U.S. Supreme Court ruling preserves the right to judicial review for immigrants facing deportation.

HELD: Section 1252(a)(2)(B)’s proscription of judicial review applies only to Attorney General determinations made discretionary by statute, not to determinations declared discretionary by the Attorney General himself through regulation.

Kucana v. Holder (PDF)

(a) The motion to reopen is an “important safeguard” intended “to ensure a proper and lawful disposition” of immigration proceedings. Dada v. Mukasey, 554 U. S. 1, ___. Federal-court review of adminis-trative decisions denying motions to reopen removal proceedings dates back to at least 1916, with the courts employing a deferential abuse of discretion standard of review. While the Attorney General’s regulation in point, 8 CFR §1003.2(a), places the reopening decision within the BIA’s discretion, the statute does not codify that prescription or otherwise “specif[y]” that such decisions are in the Attorney General’s discretion. Pp. 6–7.

(b) Section 1252(a)(2)(B) does not proscribe judicial review of denials of motions to reopen. Pp. 8–16.

(1) The amicus defending the Seventh Circuit’s judgment urges that regulations suffice to trigger §1252(a)(2)(B)(ii)’s proscription. She comprehends “under” in “authority . . . specified under this subchapter” to mean, e.g., “pursuant to,” “subordinate to.” Administrative regulations count for §1252(a)(2)(B) purposes, she submits, be-cause they are issued “pursuant to,” and are measures “subordinate to,” the legislation they serve to implement. On that reading,§1252(a)(2)(B)(ii) would bar judicial review of any decision that an executive regulation places within the BIA’s discretion, including the decision to deny a motion to reopen. The parties, on the other hand, read the statutory language to mean “specified in,” or “specified by,” the sub-chapter. On their reading, §1252(a)(2)(B)(ii) precludes judicial review only when the statute itself specifies the discretionary character of the Attorney General’s authority. Pp. 8–9.

(2) The word “under” “has many dictionary definitions and must draw its meaning from its context.” Ardestani v. INS, 502 U. S. 129, 135. Examining the provision at issue in statutory context, the parties’ position stands on firmer ground. Section 1252(a)(2)(B)(ii) is far from IIRIRA’s only jurisdictional limitation. It is sandwiched between two subsections, §1252(a)(2)(A) and §1252(a)(2)(C), both dependent on statutory provisions, not on any regulation, to define their scope. Given §1252(a)(2)(B)’s statutory placement, one would expect that it, too, would cover statutory provisions alone. Pp. 9–11.

(3) Section 1252(a)(2)(B)(i) places within the no-judicial-review category “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255.” Each of the referenced statutory provisions addresses a different form of discretionary relief from removal and contains language indicating that the decision is entrusted to the Attorney General’s discretion. Clause (i) does not re-fer to any regulatory provision. The proximity of clause (i) and the clause (ii) catchall, and the words linking them—“any other decision” suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute. Pp. 11–12.

The Illegal Immigration Reform and Immigrant Responsibility Act of1996 (IIRIRA) amended the Immigration and Nationality Act (INA or Act), codifying certain rules, earlier prescribed by the Attorney General, that govern the process of reopening removal proceedings. IIRIRA also added a provision stating that no court has jurisdiction to review any action of the Attorney General “the authority for which is specified under this sub-chapter to be in the discretion of the Attorney General.” 8 U. S. C. §1252(a)(2)(B)(ii). A regulation, amended just months before IIRIRA’s enactment, provides that “[t]he decision to grant or deny a motion to reopen . . . is within the discretion of the [Board of Immigration Appeals (BIA)],” 8 CFR §1003.2(a). As adjudicator in immigration cases, the BIA exercises authority delegated by the Attorney General. Petitioner Kucana moved to reopen his removal proceedings, asserting new evidence in support of his plea for asylum. An Immigration Judge denied the motion, and the BIA sustained that ruling. The Seventh Circuit concluded that it lacked jurisdiction to review the administrative determination, holding that §1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also of those made discretionary by regulation.

(4) Also significant is the character of the decisions insulatedfrom judicial review in §1252(a)(2)(B)(i). The listed determinations are substantive decisions the Executive makes involving whether or not aliens can stay in the country. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. See, e.g., §1157(c)(1). Decisions on reopening motions made discretionary by regulation, in contrast, are adjunct rulings. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing. Had Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation as well as by statute, moreover, Congress could easily have said so, as it did in provisions enacted simultaneously with §1252(a)(2)(B)(ii). See, e.g., IIRIRA, §213, 110 Stat. 3009–572. Pp. 12–14.

(5) The history of the relevant statutory provisions corroborates this determination. Attorney General regulations have long ad-dressed reopening requests. In enacting IIRIRA, Congress simultaneously codified the process for filing motions to reopen and acted tobar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny reopening motions. This legislative silence indicates that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, “to grant or deny a motion to reopen,” 8 CFR §1003.2(a), but courts retain jurisdiction to review the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this “important [procedural] safeguard,” Dada, 554 U. S., at ___, where, as here, the alien’s underlying asylum claim would itself be reviewable. The REAL ID Act of 2005, which further amended the INA by adding or reformulating provisions on asylum, protection from removal, and even judicial review, did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen. Pp. 14–16.

(c) Any lingering doubt about §1252(a)(2)(B)(ii)’s proper interpretation would be dispelled by a familiar statutory construction principle: the presumption favoring judicial review of administrative action. When a statute is “reasonably susceptible to divergent interpretation,” this Court adopts the reading “that executive determinations generally are subject to judicial review.” Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 434. The Court has consistently applied this interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. See, e.g., Reno v. Catholic Social Services, Inc., 509 U. S. 43, 63–64. Because this presumption is “ ‘well-settled,’ ” ibid., the Court assumes that “Congress legislates with knowledge of” it, McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496. It therefore takes “ ‘ “clear and convincing evidence” ’ ” to dislodge the presumption. Catholic Social Services, Inc., 509 U. S., at 64. There is no such evidence here. Finally, reading §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the BIA by regulation would ignore Congress’ design to retain for itself control over federal court jurisdiction. The Seventh Circuit’s construction would free the Executive to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions “discretionary.” Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted. Pp. 16–17. 533 F. 3d 534, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed an opinion concurring in the judgment.

Benitez Ramos 7th Circuit El Salvador withholding of removal former gang member

Record failed to support Bd.'s denial of alien's application for withholding of removal where alien (native of El Salvador) alleged that he would be persecuted by members of criminal gang on account of his status as former member of gang and as newly converted Christian if he were forced to return to El Salvador since his Christian religion would preclude him from rejoining gang. Bd. failed to give reasoned explanation for why statutory bar for individuals who commit serious crimes applied to former members of gang. Thus, Bd. must determine on remand whether alien actually committed violent acts as member of gang, which would preclude alien from obtaining relief, and whether alien was more likely to be persecuted by gang if returned to El Salvador.

Petition for review a BIA's denial of an El Salvadoran citizen's petition for withholding of removal on the ground that former Salvadoran gang members do not constitute a particular social group, nor can membership in a criminal gang constitute membership in a particular social group, is granted and the Board's decision is vacated and remanded as a gang is a group and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.

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El Salvador is a constitutional, multiparty democracy with a population of approximately 5.8 million. In 2004 voters elected Elias Antonio Saca of the Nationalist Republican Alliance (ARENA) as president for a five-year term in generally free and fair elections. Civilian authorities generally maintained effective control over the security forces.

Although the government generally respected the rights of its citizens, protection of human rights was undermined by widespread violent crime, including gang-related violence, high levels of impunity from prosecution, and judicial corruption. Other significant human rights problems included harsh, violent, and overcrowded prison conditions; lengthy pretrial detention; violence and discrimination against women; abuses against children, child labor, and forced child prostitution; trafficking in persons; and inadequate enforcement of labor rights.

What happens when your Immigration Case is Denied? Appeals to the Board of Immigration Appeals or Federal Courts from denial by IJ/officer

What Happens If Your Immigration Case is Denied?

The Immigration Act provides the opportunity to appeal decisions of immigration officers or immigration judges to a higher level. How, and which court or agency, your appeal should be directed is the subject of this blog.

The Board of Immigration Appeals is found in Falls Church, Virginia, and as of April 2009 has 14 Board Members, who are administrative judges appointed by the U.S. Attorney General. Three member panels make most decisions, however, the whole board will hear the most important cases. The size of the full BIA varies from time to time, depending on resignations, retirements and new appointments; it may have up to 15 Board Members under the current authorizing legislation. However, following the practice of appellate courts, many decisions of the BIA are by panels that are composed of only a few Board Members.

The Board exercises appellate jurisdiction over various types of actions. These include a review of immigration judges' decisions in removal cases; decisions of USCIS District Directors and immigration judges on waiver applications; relative visa petition denials and approval revocations; bond, parole or detention determinations; and immi gration judges decisions on rescissions of adjustment of status. Also included in BIA review are a wide variety of applications, including fraud waivers under section 212(i) and waivers of inadmissibility under section 212(h). The BIA's review of deportation decisions includes a review over the chosen country of deportation; suspension of deportation (now cancellation) applications; voluntary departure applications; registry determinations; discretionary waiver application determinations; asylum applications; and adjustment of status applications.

Only aggrieved parties have standing to appeal to the Board. In relative visa petition cases, this means only the petitioner (or the petitioner and the beneficiary together) may file the appeal. In removal cases, only the person ordered removed has standing to take an appeal to the BIA. The BIA has broad authority to review both issues of fact and issues of law, to make its own separate findings of fact and to exercise its broad discretionary powers as it sees fit. Usually, however, the Board will accept an immigration judge's findings of fact, on the rationale that the trier of fact had the better opportunity to assess credibility. The BIA generally limits its review to matters in the hearing record, and will not consider new evidence on appeal, absent exceptional circumstances.

You must file a notice of appeal on Form I-290A, with the applicable filing fee. The BIA may waive the filing fee for indigents. Appeals from decisions of immigration judges are filed directly with the BIA, while appeals from decisions of the immigration service are filed with the INS officer who has jurisdiction over the case. You must file the notice of appeal within the time periods specified in the regulations. In deportation cases, the Board must receive the notice within thirty days of the immigration judge's decision. The notice of appeal is not considered filed until it is actually received, with a filing fee. If the last day to file falls on a Saturday, Sunday or legal holiday, thereafter the period wherein to appeal is extended to the next business day.

You must set out the specific reasons for the appeal on the notice of appeal form. Failure to follow this requirement may result in a summary dismissal by the Board. The Board may also dismiss appeals that are frivolous or filed solely for delay. If oral argument is desired, you must request it in the notice of appeal. The BIA thereafter has discretion whether to grant the request. You may submit a brief with the notice of appeal, or you can request more time, from the Board, wherein to submit your brief on appeal.

The Administrative Appeals Office is in Washington, DC, and is under the jurisdiction of the commissioner of the immigration service. The AAO has jurisdiction over many types of actions including appeals from denials of employment-based preference petitions, appeals from denials of petitions for temporary workers (i.e., E, H, L, O, & P denials), appeals from revocation of approvals of immigrant visa petitions; reentry permit application denials; and appeals from denials of applications for waiver of the two-year foreign residence requirement based on exceptional hardship or fear of persecution.

A single copy of a notice of appeal is filed on INS Form I-290B, with the proper filing fee, within 30 days of the service of notice of the denial. If the service of the denial is by mail, an added three days is added to the 30 days. If the last day to file falls on a Saturday, Sunday or legal holiday, the period wherein to appeal is extended to the next business day. Appeals should be filed with the local CIS office that issued the denial decision. An appeal is considered "filed" on the date which it is actually received at the CIS office. The notice of appeal must state the specific reasons which the appeal is based. Failure to do this may lead to a summary dismissal of the appeal. An appeal may also be dismissed if it is patently frivolous. If oral argument is requested, specific written reasons must be provided to explain why the argument is needed. A single copy of a brief may be submitted simultaneously with the notice of appeal, or you may submit your brief directly to the AAO within 30 days. In addition, for good cause shown, the AAO may extend the time wherein to file your brief.

The regulations provide that in nonimmigrant or immigrant visa petition cases, only the petitioner has standing to appeal. However, the alien beneficiary may also join in an appeal filed by the petitioner. On an appeal to the AAO, you are not limited to discussing matters in the record below. You may submit new proof without any showing that the proof was unavailable earlier. Also, the regulations provide that the immigration service may, on its own, treat the appeal as a motion to reopen or reconsider.

Motions to Reopen or Reconsider:

An alien may file one motion to reopen or reconsider the decision of an immigration judge, the Board of Immigration Appeals, or the Administrative Appeals Office. For motions to reopen, the motion shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. The motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal, however, there is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for asylum or withholding of deportation and is based on changed country conditions arising in the country of nationality or the country whereto removal has been ordered, if such p roof is material and were not available and could not have been found or presented at the previous proceeding.

A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, and shall state the errors of law or fact in the previous order and shall be supported by relevant authority.

The motion is filed with the judicial body that made the last decision in the case, and must be accompanied by the applicable filing fee. A copy of the motion must be served upon the immigration trial attorney, if applicable.

Federal Court Appeals:

The Immigration Act of 1996 significantly changed many areas of judicial review. In fact, the federal courts are now prevented from reviewing many types of cases over which they previously held authority. In effect, the Act intended to end in many respects the role of the federal courts in immigration matters.

Most of the changes are in section 242 of the immigration act. This section states that the federal courts shall have no jurisdiction to review decisions of immigration officers concerning aliens in expedited removal proceedings. In addition, no court shall have jurisdiction to review any judgment regarding the granting of relief under section 212(h), waiver of inadmissibility for criminal grounds; section 212(i), waiver of inadmissibility for fraud or misrepresentation; section 240A, cancellation of removal; section 240B, voluntary departure; or section 245, adjustment of status. Also, no appeal is permitted for an alien who is inadmissible or deportable because of having committed certain criminal offenses, or whose application for asylum was denied by the immigration service. (It should be pointed out that the constitutionality of many of these new provisions is being tested in the courts now. Therefore, it is possible that some of these new provisions will not stand. If any changes are made, they will be posted immediately to our web site).

When an appeal to the federal courts is permitted, the petition for a review must be filed in the Court of A ppeals, which have jurisdiction over the case, which is the circuit where the immigration judge ended the case. The petition for a review must be filed in the court of appeals within 30 days of the removal order becoming final, and must be accompanied by the applicable filing fee. A copy of the petition must be served upon the Immigration and Naturalization Service.

It must be noted that the filing of the petition for a review does not automatically stay removal of the alien from the United States. Therefore, a motion for a stay of deportation or removal should also be filed with the appeals court.

Once the court of appeals has jurisdiction, it will establish a briefing schedule. These limits can only be changed if the court, for good cause shown, orders differently.

If an alien fails to file a brief within the time called for, the court must dismiss the appeal unless a clear injustice would result. If the decision of an appeals court were not favorable to the alien, the only recourse would be to file a petition to the US Supreme Court.

The “Real ID Act of 2005" was signed into law (Pub. Law No. 109-13) on May 11, 2005, as Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, and became effective on the date of enactment.

(Sec. 101) Amends Immigration and Nationality Act (INA) provisions concerning asylum to: (1) authorize the Secretary of Homeland Security, in addition to the Attorney General, to grant asylum (retroactive to March 1, 2003); (2) require asylum applicants to prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be (if removed) the central reason for their persecution; and (3) provide that an applicant's testimony may be sufficient to sustain this burden of proof only if the trier of fact determines that it is credible, persuasive, and fact-specific. Requires corroborating evidence where requested by the trier of fact unless the applicant does not have the evidence and cannot reasonably obtain it without departing the United States. States that the inability to obtain corroborating evidence does not excuse the applicant from meeting his or her burden of proof.

Lists factors relevant to credibility determinations in asylum cases, including (but not limited to) the: (1) demeanor, candor, or responsiveness of the applicant or witness; (2) inherent plausibility of the applicant's or witness' account; (3) consistency between the applicant's or witness' written and oral statements; (4) internal consistency of each such statement; (5) consistency of such statements with other evidence of record (including the Department of State's reports on country conditions); and (6) any inaccuracies or falsehoods in such statements regardless of whether they go to the heart of the applicant's claim. States that there is no presumption of credibility.

Makes this Act's provisions regarding proof requirements and credibility determinations in asylum proceedings applicable to other requests from relief for removal.

Limits judicial review of determinations regarding the availability of corroborating evidence.

Removes the numerical limit on the number of aliens granted asylum whomay become lawful permanent residents in any fiscal year (currently setat 10,000).

Repeals provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) requiring a study and report on terrorists in the asylum system.

(Sec. 103) Expands the grounds of inadmissibility and deportability due to terrorist or terrorist-related activity to include aliens who: (1) are representatives of terrorist organizations or political, social, or other groups that endorse or espouse terrorist activity; (2) are members of designated terrorist organizations; (3) are members of organizationsthat engage in specified acts of terrorism; (4) endorse or espouse terrorist activity or persuade others to do so; or (5) have received on behalf of any organization that at the time was a terrorist organization.

(Sec. 105) Bars inadmissible arriving aliens from seeking judicial review of removal orders through habeas corpus, mandamus, or other extraordinary petitions.

Imposes a similar bar on denials of discretionary relief and ordersagainst criminal aliens, with an exception for petitions for review concerning constitutional claims or pure questions of law.

Establishes the INA's judicial review provisions as the sole avenue for challenging removal orders and reviewing claims arising under the United Nations Convention Cruel, Inhuman, or Degrading Treatment or Punishment.

Requires petitions for review filed under pre-IIRIRA law to be treated as if filed under INA as amended by this section. States that such petitions shall be the sole and exclusive means for judicial review of orders of deportation or exclusion.

(Sec. 106) Sets forth requirements for delivery bonds (guaranteeing delivery of an alien against whom the Department of Homeland Security(DHS) has issued an order to show cause or a notice to appear) and bonding agents. Requires such bonds to expire one year from the date of issue, at cancellation or upon surrender of the principal, or immediately upon nonpayment of the renewal premium. Authorizes annual renewal.

Requires cancellation of delivery bonds and exoneration of the surety:

• (1) for nonrenewal after the principal's surrender for removal;
  
• (2) if the surety or bonding agent provides reasonable evidence of
  misrepresentation or fraud in the bond application;
  
• (3) upon the death or incarceration of the principal or the surety's inability to produce
  the principal for medical reasons;
  
• (4) if the principal is detained by a law enforcement agency;
  
• (5) if it can be established that the principal departed the United States without permission;
  
• (6) if the foreign state of which the principal is a national is designated under temporary
  protected status provisions after posting of the bond; or
  
• (7) if the principal is surrendered to DHS, upon removal by the surety or bonding agent.

Authorizes the surrender of the principal to DHS for removal at any time, before bond conditions are breached, if the surety or bonding agent believes that the principal has become a flight risk.

States that a principal may be surrendered without the return of any bond premium if the principal: (1) changes address without providing advance written notice to the surety, bonding agent, and Secretary; (2) hides or is concealed from the surety, bonding agent, or Secretary; (3)
fails to report to the Secretary annually; or (4) violates the contract with the bonding agent or surety, commits any act that may lead to a breach of the bond, or otherwise violates bond obligations or
conditions.

Gives bonding agents or sureties desiring to surrender the principal the
right to:

• (1) petition the Secretary or any Federal court, without payment of fees or court costs, for an arrest warrant;
  
• (2) receive two certified copies of such warrant and the bond undertaking; and
  
• (3) pursue, apprehend, detain, and surrender the principal to any DHS detention official or facility or to any detention facility authorized to hold Federal detainees.

Requires all delivery bonds to be secured by a corporate surety that is
certified as an acceptable surety on Federal bonds and whose name
appears on Treasury Department Circular 570 and to set forth specified
information. Requires information about warrants for a principal's
arrest to be entered into the National Crime Information Center
database.

Gives bonding agents or sureties complete access to information about
the principal held by Federal, State, or local governments (or any
related subsidiary or police agency) that the Secretary determines may
be helpful in locating or surrendering the principal.

Establishes graduated penalties for bonding agents and sureties who fail to surrender a principal within 15 months of the issuance of an arrest warrant, subject to waiver. Gives bonding agents or sureties the absolute right to locate, apprehend, arrest, detain, and surrender any principal, wherever he or she may be found, who violates any bond term or condition. Limits total liability on any surety undertaking to the face amount of the bond.

Makes this section applicable to bonds and surety undertakings executed before, on or after the date of enactment of this Act.

(Sec. 107) Requires aliens arrested and detained pending a removal decision to post a delivery bond of at least $10,000 (currently, $1,500) in order to be released from custody, unless an immigration judge orders such alien's release on his or her own recognizance upon a finding that
the alien is not a flight risk and is not a threat to the United States.

(Sec. 108) Requires the Secretary to take into custody any alien subject
to a final order of removal and to cancel bond if the alien is produced
within the prescribed time limit whether or not DHS accepts custody.
States that the obligor on the bond shall be deemed to have
substantially performed all conditions and shall be released from
liability if the alien is produced within such time limit. Makes this
section applicable to all immigration bonds posted before, on, or after
the date of enactment of this Act.

Haxhiu v. Mukasey, Asylum applicant anticorruption activities a form of political speech, whistleblower must expose corruption publicly 519 F.3d 685

Haxhiu v. Mukasey (7th Cir. 2008)(Flaum)
Oral Argument | Full Text

Whether asylum applicant's anticorruption activities constituted an expression of a political opinion? To receive asylum protection on account of a political opinion, a whistleblower must have sought a political result by going outside of the scope of his official duties and the chain of command. A whistleblower must seek a political result by exposing corruption publicly. That conduct within the scope of one's governmental duties--such as a prosecutor expressing his view within the chain of command and pursuing an investigation--cannot alone constitute political expression. Must establish that the government was either complicit in persecution or unwilling or unable to protect from private parties who persecuted.

The noncitizen, a native and citizen of Albania, applied for asylum and other relief, alleging that he had been persecuted on account of his political opposition to government corruption. The IJ found him credible but denied relief based on a finding that the alien's persecution was not on account of his political opinion and that state actors were not responsible for the harm alleged. Here, the alien had worked for the government and was ultimately fired because of his efforts to resist government corruption. After he was fired, he pursued his opposition of government corruption in the press. His son was beaten badly and his daughter was the victim of an attempted kidnapping. He and his family fled to the United States. The primary issue before the court was whether the harm suffered by the alien was on account of his political opinion and whether the Albanian government was directly or indirectly responsible for his treatment. The court concluded that the alien's anti-corruption efforts were an expression of a political opinion and there was ample evidence in the record that agents of the Albanian government persecuted him in tandem with private actors.

Followed by: Darwich v. Holder, 330 Fed. Appx. 596, 2009 U.S. App. LEXIS 11308 (7th Cir. 2009) LexisNexis Headnotes HN3

Attorneys' fees and costs, Equal Access to Justice Act, EAJA

Potdar v. Holder, No. 06-2441 (10/21/09) Attorneys' fees and costs, Equal Access to Justice Act, EAJA.

Potdar v. Holder (Ripple)
Oral Argument | Full Text

Petitioner's motion for attorneys' fees and costs, arising from exclusion proceedings, is denied as, under the Equal Access to Justice Act, 28 U.S.C. section 2412, the government's position was justified in substance or in the main.

Petitioners in immigration cases are eligible for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). To be eligible for an award of fees, “a petitioner must show that: (1) he was a prevailing party; (2) the Government’s position was not substantially justified; (3) there existed no special circumstances that would make an award unjust; and (4) he filed a timely and complete application for fees.” Kholyavskiy v. Holder, 561 F.3d 689, 690 (7th Cir. 2009). To be substantially justified, the Government’s position must be “justified in substance or in the main” or “justified to a degree that could satisfy a reasonable person.” The Government meets this burden if: “(1) it had a reasonable basis in truth for the facts alleged, (2) it had a reasonable basis in law for the theory propounded, and (3) there was a reasonable connection between the facts alleged and the theory propounded.” Kholyavskiy, 561 F.3d at 691 (citing Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)). The “EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government,” Zapon v. United States Dep’t of Justice, 53 F.3d 283, 284 (9th Cir. 1995); “[t]he outcome of a case is not conclusive evidence of the justification for the government’s position,” United States v. Hallmark Const. Co., 200 F.3d 1076, 1079 (7th Cir.2000). More specific to the immigration context, a determination that part of the BIA’s decision was not supported “by substantial evidence does not foreclose the possibility that the position was substantially justified.” Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). Rather, we must consider “the factual and legal support for the government’s position throughout the entire proceeding.” Hallmark Constr. Co., 200 F.3d at 1080.

exclusionary rule does not apply in removal proceedings

Krasilych v. Holder, No. 09-1026 (9/29/09) exclusionary rule, Ukrainian withholding of removal

Krasilych v. Holder (Per Curiam)
Oral Argument | Full Text

Petition for review of the BIA's denial of a Ukrainian citizen's application for withholding of removal is denied as the exclusionary rule generally does not apply in removal proceedings, and here, petitioner obtained the I-551 stamp on his passport during an undercover investigation coordinated by immigration authorities.

Burden of proof as to existence of conviction

Barradas v. Holder, No. 08-3440 (9/23/09) burden of proof as to existence of conviction, Compelled Testimony, Excessive Interrogation by IJ

Barradas v. Holder (Tinder)
Oral Argument | Full Text

Record contained sufficient evidence to support IJ's finding that lawful permanent resident was removable on grounds that he had abetted other aliens to enter U.S. unlawfully. While govt. failed to produce court record regarding defendant's prior guilty plea to charge of alien smuggling, govt. could use criminal complaint, Forms I-213 and I-831, as well as evidence of defendant's guilty plea to said offense to satisfy its burden of proof as to existence of conviction. Ct. also rejected alien's argument that IJ denied him due process by implying that he would take adverse inference if alien refused to take witness stand, and by questioning alien regarding underlying facts of alien smuggling charge. Here, the court deferred to the Attorney General’s regulation for determining what kinds of evidence may be used to prove a criminal conviction in immigration proceedings, 8 C.F.R. § 1003.41. Subsection (d) of this regulation provides that “[a]ny . . . evidence that reasonably indicates the existence of a criminal conviction may be admissible as evidence thereof.” 8 C.F.R. § 1003.41(d). The Federal Rules of Evidence do not apply in immigration proceedings. Doumbia v. Gonzales, 472 F.3d 957, 962 (7th Cir. 2007). Evidence is admissible so long as it is probative and its admission is fundamentally fair. Rosendo-Ramirez, 32 F.3d at 1088. The court allowed the admission of Forms I-213 to prove the truth of their contents. See Rosendo-Ramirez, 32 F.3d at 1089.

Indian national's withholding of removal

Patel v. Holder, No. 08-3067 (09/16/09) withholding of removal; lack of jurisdiction, India

Patel v. Holder (Wood)
Oral Argument | Full Text

Petition for review of BIA's denial of Indian national's application for withholding of removal is denied and dismissed in part where: 1) petitioner's request for continuance is dismissed for lack of jurisdiction and in the alternative denied for lack of merit; 2) BIA's finding that petitioner did not have a well-founded fear of persecution was supported by reasonable, substantial, and probable evidence; and 3) petitioner's claim of ineffective assistance of counsel is dismissed for lack of jurisdiction. Record contained sufficient evidence to support IJ's denial of alien's application for withholding of removal based on past persecution where alien testified that physical attacks that occurred in native country were motivated by business reasons, as opposed to his religion or political activities.

motion to reopen removal proceeding

Ishitiaq v. Holder, No. 08-2834 (08/25/09) Pakistan, Sunni Muslim CAT

Ishitiaq v. Holder (Williams)
Oral Argument | Full Text

Petition for review of an order denying withholding of removal is denied where there is insufficient evidence that compels the conclusion that it is more likely than not that defendant will face persecution if returned to his home country.
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Joseph v. Holder, No. 08-2393 (08/27/09) motion to reopen

Joseph v. Holder (Wood)
Oral Argument | Full Text

Petition for review of the BIA's denial of a Pakistani petitioner's motion to reopen removal proceedings is granted and remanded where the BIA committed legal error in adopting an overly narrow interpretation of 8 C.F.R. section 1003.2(c)(3)(ii) that runs counter to the plain language of the regulation.

Hassan v. Holder. CAT relief, Ethiopia

Hassan v. Holder, No. 08-1535 (7/02/09) adverse credibility
Hassan v. Holder (Tinder)
Oral Argument | Full Text

Petition for review of an order denying asylum, withholding of removal, and relief under the Convention Against Torture is denied where: 1) the agency's adverse credibility determination, based on material inconsistencies between plaintiff's asylum application and hearing testimony, is supported by substantial evidence; and 2) substantial evidence supports the agency’s finding that plaintiff failed to show failed to show past political persecution, and failed to show a well-founded fear of future persecution.
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US v. Kedjouti, No. 08-3732 (7/09/09) Algerian Withholding of removal

Hassan v. Holder (Flaum)
Oral Argument | Full Text

Petition for review of an order denying withholding of removal is denied where there is insufficient evidence that compels the conclusion that it is more likely than not that defendant will face persecution if returned to his home country, Algeria.
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Conviction under Immigration law includes Illinois sentence for "1410 probation" (Gill v. Ashcroft, (7th Cir.) )

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal order under 8 USC §1227(a)(2)(B)(i) based on existence of alien's prior Illinois state court conviction for possession of cocaine that was ultimately dismissed87 upon alien's successful completion of probation period; under 8 USC §1101(a)(48)(A), alien's state court proceeding qualified as "conviction" that precluded alien from applying for discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f) provides that, if a first offender completes this probation without incident, “the court shall discharge the person and dismiss the proceedings against him.” The statute continues: A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that “410 probation” was a “conviction” under the text of §1101(a)(48)(A). The 7th Circuit declined to follow the holding of Lujan- Armendariz, "which elevated an abandoned administrative practice over a statutory text." 222 F.3d 728 (9th Cir. 2000).

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Two principal problems: How to classify diversionary dispositions such as “410 probation” that impose some restraint on liberty but withhold formal adjudication of guilt; second, how to classify convictions later expunged or covered by some other device for restoring the person’s civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board held that the criteria of §1101(a)(48)(A) apply to all offenders, no matter how they would have been treated if they had been charged in federal court. The 7th Circuit adopted the Board’s "straightforward" application of §1101(a)(48)(A), which abolished, for purposes of immigration law, any distinction between the treatment of deferred dispositions in first and successive drug-possession offenses. The Board has declined to acquiesce in Lujan-Armendariz and will not apply it outside the ninth circuit.

In Gill, the Seventh Circuit determined that the definition of conviction under federal immigration law, not the Illinois First Offender standard, controls. The 7th Circuit determined that an administrative appellate tribunal, namely, the Board of Immigration Appeals, had the authority to conclude that its uniform interpretation of what constitutes a "conviction" under federal law was dispositive, regardless of what states may say to the contrary (Matter of Roldan , 22 I&N Dec. 512 (BIA, 1999).

http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf

Another court has looked at this differently (Lujan-Armendariz v. Immigration & Naturalization Service, 222 F.3d 728 (9th Cir. 2000). In the latter decision, the Circuit Court of Appeals found that state equivalents to the Federal First Offender Act (like 410 probation) in regard to first time simple drug possession charges if expunged, may not be used as convictions under the Immigration and Nationality Act to establish inadmissibility or deportability. The Ninth Circuit also extended this rule to foreign equivalents to the First Offender Act (Dillingham v. Immigration & Naturalization Service, 267 F.3d 996 (9th Cir. 2001). Unfortunately, the Ninth Circuit's decision does not apply in Illinois, Indiana or Wisconsin. And, there is more. Under certain circumstances, a misdemeanor conviction under state law may amount to what is known as an "aggravated felony" (8 U.S.C. 1227(a)(2)(A)(iii) under federal immigration law (Guerrero-Perez v. INS, (7th Cir. 2001) 242 F.3d 727, rehearing den.(7th Cir. 2001) 256 F.3d 546). What this means is that certain misdemeanor convictions, like the First Offender conviction, can result in the removal from the United States of a lawful permanent resident or undocumented alien. (For example, Criminal Sexual Abuse, 720 ILCS 5/12-15(c) is a Class A misdemeanor. It is also an aggravated felony under federal immigration law. Since aliens who have committed aggravated felonies are unable as a matter of law to obtain cancellation of their removal hearings upon a conviction for such a crime, they may be deported). (Guerrero-Perez).

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003:
Download: http://callyourlawyers.com/pdfcaselaw/gil.pdf

Misdemeanor Domestic Battery not a Crime of Violence, Flores v. Ashcroft, Seventh Circuit, November 2003

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051

Download PDF case

PROCEDURAL POSTURE: Petitioner sought review of an order of the Board of Immigration Appeals (BIA) which ordered petitioner removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C.S. § 1227(a)(2)(E), because he committed a "crime of domestic violence" under 18 U.S.C.S. § 16 and had a spouse or other domestic partner as a victim.

Petitioner pleaded guilty in Indiana to battery, a misdemeanor, defined as any touching in a rude, insolent, or angry manner. Ind. Code § 35--42--2--1. The BIA determined that this offense qualified as a "crime of domestic violence" under 18 U.S.C.S. § 16 and ordered petitioner removed under § 237(a)(2)(E). Upon review, the court of appeals found that the issue was how the offense created by Ind. Code § 35--42--2--1 should be classified for purposes of § 237(a)(2)(E). Although the police report shows that petitioner attacked and beat his wife, the court of appeals reasoned that § 16 provided that the statute's elements rather than the petitioner's real activities were dispositive in misdemeanor cases such that petitioner's conviction could not properly be classified as a crime of violence. Specifically, the court of appeals found that the elements of petitioner's battery conviction could not properly be viewed as a "crime of violence" under § 16 involving a spouse or other domestic partner as a victim, and thus concluded that petitioner was not removable under § 237(a)(2)(E).

The order of removal was vacated, and the matter is remanded to the BIA for further proceedings. 1(a)(1)(A).

________________

JOSE ERNESTO FLORES, Petitioner, v. JOHN ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3160

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2003 U.S. App. LEXIS 24051

September 18, 2003, Argued November 26, 2003, Decided

PRIOR HISTORY: [*1] Petition for Review of an Order of the Board of Immigration Appeals.

DISPOSITION: Vacated and remanded.

JUDGES: Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges. EVANS, Circuit Judge, concurring.

OPINIONBY: EASTERBROOK

OPINION:

EASTERBROOK, Circuit Judge.

Jose Ernesto Flores was ordered removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E), because he committed a "crime of domestic violence"- which means any offense that is a "crime of violence" under 18 U.S.C. § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as "domestic"; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and Flores denies that his offense qualifies. We have jurisdiction to determine whether Flores has committed a removable offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but if he has done so then we lack jurisdiction to review any other issues. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez v. INS, 533 U.S. 348, 150 L. Ed. 2d 392, 121 S. Ct. 2268 (2001).


Flores pleaded guilty in Indiana to battery, a misdemeanor, which in that state is any touching in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1. He received a one-year sentence because bodily injury ensued. Flores admitted at a removal hearing that the victim was his wife. Although he now contends that he was not given sufficient time before that admission to retain counsel, a removal proceeding is not a criminal prosecution, and the Constitution does not of its own force create a right to legal assistance at every stage. See Stroe v. INS, 256 F.3d 498 (7th Cir. 2001). The immigration judge's failure to grant Flores additional continuances before asking questions about the charges may have violated a regulation, but given § 1252(a)(2)(C) we lack authority to vindicate regulation-based arguments by criminal aliens. (Violation of a federal regulation differs from violation of the Constitution. See United States v. Caceres, 440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979).) By the time the hearing proper arrived, Flores was represented by counsel, as he has been ever since. Lack of legal assistance earlier [*3] could matter only to the extent it affected the determination that he committed a crime of domestic battery- and that would be possible only if, with the assistance of counsel, Flores might have refused to make one of the concessions at the earlier, uncounseled proceedings: that (a) he is the "Jose Ernesto Flores " who pleaded guilty to the charge, and (b) the victim was his wife. Yet Flores has never (with or without counsel) denied either of these things. The issue at hand is entirely legal: how should the offense created by Ind. Code § 35-42-2-1 be classified for purposes of § 237(a)(2)(E)? It would be pointless to debate whether, some years ago, the immigration judge should have afforded Flores more time to hire a lawyer. We move to the main event.

Section 16 says that "The term 'crime of violence' means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [*4] " Because the offense of which Flores was convicted is a misdemeanor, only § 16(a) matters. It is limited to crimes that have as an element the use of "physical force against the person ...of another". Indiana law provides: "(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it results in bodily injury to any other person". Ind. Code § 35-42-2-1. Flores pleaded guilty to this "Class A" version of the misdemeanor offense. The parties treat bodily injury as an "element" because it increases the maximum punishment. There are two other elements: an intentional touching, plus a rude, insolent, or angry manner. Rudeness has nothing to do with force (though it increases the offense given by the touching). But both touching and injury have a logical relation to the "use of physical force" under § 16(a).

Flores observes that Indiana does not require much of either touching or injury. Any contact counts as a "touch"- and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane [*5] qualifies if it hits the target. Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 5 Ind. Dec. 451, 205 N.E.2d 823 (1965). Touching anything attached to someone else, such as the person's glasses, is treated the same as touching the body. Impson v. State, 721 N.E.2d 1275 (Ind. App. 2000). As for injury: a bruise suffices, as does any physical pain even without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894 (Ind. App. 2000). Indiana's courts reached this conclusion because "serious" bodily injury makes the offense a Class C felony. See Ind. Code § 35-42-2-1(a)(3). It follows, Indiana's judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to describe [*6] any of this as "violence."

Now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year's imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring him from having any contact with her. The contempt of court reflected in disobedience to this order, plus the ensuing injury, likely explains the prosecution and sentence. The immigration officials ask us to examine what Flores actually did, not just the elements of the crime to which he pleaded guilty. The problem with that approach lies in the language of § 16(a), which specifies that the offense of conviction must have "as an element" the use or threatened use of physical force. Section 16 adopts a charge-offense rather than a real-offense approach, as is common to recidivist statutes. See, e. g., Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990). As we explained in United States v. Howze, 343 F.3d 919 (7th Cir. 2003), it may be necessary even in charge-offense systems to rely [*7] on some aspects of the defendant's actual behavior, in order to know what he has been convicted of: when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is necessary to look behind the statutory definition. See also United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc). Howze was itself an example of this. State law defined, as a single felony, theft from either a living person or an embalmed body. The former is (we held) a crime of violence under 18 U.S.C. § 924(e)(2)(B)(ii) and the latter not, because only the former poses a risk of a violent encounter between thief and victim. So in Howze we examined the charging papers to learn that the victim had been alive. Indiana's battery statute, by contrast, separates into distinct subsections the different ways to commit the offense. Particularly forceful touchings, or those that cause grave injuries, come under subsections other than Ind. Code § 35-42-2-1(a)(1)(A). Thus it is possible to focus on "the elements" of that crime, as § 16(a) requires, without encountering any ambiguity, and thus without [*8] looking outside the statutory definition. See also Bazan-Reyes v. United States, 256 F.3d 600, 606-12 (7th Cir. 2001) (drunk driving is not a crime of violence under the elements approach of § 16, even if injury or death ensues).

Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the "domestic" ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one's wife or a drinking buddy injured in a barroom. The injury to a "domestic partner" is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime. See Sutherland v. Reno , 228 F.3d 171, 177-78 (2d Cir. 2000). Substantial evidence, independent of Flores's admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.

According to the immigration officials, we should grant Chevron deference to the Board's decision that Ind. Code § 35-42-2-1(a)(1)(A) [*9] satisfies the federal definition. An earlier decision reached this conclusion, after extended analysis, with respect to a Connecticut law similar to Ind. Code § 35-42-2-1(a)(1)(A), see Matter of Martin, 23 I.&N. Dec. 491 (B. I.A. 2002), and in Flores's case the Board relied on Martin. Yet Chevron deference depends on delegation, see United States v. Mead Corp., 533 U.S. 218, 150 L. Ed. 2d 292, 121 S. Ct. 2164 (2001), and § 16(a) does not delegate any power to the immigration bureaucracy (formerly the Immigration and Naturalization Service, now the Bureau of Citizenship and Immigration Services), or to the Board of Immigration Appeals. Section 16 is a criminal statute, and just as courts do not defer to the Attorney General or United States Attorney when § 16 must be interpreted in a criminal prosecution, so there is no reason for deference when the same statute must be construed in a removal proceeding. Any delegation of interpretive authority runs to the Judicial Branch rather than the Executive Branch. Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638, 108 L. Ed. 2d 585, 110 S. Ct. 1384 (1990). One [*10] law has one meaning, and a given state conviction a single classification, whether the subject arises in removal or in a recidivist prosecution in federal court. Although the agency's interpretation in Martin may have persuasive force, and we must give it careful consideration, it has no binding effect along Chevron's lines.

Martin is not persuasive. Besides starting with legislative history rather than the text of § 16- the Board saw great significance in a footnote to the Senate Report, though this footnote did not purport to disambiguate any statutory language and thus lacks weight on the Supreme Court's view of legislative history's significance- the Board made two logical errors. It relied on decisions such as United States v. Nason, 269 F.3d 10 (1st Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); and United States v. Smith, 171 F.3d 617 (8th Cir. 1999), which hold that state laws penalizing battery with intent to injure are crimes of violence under § 16 (or similar statutes, such as § 924(e)(2)). The Board concluded that this approach is equally applicable to laws such as Ind. Code § 35-42-2-1(a) (1)(A) [*11] . The first error is equating intent to cause injury (an element of the state laws at issue in those decisions) with any injury that happens to occur. It may well be that acts designed to injure deserve the appellation "violent" because the intent makes an actual injury more likely; it does not follow that accidental hurts should be treated the same way. Indiana's battery law does not make intent to injure an element of the offense; intent to touch must be established, but not intent to injure. The Board's second error was failure to appreciate the difference between felony and misdemeanor convictions. When the prior offense is a felony, then any criminal conduct that involves a "substantial risk" of physical force may be classified as a crime of violence under § 16(b) or § 924(e)(2)(B)(ii). (Howze involved a prior felony, which is why we looked to the risk of an altercation breaking out between thief and victim.) But when the conviction is for a misdemeanor, then physical force must be an element under § 16(a) or § 924(e)(2) (B)(i).

Section 16(a) refers to the "use of physical force". Every battery entails a touch, and it is impossible to touch someone without applying [*12] some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose [*13] that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.

To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature- the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have already drawn just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999). Otherwise "physical force against" and "physical contact with" would end up meaning the same thing, even though these senses are distinct in law. This is not a quantitative line ("how many newtons makes a touching violent?") but a qualitative one. An offensive touching is on the "contact" side of this line, a punch on the "force" side; and even though we know that Flores's acts were on the "force" side of this legal line, the elements of his offense are on the [*14] "contact" side. Because § 16(a) tells us that the elements rather than the real activities are dispositive in misdemeanor cases, this conviction cannot properly be classified as a crime of violence, and the basis for Flores's removal has been knocked out- along with any obstacle to our jurisdiction.

The order of removal is vacated, and the matter is remanded to the Board.

CONCURBY: EVANS

CONCUR: EVANS, Circuit Judge, concurring. Although it's debatable whether expending dynes (to say nothing about newtons) pressing the keys of my wordprocessor to concur in this case is worth the effort, I do so because the result we reach, though correct on the law, is divorced from common sense. For one thing, people don't get charged criminally for expending a newton of force against victims. Flores actually beat his wife- after violating a restraining order based on at least one prior beating- and got a one-year prison sentence for doing so.

If it is permissible to look to Flores' "real conduct" to determine if the person he beat was his wife rather than some stranger, why does it not make perfectly good sense to allow an immigration judge to look at what he really did in other respects as well, rather [*15] than restrict the judge to a cramped glance at the "elements" of a cold statute? The more information upon which the judge acts, the better. A common-sense review here should lead one to conclude that Flores committed a "crime of domestic violence." Simply put, by any commonly understood meaning of that term, that's exactly what he did, and that should be the end of the story. We, and the IJ as well in this case, should be able to look at what really happened. We recently observed that critics of our system of law often see it as "not tethered very closely to common sense." United States v. Cranley, 2003 U.S. App. LEXIS 23573, (2003 WL 22718171, decided November 19, 2003). This case is a good example of why that observation hits the nail on the head. Nevertheless, Judge Easterbrook is correct in applying the law so I join his persuasive (as usual) and colorful- snowballs, spitballs, and paper airplanes et al.- opinion. However, I do not applaud the result we reach. And one final point: Whether doing what Flores actually did should cause him to be removed from the country is a question we are without jurisdiction to answer. For better or worse, that's a matter for the executive branch as [*16] it attempts to implement the will of Congress.

http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf