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:

Ҥ 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.

Posted in Immigration Consequences of Criminal Convictions, Immigration consequences of entering a guilty plea | Leave a comment

CA7 affirmed denial of asylum and withholding for Mexican national

Posted on January 19, 2016 by Mike Baker

In 1991, Lopez, age 12, illegally entered the U.S. He has not returned to Mexico, although his sister still lives in the neighborhood where he grew up. In 2009, Lopez was charged with dealing and possessing illegal drugs. He pled guilty to one count and was convicted of a Class A Felony for “Dealing in Cocaine over 3 grams.” While Lopez was in prison, DHS interviewed him, ultimately ordering removal under 8 U.S.C. 1101(a)(43)(B). In 2014, an asylum officer found that Lopez had a reasonable fear of persecution or torture if he returned to Mexico because he is homosexual and HIV-positive. An IJ found that Lopez was not eligible for asylum or withholding of removal because he was convicted of a “particularly serious crime” and that he was not eligible for deferral of removal under the Convention Against Torture because, it was not “more likely than not” that he would be tortured if returned to Mexico. The BIA dismissed an appeal. The Seventh Circuit affirmed. Lopez did not satisfy his burden to show that it is more likely than not that he would be tortured by the government or with the government’s acquiescence if he returned to Mexico.

Bd. did not err in affirming IJ’s denial of alien’s application for asylum/withholding of removal to Mexico, where alien’s prior Indiana state court conviction on cocaine delivery charge was “particularly serious crime,” that precluded alien from obtaining such relief under 8 USC sections 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ct. rejected alien’s claim that Bd. could not look at information filed by prosecutor in instant state court proceeding to determine precise nature of state court charge, since, according to alien, it constituted police report. Moreover, IJ could properly deny alien any CAT relief based on finding that alien failed to show that it was more likely than not that he would be tortured because of his homosexuality/HIV-positive status if forced to return to Mexico, where: (1) record showed existence of areas of Mexico that were more accepting of LGBT community; and (2) alien failed to present evidence that he, as opposed to other gay men who experienced violence in Mexico, was more likely to face violence in Mexico.
___________________________

Lopez v. Lynch, Court of Appeals, 7th Circuit 2016

ULISES MARTINEZ LOPEZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 14-3805.

United States Court of Appeals, Seventh Circuit.
Argued November 12, 2015.
Decided January 12, 2016.

Before BAUER, FLAUM, and MANION, Circuit Judges.

BAUER, Circuit Judge.

Petitioner, Ulises Martinez Lopez (“Petitioner”), filed a petition for review with this court seeking to vacate the order from the Board of Immigration Appeals (“BIA”) that upheld his removal from the United States due to his conviction of a particularly serious crime. For the reasons that follow, we affirm the BIA’s decision.

I. BACKGROUND

In 1991, when he was twelve years old, Petitioner left his native country of Mexico and illegally entered the United States. He has not returned to Mexico since leaving, although his sister still lives in the same neighborhood in which he grew up.

In December 2009, Petitioner was arrested in Indiana and charged with four counts of dealing and possessing illegal drugs. In July 2010, Petitioner pled guilty to one count, with the state dismissing the remaining three counts. On August 12, 2010, Petitioner entered his plea of guilty and was convicted of a Class A Felony for “Dealing in Cocaine over 3 grams.” He was sentenced to twenty years’ imprisonment, with ten years suspended, and ten years of probation.

While Petitioner was in prison, an officer with the United States Department of Homeland Security (“DHS”) interviewed him. Following the interview, the officer recommended that DHS remove Petitioner from the United States for being an alien convicted of an aggravated felony. On December 27, 2013, DHS issued a Final Administrative Removal Order stating that Petitioner was convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). Therefore, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), DHS ordered Petitioner to be removed from the United States to Mexico.

Prior to his removal, Petitioner requested to meet with an asylum officer for a credible fear interview. DHS granted Petitioner’s request. On March 26, 2014, an asylum officer found that Petitioner had a reasonable fear of persecution or torture if he returned to Mexico because Petitioner is homosexual and HIV-positive.

On July 1, 2014, Petitioner received a hearing before an Immigration Judge. During this hearing, Petitioner explained his fear of persecution or torture if he returns to Mexico due to his homosexuality and HIV-positive status. Petitioner described how young people beat him up when he lived in Mexico because he was gay, and that once when he was ten years old, Julio, a bully from his neighborhood, stabbed him with an ice pick. Petitioner also stated that the police did nothing when his mother complained about this incident. He stated that many people in Mexico were homophobic, and that Julio still lived in his old neighborhood. He also explained that doctors in Mexico refuse to treat people who are HIVpositive. He claimed that doctors in Mexico do not help people who lack economic resources, and that he could not afford medical treatment.

At the end of the proceeding, the Immigration Judge orally rendered his decision. He found that Petitioner was not eligible for asylum or withholding of removal because he was convicted of a “particularly serious crime.” As a result, Petitioner’s only possible relief was deferral of removal under the Convention Against Torture (“CAT”), 8 C.F.R. § 1208.16(c). However, although the Immigration Judge found that there was a possibility that Petitioner would face violence if he returned to Mexico, it was not “more likely than not.” Thus, Petitioner was ineligible for protection under CAT.

Petitioner appealed the Immigration Judge’s decision to the BIA. On December 11, 2014, the BIA entered an order dismissing Petitioner’s appeal. While the BIA did not rule on whether Petitioner was convicted of an aggravated felony, it found that he nonetheless was convicted of a particularly serious crime and therefore was ineligible for asylum or withholding of removal. Further, the BIA found that the Petitioner could not receive deferral of removal under CAT because he had not shown that it was more likely than not that he would be tortured if he returned to Mexico. Petitioner now appeals the BIA’s decision before this court.

II. DISCUSSION

Petitioner raises two issues on appeal. First, he contends that he was not convicted of a particularly serious crime and is therefore eligible for asylum and withholding of removal. Second, he argues that he is entitled to deferral of removal under CAT. We examine each claim in turn.

A. Whether Petitioner was Convicted of a Particularly Serious Crime

An alien convicted of a “particularly serious crime” is not eligible for either asylum, 8 U.S.C. § 1158(b)(2)(A)(ii), or withholding of removal, 8 U.S.C. § 1231(b)(3)(B)(ii). For purposes of asylum, a conviction of an “aggravated felony” constitutes a conviction for a particularly serious crime. 8 U.S.C. § 1158(b)(2)(B)(i). For purposes of withholding of removal, a conviction of an “aggravated felony” for which the alien received a sentence of at least five years’ imprisonment constitutes a conviction for a particularly serious crime. 8 U.S.C. § 1231(b)(3)(B)(iv). Therefore, if Petitioner’s conviction constitutes an aggravated felony, then he is ineligible for asylum and withholding of removal (since he received a prison sentence greater than five years).

We have jurisdiction to determine whether an alien committed an aggravated felony. See Eke v. Mukasey, 512 F.3d 372, 378 (7th Cir. 2008) (“we retain jurisdiction to determine whether we have jurisdiction—that is, to determine whether an alien’s criminal conviction is indeed an `aggravated felony'”) (citation omitted). Furthermore, we review de novo whether an alien committed an aggravated felony. Id. (citation omitted). Since we review de novo whether an alien was convicted of an aggravated felony, it is irrelevant to our analysis that the BIA’s opinion addressed the issue without definitively ruling on the matter. So, we will examine whether Petitioner’s Indiana conviction for dealing over three grams of cocaine constitutes an aggravated felony.

1. Aggravated Felony Analysis

To determine whether an alien’s conviction constitutes an aggravated felony, we apply the “categorical approach.” Eke, 512 F.3d at 378. That is, we examine the state statute under which the alien was convicted, and compare it to the “generic” corresponding aggravated felony under the Immigration and Nationality Act. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). A state offense is a categorical match with a generic federal offense only if the elements of the state offense mirror the elements of the generic federal offense; the actual conduct underlying the offense is irrelevant to the analysis. See United States v. Zuniga-Galeana, 799 F.3d 801, 804 (7th Cir. 2015) (citation omitted).

Further, if the state statute forming the basis of the conviction is a divisible statute that “proscribes multiple types of conduct, some of which would constitute an aggravated felony and some of which would not,” then the court applies the “modified categorical approach.” Familia Rosario v. Holder, 655 F.3d 739, 743 (7th Cir. 2011). Under the modified categorical approach, courts can “consult a limited class of documents. . . to determine which alternative formed the basis of the defendant’s prior conviction.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). Such documents include the terms of a plea agreement, the charging document, the transcript of colloquy between the judge and the defendant regarding the defendant confirming the factual basis for the plea deal, or “some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26 (2005).

Here, the generic corresponding aggravated felony under the Immigration and Nationality Act is: “illicit trafficking in a controlled substance. . . including a drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B). A “drug trafficking crime” includes any felony punishable under the Controlled Substances Act, 18 U.S.C. § 924(c)(2), which in turn makes it unlawful to knowingly or intentionally “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). Furthermore, the term “distribute” is defined under the statute as: “to deliver . . . a controlled substance.” 21 U.S.C. § 802(11) (emphasis added). In this case, the Indiana statute forming the basis of the Petitioner’s conviction states that a person is guilty of dealing in cocaine if that individual “knowingly or intentionally manufactures, finances the manufacture of, delivers, or finances the delivery of cocaine;” or if the individual “possesses, with intent to manufacture, finance the manufacture of, deliver, or finance the delivery of cocaine.” Ind. Code § 35-48-4-1(a)(1)-(2).

Both the generic corresponding aggravated felony under the Immigration and Nationality Act and the Indiana statute criminalize manufacturing and delivering illegal drugs. However, the Indiana statute is broader in scope because it also criminalizes financing the manufacture or delivery of illegal drugs. As a result, the modified categorical approach is appropriate, and we must examine the permissible documents to determine which alternative formed the basis of Petitioner’s conviction under the Indiana statute. See Shepard, 544 U.S. at 26. Here, the appropriate documents are Petitioner’s plea agreement and the charging document.

First, the plea agreement states that Petitioner pleads guilty to “Count 1: dealing in cocaine greater than 3 grams.” But, the plea agreement does not specify which portion of the Indiana statute Count 1 encompassed, so we next examine the charging document.

Under Indiana law, the charging document can be either an information or an indictment filed by the prosecutor with the appropriate court. Ind. Code § 35-34-1-1(b). Indiana law requires the charging document to contain “the name of the offense [charged] in the words of the statute or any other words conveying the same meaning,” as well as other information such as the date, time, and place of the offense. Ind. Code § 35-34-1-2(a). In addition, Indiana provides a statutory suggested format for prosecutors to follow when preparing an information. Ind. Code § 35-34-1-2(e)-(f). It is as follows:

[affiant], being duly sworn on his oath or having affirmed, says that [defendant], on the ___ day of ___ 20__ at the county of ___ in the state of Indiana (HERE SET FORTH THE OFFENSE CHARGED). Id.

In this case, the prosecutor filed an information with the appropriate court charging the Petitioner with dealing cocaine in violation of Indiana Code § 35-48-4-1.[1] Furthermore, the information conforms to the Indiana statutory format and states:

I, Detective Brian Elmore of the United Drug Task Force, who being duly sworn or having affirmed says that on or about 12/09/2009, at Kohl’s Department Store in Plainfield in Hendricks County, State of Indiana, Ulises Martines [sic] did knowingly deliver cocaine, said drug having a weight of more than three (3) grams, to wit 28.4 grams (emphasis added).

By examining the charging document, it is evident that Petitioner was convicted under Indiana Code § 35-48-4-1(a)(1)(C), which criminalizes knowingly delivering cocaine. Since the delivering cocaine element of the Indiana statute mirrors the delivering a controlled substance element of the generic corresponding aggravated felony under the Immigration and Nationality Act, it is a categorical match. See 21 U.S.C. § 841(a)(1); 21 U.S.C. § 802(11). Therefore, Petitioner was convicted of an aggravated felony.

Petitioner claims that we cannot examine the information filed by the prosecutor because it constitutes a police report, which courts cannot examine under the modified categorical approach. See Shepard, 544 U.S. at 16. To support this claim, Petitioner relies exclusively on our earlier opinion in United States v. Lewis, 405 F.3d 511 (7th Cir. 2005). In Lewis, a district court improperly applied the categorical approach by emphasizing the defendant’s conduct underlying the case to determine whether the defendant was convicted of a “crime of violence,” rather than focusing on the elements of the Indiana statute at issue. Id. at 514. Specifically, the judge examined affidavits that were attached to the information that detailed the underlying conduct of the defendant’s armed jewelry store robbery. Id. We held that the affidavits attached to the information were a sworn police report, rather than a charging document, and thus could not be examined. Id. at 515. We explained: “The list in Shepard is designed to identify documents that illuminate what crime the defendant committed. . .. Using additional materials such as affidavits to ascertain how this person violated a statute departs from the categorical approach that Shepard and Taylor adopt.” Id. (emphasis in original).

By contrast, here we are examining the information document itself, rather than an attached affidavit. Also, the information here does not state how Petitioner committed the crime of dealing cocaine. Rather, it explains what crime Petitioner committed; it specifies whether he manufactured, delivered, or financed the manufacture or delivery of cocaine. Specifically, the information states that the Petitioner was charged with “knowingly deliver[ing] cocaine.” It does not delve into the details of the Petitioner’s conduct underlying the charges, but instead provides the requisite basic information regarding the date, time, and place of the offense as required under Indiana law.

Furthermore, in this case there was a “Probable Cause Affidavit” that was attached to the information. The Probable Cause Affidavit describes in extensive detail the underlying conduct of how the Petitioner violated the Indiana statute. As in Lewis, this attached affidavit to the information constitutes a sworn police report, which is not part of the charging document.[2] See Lewis, 405 F.3d at 515. As a result, while it is proper for this court to consider the information under the modified categorical approach, we cannot and do not examine the Probable Cause Affidavit attached to the information.

Therefore, by applying the modified categorical approach, we find that the Petitioner was convicted of an aggravated felony. Since he was convicted of an aggravated felony, he is ineligible for asylum because his crime is per se a particularly serious crime. 8 U.S.C. § 1158(b)(2)(B)(i). In addition, because he was convicted of an aggravated felony and sentenced to more than five years’ imprisonment (in this case twenty years), he is also ineligible for withholding of removal because that too constitutes a particularly serious crime. 8 U.S.C. § 1231(b)(3)(B)(iv).

2. Petitioner’s Chenery Challenge

Petitioner argues that the Chenery doctrine requires this court to only uphold the BIA’s determination based solely on the agency’s analysis. See SEC v. Chenery, 318 U.S. 80 (1943). However, Petitioner claims that the BIA applied the wrong legal standard when it analyzed whether he was convicted of a particularly serious crime. The BIA stated in its opinion that “it is not necessary to determine whether the conviction constitutes an aggravated felony.” Instead, the BIA analyzed whether the Petitioner’s conviction constituted a particularly serious crime under the alternative case-by-case analysis. This analysis involves examining the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction to determine whether a conviction that is not an aggravated felony nonetheless constitutes a particularly serious crime. See N-A-M-, 24 I. & N. Dec. 336, 341-42 (BIA 2007). However, the BIA’s opinion went on to cite the presumption that aggravated felonies involving drug trafficking are particularly serious crimes. The BIA then listed the factors that must be established in order to overcome this presumption, as determined in Y-L-, A-G-, & R-S-R-, 23 I. & N. Dec. 270, 274, 276-77 (BIA 2002). After citing the presumption and the factors needed to rebut it, the BIA then cited the correct standard from N-A-M- for determining whether a non-aggra-vated felony constitutes a particularly serious crime. But, the BIA’s analysis combined both the correct standard from N-A-M- and the incorrect standard from Y-L-. As a result, Petitioner argues that we must remand the case.

Even if Petitioner is correct, his argument fails because the “futility doctrine” is a recognized exception to the Chenery doctrine. See Osmani v. INS, 14 F.3d 13, 15 (7th Cir. 1994). Although “[o]rdinarily we are not permitted to affirm the order of an administrative agency on a ground that the agency did not rely upon in making the order. . .. [t]here is an exception for the case where it is clear what the agency’s decision has to be.” Id. (citations omitted); see also Sahara Coal Co. v. Office of Workers’ Comp. Programs, United States Dep’t of Labor, 946 F.2d 554, 558 (7th Cir. 1991) (“The harmless-error doctrine is available in judicial review of administrative action; it is an exception to the Chenery principle. If the outcome of a remand is foreordained, we need not order one.”) (citations omitted). Thus, if remand would be futile because it is clear what the decision has to be, we may affirm the case without remanding it back to the BIA.

In this case, we have determined that Petitioner was convicted of an aggravated felony. Therefore, remanding this case to the BIA would be futile because a person convicted of an aggravated felony (and who has been sentenced to more than five years’ imprisonment) has committed a particularly serious crime for purposes of asylum and withholding of removal. See 8 U.S.C. § 1158(b)(2)(B)(i); 8 U.S.C. § 1231(b)(3)(B)(iv). Since the BIA would have to find that Petitioner is ineligible for asylum and withholding of removal, and that would not change the outcome from the BIA’s opinion, we will not remand the case.

B. Whether Petitioner was Entitled to Deferral of Removal Under CAT

Although we have determined that Petitioner is ineligible for asylum or withholding of removal, we still have jurisdiction to determine whether Petitioner is entitled to deferral of removal under CAT. See Issaq v. Holder, 617 F.3d 962, 970 (7th Cir. 2010); see also 8 C.F.R. § 1208.16(c)(4).[3]

“We review the denial of CAT protection under the highly deferential substantial evidence test.” Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir. 2004) (citations omitted). We review the entire record as a whole and reverse “only if the record evidence compels a contrary conclusion.” Lenjinac v. Holder, 780 F.3d 852, 855 (7th Cir. 2015) (emphasis added) (citations omitted). In order to receive CAT protection, the Petitioner has the burden to demonstrate that “it is more likely than not that [the Petitioner] would be tortured if removed to [Mexico].” 8 C.F.R. § 1208.16(c)(2). In addition, CAT protection requires evidence that the Petitioner will be tortured by the government, or with the government’s acquiescence. Khan v. Holder, 766 F.3d 689, 698 (7th Cir. 2014) (citations omitted).

Here, the BIA agreed with the Immigration Judge that the Petitioner did not show that it is more likely than not that he would be tortured if he was removed to Mexico. The BIA found that the Immigration Judge properly examined all relevant evidence in the record and that the record supported the Immigration Judge’s decision. The BIA also noted that there is a large “lesbian, gay, bisexual, and transgender (LGBT) community in Mexico and many openly gay people have not been harmed.” In addition, the BIA found that Mexican law prohibits such harm. Finally, the BIA found that while there have been incidents of violence towards LGBT individuals in “some parts of Mexico,” there are other parts of the country “more accepting of the LGBT community.”

Petitioner argues that the substantial evidence in the record indicates that it is more likely than not that he would be tortured if removed to Mexico. He claims that Julio, the bully who stabbed him with the ice pick when Petitioner was ten years old, still lives in his former neighborhood. He also cites news articles detailing atrocities committed against gay men throughout Mexico. In addition, he repeatedly relies on a 2008 report from the Commission of Human Rights of the Federal District that found that over the past 10 years, 80% of homophobic murders in Mexico City have gone unpunished, and that a poll conducted in 2011 found that the police were identified as the group most intolerant of the gay community. Further, Petitioner argues that even if places in Mexico, such as Mexico City, are more tolerant of openly gay men, he cannot relocate there because his sister lives in Acapulco. He also argues that his HIV-positive diagnosis makes relocation unreasonable.

While Petitioner may face violence if he returns to Mexico, we do not find that the record compels us to the conclusion that torture is more likely than not to occur. The fact that Julio still lives in his old neighborhood does not mean that twenty-five years later he still seeks to harm the Petitioner, nor that such harm would be with the government’s acquiescence. See 8 C.F.R. § 1208.18(a)(7) (“Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.”).

In addition, while the numerous articles and studies cited by the Petitioner indicate that gay men have been victims of violence in Mexico, these do not suggest that the Petitioner is more likely than not to face such violence. See Rashiah, 388 F.3d at 1133 (“Though the country report supports the contention that torture occurs in Sri Lanka, it does not demonstrate that it is more likely than not that petitioner will be tortured if he returns.”) (emphasis in original). Moreover, the fact that Petitioner’s sister lives in Acapulco does not mean that he cannot move to an area of Mexico more accepting of homosexuals, especially since he has lived the last twenty-five years without his sister. See 8 C.F.R. § 1208.16(c)(3) (in determining whether to grant CAT protection, courts should examine whether the petitioner could relocate to another part of the country where he is not likely to be tortured). The record also reflects that medical treatment for HIV is free in Mexico, and that there are 57 clinics for HIV treatment located throughout the country.

Therefore, we find that the Petitioner did not satisfy his burden to show that it is more likely than not that he would be tortured by the government or with the government’s acquiescence if he returned to Mexico. The substantial evidence in the record supports the BIA’s decision and does not call for a contrary conclusion.[4] As a result, the Petitioner is not entitled to deferral of removal under CAT.

III. CONCLUSION

For the foregoing reasons, Petitioner’s petition is DENIED and the BIA’s decision is AFFIRMED.

[1] The information technically states that Petitioner is charged with violating “I.C. XX-XX-X-X(b).” However, this is an error because Indiana Code § 35-48-4-1(b) is not an offense, but rather states that a person can only be convicted of possessing with intent to manufacture, finance the manufacture of, deliver, or finance the delivery of cocaine if there is evidence other than the weight of the drugs that the individual had that intent. But, under Indiana law, any error in statutory citations within an information is excusable “where the defendant was not otherwise misled as to the nature of the charges against the defendant.” Ind. Code § 35-34-1-2(a)(3). Since the information further clarifies the charges against the Petitioner, we find this is harmless error.

[2] While it is Indiana’s practice to attach probable cause affidavits to an information, the Indiana Supreme Court has clarified that the two documents are considered separate. See Schweitzer v. State, 531 N.E.2d 1386, 1388 (Ind. 1989) (“The probable cause affidavit relates to the pretrial detention of the defendant, not to the charging instrument.”).

[3] The Respondent requests the court to reconsider Issaq’s holding regarding whether 8 U.S.C. § 1252(a)(2)(C) precludes judicial review of deferral of removal claims when an alien has been convicted of an aggravated felony, in light of the Second Circuit’s holding in Ortiz-Franco v. Holder, 782 F.3d 81, 89 (2d Cir. 2015). The Second Circuit’s opinion, however, does not persuade us to overrule Issaq.

[4] Petitioner also asks this court to remand for the opportunity to further develop the record to determine his CAT claim. However, we find that the roughly 850 page record is sufficient to rule on this issue.

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

CA7 remands Nicaraguan withholding of removal

Posted on January 19, 2016 by Mike Baker

Bd. did not err in denying alien’s asylum application, where said application was untimely, and where alien could only raise question of fact on appeal. However, remand was required with respect to alien’s claim for withholding of removal in which plaintiff contended that he would be persecuted based on his political opinion if forced to return to Nicaragua, where: (1) IJ found alien believable with respect to his claim that he and his family were well-known members of opposition party to current ruling party in Nicaragua, and that members of alien’s extended family had been murdered by members of ruling party; and (2) IJ and Bd. failed to give reason to doubt weight or truthfulness of alien’s evidence supporting his claim that he would face grave threat of violence if forced to return to Nicaragua. Petition granted and denied in part. Gutierrez-Rostran v. Lynch, No. 15-2216 (7th Cir. 2016)

Rostran, a Nicaraguan citizen, entered the U.S. illegally in 2006, and decided to stay. He claims to fear that the government of Nicaragua would encourage or condone his being murdered by its supporters because of his and his family’s political views, but did not make a timely application for asylum, 8 U.S.C. 1158(a)(2)(B). In 2010 he was convicted of public intoxication and driving under the influence. Eventually he was ordered to be removed to Nicaragua. He then applied for asylum and for withholding of removal under 8 U.S.C. 1231(b)(3)(A), arguing that his “life or freedom would be threatened in [Nicaragua] because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” The immigration court and the Board of Immigration Appeals rejected his claims. The Seventh Circuit affirmed as to asylum, but vacated the denial of withholding of removal as not adequately reasoned. “What is missing … are data that would enable a rational determination of whether there was a greater than 50 percent probability that the alien would lose his life or his freedom if removed to his country of origin.”
_________________________________________________________

LUIS GUTIERREZ-ROSTRAN, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2216.

United States Court of Appeals, Seventh Circuit.
Argued December 15, 2015.
Decided January 13, 2016.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The petitioner, Luis Gutierrez-Rostran, a Nicaraguan citizen, entered the United States illegally in 2006, and decided to stay. Although his stated motive for immigrating was fear that the government of Nicaragua would encourage or condone his being murdered by its supporters because of his and his family’s political views, he did not make a timely application for asylum. See 8 U.S.C. § 1158(a)(2)(B).

In 2010 he was convicted of public intoxication and driving under the influence. After eight days in jail he was issued a Notice to Appear for immigration proceedings and released on bail the same day. Eventually he was ordered to be removed to Nicaragua. He then applied for asylum under 8 U.S.C. § 1158, and for withholding of removal under 8 U.S.C. § 1231(b)(3)(A) (formerly 8 U.S.C. § 1253(h)(1)(1990)) in the alternative. To obtain the second form of relief he had to show that his “life or freedom would be threatened in [Nicaragua] because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” The immigration court turned him down and the Board of Immigration Appeals affirmed, precipitating the petition for review that brings his case to us.

He challenges both the denial of his untimely asylum application and the denial of his claim for withholding of removal. Regarding the former challenge, to prevail given the untimeliness of the application he would have to show that the immigration court or the Board had committed a legal error, 8 U.S.C. § 1252(a)(2)(D); Restrepo v. Holder, 610 F.3d 962, 964-65 (7th Cir. 2010), and he hasn’t done that. He argues only that violence toward persons such as him has increased in Nicaragua in recent years, thus justifying his belated application. But unfortunately for him “issues of changed or extraordinary circumstances are questions of fact that lie outside the realm of § 1252(a)(2)(D).” Aimin Yang v. Holder, 760 F.3d 660, 665 (7th Cir. 2014).

So we turn to his claim for withholding of removal, and begin by sketching some essential background. Augusto César Sandino was a Nicaraguan revolutionary who between 1927 and 1933 conducted a rebellion against the U.S. military occupation of Nicaragua. He was assassinated in 1934 at the direction of Anastasio Somoza Garcia, who became the nation’s ruler, succeeded by his sons after he was assassinated. The Sandinista party, named in memory of Sandino, rose up against the Somozas, and under the leadership of Daniel Ortega wrested control of the country from them. That happened in 1979 and Ortega ruled the country as a dictator until 1990. He then permitted free elections, was repeatedly defeated, and did not achieve his old authority until he won (though with only a plurality of the votes) the presidential election held in 2006. Since then his power has been secure.

Ortega’s defeats in that interim period were by the Liberal Constitutionalist Party (known as PLC from the initials of its Spanish name), then the main opposition party, and parties allied to it, notably the Independent Liberal Party (the PLI). Gutierrez-Rostran was active in one of those two parties (though it’s unclear which one), as were his father, his two brothers, and two uncles, one of them a mayor and the other a PLC representative who, Gutierrez-Rostran testified, “was to become a mayor as well.”

Because of the family’s intimate connections with a political movement that had long delayed Ortega’s return to power, both Gutierrez-Rostran and his two brothers fled the country when Ortega was elected president in 2006, though the brothers fled not to the United States but to Costa Rica and Guatemala, respectively, and since fleeing have (for a reason we’ll explain shortly) been able to make extended visits to Nicaragua without being threatened or harassed.

In his hearing before the immigration court on his application for withholding of removal, Gutierrez-Rostran testified that his family and members of the PLI had told him that both his cousin and his friend had been murdered by the Sandinistas—in fact by the son of one of President Ortega’s bodyguards. Another friend of Gutierrez-Rostran, Rogelio Ruiz-Sotelo, testified that the cousin had received threats from Sandinistas, and though in response to the threats he had moved to a far-off city in Nicaragua he nevertheless was murdered there. Ruiz-Sotelo further testified that he’d attended the cousin’s funeral and heard things in the city that convinced him that the murderer was a Sandinista. (That testimony was hearsay, but hearsay is admissible in immigration proceedings. N.L.A. v. Holder, 744 F.3d 425, 436 (7th Cir. 2014).) He also testified that, while a poll worker in an election held in 2012, he had been stoned by Sandinistas and forced to surrender his ballots to them, and that he had complained to the authorities but both the captain of police and the town’s mayor were Sandinistas and threatened to kill him if he said anything about the attack against him. (On the collaboration of Nicaraguan police in Sandinista violence against political opponents, see, e.g., Tim Rogers, “6 Dead in Post-Election Violence,” Nicaragua Dispatch, November 9, 2011, http://nicaraguadispatch.com/2011/11/6-dead-in-post-election-violence/.)

The immigration judge who presided at Gutierrez-Rostran’s hearing denied withholding of removal on the ground that none of his immediate family members had been harmed or even threatened, and that the various articles and reports he submitted about political violence between Sandinistas and members of the opposition parties fell short of proving that it was more likely than not that he would be persecuted if he returned to Nicaragua. The Board affirmed the denial, discounting as “speculative” the contention that the cousin’s murder had been “at the hands of the Sandinistas.”

The treatment by the immigration court and the Board of the cousin’s murder was too cursory to justify denial of Gutierrez-Rostran’s application for withholding of removal. There was evidence of violence by Sandinistas against liberal party members; the cousin was a liberal from a well-known liberal family; and Gutierrez-Rostran’s testimony, Ruiz-Sotelo’s testimony (including his testimony that public officials—a mayor and a police chief—had refused to protect him against Sandinista harassment), and letters of Gutierrez-Rostran’s parents and of PLI officials, made a prima facie showing that Gutierrez-Rostran would be in great danger were he to be returned to Nicaragua while the Sandinistas are in power. Although Gutierrez-Rostran’s parents, brothers, sisters, and uncles have not been persecuted, the parents are old (his father is 78) and neither they nor his one surviving uncle nor the sisters nor the brothers—who, remember, no longer live in Nicaragua—are politically active. An uncle of Gutierrez-Rostran who had been a liberal mayor was allowed to die in peace, but he too was old.

Neither the immigration judge nor the (as usual) singlemember “panel” of the Board of Immigration Appeals gave a reason for doubting the weight or truthfulness of the evidence, evidence from which an inference could be drawn that Gutierrez-Rostran would indeed face a grave threat of suffering his cousin’s fate were he forced to return to Nicaragua. Admissible, pertinent, credible evidence can’t just be ignored, as the immigration court and the Board did in this case; reasonable grounds must exist, and be articulated, to justify rejection of such evidence. See, e.g., Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 461-62 (7th Cir. 2004). The immigration judge stated in his opinion, and the Board registered no disagreement, that Gutierrez-Rostran’s testimony was “internally consistent, consistent with his written statement, and consistent with the other documents he submitted.” The immigration judge also made no adverse credibility finding with regard to Ruiz-Sotelo. Yet having indicated that he thought Gutierrez-Rostran’s testimony had been credible and not having suggested that Ruiz-Sotelo’s evidence was not credible, the immigration judge contradicted himself by saying that “there is no evidence to corroborate the respondent’s belief that [his cousin and friend] were killed by the Sandinista youth for their political beliefs.” Ruiz-Sotelo had testified without contradiction that Sandinistas had threatened and then killed the cousin and friend, and why would Sandinistas have killed them other than for political reasons?

Against all this it can be argued that while the evidence indicates danger to Gutierrez-Rostran if he is returned to Nicaragua, it does not indicate that he is “more likely than not” to be persecuted if he is sent there, which the Supreme Court in INS v. Stevic, 467 U.S. 407, 424-25 (1984), held is the standard of proof for withholding of removal. See also 8 C.F.R. § 1208.16(b)(2); Torres v. Mukasey, 551 F.3d 616, 625 (7th Cir. 2008). That of course is the normal civil standard of proof. But it can’t be taken literally in the immigration context. In an ordinary civil case there are witnesses, lay and/or expert, on both sides of the case, and likewise documentary evidence. But in the usual withholding-of-removal case, including this case, the only evidence is presented by the alien—and the immigration judge appears to have deemed that evidence credible.

What is missing in a case like this are data that would enable a rational determination of whether there was a greater than 50 percent probability that the alien would lose his life or his freedom if removed to his country of origin. Rodriguez-Molinero v. Lynch, No. 15-1860, 2015 WL 9239398, at *1 (7th Cir. Dec. 17, 2015). The first step in such an inquiry would be to define the endangered group (obviously not all the Nicaraguans who voted for PLC or PLI candidates) and the second to determine what percentage of them have lost their life or freedom at the hands of the Sandinistas, and also whether that percentage is growing or declining (or not changing). The immigrant is required to present evidence that he faces a significant probability of persecution if he is removed to his country of origin, and Gutierrez-Rostran did present such evidence, as we have seen. He could not be expected to quantify the probability of his being persecuted or killed should he be removed to Nicaragua. The data that would enable such quantification appear not to exist, because to be reliable they would have to specify all persons who had characteristics similar to those of the applicant for withholding of removal and how many of them had been killed or persecuted because of those characteristics. If such data do exist somewhere, the immigration authorities or the State Department may have access to them, but there is no indication of that.

The immigration judge may have been acknowledging the difficulty of taking the “more likely than not” standard literally as a 50+ percent probability when he said that an alien seeking withholding of removal could satisfy the standard of proof by demonstrating a “reasonable probability” of persecution if removed to his country of origin. That description of the standard is a step in the right direction.

The denial of withholding of removal and the affirmance of that denial by the BIA member who as the (entire) appeal “panel” denied the petitioner’s appeal were not adequately reasoned and so must be set aside and the case returned to the Board for further proceedings consistent with this opinion. The petition for asylum is dismissed, however, as noted earlier in this opinion.

GUTIERREZ-ROSTRAN v. Lynch, Court of Appeals, 7th Circuit 2016

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

CA7 upholds denial of cancellation of removal as continuous residency stopped at conviction

Posted on January 17, 2016 by Mike Baker

Isunza came to the U.S. from Mexico at age 17 in 1978. His parents were lawfully present in the U.S., but Isunza became a permanent resident through the sponsorship of his wife in 1994. In 1998, he was found guilty of possession of 0.1 grams of cocaine and placed on probation. He successfully renewed his permanent resident card in 2000 and traveled to Mexico without incident in 2000, 2001, 2006, and 2011. When he returned to Chicago from Mexico in 2011, authorities confiscated his permanent resident card. DHS alleged that Isunza was subject to removal as an alien convicted of a controlled substance offense, 8 U.S.C. 1182(a)(2)(A)(i)(II). Isunza argued that his continuous residency in the U.S. after re-entering in 2000 made him eligible for cancellation of removal, 8 U.S.C. 1229b(a). The IJ found him ineligible because the clock for accruing time toward continuous residency stopped when Isunza was convicted in 1998; his subsequent departures from and returns to the U.S. did not start the clock again. The BIA dismissed his appeal. The Seventh Circuit denied an appeal, without considering a new argument that his admission into the U.S. as a minor should count toward his continuous residency. The BIA reasonably interpreted the statute and refused to consider that argument.

Bd. did not err in denying alien’s motion to reconsider Bd.’s original dismissal of his appeal of IJ’s removal order based on alien’s commission of controlled substance offense. Record showed that alien did not seek timely review of Bd.’s original dismissal of his appeal, and Ct. of Appeals lacked jurisdiction to review Bd.’s discretionary decision not to reconsider alien’s appeal based on new argument that Bd. found could have been raised in original appeal. Moreover, Bd.’s decision in original appeal that alien was not entitled to any relief because his 1998 conviction on controlled drug offense permanently stopped his “residency clock” for purposes of establishing claim for cancelation of removal under 8 USC section 1229b(a) was consistent with ruling in Torres-Rendon, 656 F.3d 456.
_______________________
SERGIO ISUNZA, Petitioner,
v.
LORETTA LYNCH, Attorney General of the United States, Respondent.
No. 15-1286.

United States Court of Appeals, Seventh Circuit.
Argued November 30, 2015.
Decided January 11, 2016.

Before ROVNER, and WILLIAMS, Circuit Judges, and SHAH, District Judge.[*]

SHAH, District Judge.

Sergio Isunza seeks judicial review of a decision of the Board of Immigration Appeals denying reconsideration of its dismissal of Isunza’s appeal. Our jurisdiction to review such a decision is quite limited because Isunza did not seek review of the Board’s original dismissal of his appeal and he is removable because he committed a controlled substance offense. The Board exercised its discretion not to reconsider its decision and it committed no legal error in applying precedent to Isunza’s appeal. The petition is dismissed in part for lack of jurisdiction and denied in part.

Isunza came to the United States from Mexico when he was seventeen years old in 1978. His parents were lawfully present in the United States, but Isunza did not adjust his status in the country for many years. In 1994, he became a permanent resident through the sponsorship of his wife, a U.S. citizen. In 1998, he was found guilty of possession of 0.1 grams of cocaine and placed on probation. See 720 ILCS 570/410. He successfully renewed his permanent resident card in 2000, and traveled briefly to Mexico without incident in 2000, 2001, 2006, and 2011. Isunza’s luck ran out when he returned to Chicago from Mexico in 2011. Authorities confiscated his permanent resident card.

The Department of Homeland Security alleged that Isunza was subject to removal as an alien convicted of a controlled substance offense. 8 U.S.C. § 1182(a)(2)(A)(i)(II). During his removal proceedings, Isunza conceded the charge of removability, and sought relief from removal. He argued that his continuous residency in the United States after reentering in 2000 made him eligible for cancellation of removal. 8 U.S.C. § 1229b(a). The immigration judge found that Isunza was ineligible for cancellation of removal because the clock for accruing time toward continuous residency stopped when Isunza was convicted in 1998, 8 U.S.C. § 1229b(d)(1), and his subsequent departures from and returns to the United States did not start the clock again.

Isunza appealed to the Board of Immigration Appeals. It found no error in the immigration judge’s decision, and determined that Isunza’s 1998 conviction permanently terminated the accrual of time toward continuous residency. It dismissed the appeal. Isunza did not seek judicial review of that decision, but did ask the Board to reconsider it. The Board said that Isunza raised a new argument in his motion that could have been presented in his appeal (namely, that his admission into the United States as a minor should count toward his continuous residency period). A motion to reconsider is not an opportunity to raise new arguments, and the Board found no error in the rationale for its earlier dismissal of Isunza’s appeal. It denied the motion to reconsider. Isunza then petitioned this court to review his removal.[1]

Only the Board’s ruling on the motion to reconsider is before us because Isunza did not seek review of the Board’s dismissal of his appeal within 30 days of that decision. 8 U.S.C. § 1252(b)(1); Muratoski v. Holder, 622 F.3d 824, 829-30 (7th Cir. 2010). Our jurisdiction is further limited by 8 U.S.C. § 1252(a)(2)(C) because Isunza is removable based on his commission of a drug offense. Garcia v. Ashcroft, 394 F.3d 487, 489 (7th Cir. 2005). Under these circumstances, we do not have jurisdiction to review discretionary decisions by the Board; only legal or constitutional claims are subject to judicial review. 8 U.S.C. § 1252(a)(2)(D).

There are two parts to the Board’s decision to deny reconsideration of Isunza’s appeal. First, it decided that Isunza raised a new argument about his admission as a minor that he could have presented earlier, and so it would not reconsider on that basis. Second, it reaffirmed its decision that Isunza’s trips outside the country after his drug offense did not restart the clock for accruing time toward continuous presence in the United States. The first decision was a discretionary one, not of legal or constitutional dimension, and we therefore have no jurisdiction to review it.

Isunza’s challenge to the second part of the board’s decision — finding the residency clock permanently stopped with his 1998 drug crime — is a legal one. His argument is that his return to the United States in 2000 was, under the applicable law, an admission into the United States “in any status” and restarted the clock to determine eligibility for cancellation of removal under 8 U.S.C. § 1229b(a). We have jurisdiction to review this argument, giving deference to the board’s construction of the immigration statutes. See Zivkovic v. Holder, 724 F.3d 894, 897 (7th Cir. 2013) (citing I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

The Board reasonably construed the statute, 8 U.S.C. § 1229b, to find that commission of a qualifying drug crime permanently terminated the accrual of time toward continuous residency. In Matter of Nelson, 25 I. & N. Dec. 410, 413 (BIA 2011), the Board held that commission of a specified crime was a terminating event “after which continuous physical presence or continuous residence could no longer accrue.” Isunza points out that in Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005), the court determined that continuous presence could restart after a reentry into the United States. But that decision is an outlier and based on distinguishable facts — the petitioner’s notice to appear for removal proceedings was tied to an overstay of a student visa, not the commission of a crime. After Okeke, the Board decided Nelson, which firmly holds that a qualifying drug crime stops the clock. The Third Circuit then affirmed Nelson, and held that the Board’s conclusion that reentry did not restart the clock was reasonable. Nelson v. Attorney Gen. of U.S., 685 F.3d 318, 325 (3d Cir. 2012). More recently, the Third Circuit again cabined Okeke to cases where the petitioner’s notice omitted reference to a qualifying drug crime. Singh v. Attorney Gen. of U.S., 807 F.3d 547, 553 (3d Cir. 2015) (residency clock stopped when petitioner committed crime and “could never re-start”). Perhaps most importantly for our purposes, this court has declined to follow Okeke and said that petitioners cannot restart the clock and accrue time for purposes of establishing continuous physical presence after commission of a drug crime. Torres-Rendon v. Holder, 656 F.3d 456, 463 (7th Cir. 2011). The Board’s decision here was in line with this precedent. It also makes sense because a person who commits a drug crime and leaves the United States for a vacation “has no greater logical claim to be entitled to cancellation of removal than a similarly-situated alien who never leaves the country.” Nelson, 685 F.3d at 325. A logical decision, consistent with precedent, is a reasonable one and entitled to deference.[2]

For these reasons, the petition for review is dismissed in part and denied in part.

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

[1] Isunza suffers from a genetic heart condition and is a participant in an experimental study at Northwestern University involving a device implanted in his aorta. The Board noted Isunza’s humanitarian arguments, but only the Department of Homeland Security can grant a request for the exercise of prosecutorial discretion. At oral argument, government counsel reported that Isunza’s requests to the department were denied. The record does not reflect the rationale behind this unfortunate outcome.

[2] Isunza’s remaining arguments about the hardship that his removal would cause him and the immigration judge’s denial of a continuance are outside the scope of our limited jurisdiction to review the Board’s denial of the motion to reconsider.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Cancellation of Removal, Cancellation Of Removal and The Stop-Time Rule | Leave a comment

CA7 upholds IJ denial of Chinese claim for asylum, withholding of removal, CAT relief

Posted on January 17, 2016 by Mike Baker

Chen was born in China, in 1976. In 2004, Chen married Feng and they had a daughter. In 2005, the Chinese government appropriated Chen’s farmland, to build an industrial park. Chen was allowed to keep his house and received compensation, which Chen believed was inadequate. Chen and other farmers protested. Chen was held at the police station for four days. He claims the police repeatedly interrogated, threatened, and beat him. The police told Feng that Chen was in jail with dangerous criminals and would be released if she signed the land‐transfer agreement. She signed and paid a release fee. Chen obtained a visa, stating that he was a manager who wanted to learn about American technology. Feng remained in China; she told Chen that he had been threatened with incarceration and sterilization if he returned. Chen stayed in the U.S. beyond his authorization date, then sought asylum, withholding of removal, and protection under the Convention Against Torture. DHS commenced removal proceedings under 8 U.S.C. 1227(a)(1)(B). The IJ denied all relief, finding Chen’s testimony credible, but not detailed or persuasive enough without corroboration to meet his burden of proof. Alternatively, the IJ ruled that Chen did not meet the statutory definition of a “refugee,” 8 U.S.C. 1101(a)(42)(A). The BIA affirmed. The Seventh Circuit denied Chen’s petition for review, finding the denial of relief supported by substantial evidence.

______________________________________
TAO CHEN, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-1831.

United States Court of Appeals, Seventh Circuit.
Argued November 4, 2015.
Decided January 8, 2016.

Before KANNE, ROVNER and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Tao Chen, a 39-year-old Chinese citizen, petitions for review of a decision by the Board of Immigration Appeals (“Board”), which upheld Immigration Judge (“IJ”) Robert D. Vinikoor’s denial of Chen’s application for asylum and withholding of removal.[1] The IJ ruled Chen’s testimony insufficiently credible and corroborated, and he alternatively found Chen did not demonstrate a wellfounded fear of persecution on account of a political opinion. We deny Chen’s petition for review on all grounds.[2]

I. BACKGROUND.

A. Factual Background

We recount the underlying facts principally from Chen’s testimony during his final removal hearing. Chen was born in Shenyang, China, in 1976. In 2004, Chen married Junhui Feng, and together they had a daughter, Feng Jia Qi, that same year. Chen was a farmer and owned farmland in the countryside of Shenyang.

On August 8, 2005, the Chinese government appropriated land from Chen’s village, including Chen’s farmland, to build an industrial park. Chen was allowed to keep his house, and he received compensation for his land. Chen believed, however, that he should have received twice the amount in compensation. Approximately 300 other farmers in Chen’s village had their land similarly appropriated without proper compensation.

Several weeks later, on August 29, 2005, Chen, his wife, and 100 other farmers traveled to the Yuhong district government building to protest the land appropriation and improper compensation. The farmers protested for two hours, displaying signs and shouting demands. Then the police arrived. After issuing a warning, the police used a water cannon to disperse the protestors. Chen and twenty other farmers continued to protest, and the police arrested and held them at Yuhong district police station.

Chen was held at the police station for four days. On the first day, Chen was interrogated by three police officers. The police officers told Chen that his protest was a crime, threatened him with life imprisonment, and demanded that Chen sign a document transferring his land to the government. Chen refused. The police officers then covered him with a cotton quilt and beat him more than twenty times with a baton. After the beating, Chen was forced to stand for two hours in the courtyard before being taken to a detention cell. The police ordered the other inmates to watch Chen, and at mealtimes, they would take his food. Throughout his time in custody, the police repeatedly interrogated, threatened, and beat Chen in this manner. Chen, however, continued to refuse to sign the land-transfer agreement.

Meanwhile, the police confronted Chen’s wife at their home. The police told her that Chen was in jail with dangerous criminals and that he would be released if she signed the land-transfer agreement. Scared, she signed and paid a release fee. The police then showed Chen the land-transfer agreement signed by his wife, and at this point, he also signed.

After his detainment, Chen could not lift his arm because of the beatings, and to this day, he still suffers from occasional pain. Chen was also required to periodically report to the local police. Chen reported twice before deciding that he could not continue to live under this type of police surveillance.

In November 2005, Chen obtained a visa at the United States Consulate in Shenyang. He told the American official that he was a sales manager who wanted to learn about American production technology. Chen had already obtained a passport on May 19, 2005, just prior to the land dispute with the government. Chen was admitted to the United States as a visitor on November 26, 2005, with authorization to remain until February 26, 2006. Chen’s wife remained in China, and she told Chen that he had been threatened with incarceration and sterilization if he ever returned.

B. Procedural Background

Chen stayed in the United States beyond his authorization date. On September 8, 2006, he filed applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He was referred to the immigration court in Los Angeles. On December 27, 2006, the Department of Homeland Security (“DHS”) commenced removal proceedings against Chen by filing a Notice to Appear in Immigration Court. DHS charged him with removability under 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the United States longer than permitted. Represented by counsel, Chen appeared before an IJ, who found that alienage and removability had been established through Chen’s admissions. Subsequently, Chen renewed his applications for asylum, withholding of removal, and protection under CAT.

On August 9, 2012, the IJ held a final hearing on the merits of Chen’s application. Chen was the only witness who testified. He also submitted into evidence his passport and letters written by his wife and mother.

The IJ denied all relief on November 13, 2012. The IJ began by analyzing the credibility of Chen’s testimony.

The IJ determined Chen’s testimony to be credible but not detailed or persuasive enough without corroboration to meet his burden of proof. The IJ characterized Chen’s testimony as “for the most part internally consistent and consistent with his written statement” but noted “some problems with his testimony,” including the lack of post-detention protest over the appropriation of his farmland, as well as inconsistent testimony regarding post-confinement police surveillance, the ongoing police search in China for him, and the threat of government sterilization.

The IJ then found that Chen did not provide, or adequately explain the absence of, reasonably available evidence to corroborate his testimony. The letters and passport that he submitted did not support critical elements of his testimony, including the inadequate compensation for his land, the injuries sustained in police custody, and the police surveillance that motivated him to flee China. The IJ stated that Chen provided no medical records or letters from any of the individuals who also lost their land, participated in the protest, or were arrested with him. Consequently, because Chen’s testimony and corroborating evidence were insufficient to carry his burden of proof, the IJ denied Chen’s applications for asylum, withholding of removal, and protection under CAT.

Alternatively, the IJ ruled that even if Chen had submitted sufficient evidence to corroborate his testimony, he still did not demonstrate eligibility for asylum because he did not meet the statutory definition of a “refugee.” 8 U.S.C. § 1101(a)(42)(A).

First, the IJ found that Chen did not demonstrate that he suffered harm rising to the level of past persecution. Chen’s claim of inadequate government compensation for his farmland was “not sufficiently severe to be considered persecution.” The IJ also rejected Chen’s claim of mistreatment in detention because he “offered no further details” regarding his beatings or injuries. And the IJ concluded that Chen’s claim of police surveillance in the form of periodic questioning “does not constitute persecution.”

Second, Chen failed to demonstrate that any harm he suffered was on account of the protected ground of a political opinion. The IJ characterized Chen’s dispute over inadequate compensation as “an economic demand,” as opposed to an expression of political opinion. Additionally, the IJ found that the police detained Chen because he refused to disperse, not because he expressed a political opinion.

Third, the IJ found that Chen failed to establish a “wellfounded fear of persecution” should he return to China because his testimony relating to negative police actions towards him and his wife—including surveillance, harassment, imprisonment, and sterilization—was inconsistent and uncorroborated.

Having determined that Chen did not meet his burden to show eligibility for asylum, the IJ rejected Chen’s remaining claims for withholding of removal and protection under CAT because they required a higher burden of proof. The IJ ordered Chen removed to China.

On March 25, 2015, the Board affirmed the IJ’s decision in all material respects, holding that the IJ’s findings of fact were not “clearly erroneous.” This appeal follows.

II. ANALYSIS.

When the Board agrees with the decision of the IJ, adopts that decision, and supplements that decision with its own reasoning, we review the IJ’s decision as supplemented by the Board. Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). We review questions of law de novo. Id. We review findings of fact and credibility determinations, which are questions of fact, under a deferential “substantial evidence” standard, meaning we may “only reverse [the IJ and Board’s] factual findings if the facts compel an opposite conclusion” Id. (emphasis in original). In other words, the IJ’s findings of fact are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

On appeal, Chen challenges the denial of his applications for asylum and withholding of removal. All of Chen’s arguments relate to the IJ Robert D. Vinikoor’s findings of fact and are reviewed under a deferential “substantial evidence” standard.

A. Asylum

The Attorney General “may grant asylum to an alien” who is a refugee. 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as a person who is unable or unwilling to return to his or her home country “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

We begin our review with the IJ’s credibility and corroboration analysis, which applies to both Chen’s asylum and withholding of removal claims. Then, we address the IJ’s alternative finding of ineligibility for asylum relief.

1. Credibility and Corroboration

An applicant bears the burden of proving that he is a “refugee” and eligible for asylum. 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R. § 1208.13(a). The testimony of the applicant “may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also 8 C.F.R. § 1208.13(a).

In determining whether the applicant has met his burden, the IJ “may weigh the credible testimony along with other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). An IJ’s credibility determination considers the “totality of circumstances, and all relevant factors” and may be based on a myriad of factors, including the inherent plausibility and internal consistency of the applicant’s statements. Id. § 1158(b)(1)(B)(iii). Where the IJ determines that the applicant should provide evidence that corroborates otherwise credible testimony, “such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Id. § 1158(b)(1)(B)(ii).

Chen challenges the IJ’s findings with regard to his testimony, specifically arguing that the IJ erred in finding that Chen did not provide, or adequately explain the absence of, reasonably available evidence to corroborate his testimony.[3]

First, Chen argues that he could not reasonably provide corroboration for his testimony from the other protestors because of his rapid flight from China after his detention and his wife’s relocation from their home.

Chen’s argument is similar to those rejected by this court in Weiping Chen v. Holder, 744 F.3d 527 (7th Cir. 2014).[4] In Weiping Chen, the court reviewed an IJ finding that required corroborating evidence for a Chinese alien who had provided inconsistent testimony regarding a property dispute with the government, participation in a protest, and detainment and abuse by the police. The Weiping Chen court upheld the IJ’s finding, noting that the lack of required corroborating evidence—specifically from his wife, with whom he had contacted two months before his hearing, and the other merchant-protestor, with whom he claimed to have lost contact—”dooms” the applicant’s arguments. Id. at 533.

In the instant case, Chen has likewise maintained contact with his wife who allegedly lives at their home. In fact, Chen’s inconsistent testimony regarding his wife’s location— he initially stated that she had left home to escape police harassment but then admitted that she currently lived at home—was a reason the IJ required corroboration. At his final hearing, Chen submitted a letter from his wife, which provided limited corroboration to his story in that it indicated that he protested, that he was arrested, and that she paid a fine to obtain his release. But neither his wife’s nor his mother’s letter mentioned that he was beaten by the police, that he sustained injuries, or that he fled China because of the ongoing police surveillance. Moreover, because Chen was able to contact his wife who lives at home in their village and obtain a letter from her, it is reasonable to assume that he could have also contacted the other protestors who live in the same village as his wife and obtain evidence from them. Thus, Chen fails to adequately explain his lack of corroborating evidence.

Second, Chen argues that it is reasonable that he did not provide any medical evidence corroborating the physical injuries he sustained while in police custody. He asserts that the medical records were unavailable because the original copies were lost during his flight from China and his wife’s relocation and new copies of the records are unobtainable due to deficient recordkeeping in rural China.

Chen’s argument is without merit. We initially note that the IJ specifically highlighted Chen’s detention injuries as a critical part of his testimony requiring corroboration: “There is no medical evidence either from doctors in China or the United States corroborating his injury.” Although Chen argues that his Chinese medical records are unavailable, he provides no support for this assertion, such as a statement from his wife or Chinese doctors. In other words, Chen “did not explain why he could not obtain the medical evidence or even assert that he had tried.” Singh v. Ashcroft, 93 F. App’x 929, 934 (7th Cir. 2004). Furthermore, even accepting Chen’s statement that his Chinese medical records are unavailable, the lack of corroborating medical evidence from American doctors is fatal to his claim. Chen does not provide, nor does he explain the absence of, corroborating medical evidence from this reasonably available source.

Third, Chen attempts to rely on Dawoud v. Gonzales, 424 F.3d 608 (7th Cir. 2005), for the proposition: “To expect [asylum applicants] to stop and collect dossiers of paperwork before fleeing is both unrealistic and strikingly insensitive to the harrowing conditions they face.” Id. at 613.

Chen’s reliance on Dawoud is misplaced because the credibility determination in Dawoud is different from the finding in Chen’s case. Dawoud explicitly concerned the “rule permitting reliance solely on credible testimony,” which is meant for asylum applicants who “flee their home countries under circumstances of great urgency . . . literally running for their lives . . . [and] abandon[ing] their families, friends, jobs, and material possessions without a word of explanation.” Id. at 612-13. In contrast, here, the IJ explicitly found that sole reliance on Chen’s testimony was not appropriate and required corroboration. In addition, unlike those who “flee . . . circumstances of great urgency,” Chen traveled to the United States on a valid visitor visa obtained two months after his detention and protest. Id.

In sum, the IJ’s credibility and corroboration findings were supported by “substantial evidence” and the record does not compel the conclusion that Chen could not have reasonably obtained corroborating evidence. Consequently, his failure to produce such evidence when required is fatal to his asylum claim.

2. Eligibility for Asylum Relief

Chen also challenges the IJ’s alternative finding that, even if his testimony was accepted as true, he is not eligible for asylum relief because he has not shown past persecution or a well-founded fear of future persecution on account of a political opinion.

As previously stated, the Attorney General may grant asylum to aliens who fall under the statutory definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C. § 1101(a)(42)(A). An applicant can establish asylum eligibility as a refugee in one of two ways: (1) “past persecution” or (2) “a wellfounded fear of future persecution.” 8 C.F.R. § 1208.13(b).

To establish “past persecution,” an applicant must show that “he or she has suffered persecution in the past” on account of a protected ground, such as political opinion. 8 C.F.R. § 1208.13(b)(1). If “past persecution” is established, it creates a rebuttable presumption of a “well-founded fear of persecution.” Id.

To establish a “well-founded fear of future persecution” regardless of past persecution, an applicant must show: (a) a fear of persecution in his or her country on account of a protected ground, (b) there is a “reasonable possibility of suffering such persecution if he or she were to return to that country,” and (c) he or she is “unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.” 8 C.F.R. § 1208.13(b)(2).

a. Past Persecution

Chen contends that he has established “past persecution” on account of a political opinion through his protest against the Chinese government’s appropriation of his land and his subsequent treatment by the police.

Chen’s contention fails because his case is controlled by Weiping Chen. Like in Weiping Chen, Chen has not demonstrated past persecution on account of a political opinion, a protected ground, because he has not shown expression of a political opinion.[5]

In Weiping Chen, based on nearly identical facts, this court upheld the IJ’s finding that an asylum applicant did not express a political opinion. 744 F.3d at 533-34. Weiping Chen was a Chinese storeowner, and in April 2004, the Chinese government developed the area containing Weiping Chen’s store, destroying it and other buildings. In response, Weiping Chen and one hundred other merchants and family members protested against the local government office and demanded “proper compensation.” Id. at 530. The local police responded by dispersing the crowd with a water cannon. When Weiping Chen and other protestors refused to leave, the police arrested them. Subsequently, Weiping Chen was detained for three days, beaten, and forced to sign an agreement stating that he “would not approach the government asking for compensation.” Id. Weiping Chen was then released and required to report to the police station periodically. Several months later, he entered the United States on a non-immigrant visitor visa and stayed beyond his authorization date. Meanwhile, his wife remained in China and reported that the police were looking for him.

In Weiping Chen, this court upheld the IJ’s finding that Weiping Chen had not suffered past persecution or had a well-founded fear of future persecution on account of a political opinion. The court described Weiping Chen’s protest as “non-political” noting that he “was unable to articulate any political opinion, and he admitted that he did not belong to any political organizations, and that other than this protest, he participated in no other political activities.” Id. at 534. Moreover, the court upheld the IJ’s finding that Weiping Chen’s circumstances “should be characterized as a personal property dispute rather than an expression of political opinion” and held that a “personal property dispute, no matter how nasty, cannot support an alien’s claim of asylum.” Id. (internal citations and quotation marks omitted).

Chen’s case is indistinguishable from Weiping Chen. In the present case, Chen claimed that his property was appropriated by the government without fair compensation. He participated in a protest with other landowners. Chen was allegedly arrested, detained, beaten, and forced to sign an agreement to end the dispute. Furthermore, like Weiping Chen, there is no record evidence indicating that Chen articulated any political opinion, belonged to any political organizations, or participated in any political activities. Because Chen’s case is indistinguishable from Weiping Chen, we similarly uphold the IJ’s finding that Chen has not shown past persecution on account of a political opinion.

Chen asked, at oral argument, for this court to overrule Weiping Chen. Chen argues that because the Chinese government controls everything in China and excludes its citizens from the decision and political process, every confrontation between the Chinese government and Chinese citizens “assumes a political significance.”

We decline to overrule Weiping Chen. Chen offers no support for his characterization of the Chinese political climate, nor does he provide adequate justification for such a broad interpretation of “on account of a political opinion” in China, a view that would greatly enlarge the scope of asylum eligibility for applicants from that country. Thus, Weiping Chen stands.

b. Well-Founded Fear of Future Persecution

Chen additionally contends that he has demonstrated a “well-founded fear of future persecution” on account of a political opinion through the following: (1) his post-detainment police surveillance and travel restrictions and (2) continued police inquiries into his location.

To establish a well-founded fear of future persecution, an asylum applicant “must satisfy both the objective and subjective prongs of the well-founded fear standard.” Ayele v. Holder, 564 F.3d 862, 868 (7th Cir. 2009). The subjective component “often depends upon the applicant’s own credibility and testimony.” Id. In contrast, the objective prong requires evidence that there is a “reasonable probability” that the applicant “will be singled out individually for persecution” or that “there is a pattern or practice of persecution of an identifiable group” to which the applicant belongs. Id. (internal quotation marks omitted).

Chen first argues because he suffered past persecution in the form of post-detainment police surveillance and travel restrictions and is therefore entitled to a presumption of a well-founded fear of future persecution.

Assuming that Chen could overcome Weiping Chen and establish expression of a political opinion, this argument still fails because of his inconsistent testimony and lack of corroborating evidence. Chen initially testified that he left China because he could not live under police surveillance but then conceded he only had to report to police twice and did not allude to any mistreatment during those times. Regarding police surveillance, Chen did not provide the required corroborating evidence to support this assertion. In terms of reporting to the police, we have held that periodic questioning by police does not constitute persecution. E.g., Mekhtiev v. Holder, 559 F.3d 725, 730 (7th Cir. 2009). Accordingly, Chen is not entitled to a rebuttable presumption of a well-founded fear of future persecution.

Chen also argues that he has established a well-founded fear of future persecution because of continued police inquiries into his location.

Chen’s argument is meritless because he has not demonstrated an objectively reasonable fear. His argument is undercut by his inconsistent testimony and lack of corroborating evidence. On one hand, Chen had testified that he fears the police will be “enraged” at him and incarcerate him because he was supposed to remain under surveillance. On the other hand, he gave conflicting testimony about whether the police were even still looking for him. Additionally, Chen initially stated that his wife had fled their home to avoid police harassment but then admitted that his wife lived at home and had informed him that the police were still looking for him. Moreover, Chen provides no corroborating evidence to support any of these assertions. In other words, Chen has not shown a “reasonable possibility” that he will be persecuted if returned to China. Ayele, 564 F.3d at 868.

We thus hold that the IJ’s alternative finding that Chen was ineligible for asylum relief was supported by substantial evidence, and the record does not compel a conclusion otherwise.

TAO CHEN, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-1831.

United States Court of Appeals, Seventh Circuit.
Argued November 4, 2015.
Decided January 8, 2016.

Before KANNE, ROVNER and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Tao Chen, a 39-year-old Chinese citizen, petitions for review of a decision by the Board of Immigration Appeals (“Board”), which upheld Immigration Judge (“IJ”) Robert D. Vinikoor’s denial of Chen’s application for asylum and withholding of removal.[1] The IJ ruled Chen’s testimony insufficiently credible and corroborated, and he alternatively found Chen did not demonstrate a wellfounded fear of persecution on account of a political opinion. We deny Chen’s petition for review on all grounds.[2]

I. BACKGROUND.

A. Factual Background

We recount the underlying facts principally from Chen’s testimony during his final removal hearing. Chen was born in Shenyang, China, in 1976. In 2004, Chen married Junhui Feng, and together they had a daughter, Feng Jia Qi, that same year. Chen was a farmer and owned farmland in the countryside of Shenyang.

On August 8, 2005, the Chinese government appropriated land from Chen’s village, including Chen’s farmland, to build an industrial park. Chen was allowed to keep his house, and he received compensation for his land. Chen believed, however, that he should have received twice the amount in compensation. Approximately 300 other farmers in Chen’s village had their land similarly appropriated without proper compensation.

Several weeks later, on August 29, 2005, Chen, his wife, and 100 other farmers traveled to the Yuhong district government building to protest the land appropriation and improper compensation. The farmers protested for two hours, displaying signs and shouting demands. Then the police arrived. After issuing a warning, the police used a water cannon to disperse the protestors. Chen and twenty other farmers continued to protest, and the police arrested and held them at Yuhong district police station.

Chen was held at the police station for four days. On the first day, Chen was interrogated by three police officers. The police officers told Chen that his protest was a crime, threatened him with life imprisonment, and demanded that Chen sign a document transferring his land to the government. Chen refused. The police officers then covered him with a cotton quilt and beat him more than twenty times with a baton. After the beating, Chen was forced to stand for two hours in the courtyard before being taken to a detention cell. The police ordered the other inmates to watch Chen, and at mealtimes, they would take his food. Throughout his time in custody, the police repeatedly interrogated, threatened, and beat Chen in this manner. Chen, however, continued to refuse to sign the land-transfer agreement.

Meanwhile, the police confronted Chen’s wife at their home. The police told her that Chen was in jail with dangerous criminals and that he would be released if she signed the land-transfer agreement. Scared, she signed and paid a release fee. The police then showed Chen the land-transfer agreement signed by his wife, and at this point, he also signed.

After his detainment, Chen could not lift his arm because of the beatings, and to this day, he still suffers from occasional pain. Chen was also required to periodically report to the local police. Chen reported twice before deciding that he could not continue to live under this type of police surveillance.

In November 2005, Chen obtained a visa at the United States Consulate in Shenyang. He told the American official that he was a sales manager who wanted to learn about American production technology. Chen had already obtained a passport on May 19, 2005, just prior to the land dispute with the government. Chen was admitted to the United States as a visitor on November 26, 2005, with authorization to remain until February 26, 2006. Chen’s wife remained in China, and she told Chen that he had been threatened with incarceration and sterilization if he ever returned.

B. Procedural Background

Chen stayed in the United States beyond his authorization date. On September 8, 2006, he filed applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He was referred to the immigration court in Los Angeles. On December 27, 2006, the Department of Homeland Security (“DHS”) commenced removal proceedings against Chen by filing a Notice to Appear in Immigration Court. DHS charged him with removability under 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the United States longer than permitted. Represented by counsel, Chen appeared before an IJ, who found that alienage and removability had been established through Chen’s admissions. Subsequently, Chen renewed his applications for asylum, withholding of removal, and protection under CAT.

On August 9, 2012, the IJ held a final hearing on the merits of Chen’s application. Chen was the only witness who testified. He also submitted into evidence his passport and letters written by his wife and mother.

The IJ denied all relief on November 13, 2012. The IJ began by analyzing the credibility of Chen’s testimony.

The IJ determined Chen’s testimony to be credible but not detailed or persuasive enough without corroboration to meet his burden of proof. The IJ characterized Chen’s testimony as “for the most part internally consistent and consistent with his written statement” but noted “some problems with his testimony,” including the lack of post-detention protest over the appropriation of his farmland, as well as inconsistent testimony regarding post-confinement police surveillance, the ongoing police search in China for him, and the threat of government sterilization.

The IJ then found that Chen did not provide, or adequately explain the absence of, reasonably available evidence to corroborate his testimony. The letters and passport that he submitted did not support critical elements of his testimony, including the inadequate compensation for his land, the injuries sustained in police custody, and the police surveillance that motivated him to flee China. The IJ stated that Chen provided no medical records or letters from any of the individuals who also lost their land, participated in the protest, or were arrested with him. Consequently, because Chen’s testimony and corroborating evidence were insufficient to carry his burden of proof, the IJ denied Chen’s applications for asylum, withholding of removal, and protection under CAT.

Alternatively, the IJ ruled that even if Chen had submitted sufficient evidence to corroborate his testimony, he still did not demonstrate eligibility for asylum because he did not meet the statutory definition of a “refugee.” 8 U.S.C. § 1101(a)(42)(A).

First, the IJ found that Chen did not demonstrate that he suffered harm rising to the level of past persecution. Chen’s claim of inadequate government compensation for his farmland was “not sufficiently severe to be considered persecution.” The IJ also rejected Chen’s claim of mistreatment in detention because he “offered no further details” regarding his beatings or injuries. And the IJ concluded that Chen’s claim of police surveillance in the form of periodic questioning “does not constitute persecution.”

Second, Chen failed to demonstrate that any harm he suffered was on account of the protected ground of a political opinion. The IJ characterized Chen’s dispute over inadequate compensation as “an economic demand,” as opposed to an expression of political opinion. Additionally, the IJ found that the police detained Chen because he refused to disperse, not because he expressed a political opinion.

Third, the IJ found that Chen failed to establish a “wellfounded fear of persecution” should he return to China because his testimony relating to negative police actions towards him and his wife—including surveillance, harassment, imprisonment, and sterilization—was inconsistent and uncorroborated.

Having determined that Chen did not meet his burden to show eligibility for asylum, the IJ rejected Chen’s remaining claims for withholding of removal and protection under CAT because they required a higher burden of proof. The IJ ordered Chen removed to China.

On March 25, 2015, the Board affirmed the IJ’s decision in all material respects, holding that the IJ’s findings of fact were not “clearly erroneous.” This appeal follows.

II. ANALYSIS.

When the Board agrees with the decision of the IJ, adopts that decision, and supplements that decision with its own reasoning, we review the IJ’s decision as supplemented by the Board. Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). We review questions of law de novo. Id. We review findings of fact and credibility determinations, which are questions of fact, under a deferential “substantial evidence” standard, meaning we may “only reverse [the IJ and Board’s] factual findings if the facts compel an opposite conclusion” Id. (emphasis in original). In other words, the IJ’s findings of fact are conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

On appeal, Chen challenges the denial of his applications for asylum and withholding of removal. All of Chen’s arguments relate to the IJ Robert D. Vinikoor’s findings of fact and are reviewed under a deferential “substantial evidence” standard.

A. Asylum

The Attorney General “may grant asylum to an alien” who is a refugee. 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as a person who is unable or unwilling to return to his or her home country “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

We begin our review with the IJ’s credibility and corroboration analysis, which applies to both Chen’s asylum and withholding of removal claims. Then, we address the IJ’s alternative finding of ineligibility for asylum relief.

1. Credibility and Corroboration

An applicant bears the burden of proving that he is a “refugee” and eligible for asylum. 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R. § 1208.13(a). The testimony of the applicant “may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see also 8 C.F.R. § 1208.13(a).

In determining whether the applicant has met his burden, the IJ “may weigh the credible testimony along with other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). An IJ’s credibility determination considers the “totality of circumstances, and all relevant factors” and may be based on a myriad of factors, including the inherent plausibility and internal consistency of the applicant’s statements. Id. § 1158(b)(1)(B)(iii). Where the IJ determines that the applicant should provide evidence that corroborates otherwise credible testimony, “such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Id. § 1158(b)(1)(B)(ii).

Chen challenges the IJ’s findings with regard to his testimony, specifically arguing that the IJ erred in finding that Chen did not provide, or adequately explain the absence of, reasonably available evidence to corroborate his testimony.[3]

First, Chen argues that he could not reasonably provide corroboration for his testimony from the other protestors because of his rapid flight from China after his detention and his wife’s relocation from their home.

Chen’s argument is similar to those rejected by this court in Weiping Chen v. Holder, 744 F.3d 527 (7th Cir. 2014).[4] In Weiping Chen, the court reviewed an IJ finding that required corroborating evidence for a Chinese alien who had provided inconsistent testimony regarding a property dispute with the government, participation in a protest, and detainment and abuse by the police. The Weiping Chen court upheld the IJ’s finding, noting that the lack of required corroborating evidence—specifically from his wife, with whom he had contacted two months before his hearing, and the other merchant-protestor, with whom he claimed to have lost contact—”dooms” the applicant’s arguments. Id. at 533.

In the instant case, Chen has likewise maintained contact with his wife who allegedly lives at their home. In fact, Chen’s inconsistent testimony regarding his wife’s location— he initially stated that she had left home to escape police harassment but then admitted that she currently lived at home—was a reason the IJ required corroboration. At his final hearing, Chen submitted a letter from his wife, which provided limited corroboration to his story in that it indicated that he protested, that he was arrested, and that she paid a fine to obtain his release. But neither his wife’s nor his mother’s letter mentioned that he was beaten by the police, that he sustained injuries, or that he fled China because of the ongoing police surveillance. Moreover, because Chen was able to contact his wife who lives at home in their village and obtain a letter from her, it is reasonable to assume that he could have also contacted the other protestors who live in the same village as his wife and obtain evidence from them. Thus, Chen fails to adequately explain his lack of corroborating evidence.

Second, Chen argues that it is reasonable that he did not provide any medical evidence corroborating the physical injuries he sustained while in police custody. He asserts that the medical records were unavailable because the original copies were lost during his flight from China and his wife’s relocation and new copies of the records are unobtainable due to deficient recordkeeping in rural China.

Chen’s argument is without merit. We initially note that the IJ specifically highlighted Chen’s detention injuries as a critical part of his testimony requiring corroboration: “There is no medical evidence either from doctors in China or the United States corroborating his injury.” Although Chen argues that his Chinese medical records are unavailable, he provides no support for this assertion, such as a statement from his wife or Chinese doctors. In other words, Chen “did not explain why he could not obtain the medical evidence or even assert that he had tried.” Singh v. Ashcroft, 93 F. App’x 929, 934 (7th Cir. 2004). Furthermore, even accepting Chen’s statement that his Chinese medical records are unavailable, the lack of corroborating medical evidence from American doctors is fatal to his claim. Chen does not provide, nor does he explain the absence of, corroborating medical evidence from this reasonably available source.

Third, Chen attempts to rely on Dawoud v. Gonzales, 424 F.3d 608 (7th Cir. 2005), for the proposition: “To expect [asylum applicants] to stop and collect dossiers of paperwork before fleeing is both unrealistic and strikingly insensitive to the harrowing conditions they face.” Id. at 613.

Chen’s reliance on Dawoud is misplaced because the credibility determination in Dawoud is different from the finding in Chen’s case. Dawoud explicitly concerned the “rule permitting reliance solely on credible testimony,” which is meant for asylum applicants who “flee their home countries under circumstances of great urgency . . . literally running for their lives . . . [and] abandon[ing] their families, friends, jobs, and material possessions without a word of explanation.” Id. at 612-13. In contrast, here, the IJ explicitly found that sole reliance on Chen’s testimony was not appropriate and required corroboration. In addition, unlike those who “flee . . . circumstances of great urgency,” Chen traveled to the United States on a valid visitor visa obtained two months after his detention and protest. Id.

In sum, the IJ’s credibility and corroboration findings were supported by “substantial evidence” and the record does not compel the conclusion that Chen could not have reasonably obtained corroborating evidence. Consequently, his failure to produce such evidence when required is fatal to his asylum claim.

2. Eligibility for Asylum Relief

Chen also challenges the IJ’s alternative finding that, even if his testimony was accepted as true, he is not eligible for asylum relief because he has not shown past persecution or a well-founded fear of future persecution on account of a political opinion.

As previously stated, the Attorney General may grant asylum to aliens who fall under the statutory definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C. § 1101(a)(42)(A). An applicant can establish asylum eligibility as a refugee in one of two ways: (1) “past persecution” or (2) “a wellfounded fear of future persecution.” 8 C.F.R. § 1208.13(b).

To establish “past persecution,” an applicant must show that “he or she has suffered persecution in the past” on account of a protected ground, such as political opinion. 8 C.F.R. § 1208.13(b)(1). If “past persecution” is established, it creates a rebuttable presumption of a “well-founded fear of persecution.” Id.

To establish a “well-founded fear of future persecution” regardless of past persecution, an applicant must show: (a) a fear of persecution in his or her country on account of a protected ground, (b) there is a “reasonable possibility of suffering such persecution if he or she were to return to that country,” and (c) he or she is “unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.” 8 C.F.R. § 1208.13(b)(2).

a. Past Persecution

Chen contends that he has established “past persecution” on account of a political opinion through his protest against the Chinese government’s appropriation of his land and his subsequent treatment by the police.

Chen’s contention fails because his case is controlled by Weiping Chen. Like in Weiping Chen, Chen has not demonstrated past persecution on account of a political opinion, a protected ground, because he has not shown expression of a political opinion.[5]

In Weiping Chen, based on nearly identical facts, this court upheld the IJ’s finding that an asylum applicant did not express a political opinion. 744 F.3d at 533-34. Weiping Chen was a Chinese storeowner, and in April 2004, the Chinese government developed the area containing Weiping Chen’s store, destroying it and other buildings. In response, Weiping Chen and one hundred other merchants and family members protested against the local government office and demanded “proper compensation.” Id. at 530. The local police responded by dispersing the crowd with a water cannon. When Weiping Chen and other protestors refused to leave, the police arrested them. Subsequently, Weiping Chen was detained for three days, beaten, and forced to sign an agreement stating that he “would not approach the government asking for compensation.” Id. Weiping Chen was then released and required to report to the police station periodically. Several months later, he entered the United States on a non-immigrant visitor visa and stayed beyond his authorization date. Meanwhile, his wife remained in China and reported that the police were looking for him.

In Weiping Chen, this court upheld the IJ’s finding that Weiping Chen had not suffered past persecution or had a well-founded fear of future persecution on account of a political opinion. The court described Weiping Chen’s protest as “non-political” noting that he “was unable to articulate any political opinion, and he admitted that he did not belong to any political organizations, and that other than this protest, he participated in no other political activities.” Id. at 534. Moreover, the court upheld the IJ’s finding that Weiping Chen’s circumstances “should be characterized as a personal property dispute rather than an expression of political opinion” and held that a “personal property dispute, no matter how nasty, cannot support an alien’s claim of asylum.” Id. (internal citations and quotation marks omitted).

Chen’s case is indistinguishable from Weiping Chen. In the present case, Chen claimed that his property was appropriated by the government without fair compensation. He participated in a protest with other landowners. Chen was allegedly arrested, detained, beaten, and forced to sign an agreement to end the dispute. Furthermore, like Weiping Chen, there is no record evidence indicating that Chen articulated any political opinion, belonged to any political organizations, or participated in any political activities. Because Chen’s case is indistinguishable from Weiping Chen, we similarly uphold the IJ’s finding that Chen has not shown past persecution on account of a political opinion.

Chen asked, at oral argument, for this court to overrule Weiping Chen. Chen argues that because the Chinese government controls everything in China and excludes its citizens from the decision and political process, every confrontation between the Chinese government and Chinese citizens “assumes a political significance.”

We decline to overrule Weiping Chen. Chen offers no support for his characterization of the Chinese political climate, nor does he provide adequate justification for such a broad interpretation of “on account of a political opinion” in China, a view that would greatly enlarge the scope of asylum eligibility for applicants from that country. Thus, Weiping Chen stands.

b. Well-Founded Fear of Future Persecution

Chen additionally contends that he has demonstrated a “well-founded fear of future persecution” on account of a political opinion through the following: (1) his post-detainment police surveillance and travel restrictions and (2) continued police inquiries into his location.

To establish a well-founded fear of future persecution, an asylum applicant “must satisfy both the objective and subjective prongs of the well-founded fear standard.” Ayele v. Holder, 564 F.3d 862, 868 (7th Cir. 2009). The subjective component “often depends upon the applicant’s own credibility and testimony.” Id. In contrast, the objective prong requires evidence that there is a “reasonable probability” that the applicant “will be singled out individually for persecution” or that “there is a pattern or practice of persecution of an identifiable group” to which the applicant belongs. Id. (internal quotation marks omitted).

Chen first argues because he suffered past persecution in the form of post-detainment police surveillance and travel restrictions and is therefore entitled to a presumption of a well-founded fear of future persecution.

Assuming that Chen could overcome Weiping Chen and establish expression of a political opinion, this argument still fails because of his inconsistent testimony and lack of corroborating evidence. Chen initially testified that he left China because he could not live under police surveillance but then conceded he only had to report to police twice and did not allude to any mistreatment during those times. Regarding police surveillance, Chen did not provide the required corroborating evidence to support this assertion. In terms of reporting to the police, we have held that periodic questioning by police does not constitute persecution. E.g., Mekhtiev v. Holder, 559 F.3d 725, 730 (7th Cir. 2009). Accordingly, Chen is not entitled to a rebuttable presumption of a well-founded fear of future persecution.

Chen also argues that he has established a well-founded fear of future persecution because of continued police inquiries into his location.

Chen’s argument is meritless because he has not demonstrated an objectively reasonable fear. His argument is undercut by his inconsistent testimony and lack of corroborating evidence. On one hand, Chen had testified that he fears the police will be “enraged” at him and incarcerate him because he was supposed to remain under surveillance. On the other hand, he gave conflicting testimony about whether the police were even still looking for him. Additionally, Chen initially stated that his wife had fled their home to avoid police harassment but then admitted that his wife lived at home and had informed him that the police were still looking for him. Moreover, Chen provides no corroborating evidence to support any of these assertions. In other words, Chen has not shown a “reasonable possibility” that he will be persecuted if returned to China. Ayele, 564 F.3d at 868.

We thus hold that the IJ’s alternative finding that Chen was ineligible for asylum relief was supported by substantial evidence, and the record does not compel a conclusion otherwise.

B. Withholding of Removal

To qualify for withholding of removal, an applicant must “demonstrate[s] a clear probability of persecution on account of a protected ground, in this case, political opinion.” E.g., Weiping Chen, 744 F.3d at 532 (alteration in original); see also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); 8 U.S.C. § 1231(b)(3)(A). This burden of proof is higher than that required for asylum. Cardoza-Fonseca, 480 U.S. at 427-49. Because Chen has not carried his burden for asylum relief, he cannot meet the higher burden of proof required for withholding of removal. Toure v. Holder, 624 F.3d 422, 428 (7th Cir. 2010).

III. CONCLUSION.

For the foregoing reasons, Chen’s petition for review is DENIED.

[1] The Board also upheld the IJ’s denial of Chen’s application for protection under the Convention Against Torture (“CAT”). However, Chen did not challenge the CAT ruling in his opening brief and thus waives his ability to challenge that ruling. Haichun Liu v. Holder, 692 F.3d 848, 851 (7th Cir. 2012) (“Because [petitioner] did not discuss the Convention Against Torture claim in his opening brief, he has waived it . . .”)

[2] We are troubled that Chen’s counsel failed to mention in his brief Weiping Chen v. Holder, 744 F.3d 527 (7th Cir. 2014), which constitutes “legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client.” Ill. R. Prof’l Conduct 3.3. Chen’s counsel represented the petitioner in Weiping Chen and thus knew of this legal authority. With this omission, Chen’s counsel came perilously close to violating his duty of candor towards this tribunal in the present case. Id. Therefore, Chen’s counsel should take care to disclose and address relevant legal authority, both favorable and unfavorable, in the future.

[3] Chen does not dispute the IJ’s credibility ruling, which determined that his testimony required corroboration. Therefore, this argument is waived. See Long-Gang Lin v. Holder, 630 F.3d 536, 543 (7th Cir. 2010). (“[Petitioner] has not made any cogent argument to challenge these reasons for the adverse credibility finding. Thus, he has waived any challenge to them.”)

[4] Although the burdens of proof differ between asylum and withholding of removal, the credibility and corroboration analysis is the same in examining the underlying claim of potential persecution on account of a protected ground. 8 U.S.C. § 1231(b)(3)(C) (referring to 8 U.S.C. § 1158(b)(1)(B)); see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 423-24 (1987). Therefore, Weiping Chen’s corroboration analysis, which pertains specifically to a claim of withholding of removal, is relevant to the present corroboration analysis, which relates to Chen’s claims of asylum and withholding of removal.

[5] Although the burdens of proof differ between asylum and withholding of removal, the protected ground analysis is the same in examining the underlying claim of potential persecution on account of a protected ground. 8 U.S.C. § 1231(b)(3)(A); 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C. § 1101(a)(42)(A); see Cardoza-Fonseca, 480 U.S. at 423-24. Therefore, Weiping Chen’s protected ground analysis, which pertains specifically to a claim of withholding of removal, is relevant to the present protected ground analysis, which relates to Chen’s claims of asylum and withholding of removal.

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