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CA7 upholds finding of marriage fraud making adjustment applicant inadmissible and ineligible for adjustment of status

Posted on April 2, 2016 by Mike Baker

Record contained sufficient evidence to support IJ’s denial of alien’s application to become lawful permanent resident, where IJ found that alien’s marriage to U.S. citizen was sham. IJ’s finding was largely based on testimony that alien’s wife was in long-term relationship with another woman, that wife lived with said woman while purportedly being married to alien, and that investigators discovered that: (1) wife shared mailbox with other woman and confirmed that she had been separated from alien for two-year period; and (2) residence that alien claimed he shared with wife appeared to be unoccupied. Moreover, alien’s misrepresentation about his marriage made him inadmissible under section 1182(a)(6)(C)(i), and thus alien was ineligible for adjustment of status. Ct. further held that IJ could properly find that alien was not credible during hearing on his application.

Zyapkov, a Bulgarian citizen, entered the U.S. in 2002 with a visitor’s visa. His daughter had entered two years earlier and eventually obtained citizenship through the “diversity lottery,” 8 U.S.C. 1153(c). Three months after Zyapkov’s arrival, he married Gregory, a U.S. citizen. Gregory and, later, Zyapkov’s daughter filed Form I‐130 “immediate relative” petitions on his behalf. Gregory’s petition was pending in 2008 when DHS initiated removal proceedings accusing Zyapkov of overstaying his visa and working as a truck driver without authorization. USCIS denied Gregory’s petition based on a conclusion that the marriage to was a sham. Zyapkov unsuccessfully sought a continuance. The finding of marriage fraud would make Zyapkov inadmissible, 8 U.S.C. 1182(a)(6)(C)(i), and ineligible for permanent residency regardless of his daughter’s pending petition. The Board dismissed his appeal of the removal order. The following month, with his daughter’s approved I‐130 petition approved, Zyapkov successfully asked the Board to reopen. He sought to adjust his status to permanent resident. On remand the IJ conducted hearings, denied Zyapkov’s application to adjust his status, and denied relief from removal, based on inconsistencies in testimony about the marriage. The Board and the Seventh Circuit affirmed. Since Zyapkov is inadmissible, he is ineligible for adjustment of status; even assuming eligibility, there was no legal or constitutional error in the IJ’s exercise of discretion. Zyapkov v. Lynch, No. 15-2063 (7th Cir. 2016)

___________________
ZYAPKOV v. Lynch, Court of Appeals, 7th Circuit 2016
NIKOLAY ZYAPKOV, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2063

United States Court of Appeals, Seventh Circuit.
Argued December 16, 2015.
Decided March 29, 2016.

Before MANION, KANNE, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

Nikolay Zyapkov, a Bulgarian citizen, applied to become a lawful permanent resident based on his marriage to a U.S. citizen. An immigration judge denied that application in a decision upheld by the Board of Immigration Appeals. Zyapkov petitions for review of the Board’s decision, but we conclude that his challenges to that decision are without merit.

I. Background.

Zyapkov entered the United States in 2002 with a six-month visitor’s visa. His daughter and ex-wife had come to the United States two years earlier, and both eventually obtained citizenship through the “diversity lottery,” which allows randomly selected entrants from countries with low immigration rates to apply for permanent residency. See, generally, 8 U.S.C. § 1153(c); Nyaga v. Ashcroft, 323 F.3d 906, 907-09 (11th Cir. 2003). Three months after Zyapkov’s arrival, he married Juanita Gregory, a U.S. citizen.

From that point Zyapkov’s efforts to remain in the United States became tangled, as both Gregory and later his daughter (after becoming a citizen in February 2010) filed Form I-130 petitions on his behalf. An approved I-130 petition would have verified Zyapkov to be an immediate relative of Gregory or his daughter, see 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1), and thus allowed him to apply for permanent residency using a Form I-485, see 8 U.S.C. § 1255(a). Gregory’s I-130 petition was still pending in 2008 when the Department of Homeland Security served Zyapkov with a Notice to Appear in removal proceedings accusing him of overstaying his visitor’s visa and working as a long-haul truck driver without authorization. See 8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i). Soon after that, Gregory’s I-130 petition was denied by United States Citizenship and Immigration Services (“USCIS”) because that agency’s investigators had concluded that Gregory’s marriage to Zyapkov was a sham intended to gain him immigration benefits. See id. § 1154(c)(2). Later, though, in September 2010, USCIS approved the daughter’s I-130 petition.

USCIS’s finding of marriage fraud relied heavily on its conclusion that Gregory was in a relationship, and sharing an apartment, with another woman while purportedly married to Zyapkov. Neighbors, as well as the woman’s brother, had confirmed the relationship to investigators, and the names of both women were on the mailbox at the apartment. Gregory also had contradicted herself about her marital status, first telling USCIS investigators that she and Zyapkov were separated and later saying in a written statement that the couple remained married but she stayed with the other woman when Zyapkov was on the road. Investigators had visited the address on Gregory’s state-issued identification card, where an owner of the house claimed that he was letting Zyapkov and Gregory live for free in several rooms because they were poor. Yet a neighbor who was shown photographs identified the woman seen at the house with Zyapkov as his ex-wife, not Gregory. And the investigators had noted that the rooms purportedly made available to Zyapkov and Gregory were being renovated and appeared to be unoccupied, e.g., the refrigerator and kitchen cabinets were empty, as were the bedroom closets.

After USCIS denied Gregory’s I-130 petition, Zyapkov sought a continuance of the removal proceedings in order to challenge that decision. His daughter’s I-130 petition had not yet been granted, and without an approved I-130 petition he could not take the next step of applying to adjust his status to permanent resident. More significantly, the finding of marriage fraud, if left unchallenged, would make Zyapkov statutorily inadmissible, see 8 U.S.C. § 1182(a)(6)(C)(i), and thus ineligible for permanent residency whether or not his daughter’s I-130 petition should be approved.

The immigration judge (“IJ”) denied the requested continuance and ordered Zyapkov removed. The Board dismissed his appeal in August 2010, which, by leaving the finding of marriage fraud undisturbed, might appear to have ended the matter. But the following month, with his daughter’s approved I-130 petition now in hand, Zyapkov asked the Board to reopen the removal proceedings and also filed a Form I-485 seeking to adjust his status to permanent resident. In December 2010 the Board granted the motion to reopen and instructed the IJ to determine Zyapkov’s “statutory eligibility and discretionary worthiness” to remain in the United States. The Board reasoned that the daughter’s approved I-130 petition appeared to make Zyapkov eligible for adjustment of status, though it said nothing about the finding of marriage fraud or the resulting bar to admissibility.

On remand the IJ conducted five hearings from December 2010 to January 2013 on Zyapkov’s application for adjustment of status. In opposing that application, the government relied on USCIS’s conclusion that Zyapkov had tried to gain immigration benefits by entering into a sham marriage with Gregory. Zyapkov countered with his own testimony that the marriage was genuine. Gregory is not a lesbian, he insisted, nor had they ever been separated. They lived together, Zyapkov explained, although working as a truck driver takes him out of town for long stretches. He and Gregory share bank accounts and credit cards, said Zyapkov, though mostly they pay for expenses in cash.

Gregory also testified, but she contradicted Zyapkov. She said they were separated from 2006 to 2008. She also explained that, when they first had met, she and Zyapkov communicated by using a computer to translate between English and Bulgarian. Because of his job, though, she sometimes would see him only two or three times a month. She denied being in a lesbian relationship.

Zyapkov’s daughter was available to testify, but instead his lawyer proffered that the daughter stood by her I-130 petition. The IJ questioned, though, how USCIS could have granted the daughter’s petition, except unwittingly, after denying Gregory’s I-130 petition because of marriage fraud.

The IJ denied Zyapkov’s application to adjust his status to permanent resident and also denied relief from removal. The IJ first pointed out the inconsistencies in Zyapkov’s and Gregory’s accounts about where they had lived and whether they had separated. The IJ acknowledged Zyapkov’s assertion that these inconsistencies could be explained by his frequent work-related absences, but the IJ found that explanation neither “convincing” nor “persuasive.” The IJ opined that Zyapkov had not explained “how he supports his wife and even where he keeps his income from his business” because the couple’s joint accounts showed minimal deposits. Based on the evidence, the IJ agreed with USCIS’s finding that Gregory’s marriage to Zyapkov was a sham. And that sham marriage coupled with Zyapkov’s false testimony, the IJ reasoned, meant that Zyapkov was inadmissible under § 1182(a)(6)(C)(i) and therefore ineligible to adjust his status.[1] As an alternative basis for denying relief, the IJ concluded that Zyapkov did not merit a favorable exercise of discretion even if eligible.

Zyapkov, through counsel, appealed the IJ’s decision but did not submit a brief. His notice of appeal to the Board says only that the IJ did not “adequately consider the basis” for adjustment of status because, in his view, the IJ put too much weight on his marriage and “unfairly punished” him for “an allegation of prior marriage fraud, without the examination of any of the Government’s witnesses who claimed knowledge of an alleged fraud.”

The Board dismissed the appeal, giving this explanation:

We will assume for purposes of the appeal that the Immigration Judge erred in finding marriage fraud pursuant to section 204(c) of the Act, 8 U.S.C. § 1154(c), and in deeming the respondent inadmissible under section 212(a)(6)(C)(i) of the Act [8 U.S.C. § 1182(a)(6)(C)(i)], and we will assume for purposes of the appeal that the respondent is statutorily eligible to adjust his status under section 245(a) of the Act [8 U.S.C. § 1255(a)]. We agree, however, with the Immigration Judge’s denial of the respondent’s applications for both adjustment of status and voluntary departure in the exercise of discretion.

Zyapkov’s removability—which he conceded because he overstayed his visitor’s visa as charged in the NTA—is separate from his burden to prove eligibility for an adjustment of status. See Matovski v. Gonzales, 492 F.3d 722, 737-39 (6th Cir. 2007).

The Board noted that it “weigh[ed] heavily against” Zyapkov “that his marriage has been deemed not bona fide” and concluded that he had “not presented sufficient positive equities” to outweigh that finding.

II. Analysis.

Zyapkov has petitioned for review, and the parties are in agreement that we review the IJ’s decision as supplemented by the Board. See Pawlowska v. Holder, 623 F.3d 1138, 1141 (7th Cir. 2010); Ssali v. Gonzales, 424 F.3d 556, 561 (7th Cir. 2005). On that understanding, we conclude that the Board, although skipping without explanation the question of Zyapkov’s eligibility to adjust status, left intact the IJ’s finding of inadmissibility under § 1182(a)(6)(C)(i)). The parties’ positions are vague but appear to be in line with our reading of the Board’s decision: The government says that the Board simply assumed that Zyapkov was eligible for adjustment of status, while Zyapkov directly challenges the IJ’s finding of ineligibility. We start with that question.

A. Zyapkov was ineligible for adjustment of status.

Section 1255(a) of Title 8 provides that an alien is eligible to seek adjustment of status only if admissible into the United States, but Zyapkov’s misrepresentations about his marriage would have made him inadmissible under § 1182(a)(6)(C)(i). Only after an alien has established eligibility to adjust his status does an IJ have discretion to grant that relief. Munoz-Avila v. Holder, 716 F.3d 976, 977-78 (7th Cir. 2013); Kimani v. Holder, 695 F.3d 666, 668 (7th Cir. 2012). The question of admissibility is important for Zyapkov, not only as it relates to his present eligibility to adjust his status, but also because a determination of inadmissibility under § 1182(a)(6)(C)(i) will permanently bar Zyapkov from readmission to the United States. See Nguyen v. Mukasey, 522 F.3d 853, 855 (8th Cir. 2008); Singh v. Gonzales, 451 F.3d 400, 402-03 (6th Cir. 2006); Ymeri v. Ashcroft, 387 F.3d 12, 18 (1st Cir. 2004).

In most circumstances, it might be appropriate to bypass the question of admissibility—as the Board seems to have done here—and address only whether the IJ committed legal or constitutional error in exercising discretion to deny adjustment of status. See Jankovic v. Lynch, 811 F.3d 265, 266 (7th Cir. 2016); Darif v. Holder, 739 F.3d 329, 337 (7th Cir. 2014); Alsagladi v. Gonzales, 450 F.3d 700, 701 (7th Cir. 2006). But given the permanent bar to admission we address Zyapkov’s argument that his marriage to Gregory was not fraudulent. See I.N.S. v. Bagamasbad, 429 U.S. 24, 26-27 (1976); Patel v. I.N.S., 811 F.2d 377, 381 (7th Cir. 1987); Kirong v. Mukasey, 529 F.3d 800, 803 (8th Cir. 2008). And the IJ’s finding that Zyapkov is statutorily ineligible for adjustment is fully reviewable. See Hussain v. Mukasey, 518 F.3d 534, 536 (7th Cir. 2008); Parlak v. Holder, 578 F.3d 457, 462-63 (6th Cir. 2009).

Zyapkov argues that the IJ failed to make an independent determination based on the record and, instead, accepted the government’s version of events while ignoring his evidence that the marriage was bona fide. We disagree. The IJ permissibly accepted USCIS’s denial of Gregory’s I-130 petition as evidence that the couple’s marriage was fraudulent. See Antia-Perea v. Holder, 768 F.3d 647, 656-58 (7th Cir. 2014) (explaining that to be admissible evidence must be at least probative and reliable); Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013); Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). What’s more, the results of USCIS’s investigation was not the only evidence before the IJ: Both Zyapkov and Gregory testified, and the IJ pointed out that they could not agree about where they had lived and whether they had separated. Zyapkov ignores that the IJ found him not credible, and concluded that prolonged absences because of his work as a truck driver did not explain these inconsistencies, and further that Zyapkov had not explained how he supports his wife financially or where he deposits his income. Thus, substantial evidence supports the IJ’s finding that Zyapkov committed marriage fraud. See Surganova v. Holder, 612 F.3d 901, 903-04 (7th Cir. 2010) (explaining that finding of marriage fraud must be supported by record evidence that is reasonable, substantial, and probative); Vladimirov v. Lynch, 805 F.3d 955, 960-62 (10th Cir. 2015) (denying petition for review where substantial evidence of marriage fraud included inconsistent statements about relationship).

B. The IJ committed no legal error in denying adjustment of status.

Since Zyapkov is inadmissible, he is ineligible for adjustment of status. But even assuming eligibility, as the Board did, there was no legal or constitutional error in the IJ’s exercise of discretion. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Sokolov v. Gonzales, 442 F.3d 566, 569-70 (7th Cir. 2006); Mele v. Lynch, 798 F.3d 30, 31-33 (1st Cir. 2015). Zyakpkov argues that he was denied due process because, in his view, the IJ “accorded an over-abundance of weight to the Government’s claims based on an alleged on-sight investigation.”

But there is no due process right to discretionary relief. Instead we review the legal sufficiency of the removal proceeding. See Darif, 739 F.3d at 335-36; Delgado v. Holder, 674 F.3d 759, 765-66 (7th Cir. 2012). Zyapkov contends that the proceeding was inadequate because the government did not call the investigators to testify about their determination that he committed marriage fraud. Thus, he says, he didn’t have opportunity to cross-examine the investigators and refute their conclusion. Yet Zyapkov was free to, but did not, seek approval from the IJ to subpoena the investigators himself. See 8 U.S.C. § 1229a(b)(1); 8 C.F.R. § 1003.35(b)(1), (2). And he points to no regulation requiring the government to call its investigators to testify. The burden was on Zyapkov to prove himself admissible and eligible for discretionary relief, as well as to present positive equities that would warrant a favorable exercise of discretion. See 8 C.F.R. § 1240.8(d); Dakura v. Holder, 772 F.3d 994, 998 (4th Cir. 2014) (alien carries burden for showing admissibility and eligibility); Matovski, 492 F.3d at 739 (alien carries burden of presenting positive equities). Zyapkov had multiple opportunities over two years to present evidence of his truthfulness— including six hearings before the IJ—but his evidence and testimony were unconvincing. See Ortiz-Estrada v. Holder, 757 F.3d 677, 679 (7th Cir. 2014) (explaining that alien challenging legality of removal hearing must show he was denied a reasonable opportunity to present evidence and that he was prejudiced); Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007) (same).

Accordingly, we DENY the petition for review.

[1] Although Zyapkov was not charged in the Notice to Appear with fraud under § 1182(a)(6)(C)(i), the IJ could rely on fraud as a ground of inadmissibility, and thus ineligibility to adjust status, because the question of

Posted in 7th Circuit, 7th Circuit Cases- Aliens, I-130 petition, Immigration Marriage Fraud Amendments Act of 1986, Marriage Fraud | Leave a comment

CA7 grants withholding of removal for citizen of Botswana and female genital mutilation (FGM) claim

Posted on April 2, 2016 by Mike Baker

Ct. of Appeals lacked jurisdiction to consider alien’s appeal of Bd.’s denial of her asylum application, where basis of denial was Bd.’s finding that said application was untimely as being filed more than one year after her arrival in U.S. and after her application for adjustment of status had been denied. IJ erred, though, in denying alien’s withholding of removal application based on her claim that her return to Botswana would subject her to female genital mutilation (FGM) since: (1) IJ credited alien’s claim that her family in Botswana had made two prior attempts to subject her to FGM; (2) IJ erred in placing too much emphasis on absence of background evidence confirming prior cases of FGM in Botswana at large; and (3) record was undeveloped with respect to alien’s ability to relocate to other areas of Botswana that would not place alien at risk of undergoing forced FGM.

Musa, a citizen of Botswana, entered the U.S. in 2008 on a visitor’s visa. She met a U.S. citizen and they married. Musa’s husband filed an I‐130 “alien relative” petition on her behalf, and Musa applied at the same time to adjust her status to permanent resident, 8 U.S.C. 1151(b)(2)(A)(i), 1255(a); The Department of Homeland Security denied both: Musa’s husband was discovered not to have ended a previous marriage. In 2009 Musa was placed in removal proceedings because her visa had expired. In 2010, Musa divorced and applied for asylum, withholding of removal, and protection under the Convention Against Torture because she feared that if she returned to Botswana her family would force her to undergo female genital mutilation. The agency denied relief. The Seventh Circuit granted the petition requesting withholding of removal. Substantial evidence did not support the agency’s conclusion that Musa likely will not be subjected to FGM. The court held that it lacked jurisdiction to review the agency’s determination that Musa’s asylum application was untimely and denied the petition with respect to the Convention Against Torture because the agency did not err by finding that the government in Botswana would not acquiesce to forced FGM. Musa v. Lynch, No. 15-2046 (7th Cir. 2016)

___________________________
BATHUSI MUSA, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2046.

United States Court of Appeals, Seventh Circuit.
Argued December 15, 2015.
Decided February 19, 2016.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Bathusi Musa, a citizen of Botswana, petitions for review of the denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture, all based on her fear that her family will force her to undergo female genital mutilation (FGM) if she returns. We grant the portion of the petition requesting withholding of removal. Substantial evidence does not support the agency’s conclusion that Musa likely will not be subjected to FGM. On the asylum application, however, we lack jurisdiction to review the agency’s determination that Musa’s asylum application was untimely. We must dismiss that portion. We also deny the portion of her petition seeking relief under the Convention Against Torture because the agency did not err by finding that the government in Botswana would not acquiesce to forced FGM.

Musa entered the United States in April 2008 on a visitor’s visa. She met a United States citizen and they married. Musa’s husband filed an I-130 “alien relative” petition on her behalf, and Musa applied at the same time to adjust her status to permanent resident. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a); 8 C.F.R. § 245.2; In re Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009). In June 2009, however, the Department of Homeland Security denied the I-130 petition and Musa’s application to adjust status. The problem was that Musa’s husband was discovered not to have ended a previous marriage. In November 2009 Musa was placed in removal proceedings because her visa had expired while those applications were pending. In April 2010, Musa and her husband divorced.

In October 2010, Musa applied for asylum, withholding of removal, and protection under the Convention Against Torture because she feared that if she returned to Botswana her family would force her to undergo FGM.[1] Musa, who belongs to the Kalanga tribe, said that her mother and grandmother hold strict traditional beliefs and think that if a woman does not undergo FGM her entire family will be cursed. Musa’s grandmother is, in Musa’s words, a “medicine woman” and has performed FGM on other women in the past.

When she lived in Botswana, Musa said, her family on two occasions tried unsuccessfully to force her to undergo the mutilation. On the first attempt, when she was 16, Musa was kidnapped by a group of women and brought to a place where other girls were undergoing FGM. She managed to escape through a bathroom window before the procedure could be carried out, and then—suspecting that her family had instigated the events—hid at a friend’s house. Musa’s mother eventually acknowledged the family’s involvement and promised not to force her to undergo the procedure, at which point Musa returned home.

The second attempt came a year later. Musa said she was attacked by several men who dragged her into some bushes and attempted to “circumcise” her. They told Musa that her mother had sent them. Musa was able to break away, but she sustained bruises all over her body. Musa did not report the incident to the police, she said, because everyone accepted that FGM was practiced and she believed the police would not take her accusation seriously. She also testified that she had two friends who had died from undergoing FGM in Botswana in 2004. Musa continued to live with her parents until later in 2004 or 2005 and then moved to another city in Botswana. Her parents were able to contact her over the phone, but Musa did not disclose her address.

More recently, since leaving Botswana, Musa said that her parents had found her a significantly older marriage partner (he is 75, Musa is now 30), who could help the family financially. To marry the older man, Musa says, she would have to undergo FGM. Her father, who used to resist having the procedure performed on her, wants her to go through with the marriage because he needs money from the suitor to help his struggling business. Musa is afraid to return to Botswana because she does not want to undergo FGM or marry this man.

Further testimony about FGM in Botswana was presented by one of Musa’s friends from Botswana, Gaomongwe Selawe said that FGM was practiced in Botswana as an initiation ritual for girls. She said that she had heard that FGM was practiced by some members of the Kalanga tribe. And she had friends who had undergone the procedure in Botswana. Selawe said that many women do not talk about being forced to undergo FGM because it is a private ritual.

The record before the immigration judge contained documentary evidence showing that FGM is not prevalent in Botswana. The 2011 State Department Country Report in Human Rights Practices for Botswana stated: “There were no known cases of physically harmful traditional practices, such as female genital mutilation.” According to UNICEF, FGM is “not widely practiced” in Botswana, though its report in 2005 nevertheless counted 3 million girls in Africa at risk of FGM each year. Finally, Musa attached a letter written by her mother imploring her to return to Botswana to marry the older man the family had found for her.

The immigration judge denied Musa’s application for asylum, withholding of removal, and Convention Against Torture relief. Musa was not eligible for asylum, the judge found, because she had not filed a timely application within one year of her arrival in the United States. The judge also found that neither her marriage to nor divorce from her husband was a changed circumstance justifying her delay. And even if the denial of her application for adjustment of status in June 2009 was a changed circumstance, the judge found, Musa waited an unreasonably long time from that date— more than a year—to file for asylum.

The judge denied Musa’s request for withholding of removal because he determined there was not a clear probability that if she returned to Botswana she would be subjected to FGM. The judge believed Musa’s testimony that her family practices FGM and on two occasions had attempted to subject her to it forcibly. The judge concluded, however, that those incidents did not amount to past persecution because Musa had not actually undergone the procedure. The judge also believed Musa’s testimony that she feared returning to Botswana, but he did not regard her fear as reasonable because there was no evidence in the record showing that FGM was practiced at all, let alone practiced widely in Botswana. The judge noted Musa’s admission that her desire to avoid a marriage to a much older man was the principal reason she did not want to return to Botswana, not her fear of FGM.

Finally, the immigration judge denied Musa’s request for protection under the Convention Against Torture because she had not presented any evidence showing that the government in Botswana would torture her or acquiesce to torture by anyone else.

The Board of Immigration Appeals affirmed the immigration judge’s decision. The Board agreed with the judge’s conclusion that Musa’s asylum application was untimely because her marriage and divorce were neither changed nor extraordinary circumstances and she did not file the application in a reasonable amount of time after the denial of her petition for adjustment of status. The Board then explained that it agreed with the judge’s denial of Musa’s withholding and Convention Against Torture claims because she “has not been able to provide objective evidence of country conditions in Botswana that corroborates her stated fear of FGM.” The Board agreed with the judge that Musa’s testimony was credible, but it supplemented the judge’s reasoning by proposing that Musa could relocate to a different part of the country: “in view of the paucity of FGM occurring in Botswana, and especially in view of the fact that the respondent need not return specifically to her hometown, we cannot conclude that the Immigration Judge clearly erred in concluding that the respondent did not show that . . . persecution or torture—such as FGM—is likely to occur.”

Musa leads off her petition for judicial review with a weak challenge to the agency’s determination that she did not show changed circumstances materially affecting her eligibility for asylum. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4), (5). She recognizes that we lack jurisdiction to review such a determination absent a related legal or constitutional argument, see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir. 2013); Restrepo v. Holder, 610 F.3d 962, 964-65 (7th Cir. 2010), so she tries to frame her disagreement with the agency as a legal issue. She disagrees with the Board’s conclusions that her marriage and divorce did not constitute changed or extraordinary circumstances, and that it was unreasonable for her to have waited more than a year to apply for asylum after the denial of her application for adjustment of status.

Those disagreements do not raise a justiciable legal question challenging the basis of the agency’s determination. She disputes only the application of the law to her circumstance, not the governing legal rules. We thus lack jurisdiction to review the denial of her asylum application. See Restrepo, 610 F.3d at 964-65; Viracacha v. Mukasey, 518 F.3d 511, 515-16 (7th Cir. 2008).

Musa next argues that substantial evidence does not support the denial of her application for withholding of removal because the judge wrongly disregarded her testimony about her family’s FGM practice—testimony that he explicitly credited. We agree. The fact that FGM is not widespread in Botswana as a whole does not contradict her statements about her family’s practice.

We have held consistently that FGM is a form of persecution. See Balogun v. Ashcroft, 374 F.3d 492, 499 (7th Cir. 2004); Olowo v. Ashcroft, 368 F.3d 692, 702-03 (7th Cir. 2004); see also In re Kasinga, 21 I. & N. Dec. 357, 358 (BIA 1996). Still, Musa bears a high burden to establish eligibility for withholding of removal: she must show a clear probability of persecution if removed to Botswana. See Borovsky v. Holder, 612 F.3d 917, 921 (7th Cir. 2010); Guardia v. Mukasey, 526 F.3d 968, 971 (7th Cir. 2008); 8 C.F.R. § 1208.16(b)(2). A clear probability means it appears more likely than not that she will suffer persecution if removed. Bitsin v. Holder, 719 F.3d 619, 628 (7th Cir. 2013); see Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005); 8 C.F.R. § 1208.16(b)(2).

The immigration judge here erred by placing too much weight on the absence of background evidence confirming prior cases of FGM in Botswana at large. The absence of documented cases of FGM in that country does not contradict Musa’s testimony—testimony that the judge explicitly credited—that her family practiced FGM. The judge found that Musa testified credibly that her family practiced FGM, that they had twice attempted to force her to undergo it, and that her family—including her father, who once opposed subjecting her to the practice—now wants her to enter into a marriage conditioned upon her undergoing it.

Whether FGM is widely practiced in Botswana or not has no bearing on whether Musa’s own family is likely to subject her to it. The judge credited Musa’s testimony about her family’s FGM practice. He erred by failing to acknowledge the likelihood that she will be subjected to FGM upon returning to Botswana and acceding to the marriage. Musa’s credible testimony is sufficient to sustain her burden of proof. Neither the judge nor the Board denied Musa’s claim based on a lack of corroboration under the Real ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). (Under that act, an immigration judge may require an applicant who testifies credibly to provide reliable corroborating evidence as well. See Tian v. Holder, 745 F.3d 822, 828 (7th Cir. 2014).)

The judge also erred by characterizing Musa’s principal motivation for seeking withholding of removal as her fear of marrying a much older man rather than fear of FGM. Once the judge accepts an applicant’s testimony about fear of persecution as genuine, the existence of other fears does not undermine her claim. See Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir. 2005) (“an individual may qualify for asylum if his or her persecutors have more than one motive as long as one of the motives is specified in the Immigration and Nationality Act”).

The Board’s conclusion that Musa could safely relocate to another part of the country is also problematic. The immigration judge did not address whether Musa could relocate to a different part of Botswana to avoid her family’s pressure to undergo FGM, or whether she could reasonably be expected to do so. See 8 C.F.R. § 1208.16(b)(2). The possibility of relocation, for that matter, was not even argued by the government before the Board.

As an initial matter, it is not clear that the Board has the authority to make a finding in the first instance that Musa could relocate. See 8 C.F.R. § 1003.1(d)(3)(i) (“The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge . . . shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.”). Even if the Board were permitted to determine the relocation issue in the first instance, its cursory declaration about the feasibility of relocation gave no rationale. The Board did not address whether Musa’s ability to relocate safely might be compromised in light of her testimony that she now faces greater danger because of her family’s marital arrangements and her father’s apparent change of heart regarding his prior opposition to her undergoing FGM. “`[I]t seems possible . . . that the agency might be compelled to reach the opposite conclusion depending how it evaluates the record after remand.'” Kone v. Holder, 620 F.3d 760, 764 (7th Cir. 2010), quoting Gomes v. Gonzalez, 473 F.3d 746, 752 (7th Cir. 2007).

We add that the agency has waived any argument about denying withholding based on Musa’s failure to provide evidence of government involvement or acquiescence in the practice of FGM in Botswana. Neither the immigration judge nor the Board relied on that ground as a basis to deny withholding. See SEC v. Chenery, 318 U.S. 80, 87-88 (1943); Sarhan v. Holder, 658 F.3d 649, 661 (7th Cir. 2011); Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).

Although we vacate and remand the decision regarding withholding of removal, we agree with the Board that Musa is not entitled to relief under the Convention Against Torture. The implementing regulations define torture as “severe pain or suffering . . . inflicted by or at the instigation of or with the consent or acquiescence of a public official.” 8 C.F.R. § 208.18. Female genital mutilation is torture, of course. But the judge did not err by finding that Musa failed to show that torture is likely to be carried out by or with the acquiescence of the government in Botswana. See Khan v. Holder, 766 F.3d 689, 698 (7th Cir. 2014); Ishitiaq v. Holder, 578 F.3d 712, 718 n.3 (7th Cir. 2009); 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The judge justifiably discounted Selawe’s testimony and was unswayed by Musa’s, and Musa has not pointed to evidence in the record to substantiate her testimony that the government would have permitted her family to subject her to FGM even if she had reported their attempts in 2002 and 2003.

Accordingly, the portion of the petition relating to Musa’s request for asylum is DISMISSED, the portion of the petition relating to withholding of removal is GRANTED, and the portion of the petition relating to protection under the Convention Against Torture is DENIED. The case is remanded to the Board of Immigration Appeals.

[1] FGM is defined by the World Health Organization as a collection of “procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” See Female Genital Mutilation, World Health Organization, http://www.who.int/mediacentre/factsheets/fs241/en/.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture, female genital mutilation (FGM), withholding of removal | Leave a comment

CA7 dismissed petition for review as it lacks jurisdiction to review agency’s discretionary decisions

Posted on April 2, 2016 by Mike Baker

Jankovic, a citizen of Bosnia and Herzegovina, was admitted to the U.S. as a refugee in 2003 and received permanent residence status in 2005, but was ordered removed on the ground that he obtained that status by fraud. He concedes committing fraud, which authorized his removal, 8 U.S.C. 1182(a)(6)(C)(i). He sought a waiver on the ground that his removal would cause extreme hardship for his wife Dragana, who was admitted with him in 2003 and became a U.S. citizen in 2009. An Immigration Judge rejected that request on grounds that Dragana would not suffer extreme hardship and that, even if she would suffer hardship, his history of lying to immigration officials justified the exercise of discretion against relief. The IJ also discussed whether Jankovic had committed war crimes during the Bosnian conflict by assisting in the persecution of ethnic minorities, rendering him inadmissible, but stated that he did not need to reach a final conclusion on that subject. The Board of Immigration Appeals affirmed. The Seventh Circuit dismissed his petition for review, noting that it lacks jurisdiction to review the agency’s discretionary decisions and that either ground was sufficient to support removal. Jankovic v. Lynch, No. 15-2144 (7th Cir. 2016)

_________________________________________________
JANKO BRANKO JANKOVIC, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2144.

United States Court of Appeals, Seventh Circuit.
Argued December 9, 2015.
Decided February 3, 2016.

Before EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge.[*]

EASTERBROOK, Circuit Judge.

Janko Jankovic, a citizen of Bosnia and Herzegovina, was admitted to the United States as a refugee in 2003 but has been ordered removed on the ground that he obtained that status by fraud. He had received permanent-residence status in 2005, but the fraud (which Jankovic concedes committing) authorized his removal. See 8 U.S.C. §1182(a)(6)(C)(i). He sought a waiver on the ground that his removal would cause extreme hardship for his wife Dragana, who was admitted with him in 2003 and became a U.S. citizen in 2009. See 8 U.S.C. §1182(i).

An Immigration Judge rejected that request on two grounds: that Dragana would not suffer extreme hardship; and that, even if his wife would suffer hardship, his history of lying to immigration officials (the fraud used to obtain entry is just part of a pattern) leads to the exercise of discretion against relief. The IJ also discussed a third issue — whether Jankovic had committed war crimes during the Bosnian conflict by assisting in the persecution of ethnic minorities, rendering him inadmissible under a proviso to 8 U.S.C. §1101(a)(42); see also Presidential Proclamation No. 8697 §1(b), 76 Fed. Reg. 49277 (Aug. 4, 2011) — but stated that he did not need to reach a final conclusion on that subject. The Board of Immigration Appeals approved this decision.

Jankovic cannot prevail in this court without upsetting both of the IJ’s grounds, for either of them is adequate to support removal. Yet his brief ignores the second ground, and what’s more we lack jurisdiction to review the agency’s discretionary decisions, which puts both rationales off limits. 8 U.S.C. §§ 1182(i)(2), 1252(a)(2)(B)(i). See, e.g., Jiménez Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008); Leguizamo-Medina v. Gonzales, 493 F.3d 772 (7th Cir. 2007).

Nonetheless, Jankovic maintains that we should review the issue that the IJ did not decide: whether he committed war crimes. Admissibility usually is a legal issue, and §1252(a)(2)(D) permits courts to review the agency’s legal conclusions. For that kind of review to be permissible, however, the legal conclusion must make a difference, as otherwise the court would be rendering an advisory opinion. Legal issues cannot be reviewed when there is only one judgment, and a discretionary decision supports that judgment no matter the answer to the legal contentions. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 235-36 (2007). Given the IJ’s two rationales, the admissibility question does not matter to the outcome. Jankovic’s contention that something special about immigration law requires a court to review all legal issues, even when a non-reviewable discretionary judgment controls the outcome, is incompatible with INS v. Bagamasbad, 429 U.S. 24 (1976), which held that a court or agency need not resolve a legal contention that does not affect the outcome.

Jankovic presents a second line of argument that he says is within our authority under §1252(a)(2)(D). He contends that the IJ erred by receiving the expert testimony of Michael MacQueen even though the agency had not furnished him, before the hearing, with a written narrative describing MacQueen’s conclusions. Jankovic appears to contend that MacQueen’s testimony affected all of the IJ’s rationales, which if so would avoid any risk of the court’s rendering an advisory opinion, but as far as we can tell MacQueen’s testimony concerned only the agency’s contention that Jankovic committed war crimes. MacQueen testified as an expert on the Bosnian War and, in particular, on the activities of the brigade in which Jankovic was a sergeant. MacQueen’s testimony does not concern how Jankovic’s removal would affect his wife or whether his habit of lying affects his suitability for favorable treatment. This means that any error in receiving MacQueen’s testimony did not matter to the outcome.

Let us assume that this is wrong, however. Still Jankovic cannot prevail, because he does not identify any statute, rule, or decision by the BIA that requires a pre-hearing written summary of proposed expert testimony. The Constitution does not compel pretrial discovery even in criminal litigation. Weatherford v. Bursey, 429 U.S. 545 (1977). Federal rules do require summaries of expert testimony in both civil and criminal litigation, see Fed. R. Civ. P. 26(a)(2); Fed. R. Crim. P. 16(a)(1)(G), but those rules do not apply to administrative hearings.

Although no rule with legal effect requires pre-hearing disclosures, the Immigration Court Practice Manual §3.3(g) urges litigants to include written summaries with witness lists, in order to reduce risk that the IJ will need to grant a continuance to allow additional preparation. The agency’s counsel listed MacQueen as a potential witness, with this description: “Mr. Macqueen is expected to testify regarding the respondent’s service in the Republika Srpska Special Police Brigade.” Jankovic thinks this inadequate. More than a year before the hearing, Jankovic’s lawyer asked the IJ to exclude MacQueen’s proposed testimony and for permission to present a rebuttal expert. The IJ denied the former motion but granted him leave to present a rebuttal expert. Shortly before the hearing, the agency’s lawyer orally described MacQueen’s planned testimony, and Jankovic said on the record that this proffer satisfied his concerns. After MacQueen testified, Jankovic did not put on a rebuttal witness or request a continuance to allow additional time for that purpose. That failure, coupled with his concession that the oral description sufficed, likely waives his current line of argument, see Skorusa v. Gonzales, 482 F.3d 939, 942 (7th Cir. 2007), but even if it doesn’t we’ve explained why the argument does not carry the day.

The petition for review is dismissed for want of jurisdiction.

[*] Of the Northern District of Illinois, sitting by designation.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, discretionary decisions, withholding of removal | Leave a comment

April 2016 Visa Bulletin

Posted on March 10, 2016 by Mike Baker

Visa Bulletin For April 2016

Number 91
Volume IX
Washington, D.C

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A. STATUTORY NUMBERS

This bulletin summarizes the availability of immigrant numbers during April for: “Application Final Action Dates” (consistent with prior Visa Bulletins) and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center.

Unless otherwise indicated on the USCIS website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security must use the “Application Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the "Dates for Filing Visa Applications" charts in this Bulletin. Applicants for adjustment of status may refer to USCIS for additional information by visiting www.uscis.gov/visabulletininfo.

1. Procedures for determining dates. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; USCIS reports applicants for adjustment of status. Allocations in the charts below were made, to the extent possible, in chronological order of reported priority dates, for demand received by March 9th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin. If at any time an annual limit were reached, it would be necessary to immediately make the preference category “unavailable”, and no further requests for numbers would be honored.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

A. APPLICATION FINAL ACTION DATES FOR
FAMILY-SPONSORED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the cut-off date listed below.)

Family-Sponsored	All Chargeability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
F1	22SEP08	22SEP08	22SEP08	22JAN95	01JUL04
F2A	22OCT14	22OCT14	22OCT14	22JUL14	22OCT14
F2B	15JUN09	15JUN09	15JUN09	08SEP95	01APR05
F3	22NOV04	22NOV04	22NOV04	01OCT94	22DEC93
F4	22JUL03	22JUL03	22JUL03	08APR97	01SEP92

*NOTE: For April, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 22JUL14. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22JUL14 and earlier than 22OCT14. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

B. DATES FOR FILING FAMILY-SPONSORED
VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart below may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file applications, regardless of priority date.

The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which is earlier than the listed date may file their application.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 4.A.) this month for filing applications for adjustment of status with USCIS.

Family- Sponsored	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
F1	01OCT09	01OCT09	01OCT09	01APR95	01SEP05
F2A	15JUN15	15JUN15	15JUN15	15JUN15	15JUN15
F2B	15DEC10	15DEC10	15DEC10	01APR96	01MAY05
F3	01AUG05	01AUG05	01AUG05	01MAY95	01AUG95
F4	01MAY04	01MAY04	01MAY04	01JUN98	01JAN93

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

A. APPLICATION FINAL ACTION DATES FOR
EMPLOYMENT-BASED PREFERENCE CASES

Employment- Based	All Chargeability Areas Except Those Listed	CHINA – mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01SEP12	08NOV08	C	C
3rd	15FEB16	15AUG13	08AUG04	15FEB16	01MAY08
Other Workers	15FEB16	01MAR07	08AUG04	15FEB16	01MAY08
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Non-Regional Center (C5 and T5)	C	01FEB14	C	C	C
5th Regional Center (I5 and R5)	C	01FEB14	C	C	C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DATES FOR FILING OF EMPLOYMENT-BASED
VISA APPLICATIONS

The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.

Visit www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUN13	01JUL09	C	C
3rd	C	01MAY15	01JUL05	C	01JAN10
Other Workers	C	01AUG07	01JUL05	C	01JAN10
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Non-Regional Center (C5 and T5)	C	01MAY15	C	C	C
5th Regional Center (I5 and R5)	C	01MAY15	C	C	C

6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH
OF APRIL

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2016 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For April, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	23,800
ASIA	5,800	Except: Nepal: 5,100
EUROPE	24,500
NORTH AMERICA (BAHAMAS)	6
OCEANIA	950
SOUTH AMERICA, and the CARIBBEAN	925

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2016 program ends as of September 30, 2016. DV visas may not be issued to DV-2016 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2016 principals are only entitled to derivative DV status until September 30, 2016. DV visa availability through the very end of FY-2016 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS
WHICH WILL APPLY IN MAY

For May, immigrant numbers in the DV category are available to qualified DV-2016 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	28,300
ASIA	6,850	Except: Nepal: 5,525
EUROPE	28,000
NORTH AMERICA (BAHAMAS)	6
OCEANIA	1,050
SOUTH AMERICA, and the CARIBBEAN	1,020

D. ANNOUNCING NVC’S EMPLOYMENT-BASED FIFTH PREFERENCE
(EB-5) INVESTOR ASSISTANCE DESK

Those with questions related to an approved I-526 petition can now correspond with the National Visa Center (NVC) using a dedicated e-mail address: NVCeb5@state.gov. The newly created EB-5 Investor Assistance Desk is part of NVC’s continuing efforts to improve customer service.

Upon receipt of an approved petition from U.S. Citizenship and Immigration Services, NVC’s Investor Assistant Desk will oversee the addition of potential derivative applicants and creation of fee bills. Customers will e-mail their derivative’s relationship documents to NVCeb5@state.gov, which can also be used for inquiries on derivatives, the Child Status Protection Act, and general case status.

The Investor Assistance Desk does not change NVC’s process for documentarily qualifying an immigrant visa case and scheduling an interview overseas. All visa applicants, including those in the EB-5 category, should submit their financial, civil, and supporting documents to NVC in one package following the instructions available at: nvc.state.gov/submit. The goal of NVC’s Investor Assistance Desk is to provide more transparent and effective customer service through a team specially trained in the I-526 petition.

E. OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin
(example: Subscribe Visa-Bulletin)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 485-7699. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO: March 9, 2016

Posted in Visa Bulletin | Tagged Visa Bulletin For April 2016 | Leave a comment

Illinois Supreme Court on immigration consequences of entering a guilty plea

Posted on February 1, 2016 by Mike Baker

People v. Guzman, Illinois Supreme Court
Case Number: 2015 IL 118749
Decision Date: November 19, 2015
Justice: KILBRIDE
Holding: Appellate court affirmed.

Illinois Supreme Court’s 2009 decision in People v. Delvillar held that statutory admonishment on potential immigration consequences of entering a guilty plea is directory, not mandatory, and potential immigration consequences of plea are collateral, not direct. Thus, failure to admonish did not affect voluntariness of plea, and Defendants were required to show prejudice or denial of justice to withdraw their pleas on that basis. That decision stands, under principle of stare decisis, even after U.S. Supeme Court’s 2010 decision in Padilla v. Kentucky. Padilla case required defendants to establish a reasonable probability that they would not have pled guilty if they had been properly admonished.(GARMAN, FREEMAN, THOMAS, KARMEIER, BURKE, and THEIS, concurring.)
_____________________________

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
JORGE A. GUZMAN, Appellant.
No. 118749.

Supreme Court of Illinois.
Filed November 19, 2015.

Michael J. Pelletier, State Appellate Defender, Peter A. Carusona, Appeal Deputy Defender, and Andrew J. Boyd, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.

Lisa Madigan, Attorney General, of Springfield (Carolyn E. Shapiro, Solicitor General, and Michael M. Glick and Lindsay Beyer Payne, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

¶ 1 In People v. Delvillar, 235 Ill. 2d 507 (2009), this court examined the impact of the failure to give a statutory admonishment on the potential immigration consequences of entering a guilty plea. We concluded that the admonishment was directory, not mandatory, and categorized the potential immigration consequences of the plea as collateral, not direct. Therefore, the failure to admonish did not affect the voluntariness of the plea, and defendants wishing to withdraw their pleas on that basis were required to demonstrate prejudice or a denial of justice. Delvillar, 235 Ill. 2d at 519, 521-22. In this case, defendant argues that our decision in Delvillar must be overturned based on the United States Supreme Court’s later decision in Padilla v. Kentucky, 559 U.S. 356 (2010). We disagree and affirm the denial of defendant’s motion to withdraw his guilty plea.

¶ 2 I. BACKGROUND

¶ 3 In October 2008, seven firearms were stolen from a home in Will County. The following day, the local sheriff received a report of suspicious activity in Joliet and later found defendant and two other men in a garage, with five firearms from the burglary in plain sight. Defendant was indicted in the circuit court of Will County on a single count of aggravated possession of stolen firearms, a Class 1 felony (720 ILCS 5/16-16.1(a)(1), (c)(1) (West 2008)), for possession of between two and five firearms with knowledge that they were stolen. Defendant was previously adjudicated delinquent for aggravated unlawful use of a weapon in 2003 and received probation. He faced a possible sentence of 4 to 15 years in prison on the 2008 firearm charge. 730 ILCS 5/5-8-1(a)(4) (West 2008).

¶ 4 In February 2009, while represented by criminal defense counsel, defendant entered a fully negotiated guilty plea to the firearm charge. During the plea hearing, the trial court asked defendant whether he was a United States citizen, and, after initially stating he was, defendant quickly clarified that he was a permanent legal resident. The court did not admonish defendant about the potential impact of pleading guilty on his immigration status prior to accepting the plea pursuant to section 113-8 of the Code of Criminal Procedure of 1963 (725 ILCS 5/113-8 (West 2008)). Defendant was given the minimum sentence of four years in prison and two years of mandatory supervised release, with a recommendation for impact incarceration.

¶ 5 Defendant filed a written motion to withdraw his plea in March 2009 and argued during the subsequent hearings that he did not enter the plea knowingly and intelligently because he was not admonished pursuant to section 113-8. The trial court directed the parties to supply additional research, and, at a subsequent hearing, defense counsel noted that this court had heard oral arguments a month earlier in a similar case, Delvillar, 235 Ill. 2d 507. Based on that representation, the trial court asked the parties whether they wished to wait for further guidance from this court or proceed to an immediate ruling. Defendant requested an immediate ruling, and the trial court denied his motion to withdraw the plea. Defendant then filed a direct appeal of the trial court’s ruling.

¶ 6 During the pendency of defendant’s direct appeal, he filed a postconviction petition that was denied by the trial court at the second stage because no evidence showed he would have gone to trial if he had been properly admonished. Defendant appealed the postconviction ruling. He then sought leave to file an amended postconviction petition adding the claim that he would not have entered the plea if he had been informed of the potential immigration consequences. At the hearing on the amended postconviction petition, defense counsel stated that defendant was to be deported, and defendant was granted leave to withdraw his notice of appeal on the first postconviction petition and file an amended petition. No further proceedings took place in the circuit court.

¶ 7 Addressing defendant’s direct appeal, the appellate court reversed his conviction, concluding that his plea was not knowing and intelligent because defense counsel did not advise him of the possible immigration consequences. People v. Guzman, 2011 IL App (3d) 090464. The State then filed a petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶ 8 In October 2012, this court granted the State’s petition for leave to appeal but, after briefing, issued a supervisory order remanding the cause. The supervisory order directed the appellate court to consider whether the absence of a statutory admonishment by the trial court about the potential immigration consequences of the guilty plea (725 ILCS 5/113-8 (West 2008)) permitted defendant to withdraw his plea in light of the United States Supreme Court’s decision in Padilla, 559 U.S. 356. People v. Guzman, No. 113730 (Ill. Mar. 28, 2012).

¶ 9 On remand, the appellate court withdrew its original opinion, consolidated defendant’s direct appeal with his appeal from the denial of his postconviction petition, and requested supplemental briefing. The appellate court subsequently reversed the denial of defendant’s motion to withdraw his guilty plea in his direct appeal, remanding that cause for further proceedings, and dismissed defendant’s postconviction appeal. 2014 IL App (3d) 090464.

¶ 10 After allowing the State’s petition for rehearing, however, the appellate court withdrew its original opinion, with the majority issuing a revised opinion affirming the denial of defendant’s motion to withdraw his plea and reversing the denial of his postconviction petition, remanding for additional postconviction proceedings. 2014 IL App (3d) 090464. Relying on Delvillar, the majority held in the direct appeal that the immigration consequences of a guilty plea were collateral consequences that did not affect the voluntariness of the plea. 2014 IL App (3d) 090464, ¶ 22 (citing Delvillar, 235 Ill. 2d at 521-22). Justice Holdridge dissented in part, asserting that the plea was constitutionally involuntary under Padilla because the trial court did not give the proper admonishment. He also cited the reasoning in People v. Peque, 3 N.E.3d 617 (N.Y. 2013). 2014 IL App (3d) 090464, ¶ 73 (Holdridge, J., specially concurring in part and dissenting in part).

¶ 11 Defendant filed a petition for leave to appeal addressing only the appellate court’s decision on direct appeal to affirm the denial of his motion to withdraw his guilty plea. This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015).

¶ 12 II. ANALYSIS

¶ 13 Defendant asks this court to overrule its prior decision in Delvillar, 235 Ill. 2d 507, in light of the United States Supreme Court’s decision in Padilla. He argues that, under Padilla, the absence of a statutory admonishment about the possible immigration consequences of a guilty plea (725 ILCS 5/113-8 (West 2008)) renders the plea unconstitutionally involuntary. Because the issue presents a question of law, we review it de novo. In re Detention of Hardin, 238 Ill. 2d 33, 39 (2010).

¶ 14 Section 113-8 of the Code states:

“§ 113-8. Advisement concerning status as an alien.

Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or felony offense, the court shall give the following advisement to the defendant in open court:

`If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.'” 725 ILCS 5/113-8 (West 2008).

¶ 15 This court previously considered whether a defendant could withdraw his guilty plea based on the trial court’s failure to give a section 113-8 admonishment in Delvillar. After acknowledging that the admonishment “is mandatory in the sense that the circuit court does not have discretion in giving” it, we explained that the critical question was whether section 113-8 is mandatory or directory. Delvillar, 235 Ill. 2d at 516. In making that determination, we noted that section 113-8 did not include any negative language if the admonition is not given, such as barring the acceptance of the plea, and that the right being protected was “not necessarily * * * harmed in the absence of the admonishment.” Delvillar, 235 Ill. 2d at 517, 519. We concluded that section 113-8 was directory and the failure to comply with it was simply one factor to be considered in ruling on a defendant’s motion to withdraw a guilty plea. The ruling ultimately “rest[ed] in the sound discretion of the circuit court.” Delvillar, 235 Ill. 2d at 519. Because the right to withdraw a plea is not automatic, a defendant’s request for relief must demonstrate “a manifest injustice” under the unique facts of the case. Delvillar, 235 Ill. 2d at 520.

¶ 16 When inadequate admonishments are given, the question of whether due process was violated arises, and the answer turns on whether the plea was made voluntarily and intelligently. In resolving that question, the court examines only the direct consequences of the plea, not the collateral consequences. This court defined “[d]irect consequences” as “those consequences affecting the defendant’s sentence and other punishment that the circuit court may impose,” and “[c]ollateral consequences” as those “effects upon the defendant that the circuit court has no authority to impose.” Delvillar, 235 Ill. 2d at 520.

¶ 17 Because state courts do not control the immigration decisions of governmental agencies, we concluded that any possible immigration consequences of entering a guilty plea are collateral. “As such, the failure to admonish a defendant of potential immigration consequences does not affect the voluntariness of the plea” or violate due process. Delvillar, 235 Ill. 2d at 520-21.

¶ 18 Nonetheless, we noted that a plea may still be withdrawn in the absence of a constitutional violation if “real justice has been denied or if the defendant has been prejudiced by the inadequate admonishment,” with the defendant bearing the burden of making the requisite showing. Delvillar, 235 Ill. 2d at 522. In Delvillar, the defendant had both erroneously informed the trial judge he was a United States citizen and failed to demonstrate prejudice in either his motion to withdraw the plea or his supporting argument. Because the defendant failed to meet his burden of showing prejudice or a denial of real justice, we reversed the appellate court judgment in his favor and reinstated the trial court’s denial of defendant’s motion to withdraw his plea. Delvillar, 235 Ill. 2d at 522-24.

¶ 19 The following year the United States Supreme Court decided Padilla, cited by defendant in the instant case. Defendant contends that the reasoning in Padilla requires us to overrule our decision in Delvillar. In Padilla, the defendant was a noncitizen charged with a drug crime that “made his deportation virtually mandatory.” Padilla, 559 U.S. at 359. Here, defendant argues his firearms conviction places him in a similarly precarious position. Unlike this case, however, the defendant in Padilla filed a postconviction petition alleging a sixth amendment violation based on the failure of his defense counsel to provide effective assistance by advising him of the possibility that he could be deported if he pled guilty. The Kentucky Supreme Court upheld the denial of the defendant’s postconviction petition, finding that immigration consequences were merely collateral. Padilla, 559 U.S. at 359-60 (citing Commonwealth v. Padilla, 253 S.W.3d 482, 485 (Ky. 2008)).

¶ 20 Citing significant changes in immigration law making deportation a near certainty for many noncitizens convicted of drug or firearms crimes, the Supreme Court found “[d]eportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence.” Padilla, 559 U.S. at 366. The Court “conclude[d] that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel” and, consequently, the standards for effective assistance of counsel expressed in Strickland v. Washington, 466 U.S. 668 (1984), were applicable. Padilla, 559 U.S. at 366.

¶ 21 Although acknowledging that Padilla did not declare immigration consequences to be direct, defendant argues that they also cannot be considered collateral, contrary to our conclusion in Delvillar. In light of Padilla, defendant contends that the failure to give the section 113-8 admonishment renders any subsequent plea unconstitutionally involuntary. Because a valid plea must be knowing and intelligent (Boykin v. Alabama, 395 U.S. 238, 242 (1969)), defendant contends that Padilla mandates the conclusion that, in the absence of a section 113-8 admonition, his due process rights were violated and his plea was not knowing and voluntary.

¶ 22 Defendant admits that even after Padilla our appellate court has consistently continued to view immigration consequences as merely collateral (see 2014 IL App (3d) 090464, ¶ 66 (Holdridge, J., specially concurring in part and dissenting in part) (collecting cases)), but he maintains those cases were wrongly decided. Citing Justice Holdridge’s partial dissent in the appellate decision in this case, defendant claims that if deportation cannot be deemed a collateral consequence of a criminal conviction as a matter of law, logically, “this conclusion must be true for all purposes.” (Emphasis in original.) 2014 IL App (3d) 090464, ¶ 66 (Holdridge, J., specially concurring in part and dissenting in part). In further support of his position, defendant cites the rationale in Peque, 3 N.E.3d at 633-35, decided by New York’s highest court. We reject that analysis.

¶ 23 Padilla involved a sixth amendment challenge alleging the defendant’s trial counsel provided ineffective assistance. In contrast, both Delvillar and the instant case involve fifth amendment due process claims. As we explained in People v. Patterson, 2014 IL 115102, ¶ 97, the analytical standards for evaluating challenges rooted in due process and other constitutional provisions vary widely. Consequently, “[a] ruling on a specific flavor of constitutional claim may not justify a similar ruling brought pursuant to another constitutional provision. [Citation.] In other words, a constitutional challenge raised under one theory cannot be supported by decisional law based purely on another provision. United States v. Lanier, 520 U.S. 259, 272 n.7 (1997).” Patterson, 2014 IL 115102, ¶ 97.

¶ 24 In addition, the Supreme Court’s concise statement in Padilla “that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel” expresses an intent to restrict its conclusion to that constitutional predicate. Padilla, 559 U.S. at 366. Perhaps most tellingly, the Supreme Court recognized as much in Chaidez v. United States, decided three years after Padilla, when it stated while further explaining its decision in Padilla that “no decision of our own committed us to `appl[y] a distinction between direct and collateral consequences to define the scope’ of the right to counsel. [Citation.] And however apt that distinction might be in other contexts, it should not exempt from Sixth Amendment scrutiny a lawyer’s advice (or non-advice) about a plea’s deportation risk.” (Emphasis added.) Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1110 (2013) (quoting Padilla, 559 U.S. at 365). The Court again emphasized the sixth amendment context of Padilla by expressly stating that “[e]ven in Padilla [the Court] did not eschew the direct-collateral divide across the board.” Chaidez, 568 U.S. at ___, 133 S. Ct. at 1112. Accordingly, we reject as overly broad defendant’s reading that Padilla created a new rule barring deportation from being considered a collateral consequence for any purpose.

¶ 25 Moreover, even defendant concedes, as he must, that Padilla did not announce a rule declaring immigration consequences, including the virtual certainty of deportation, to be the direct consequences of a criminal conviction—even within the limited context of the sixth amendment. In Illinois, the established rule is that trial courts must admonish defendants of only the direct consequences of a guilty plea. Delvillar, 235 Ill. 2d at 520. We explained in People v. Williams that a knowing and intelligent plea is premised on the defendant’s full awareness of only the direct consequences flowing from it, adopting the standard set forth by the Supreme Court in Brady v. United States, 397 U.S. 742, 755 (1970). People v. Williams, 188 Ill. 2d 365, 371 (1999). Consequently, a plea may be knowing and intelligent even if the defendant is unaware of its nondirect consequences (Williams, 188 Ill. 2d at 371) such as deportation (Delvillar, 235 Ill. 2d at 521). Thus, even if, as defendant claims, Padilla is applicable in the context of a fifth amendment due process challenge, it does not mandate a holding that the failure to give section 113-8 admonishments entitles defendants to withdraw their guilty pleas.

¶ 26 As long as the potential immigration consequences faced by the defendant are not deemed to be direct, that is, “affecting the defendant’s sentence and other punishment that the circuit court may impose,” our longstanding precedents do not bar the acceptance of a guilty plea in the absence of a section 113-8 admonishment. Delvillar, 235 Ill. 2d at 520. “Even in light of Padilla, we cannot say that deportation is a consequence that relates to the sentences imposed on the basis of that plea.” People v. Carrera, 239 Ill. 2d 241, 256 (2010). Since Padilla, we have also rejected the claim that the distinction between direct and collateral consequences no longer applies in cases involving fifth amendment challenges. People v. Hughes, 2012 IL 112817, ¶¶ 34-66. Consequently, we conclude that Padilla does not compel the reversal of our prior holding in Delvillar.

¶ 27 Our decision puts us in the company of the vast majority of courts nationwide that have rejected similar Padilla claims. Although not controlling in this court, the post-Padilla decisions of the federal courts of appeal and all but one high state court that have considered the issue are in agreement that trial courts are not constitutionally required to provide admonishments about immigration consequences before accepting defendants’ guilty pleas. See United States v. Carrillo-Estrada, 564 F. App’x 385, 387 (10th Cir. 2014); United States v. Rodriguez-Penton, 547 F. App’x 738, 739-40 (6th Cir. 2013) (collecting cases and explaining that the sixth amendment imposes a higher burden on counsel to inform clients of the consequences of entering a guilty plea than the fifth amendment imposes on courts); United States v. Delgado-Ramos, 635 F.3d 1237, 1240-41 (9th Cir. 2011) (per curiam) (explaining that Padilla “sheds no light on the obligations” the trial court has under the fifth amendment); see also United States v. De La Cruz-Trejo, 518 F. App’x 286, 286-87 (5th Cir. 2013) (per curiam) (declining to decide whether Padilla overturned circuit court precedent but holding that, at a minimum, trial courts do not commit plain error by failing to admonish); United States v. Youngs, 687 F.3d 56 (2d Cir. 2012) (recognizing in the context of civil commitments that Padilla did not undermine distinction between direct and collateral consequences in fifth amendment cases); United States v. Nicholson, 676 F.3d 376, 381-82 & n.3 (4th Cir. 2012) (holding both that Padilla did not change the fifth amendment framework and that trial courts are not required to provide admonishments on the loss of federal benefits). See Smith v. State, 697 S.E.2d 177, 183-84 (Ga. 2010) (explaining that the direct/collateral dichotomy still applies to fifth amendment, but not sixth amendment, and that defense counsel’s burden is greater than the trial court’s duty); State v. Ortiz, 44 A.3d 425, 429-31 (N.H. 2012); Stiger v. Commonwealth, 381 S.W.3d 230, 235 (Ky. 2012); State v. Davis, 9 N.E.3d 1031, 1040 (Ohio 2014) (finding the issue forfeited but noting that “Padilla’s holding concerns what an attorney must advise a defendant before the defendant enters a plea of guilty [and not] what a trial court must advise a defendant before accepting a jury waiver”).

¶ 28 Even the single outlying decision cited by defendant, issued by New York’s highest court in Peque, rejected the automatic withdrawal of pleas entered without admonishments addressing potential immigration consequences. Peque, 3 N.E.3d at 622, 638. Contrary to defendant’s claim in the instant appeal that a due process violation is presumptively prejudicial, the majority in Peque required defendants to make a showing of prejudice before being able to withdraw their guilty pleas. In this case, defendant would find no relief if held to that standard.

¶ 29 Under defendant’s approach, any plea entered in the absence of a section 113-8 admonishment would be deemed invalid and subject to withdrawal without any need for a showing of prejudice or denial of real justice. Without a need to demonstrate prejudice, an improperly admonished defendant would presumably be entitled to withdraw a plea even if fully informed by defense counsel about the possible immigration consequences before entering the plea. The potential windfall to defendants who have suffered no prejudice or injustice without the lack of the statutory admonishment could be far-reaching. As the Supreme Court warned in Padilla, because pleas constitute “nearly 95% of all criminal convictions,” courts “must be especially careful about recognizing new grounds for attacking the validity of guilty pleas.” Padilla, 559 U.S. at 372.

¶ 30 This court acknowledged a similar need for caution in Delvillar, placing the burden of establishing prejudice or the denial of “real justice” on defendants who wish to withdraw their pleas in the absence of proper immigration admonishments. Delvillar, 235 Ill. 2d at 522. Even Padilla required defendants to establish a reasonable probability that they would not have pled guilty if they had been properly admonished. Padilla, 559 U.S. at 366, 374-75. We do not find defendant’s suggested approach sufficiently persuasive to overcome the fundamental principle of stare decisis and overturn our decision in Delvillar.

¶ 31 Shifting his focus, defendant next broadly asserts that if the failure to provide section 113-8 admonishments has no adverse consequences, trial courts will have little incentive to admonish even noncitizen defendants, who often face a serious risk of deportation. Accordingly, he asks that we construe the admonishment in section 113-8 to be mandatory as a matter of sound judicial policy. The State counters that defendant’s approach would give defense counsel a strong incentive to remain silent if a trial court fails to give the section 113-8 admonishment because the defendant would later be entitled to withdraw the plea without any showing of prejudice or injustice. In refuting the State’s contention, defendant notes that defense counsel must act in accordance with the professional duty of candor and may, at least arguably, violate Rule 3.3 of the Illinois Rules of Professional Conduct of 2010 by tacitly ignoring the trial court’s error (see Ill. R. Prof. Conduct (2010) R. 3.3 (eff. Jan. 1, 2010) (requiring attorneys to avoid conduct that undermines the integrity of the judicial process)).

¶ 32 Trial judges are under a similar duty to perform all the duties of their office in accordance with Canon 3 of the Code of Judicial Conduct (Ill. S. Ct. R. 63 (eff. July 1, 2013)). We conclude it is unlikely that trial judges will knowingly fail to give section 113-8 admonishments to noncitizen defendants in the absence of a stronger incentive to comply with the law. We also decline to presume that trial judges will interpret our decision in this case as condoning the routine omission of admonishments enacted by our legislature. While our trial courts undoubtedly have a statutory obligation to admonish noncitizen defendants properly, nothing in Padilla advances that obligation to the level of a constitutional mandate.

¶ 33 Noncitizen defendants need not be disheartened by our decision today, however, because our trial courts do not bear the sole burden of ensuring that defendants are properly admonished about the potential immigration consequences of entering a guilty plea. As Padilla made clear, to be constitutionally effective criminal defense counsel must “advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 559 U.S. at 369. Defense counsel is generally in a superior position to the trial court to make determinations about their clients’ citizenship and provide appropriate advice about potential immigration consequences. Libretti v. United States, 516 U.S. 29, 50-51 (1995). As in Padilla, noncitizen defendants who do not receive that advice from criminal defense counsel may be entitled to relief based on counsel’s ineffective assistance if they can make the requisite showing of prejudice. Padilla, 559 U.S. at 374.

¶ 34 Defendants who did not receive section 113-8 admonishments may also be entitled to withdraw their pleas if they have been denied “real justice” or have suffered prejudice. Delvillar, 235 Ill. 2d at 522. Before this court, however, defendant has not raised that argument or provided any evidence supporting a claim that he would not have pled guilty if he had been properly admonished.

¶ 35 III. CONCLUSION

¶ 36 For the reasons stated, we decline to overrule our decision in Delvillar in light of the Supreme Court’s ruling in Padilla and defendant’s arguments. We affirm the appellate court’s judgment upholding the denial on direct appeal of defendant’s motion to withdraw the guilty plea.

¶ 37 Appellate court judgment affirmed.

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