury needed only to find that she did one of those three things in order to convict her. In Holland v. State, 280 N.W.2d 288 (Wis. 1979), the Supreme Court of Wisconsin noted that “the party to a crime statute does not create three separate and distinct offenses.” Id. at 293. See also State v. Zelenka, 387 N.W.2d 55, 60 (Wis. 1986); State v. Charbarneau, 264 N.W.2d 227, 229 (Wis. 1978). In short, nothing about the fact that Herrera-Ramirez was charged as a party to a crime prevented the Board from regarding her level of culpability as significant under the immigration laws. We note that even the shooter was charged as a party to a crime.

Herrera-Ramirez also contends that she was just a minor player in the unfolding violence—nothing more than an inadvertent aider and abettor who had no idea that the passenger was going to shoot at the bystanders. But this is not a legal argument; at best it is a characterization of the facts. (And some of the facts are unfavorable to Herrera-Ramirez, including that she told police she realized her passenger had a gun before the shooting, and that she thought that the passenger meant only to rob the men standing outside the bar, not to shoot them.)

No rule of law prevents the Board from regarding Herrera-Ramirez’s offense as “particularly serious.” Pertinent regulations allow the Board to examine “the nature of the conviction, the type of sentence imposed, and the circumstances underlying facts of the conviction” in the course of determining whether a crime meets that standard. Estrada-Martinez v. Lynch, 809 F.3d 886, 889 (7th Cir. 2016) (quoting In re N-A-M, 24 I. & N. Dec. 336, 342 (BIA 2007)). The Board also is entitled to, and did, give weight to the elements of the offense and the nature of the crime. N-A-M, 24 I. & N. Dec. at 342. At worst, it did not give as much weight to Herrera-Ramirez’s supposedly peripheral role in the offense as she would have liked. But that was a discretionary decision beyond our authority to review.

Herrera-Ramirez also accuses the Board of totally ignoring her argument that the evidence did not support a finding that her offense was especially serious, and she points out that such a claim describes a legal error. Delgado-Arteaga v. Sessions, 856 F.3d 1109, 1116-17 (7th Cir. 2017). The problem with this point is that the Board did identify the evidence supporting its determination. It noted the following facts about the offense: (1) it required that she have caused great bodily harm under circumstances showing utter disregard for human life, (2) it was a crime against a person, and (3) it involved driving a car while another person shot a gun. It also quoted the IJ’s conclusion that the offense “was a dangerous crime against [sic] involving driving a motor vehicle through the city streets while people in the car shot out a window.” Herrera-Ramirez’s argument that the Board ignored the fact that her sentence was seemingly light and she was released early for good behavior is similarly unfounded. It acknowledged these facts at the beginning of its opinion, even though it did not repeat them later during the discussion of what made the offense particularly serious.

We conclude by noting that Herrera-Ramirez would face additional problems even if she had somehow surmounted the jurisdictional barrier. She failed to present her argument based on Wisconsin’s “party-to-the-crime” statute to the Board, and so there is a serious question whether she properly exhausted her remedies. See 8 U.S.C. § 1252(d)(1). The fact that she complained more generally about the “particularly serious” label would not be enough if it did not alert the Board to the specific issue she had in mind. Finally, even if exhaustion did not block her case, she would still have to persuade us that the Board abused its discretion when it refused to place very much weight on her role in the offense. That, too, is a heavy lift.

We need not resolve those issues, however, because we lack jurisdiction over this petition for review. It is therefore DISMISSED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, particularly serious crime, withholding of removal | Leave a comment