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CA7 upholds IJ’s denial of asylum and withholding of removal relief for 58‐year‐old citizen of El Salvador

Posted on February 22, 2017 by Mike Baker

Record contained sufficient evidence to support IJ’s denial of alien’s applications for asylum and withholding of removal relief, even though alien claimed that he had fear of future persecution if forced to return to El Salvador because certain gangs would kidnap or extort him due to their perception that as long-term resident in U.S. he had money to satisfy their demands. Alien conceded that no one in El Salvador had ever threatened him or his family and denied that he had any fear that he would be harmed by El Salvador govt. itself. As such, alien failed to show that he was likely target of violence so as to support his applications for relief.

Rivera, a 58‐year‐old citizen of El Salvador, has resided unlawfully in the U.S. for 35 years, having immigrated illegally. In 2014, having fought off a previous deportation effort, Rivera was convicted of possessing a “forged instrument” and the government reopened removal proceedings. An immigration judge denied Rivera’s requests for asylum, withholding of removal, or relief under the Convention Against Torture, rejecting Rivera’s claim of fear that gangs in El Salvador would seek to kidnap or extort him because they would perceive him as wealthy, based on his long residence in the United States. Rivera conceded that nobody in El Salvador had ever threatened him or his family and expressed uncertainty about whether the Salvadoran government would be able to protect him from gangs. He denied any fear that he would be harmed by the government itself. The IJ noted that the State Department’s “country condition” reports on El Salvador “do not show that street gangs have specifically targeted El Salvadoran citizens returning from the United States because of their perceived wealth.” The Board of Immigration Appeals and Seventh Circuit affirmed. Rivera did not present convincing evidence that he was in any danger.

Rivera v. Lynch, No. 16-3225 (7th Cir. 2017)
Federal 7th Circuit Court
Case Number: No. 16-3225
Decision Date: January 12, 2017
Federal District: Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition denied
__________________________________________________
JOSE ALBERTO RIVERA, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.

No. 16-3225.
United States Court of Appeals, Seventh Circuit.

Submitted December 21, 2016.
Decided January 12, 2017.
Daniel Shieh, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A092-513-383.

Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

Jose Alberto Rivera, a 58-year-old citizen of El Salvador who has resided unlawfully in the United States for the last 35 years because he immigrated illegally and has never adjusted his status to that of a citizen or lawful permanent resident, petitions us for review of an order of the Board of Immigration Appeals upholding an immigration judge’s denial to Rivera of asylum, withholding of removal, or relief under the Convention Against Torture, and affirming the immigration judge’s issuance of an order removing (deporting) Rivera from the United States to El Salvador.

In 2014, after having fought off a previous attempt by the government to deport him, Rivera had been convicted of possessing a “forged instrument” and the government had reopened removal proceedings. He responded, as noted in the preceding paragraph, basing his response on his fear that gangs in El Salvador would seek to kidnap or extort him because they would perceive him as wealthy, owing to his long residence in the United States.

He told the immigration judge that the gangs “do not care about anything” and “always” harm innocent civilians, whether they have money or not. Yet he conceded that no-body in El Salvador had ever threatened him or his family, while recounting the experience of an unidentified Salvadoran national with whom he had been detained who told Rivera of having been removed to El Salvador, where members of the MS-13 gang had “threatened” him after he rebuffed their attempts to recruit him to traffic drugs. Yet no harm had befallen him. Rivera also testified that about five years ago his sister, who has lived in the United States since the 1970s, visited El Salvador for a few days—without incident. And although he expressed uncertainty about whether the Salvadoran government would be able to protect him from the gangs, he denied any fear that he would be harmed by the government itself.

The immigration judge noted that the State Department’s “country condition” reports on El Salvador “do not show that street gangs have specifically targeted El Salvadoran citizens returning from the United States because of their perceived wealth,” and noted (essentially repeating Rivera’s statement) that nobody in El Salvador had ever threatened him or his family and that there was no reason to think that the Salvadoran government would torture him or acquiesce in his being tortured by nongovernment actors. And remember that his sister and the unidentified Salvadorian detainee, each of whom had visited El Salvador after living in the United States, had incurred no harm there.

The Board of Immigration Appeals agreed with the Immigration Judge’s assessment of Rivera’s claims, which were weak. Really all he argued was that as a long-time resident of the United States he would be perceived in El Salvador as wealthy. That may be correct, and we are dubious (see the concurring opinion in Gutierrez v. Lynch, 834 F.3d 800, 807 (7th Cir. 2016)) of the proposition announced in some cases that

the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long-established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members.
But when this is the claim the petitioner must submit evidence supporting it, as the probability that any given member of such a group would be held for ransom might be exceedingly low.

Although the majority opinion in Gutierrez rejected the petitioner’s argument that he was in danger of persecution because he belonged to a social group consisting of “Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico,” 834 F.3d at 805, Gutierrez like Rivera had not presented convincing evidence that he was in any such danger—and furthermore the Immigration Court had found that if he was in danger of persecution if he returned to the part of Mexico in which he had lived before immigrating to the United States “he could avoid [the] harm by relocating to another part of Mexico.” Id.

Dominguez-Pulido v. Lynch, 821 F.3d 837 (7th Cir. 2016), was a similar case. The petitioner feared persecution if returned to his country of origin because he could afford to pay a ransom, or at least his captors would believe that he (or his relatives in the United States) could afford to pay a ransom. But our opinion does not indicate that he had any reason to believe that anyone would force him to pay a ransom. So he lost, as did Gutierrez and as must Rivera as well.

The point, which is equally applicable to the present case, is that members of well-to-do coteries or established expatriate families are not, so far as the record of this case reveals, frequent targets of violence in El Salvador. And unlike applicants for relief in cases such as Arrazabal v. Lynch, 822 F.3d 961 (7th Cir. 2016), Rivera failed to present any evidence that he is a likely target of violence, despite the likelihood of his being thought wealthy (though by whom is not indicated) by virtue of his long residence in the United States.

A disturbing feature of the case, however, is the very high crime rate in El Salvador. See, e.g., Roque Planas, “How El Salvador Became the World’s Most Violent Peacetime Country,” WorldPost, March 4, 2016, www.huffingtonpost.com/ entry/el-salvador-most-violent-country_us_56d9e239e4b0000 de4047fbe. (Actually Honduras is believed to have the highest homicide rate in the world—90.4 homicides per 100,000 people; the international average is 6.2 homicides per 100,000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig. 1.5, www.unodc.org/ documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_ web.pdf.) But Rivera has not presented convincing evidence of how safe or unsafe he will be in El Salvador.

We note finally, for its possible relevance in future cases, that what doesn’t matter in the case of an illegal immigrant resisting removal because of fear of persecution is whether gangs in El Salvador, or whatever the immigrant’s country of origin is, are wrong in thinking that anybody who’s lived in the United States is likely to be wealthy or have wealthy American connections. If that’s what the gangs think, and if (a big if, which requires evidence) as a result they hold deportees from the U.S. for ransom and kill them if it isn’t paid, those deportees are being subjected to persecution. We don’t think either a court or the immigration agencies could rationally deny that. But it isn’t this case.

AFFIRMED.

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

CA7 remands for reconsideration of risk of persecution on account of his HIV status and perceived homosexuality for withholding of removal to Honduras

Posted on February 22, 2017 by Mike Baker

A divided CA7 has given a man who is HIV positive another chance to fight efforts to deport him to his native Honduras. The 7th U.S. Circuit Court of Appeals directed the immigration judge who presided over Rigoberto Velasquez-Banegas’ case to reconsider his request to remain in the United States. In 2005, Velasquez-Banegas entered the United States without authorization. He applied to remain in this country when the U.S. Department of Homeland Security began deportation proceedings in 2014.Record failed to contain sufficient evidence to support IJ’s denial of alien’s application for withholding of removal to Honduras, where alien argued that there was high likelihood that he would be persecuted on account of his HIV status and perceived homosexuality. Alien presented expert testimony that many Hondurans equated HIV status with homosexuality, and that many Hondurans were violently hostile to homosexuals. Moreover, alien testified without contradiction that many suspected homosexuals had been killed in Honduras due to their perceived sexuality, and that Honduran police were often complicit in said killings. As such, alien presented sufficient evidence to establish risk of persecution if deported to Honduras. IJ also erred in suggesting that alien would be safe in Honduras if he kept his HIV status secret. In its opinion, the 7th Circuit majority criticized the immigration judge for insisting Velasquez-Banegas present evidence that he in particular would be at risk of persecution in Honduras. Because Velasquez-Banegas had left his homeland more than a decade before, the majority wrote, he could not assess his risk for persecution compared to that of the average person with HIV.

“No matter; to be a member of a group that faces a high probability of persecution in a foreign country is enough to establish that he’s at risk of persecution if deported to that country,” Posner wrote.

(Dissent filed.)

Rigoberto Velasquez-Banegas v. Loretta E. Lynch, No. 15-2619
Federal 7th Circuit Court
Citation Case Number: No. 15-2619
Decision Date: January 19, 2017
Federal District: Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition granted

_________________________________
RIGOBERTO VELASQUEZ-BANEGAS, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.

No. 15-2619.
United States Court of Appeals, Seventh Circuit.

Argued December 1, 2016.
Decided January 19, 2017.
Linda Y. Cheng, for Respondent.

Keren Zwick, for Petitioner.

Ilan Wurman, for Petitioner.

David Eli Farber, for Amicus Curiae.

Petition for Review of an Order of the Board of Immigration Appeals, No. A206-157-231.

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The petitioner, a citizen of Honduras, entered the United States in 2005—without being authorized to do so—when he was 38 years old. He is now 49, still living in this country, still not authorized to live here. In 2014 the Department of Homeland Security began proceedings in the Immigration Court to have him removed from this country (i.e., deported) to Honduras. He applied for withholding of removal and also for protection under the Convention Against Torture, on the ground that he is highly likely to be persecuted if returned to Honduras. The immigration judge denied both applications and ordered him removed. The Board of Immigration Appeals affirmed summarily, and he appeals to us.

In 2007 he discovered that he was HIV positive. HIV, short for human immunodeficiency virus, is treatable, but often progresses to AIDS—acquired immunodeficiency syndrome—a very serious, and though treatable often fatal, condition. In the Immigration Court the petitioner argued (and in our court continues to argue) that he is entitled to remain in the United States because of acute danger that he faces if returned to Honduras, danger resulting from the fact that a great many Hondurans believe that AIDS is an affliction of homosexuals (often it is, but not always, as so many Hondurans believe), and also that any man with HIV is also a homosexual. Most important, a great many Hondurans are hostile—often violently so—to persons they believe to be homosexual. And for cultural reasons related to Hondurans’ belief about these two diseases, the medical treatment of both HIV and AIDS in Honduras is often deficient and often invasive of privacy, though poor medical service is not itself a form of persecution.

The petitioner testified without contradiction that “straight” Hondurans tend not only to despise homosexuals but also to perceive them as weaklings, and on both accounts to attack them physically. He presented evidence that many suspected homosexuals have been killed in Honduras out of sheer hatred and that the police often are complicit in, or refuse to investigate, these crimes. He testified that he’s not himself a homosexual but he reminds us (as we noted in the previous paragraph) that most Hondurans believe that any man who has either AIDS or HIV is homosexual. He fears that if returned to Honduras, as soon as he goes to a hospital for treatment of his HIV he will be “outed” as a presumed homosexual. And this is true, so far as appears, whether it is a private or a government-funded hospital—if the latter, the “outing” of him by the hospital might well be deemed explicit governmental persecution of presumed homosexuals.

He points out that persecution that does not result in death or serious bodily harm is still grounds for withholding of removal. E.g., Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011); Koval v. Gonzales, 418 F.3d 798, 805-06 (7th Cir. 2005). As we explained in Stanojkova,

Persecution involves . . . the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded. The line between harassment and persecution is the line between the nasty and the barbaric, or alternatively between wishing you were living in another country and being so desperate that you flee without any assurance of being given refuge in any other country.
Suspicion of the petitioner’s being homosexual will be enhanced because, though now in his late forties, he has never married. There has always been suspicion, even in the United States, that a man who never marries may be homosexual or at least bisexual, meaning he’s sexually or romantically attracted to both men and women. The suspicion does not extend to heterosexual men who have such huge sexual appetites that they are unwilling to tie themselves to one woman, in marriage, but that is not our petitioner.

There is no suggestion that as a resident of the United States all these years, albeit an unauthorized resident, the petitioner has engaged in serious criminal conduct—his entire criminal record appears to be limited to a couple of minor offenses that resulted in his being jailed for 15 days—or has posed or poses any kind of threat to the nation’s health or welfare. He is, in short, harmless, and we can’t understand the immigration judge’s failure to take that into account in deciding whether to grant withholding of removal—also her failure to take into account the alarming and pertinent fact that Honduras has the highest crime rate in the western hemisphere. In fact, according to the U.N. Office on Drugs and Crime, Honduras has the highest homicide rate in the world—90.4 homicides per 100,000 people; the international average is 6.2 homicides per 100,000 people. U.N. Office on Drugs and Crime, Global Study on Homicide 2013, pp. 12, 24 fig.1.5, www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf. This is a fact the immigration judge and Board of Immigration Appeals should have noted; neither did.

In fact the immigration judge made a hash of the record. A highly qualified American Ph.D. professor of Latin American studies, Suyapa Portillo, who specializes in the LGBTQ community (lesbian, gay, bisexual, transgender, and queer— an acronym that covers the entire spectrum of homosexual and related sexual orientations) in Honduras, testified as an expert witness for the petitioner. In the last 12 years she’s visited Honduras three to four times a year to conduct research. The immigration judge qualified Dr. Portillo to testify as an expert witness regarding “the experience of LGBTQ people in Honduras” and also of “HIV-positive people” in that country—overlapping groups, obviously—and having been thus qualified Dr. Portillo testified that it’s very difficult for people with HIV to find employment—employers often require proof that an applicant does not have HIV. She testified that since Honduras’s 2009 coup d’état (when the Honduran Army, following orders from the Honduran Supreme Court to oust President Manuel Zelaya, sent him into exile), more than 200 LGBTQ people have been murdered according to a pattern she thought indicated an “LGBT cleansing,” in which transgendered women were murdered with a single shot to the head and homosexual men tied up and mutilated. Dr. Portillo believes that the police are complicit in the murders and that laws purporting to protect LGBTQ people from assaults and murders are rarely enforced.

The immigration judge did not question the accuracy of Dr. Portillo’s testimony in the slightest, yet deemed it irrelevant because it was “general”—it was about the LGBTQ community and about the typical experiences of Hondurans who have HIV rather than about the petitioner specifically. But realistically the evidence is specific to the petitioner because he fits the description of Hondurans who are at risk of persecution as a result of being believed (accurately or not) to be homosexual. The immigration judge demanded evidence that he would be persecuted if returned to Honduras, but failed to consider the feasibility of her demand. The petitioner left Honduras more than a decade ago; he’s hardly in a position, living in the United States, to assess the particular risk to him if he’s deported, as compared to the average HIV sufferer in Honduras or even the average HIV sufferer in Honduras who is middle-aged yet has never married. See 8 U.S.C. §§ 1231(b)(3); 1158(b)(1)(B)(ii).

No matter; to be a member of a group that faces a high probability of persecution in a foreign country is enough to establish that he’s at risk of persecution if deported to that country.

[I]n evaluating whether it is more likely than not that the applicant’s life or freedom would be threatened in a particular country on account of race, religion, nationality, membership in a particular social group, or political opinion, the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for such persecution if: (i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and (ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that it is more likely than not that his or her life or freedom would be threatened upon return to that country.
8 C.F.R. § 1208.16(b)(2). That is an accurate description of this case.

It’s often said that an immigrant seeking withholding of removal must prove that he or she is more likely than not to suffer persecution if deported, see, e.g., INS v. Stevic, 467 U.S. 407, 424 (1984), and that belief may have informed the immigration judge’s insistence on proof that the petitioner will be persecuted if removed to Honduras. But in recent opinions we’ve explained that the “more likely than not test” should not be taken literally, for so taken it would mean that an applicant for withholding of removal who had a 50.1 percent probability of being persecuted (killed, let’s say) if deported would be entitled to withholding of removal, but not one who had only a 50 percent probability of being killed if deported. Not only is this an absurd example of line drawing, but it assumes unrealistically that such statistics can be computed. In fact “all that can be said responsibly on the basis of actually obtainable information is that there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.” Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015). And therefore it should be enough to entitle the applicant to withholding of removal if there is a substantial, albeit unquantifiable, probability that if deported he will be persecuted. And that is Velasquez-Banegas’s situation, given Dr. Portillo’s testimony— testimony accepted in toto, we emphasize, by the immigration judge. In the appendix to this opinion, we reprint, with slight editing, pages 5 to 7 of the immigration judge’s opinion, which is where she summarizes Dr. Portillo’s testimony—which, to repeat, she accepted in its entirety.

She accepted the petitioner’s evidence as well as Dr. Portillo’s, stating that “Having reviewed the [petitioner’s] testimony and documentary submissions, I find the [petitioner] credible. His testimony is internally consistent and consistentn with his written statement. His testimony is also consistent with the other corroborative evidence in the record, including medical records and affidavits in support of his application.” What more could be required to justify granting withholding of removal?

Dr. Portillo testified without contradiction that “people with HIV are generally considered to be LGBTQ” and that the petitioner would not “be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that [he] would run into someone he knew while seeking treatment.” The immigration judge noted that other affidavits in the record (one by a native citizen of Honduras and another by a sociology professor who lived in Honduras for two years), stated that it is a “common belief in Honduras” that those with HIV are gay or lesbian, but this was not good enough for her because the affidavits had “cite[d] no data, reports, or examples.” But Dr. Portillo’s testimony that the immigration judge had accepted as truthful was uncontradicted evidence, from a qualified expert witness, that the petitioner will in all likelihood be unable to hide his HIV status and as such will be believed to be a homosexual and persecuted accordingly. Indeed he could hide it only by not seeking medical care for it, which would endanger his life.

In any event it was error for the immigration judge to suggest that the petitioner would be safe if he kept secret his HIV status. The law does not require people to hide characteristics like religion or sexual orientation, and medical conditions, such as being HIV positive. E.g., Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir. 2004). The immigration judge implies that the petitioner would be thought to be homosexual and for that reason persecuted unless he evaded his potential tormentors by pretending to be a very different person from what he actually is—a middle-aged HIV positive bachelor in a culture in which, should those characteristics be revealed, he would be in serious danger. The immigration judge would have sized up the danger to Velasquez-Banegas differently had she assumed the petitioner would live openly. Suppose a person if removed to his country of origin would be sure to be persecuted unless, by living in a cave, he avoided all contact with other persons. The next step would be to rule that no one can have a real fear of persecution because if persecution looms he can avoid it by committing suicide.

It’s true, as emphasized by the immigration judge, that the petitioner if deported will be returning to the region (Comayagua, also the name of the major city in the region) where his parents and siblings live. The immigration judge thought this would protect him from the heavy crime activity in the region, because he would be associating mainly with people who had known him all his life and would know he was not a homosexual. But they and others would know that he was HIV positive, which Hondurans consider a badge of homosexuality; and they might conclude that he had become a homosexual after leaving Honduras for the United States, for Hondurans also tend to believe that homosexuality is a lifestyle choice rather than a person’s genetic destiny.

The immigration judge failed even to mention the petitioner’s testimony that an imputation of homosexuality to him is made more likely by his being middle-aged yet never married. This omission takes on a special irony given the judge’s criticism of petitioner’s evidence as being too general. Now maybe he could conceal his bachelor status, along with his HIV status, but in Muhur v. Ashcroft, supra, 355 F.3d at 960-61, we rejected the related proposition that “one is not entitled to claim asylum on the basis of religious persecution if (a big if, by the way) one can escape the notice of the persecutors by concealing one’s religion.” We noted that “Christians living in the Roman Empire before Constantine made Christianity the empire’s official religion faced little risk of being thrown to the lions if they practiced their religion in secret; it doesn’t follow that Rome didn’t persecute Christians, or that a Christian who failed to conceal his faith would be punished for acting `unreasonably.'” Id. The law does not take a life of stealth as its starting point.

The immigration judge thought the most severe harm that could befall Velasquez-Banegas in Honduras would be inability to receive adequate medical care. But that proposition was inconsistent with her crediting Dr. Portillo’s testimony (as she did), as was the judge’s further statement that Velasquez-Banegas “[had] not established that it [was] more likely than not that people [would] perceive him as LGBTQ”—though she had acknowledged that Dr. Portillo had “testified and stated in her affidavit that people with HIV are generally considered to be LGBTQ, which she attributes to a lack of information available to the public. She also testified that she does not believe that the petitioner would be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that the petitioner would run into someone he knew while seeking treatment. She also discussed a personal experience where she was extorted by police officers while on her way to a gay bar with friends who were members of the LGBTQ community. Three other affidavits in the record state generally that it is a common belief in Honduras that those with HIV are gay or lesbian, but cite no data, reports, or examples. . . . However, this evidence is insufficient to establish that the petitioner will likely have homosexuality imputed to him in Honduras, as it [this evidence] is general in nature, lacks objective data, and is not specific to the [petitioner].” What can the immigration judge have meant by that last sentence? The evidence, which certainly supports the proposition that Velasquez-Banegas is likely to have homosexuality imputed to him in Honduras if he’s deported, is “general” because there is more than one person in Honduras with HIV, and is specific to the petitioner because he fits the description of Hondurans at risk of persecution because believed (accurately or not) to be homosexual. The judge also said, contradicting her crediting Dr. Portillo’s testimony (see Appendix below), that Portillo’s testimony that people in Honduras are uninformed and therefore tend to link homosexuality to HIV was not based on any report or evidence. It was based on her testimony, which was evidence—uncontradicted evidence!

We have noted repeatedly that remand may be warranted when the agency overlooks key aspects of an asylumseeker’s claim and might reach a different conclusion after fuller evaluation of the record. See Chen v. Holder, 604 F.3d 324, 330 (7th Cir. 2010); Gomes v. Gonzales, 473 F.3d 746, 752 (7th Cir. 2007); Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999). This is such a case. We therefore vacate the decisions of the Board and the immigration judge and remand the case for reconsideration in light of the analysis in this opinion.

APPENDIX (QUOTED FROM THE IMMIGRATION JUDGE’S OPINION)

Dr. Portillo testified that people with HIV, like the petitioner, are particularly vulnerable in Honduras. It is very difficult for such people to gain employment, because employers, particularly in the factory industry, require potential employees to present proof of a negative HIV test before being hired. Although this is illegal in Honduras, many private companies continue the practice with impunity.

Honduras has a socialized health care system, but those with money often use private doctors because of their superior quality and efficiency. She believes that private market care in Honduras is very expensive. She testified that hospitals often run out of medications, including HIV medication, which forces people to resort to self-medication or buying those medications in the private sector. She believes that the public health system’s problems stem from a military coup in 2009, which led to increased debt and corruption for the country. She testified that there are major hospitals and non-profit organizations who give medical care in the big cities in Honduras, but those who live in rural areas have to take a bus trip, often four to five hours long, to the city, where they must wait hours at the clinic for care. Also, the buses often do not run at night because of safety concerns. Dr. Portillo is not familiar with the particular medications that HIV patients take, and she has not studied or worked with doctors who treat patients with HIV.

She described her research regarding HIV testing in San Pedro Sula, Honduras, in 2006. She first went to a Red Cross clinic to be tested for the virus, which cost five hundred Lempira, and took two weeks to get results. She returned two weeks after her test to receive her results, and the nurses at the clinic gave her the results in front of everyone in the waiting room. She took a second HIV test at an Evangelical Church organization. The intake form there asked about sexual orientation, and she identified herself as bisexual. While she was waiting for the results of the test, the clinic displayed videos and pamphlets about God and abstinence outside of marriage. After receiving her results, she was counseled on God and family. She received no information about prevention or what to do if she was HIV-positive. Finally, she went to a LGBTQ organization for testing, which she described as the “babest experience.” But such organizations are not funded on an ongoing basis and she does not know whether the organization still exists. After she received her results from all three clinics, she was given a card displaying her results, presumably to present to potential employers. She has not updated her research regarding current tests or procedures for HIV testing in Honduras since 2006.

Dr. Portillo remained in San Pedro Sula, Honduras, for two months after completing her HIV testing research before traveling to other parts of the country. She was not physically harmed or threatened during this time, though she did take daily precautions. However, five months later, she returned to San Pedro Sula and went out to a gay bar with friends who were members of the LGBTQ community. They were stopped by police for a driving violation and harassed because of their gender identity. Dr. Portillo told the police officers that she was a US citizen and that this behavior was inappropriate, which led to the police taking one of her friends and telling the rest of the group to follow them. The police led them to a dark area in the city, and demanded money in exchange for releasing her friend, to which Dr. Portillo agreed. She believes that she was extorted because of her claim to U.S. citizenship and the assumption that as such she carried money on her.

She testified that many Hondurans directly link the HIV virus to the LGBTQ community. She believes that this is the result of a dearth of education both in the public school system and the public generally. Most HIV-positive people she has interviewed in Honduras are afraid to come out because they fear the reaction of their family, friends, and community, and because they fear losing their jobs. She testified that she does not believe it is possible for people to hide their HIV status in Honduras successfully because the confidentiality laws for medical providers are different from what they are in the United States, the cities are small, they may run into people they know, and many are required to seek help from LGBTQ organizations and may be seen there.

Dr. Portillo also discussed the homophobic nature of Honduran society. Since 2009, more than 200 LGBTQ people have been murdered, often in a particularly gruesome manner that she believes indicates they were targeted due to their gender identity. She testified that people defecated in front of the building of a LGBTQ organization where she worked, and they also spraypainted the building. Those who work for such organizations take precautions daily to avoid harassment. She also witnessed a large protest in Honduras regarding the government’s granting “nonprofit status” to a LGBTQ group, which Ms. Portillo described as the largest protest she has ever seen. She also believes the police are complicit in the harassment, assault, and murder of members of the LGBTQ community, and that they rarely conduct fair investigations of such crimes. She discussed one case in which a transgender person was assaulted, on camera, and the footage showed police officers watching and laughing. Although the police officers involved were taken off active duty for a period of time, she does not believe they were prosecuted for any crimes.

According to Dr. Portillo, the Honduran constitution and criminal code have provisions intended to protect members of the LGBTQ community, but in practice these provisions are not used to protect members of the LGBTQ community or to prosecute those who discriminate or even physically assault or kill members of the community. She cited an example in which two transgender people ran for public office, and a well-known church leader made a derogatory televised speech encouraging the public to vote against them. But despite evidence of discrimination against them, the two individuals had their lawsuit dismissed for lack of evidence.

RIPPLE, Circuit Judge, dissenting.

I sincerely regret that I cannot join my esteemed colleagues in their disposition of this petition.

I cannot accept my colleagues’ view that the immigration judge “made a hash of the record.” Majority Op. at 4. The record in this case contains evidence supportive of the position of Mr. Velasquez-Banegas and evidence supportive of the position of the Government. The immigration judge carefully evaluated the entire record and determined that Mr. Velasquez-Banegas had not carried his burden of demonstrating, by a preponderance of the evidence, that he would be subject to persecution or torture if he returns to his homeland. Under well-established principles of law, our role in reviewing the immigration judge’s decision is limited. We review legal conclusions de novo; however, we review factual determinations under “the deferential substantial evidence standard.” Khan v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Mozdzen v. Holder, 622 F.3d 680, 683 (7th Cir. 2010). We reverse “the agency’s findings only if, viewing the record as a whole, a reasonable factfinder would be compelled to reach a contrary conclusion.” Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015) (citing 8 U.S.C. § 1252(b)(4)(B)); see also I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Once we have determined that this deferential standard has been met, we have reached the limit of our authority. It is not within our ken to order a new trial because we believe that the evidence better supports a different conclusion.

Here, the substantial evidence test clearly has been met. Following a hearing, the immigration judge denied relief, rejecting both Mr. Velasquez-Banegas’s claim that he faced persecution based on his imputed sexual orientation and his claim that he would be persecuted because of his HIV status.

The immigration judge first concluded that Mr. Velasquez-Banegas had not established that he was an imputed member of the LGBTQ community and therefore would suffer the mistreatment frequently accorded to members of that group. To support this conclusion, the immigration judge pointed to five factors that undercut Mr. Velasquez-Banegas’s claim: (1) Mr. Velasquez-Banegas was not gay and did not plan to associate with the LGBTQ community in Honduras; (2) Mr. Velasquez-Banegas “testified that none of the three people he knew with HIV in Honduras were homosexual, and that neither he nor anyone else believed them to be”[1]; (3) Mr. Velasquez-Banegas likely would seek HIV treatment at a hospital located four hours away in Tegucigalpa, reducing the possibility that he would see someone he knew while receiving treatment;[2] (4) Mr. Velasquez-Banegas would be returning to his hometown where he lived for thirty-eight years and many people who knew him before would still be living there; and (5) neither the provided articles nor the country conditions report stated that individuals who are HIV-positive are assumed to be gay, although those documents did discuss access to HIV healthcare, the stigma associated with being HIV-positive, and the violence experienced by members of the LGBTQ community.

Next, the immigration judge addressed Mr. Velasquez-Banegas’s claim that his HIV status was a protected social group. The immigration judge determined that the social group was cognizable and that Mr. Velasquez-Banegas was a member of this group. However, the immigration judge denied relief because Mr. Velasquez-Banegas had not demonstrated that it was more likely than not that his “life or freedom would be threatened” on account of his HIV status.[3] The “most severe harm” that Mr. Velasquez-Banegas would face, according to the immigration judge, was his inability to receive medical care in Honduras.[4] However, the immigration judge concluded, and my colleagues do not challenge, that the problem of inadequate medical care is not specific to those with HIV.

Regarding relief under the Convention Against Torture, the immigration judge found that Mr. Velasquez-Banegas had not established that it was more likely than not that he would be perceived as gay, although the judge recognized that the record reflects that LGBTQ people in Honduras experience persecution and “possibly torture.”[5] The immigration judge added that lack of access to medical care and employment did not constitute torture. Based on these findings, the immigration judge denied Mr. Velasquez-Banegas’s petition.[6]

Mr. Velasquez-Banegas first asks us to review the determination that his HIV status would not cause him to be perceived as gay. He claims that the Board disregarded relevant evidence and also impermissibly reasoned that others would not perceive Mr. Velasquez-Banegas as gay so long as he did not disclose his HIV status.[7]

There can be no doubt that Mr. Velasquez-Banegas presented significant evidence that gay men in Honduras face abuse, violence, and even death at the hands of the general public, as well as at the hands of the police force.[8] Indeed, the immigration judge concluded that “LGBTQ individuals in Honduras may face persecution, and possibly torture.”[9] However, the immigration judge also found that Mr. Velasquez-Banegas had not shown that he would be perceived as gay based on his HIV-positive status.

Mr. Velasquez-Banegas submits that the immigration judge erred by discounting evidence merely because it was general in nature. Specifically, he claims that the immigration judge “faulted the testimony and affidavits in the record for only `generally’ stating that there is a `common belief in Honduras that those with HIV are gay or lesbian,’ and for citing `no data, reports, or examples.'”[10] The relevant part of the immigration judge’s opinion states:

The record also contains some evidence that those with HIV are at times assumed to be a member of the LGBTQ community, and the respondent expressed this fear in his testimony. See Ex. 3. The respondent’s expert witness, Ms. Portillo, testified and stated in her affidavit that people with HIV are generally considered to be LGBTQ, which she attributes to a lack of information available to the public. She also testified that she does not believe that the respondent would be able to hide his HIV status due to a lack of confidentiality in hospitals and the likelihood that the respondent would run into someone he knew while seeking treatment. She also discussed a personal experience where she was extorted by police officers while on her way to a gay bar with friends who were members of the LGBTQ community. Three other affidavits in the record state generally that it is a common belief in Honduras that those with HIV are gay or lesbian, but cite no data, reports, or examples. See Ex. 3, Tabs B, E, and F.

However, this evidence is insufficient to establish that the respondent will likely have homosexuality imputed to him in Honduras, as it is general in nature, lacks objective data, and is not specific to the respondent.[11]

First, it is important to note that the immigration judge considered the entire record, including “general” evidence. The judge found the general evidence to be unpersuasive and did not give very much weight to it. While Ms. Portillo, petitioner’s expert, had testified that people in Honduras are uninformed and therefore tend to link homosexuality to HIV, the judge noted that this statement was not based on any report or evidence. Instead, the expert could only support a related point; namely, that “there is considerable overlap between the two groups.”[12] Similarly, the country report only supported the notion that the HIV/AIDS epidemic “is still concentrated in high-risk groups such as commercial sex workers and their clients, men who have sex with men, [and] prisoners. . . .”[13] It did not expand on whether Hondurans likely would assume that all HIV-positive men shared a particular sexual orientation. Indeed, the report could be interpreted as cutting against this view. It listed “Vulnerable Groups” as including “Men who Have Sex with Men,” as well as “Sex workers,” “Prisoners,” “Women,” “Vulnerable Youth,” “Orphans,” “Military,” “Migrant Groups and Mobile Populations in Affected Regions,” and “Indigenous Groups and Descendants of African Origin.”[14] According to the country report, all of these groups face an increased risk of exposure. It certainly was well within the discretion of the immigration judge to determine the weight that ought to be given to particular evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii).

My colleagues also suggest that the immigration judge committed legal error in requiring evidence more specific to Mr. Velasquez-Banegas. They take the view that it is enough to be a member of a cognizable group that faces a high probability of persecution. Majority Op. at 6 (citing 8 C.F.R. § 1208.16(b)(2)). It is true that the general rule is that membership in a cognizable social group whose members are exposed to a high probability of persecution is sufficient to make out a case for withholding of removal. But that general rule assumes that it has been established that the applicant is in fact a member of the group. See 8 C.F.R. § 1208.16(b)(2)(ii). Here, no one maintains that Mr. Velasquez-Banegas is gay; in fact, he vigorously denies that he is and has stated that he has no plans to associate with the gay community, given his antipathy toward the group. His inclusion in the group therefore depends on establishing an imputed identification with that group, and, on that question, we already have acknowledged the necessity to examine the surrounding circumstances that might establish such an imputation, including the circumstances of the particular case. See Chen v. Holder, 604 F.3d 324, 332-33 (7th Cir. 2010).

Mr. Velasquez-Banegas seems to recognize the appropriateness of weighing evidence specific to him because he also contends that the immigration judge erred in failing to consider “one of the most important pieces of particularized evidence he offered.”[15] Mr. Velasquez-Banegas explained that, in addition to being HIV-positive, he has “never gotten married,” and currently is middle-aged and single.[16] He asserts that this increases the particularized risk that others will assume he is gay once they learn he has HIV. He claims that because the immigration judge did not cite specifically this evidence in her opinion, her entire determination is void.

As I have noted earlier, the immigration judge did consider particularized evidence about Mr. Velasquez-Banegas, including that:

the respondent will be returning to a country, and region, that he has lived in for thirty-eight out of his forty-seven years of life. His parents and siblings live in Comayagua, where he plans to return, and it is likely that many people who knew him before his departure from Honduras are still living there, . . . . Thus, the respondent will likely be living with people who have known him for the majority of his life and are unlikely to impute homosexuality to him, should they find out he is HIV-positive.[17]
While the immigration judge’s opinion may have been clearer if it had stated that these findings directly overcame other “particularized” evidence about Mr. Velasquez-Banegas, including his age and marital status, that inference reasonably can be made from the record, and hardly warrants upsetting the immigration judge’s determination. Immigration judges need only consider those issues presented and say enough for us to conclude “that [they] ha[ve] heard and thought and not merely reacted.” Solis-Chavez v. Holder, 662 F.3d 462, 469 (7th Cir. 2011) (internal quotation marks omitted).

Finally, Mr. Velasquez-Banegas also contends that the immigration judge impermissibly reasoned that others would not perceive him as gay so long as he did not disclose his HIV status. He argues that he has a right to be open about his condition.[18] This is not an accurate characterization of the immigration judge’s opinion. The immigration judge concluded that, because Mr. Velasquez-Banegas likely would seek HIV treatment at a hospital located four hours away from his hometown, this “significantly decreases the odds that he would run into someone he knows while seeking treatment.”[19] Even if Mr. Velasquez-Banegas chooses to be open about his HIV status, he has not established that his HIV status will cause him to be perceived as gay. The fact that he may choose to share his status does not alter this outcome.

The immigration judge also determined that Mr. Velasquez-Banegas had established his membership in the particular social group of HIV-positive men living in Honduras. However, she then concluded that (1) he could not show a nexus between any harm he may suffer through his membership in this group; and (2) the alleged economic and social harm, including difficulty in procuring medical treatment and obtaining employment, did not rise to the level of persecution.

Although the statute governing withholding of removal does not define “persecution,” we have said that it “`must rise above mere harassment.'” Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003). More to the point, we have described persecution as including “detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture,” Toptchev v. I.N.S., 295 F.3d 714, 720 (7th Cir. 2002), behavior that threatens the same, and “non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe,” Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (citing Sayaxing v. I.N.S., 179 F.3d 515, 519 (7th Cir. 1999)). However, “generalized conditions of hardship which affect entire populations do not rise to the level of persecution.” Id.; see also Musabelliu v. Gonzales, 442 F.3d 991, 994 (7th Cir. 2006) (“Asylum is not a form of unemployment compensation.”).[20]

Mr. Velasquez-Banegas claims that the immigration judge ignored evidence related to the poor medical care and economic deprivation that HIV-positive individuals face. Mr. Velasquez-Banegas also claims the immigration judge gave too much weight to the fact that the Honduran government has enacted laws prohibiting the discriminatory practices which Mr. Velasquez-Banegas fears.

Regarding potential economic deprivation, the immigration judge acknowledged:

The record shows that the respondent will face some harm in Honduras on account of his HIV-positive status, including employment discrimination, welfare discrimination, social stigma, and difficulty obtaining medical treatment for HIV. See Ex. 3, Tabs G-O. The respondent’s expert witness, Ms. Portillo, testified that those with HIV in Honduras are frequently denied employment opportunities, particularly in the factory industry, as they are required to provide proof that they do not have the virus before being hired.[21]
Despite this evidence, the immigration judge determined that Mr. Velasquez-Banegas had not met his burden of establishing economically based persecution. The judge cited specific evidence in making this finding, including that the Honduran government has prohibited companies from denying or terminating employment due to HIV status. Additionally, the immigration judge noted that Mr. Velasquez-Banegas’s expert, Ms. Portillo, only testified that the factory industry still conducted HIV tests and “was not aware of other industries in the country that refuse employment due to HIV status.”[22] The immigration judge found these deficiencies significant because Mr. Velasquez-Banegas did not have a history of factory work. He had grown up on a ranch in Honduras, worked on a horse ranch in Kentucky,[23] and also worked on a tobacco farm.[24] The immigration judge therefore concluded that Mr. Velasquez-Banegas did not establish that he would be unable to secure the type of employment that he would be most likely to seek in Honduras.[25]

Finally, the immigration judge determined that, although Mr. Velasquez-Banegas may experience difficulty obtaining HIV treatment and medication, this difficulty was due to general country conditions that make it difficult for all Hondurans to receive proper medical care. Additionally, the immigration judge noted “that the Honduran Government has passed legislation that establishes the right to medical care for people with HIV.”[26] Honduras also has a socialized medical system, low-cost hospital care for those with HIV (in cities), and “at least thirty[-]seven” HIV treatment centers in the country.[27] The immigration judge was certainly entitled to credit this evidence and come to the conclusion that any economic deprivation that Mr. Velasquez-Banegas might encounter would not rise to the level of persecution. I do not understand my colleagues to disagree with that determination.

Immigration cases always pose a special burden on United States judges. As Jacques Maritain so eloquently put it: “We are all wounded souls.” See Jacques Maritain, Réflexions sur l’Amerique 87-91 (1958). Every American, including every United States judge, has a family memory that includes ancestors who came from some place where life was not as good as it is here. The DNA of our national character makes it very difficult to tell an individual that he cannot enjoy the same liberty, safety, and security that we enjoy. When the individual suffers from a medical condition that cannot be treated as well in the country to which he is returned, basic humanitarian values make the task even more difficult. No doubt, those who must make necessary policy choices and those who must enforce those choices feel, or should feel, that same angst. But immigration must be regulated, and, in this Country, national policy is set by Congress and enforced by the Executive. Our own task as judges is limited. Because the immigration judge’s determinations were supported by substantial evidence, I respectfully dissent.

[1] A.R. at 114. The Government concedes that this was an inaccurate portrayal of Mr. Velasquez-Banegas’s testimony. Government’s Br. 14 n.4. Mr. Velasquez-Banegas testified that he did not think these three people were homosexual, but he was not aware of what others thought. A.R. at 170-74.

[2] Id. at 114.

[3] Id. at 115.

[4] Id. at 116.

[5] Id. at 116-17.

[6] Mr. Velasquez-Banegas appealed this decision to the Board of Immigration Appeals (“the Board”). There, he argued that the immigration judge erred in (1) finding that he would not be perceived as gay; (2) improperly concluding that Mr. Velasquez-Banegas could hide his HIV status; and (3) discounting evidence as too generalized to support his claims. Finally, he alleged that he had met his burden of proof for protection under the Convention Against Torture.

On July 1, 2015, the Board adopted and affirmed the immigration judge’s decision. Because the Board summarily affirmed the immigration judge’s opinion, we base our review on the immigration judge’s analysis. Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).

[7] The Board has recognized explicitly that homosexuality qualifies as a “particular social group.” Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th Cir. 2007). The immigration judge noted that imputation may or may not apply to claims of membership in particular social groups. A.R. at 114. Assuming without deciding this issue, the immigration judge proceeded under the assumption that relief could be granted on this ground. Id. We have held that a petitioner can state an imputed claim where he shows that others will attribute a political opinion to him and will persecute him on that basis. See Chen v. Holder, 604 F.3d 324, 332 (7th Cir. 2010).

[8] See, e.g., A.R. at 415-16, 486-87, 489, 521-24, 529-30, 537-46, 559.

[9] Id. at 117.

[10] Pet’r’s Br. 17 (quoting A.R. at 17).

[11] A.R. at 114.

[12] Id. at 398 (“Exhibit D”) (“To be precise, in 2005 UNAIDS estimated that 13% of men who have sex with men were living with AIDS. SHADOW REPORT at page 5.”). The other evidence fell short for the same reason. Exhibit E states “[p]ersecution extends to those individuals who are perceived as gay due to their HIV/AIDS status. The epidemic is concentrated within gay men. As a result, HIV/AIDS is perceived to be a disease `caused’ by LGBT individuals. Heterosexual males who have HIV/AIDS are often believed to be gay, and thus face the same risks of harm as gay individuals. In turn, LGBT individuals are often thought to have HIV/AIDS. As such, LGBT individuals and those with HIV/AIDS face persecution based on both homophobia and AIDS-phobia.” Id. at 415. The exhibit, however, cites no support for this conclusion. Similarly, Exhibit F states “[t]he common myth surrounding those infected with HIV is that the person is gay or they engaged in some homosexual activity,” but again does not support this conclusion. Id. at 431. Most unpersuasively, Exhibit B states “[i]n Honduras, there are a lot of people who link HIV to being gay. I know that the two are not necessarily connected because I know that Miguel was not gay, and I know that Rigoberto is not gay. But in my country, a lot of people assume that the two things are linked together,” immediately after discussing a heterosexual man dying from AIDS and rumors that he had infected another woman. Id. at 390.

[13] Id. at 303.

[14] Id. at 310-12.

[15] Pet’r’s Br. 24-25 (emphasis in original).

[16] A.R. at 174.

[17] Id. at 114-15.

[18] See Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011) (describing the inability to be open about membership in a protected group—their religion—as a “common form of persecution”); Muhur v. Ashcroft, 355 F.3d 958, 960 (7th Cir. 2004) (rejecting argument that applicant should avoid persecution by practicing religion covertly).

[19] A.R. at 114.

[20] Mr. Velasquez-Banegas repeatedly cites reports showing that police officers and private citizens have targeted LGBTQ individuals in Honduras. But, as noted above, Mr. Velasquez-Banegas failed to connect his HIV status with imputed sexual orientation. We therefore cannot consider the possibility of violence facing LBGTQ persons within the merits of his persecution claim based solely on his HIV status.

[21] Id. at 115.

[22] Id. at 116.

[23] Id. at 377-79.

[24] Id. at 382.

[25] See, e.g., Medhin v. Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003) (petitioner’s alleged loss of one job due to his ethnicity was at most, discrimination but not persecution); Zalega v. I.N.S., 916 F.2d 1257, 1260 (7th Cir. 1990) (“Although [the petitioner] complained that he could not get a government job commensurate with his education and training and that he could not obtain additional land to expand his fox farm, the economic disadvantage [the petitioner] suffered was minor.”).

[26] A.R. at 116.

[27] Id.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, persecution if deported to Honduras, persecution on account of his HIV status, withholding of removal | Leave a comment

CA7 affirms IJ removal order for voting twice in federal election in violation of federal law

Posted on February 22, 2017 by Mike Baker

IJ did not err in entering removal order for alien (native of Peru) who violated 8 USC section 1227(a)(6) by voting in federal election in violation of federal law. Fact that alien had otherwise unblemished record in U.S., was married to U.S. citizen and had three U.S.-citizen children did not require different result. Ct. rejected alien’s argument that driver’s license official, who assisted alien in registering to vote when alien applied for driver’s license, gave alien “official approval” to vote in federal election, where alien lied on driver’s license application by stating she was U.S. citizen.

Fitzpatrick, a citizen of Peru, had lived in the U.S. for three years when she applied for an Illinois driver’s license; she displayed her green card and her Peruvian passport, but checked a box claiming to be a U.S. citizen. As required by the motor-voter law, 52 U.S.C. 20503–06, the form contained a checkbox for registration as a voter. Fitzpatrick maintains that the clerk asked whether she wanted to register. She inquired “Am I supposed to?”; he replied: “It’s up to you.” She checked that box, was registered, and in 2006 twice voted in federal elections, violating 18 U.S.C. 611; 8 U.S.C. 1227(a)(6), provides for the removal of aliens who vote in violation of the law. On her application for citizenship, Fitzpatrick, who is married to a U.S. citizen, and has three U.S.-citizen (naturalized) children, honestly described her voting history. The BIA affirmed an order of removal. The Seventh Circuit denied relief, rejecting an “entrapment by estoppel” defense. Fitzpatrick did not make accurate disclosures when applying. She is literate in English and has no excuse for that misrepresentation. No one told her that aliens are entitled to vote or to register to vote. Fitzpatrick had time after receiving her voter-registration card to determine whether she was entitled to vote.

Fitzpatrick v. Sessions
Case Number: Nos. 15-2204 & 16-1864 Cons.
Decision Date: February 13, 2017
Federal District: Petition for Review, Order of Bd. of Immigration Appeals
Holding: Petition denied

______________________________
MARGARITA DEL PILAR FITZPATRICK, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
Nos. 15-2204, 16-1864.

United States Court of Appeals, Seventh Circuit.
Argued January 17, 2017.
Decided February 13, 2017.

Richard Hanus, for Petitioner.

Jennifer R. Khouri, for Respondent.

Laura Halliday Hickein, for Respondent.

Tim Ramnitz, for Respondent.

Petitions for Review of Orders of the Board of Immigration Appeals, No. A097 846 616.

Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge.

Margarita Del Pilar Fitzpatrick, a citizen of Peru, had lived in the United States for three years when she applied for a driver’s license in Illinois. She contends that when filling out the forms at the Department of Motor Vehicles she displayed her green card and her Peruvian passport—but she admits that she also checked a box claiming to be a citizen of the United States. The form sternly warns aliens not to check that box, and Fitzpatrick does not contend that she has any difficulty understanding written English. (She came to the United States in 2002 to study English in college, and after earning a certificate as a medical translator she spent some time working as an interpreter before training as a nurse.) As required by the motor-voter law, 52 U.S.C. §§ 20503-06, the form also contained a checkbox that would lead to registration as a voter. Fitzpatrick maintains that the desk clerk asked whether she wanted to register, and when she inquired “Am I supposed to?” he replied: “It’s up to you.” She checked that box, was duly registered, and in 2006 twice voted in elections for federal officials.

Aliens are forbidden to vote in federal elections. 18 U.S.C. §611. Another statute, 8 U.S.C. §1227(a)(6), provides for the removal of aliens who vote in violation of either state or federal law. After discovering that Fitzpatrick had voted in a federal election, the Department of Homeland Security initiated removal proceedings. An Immigration Judge and then the Board of Immigration Appeals (initially and when denying reconsideration) decided that she must indeed leave the United States, even though she has led a productive and otherwise-unblemished life in this country, is married to a U.S. citizen, and has three U.S.—citizen children. Her children were born in Peru and naturalized after arrival. Her own 2007 application for citizenship is what brought her 2006 voting to light, when response to questions asked of all applicants she honestly described her voting history.

Fitzpatrick acknowledges that she voted in apparent violation of §611, which does not require proof that the alien knew that only citizens can vote in federal elections. See Kimani v. Holder, 695 F.3d 666 (7th Cir. 2012). Nonetheless, she contends, she did not actually violate §611, because she had official approval to act as she did. Her lawyer calls this the “entrapment by estoppel” defense; we suggested in Keathley v. Holder, 696 F.3d 644 (7th Cir. 2012), that a better label would be “official authorization.” But names don’t matter.

The defense is available to someone who makes complete and accurate representations to a public official and then receives permission from that official, when acting within the scope of his or her authority. (We observed in Keathley that a high school principal can’t permit aliens to vote, but that voting officials may have at least apparent authority to do so.) Fitzpatrick cannot make out either ingredient of this defense.

First, she did not make accurate disclosures when applying. She checked the box claiming U.S. citizenship. She is literate in English and has no excuse for making that misrepresentation. As we observed in Kimani, statements such as “I didn’t read the form carefully” or “I didn’t think this through before acting” or “I didn’t understand the legal significance of what I was doing” may be explanations, but they are not excuses.

Second, no one told her that aliens are entitled to vote. Indeed, no one told her that aliens are entitled to register to vote. A clerk asked whether she wanted to register and added “It’s up to you.” That statement—apparently following a script that Illinois then required clerical officials to use—was a refusal to give advice, not an assurance that it was lawful to register. Federal law forbids state officials to say anything that will discourage an applicant for a driver’s license from registering to vote. 52 U.S.C. §20506(a)(5)(C). This statute leads to unhelpful responses such as the one Fitzpatrick received. What happened to Fitzpatrick and other aliens such as Keathley has led Illinois’s Secretary of State to revise the department’s Field Operations Manual to require clerks to remind applicants that citizenship is essential to voting, but the omission of that advice in 2005 still left Fitzpatrick with a noncommittal answer.

What’s more, even if the clerk had assured Fitzpatrick (as he did not) that she was entitled to register, that assurance differs from authorization to vote. Because different units of government have different requirements for voting, it may be proper for aliens to register even though they must take care not to vote in elections for certain offices. Fitzpatrick had time after receiving her voter-registration card to determine which elections she could participate in. Even a cursory search would have turned up the rule against an alien’s voting in a federal election—just as a cursory search would have revealed that a person registered in Illinois cannot vote for Governor of Indiana. Registration to vote simply does not imply authorization to vote in any election one chooses. Fitzpatrick is well educated and understands English; it is not too much to ask that she find out before voting whether an alien can cast a ballot in a federal election. States may deem it wise to inform all who register about the requirements for voting in particular elections, but failure to provide that advice does not amount to official authorization for aliens to vote in all elections.

The panel inquired at oral argument whether Fitzpatrick is the kind of person the Attorney General and the Department of Homeland Security want removed from the United States. The answer was yes—that consideration had been given to exercising prosecutorial discretion in Fitzpatrick’s favor, but that the possibility had been resolved adversely to her. That decision is entrusted to executive officials, leaving us no option other than to deny the petitions for review of the BIA’s decisions.

Posted in 18 U.S.C. 611; 8 U.S.C. 1227(a)(6), 7th Circuit, 7th Circuit Cases- Aliens, Removal of aliens who vote in violation, voting in federal election in violation | Leave a comment

CA7 affirms removal for Violation of Order of Protection to stay away from Petitioner, threats of violence and bodily injury not required

Posted on February 16, 2017 by Mike Baker

Court did not err in finding that alien was statutorily ineligible to obtain cancellation of removal relief, where alien had 2010 State of Illinois conviction for violating domestic order. Under 8 USC section 1227(a)(2)(E)(ii), alien is removable where court has determined that alien violated portion of order that provided for protection against credible threats of violence, repeated harassment or bodily injury to person for whom protection order was issued, and instant conviction precluded alien from obtaining cancellation of removal relief, where record showed that alien had pleaded guilty to charge alleging that he had harassed individual and violated injunction to stay away from said individual.

Garcia‐Hernandez entered the U.S. from Mexico without inspection in 2000. In 2010, Talavera, the mother of his children, obtained an order of protection against him. Weeks later, Garcia‐Hernandez was charged with violating that order and pled guilty. He was sentenced to 12 months of supervision. He was charged as removeable, 8 U.S.C. 1182(a)(6)(A)(i). Garcia‐Hernandez sought cancellation of removal under 8 U.S.C.1229b(b), which requires that the alien has been physically present in the U.S. for 10 years, has been a person of good moral character during those years, and that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a U.S. citizen or lawful permanent resident. The alien may not have been convicted of an offense under 8 U.S.C. 1182(a)(2), 1227(a)(2), or 1227(a)(3). The IJ found Garcia-Hernandez ineligible for relief because section 1227(a)(2)(E)(ii) disqualifies an alien who a court “determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury.” The charging document to which he pled guilty said that Garcia-Hernandez had harassed Talavera and violated the injunction to stay away from her. The BIA and Seventh Circuit upheld the decision, rejecting an argument that the section did not apply because the charging document did not say that he had actually made credible threats of violence or caused repeated harassment or bodily injury.

STRYDOM, 25 I&N Dec. 507 (BIA 2011) ID 3714 (PDF)

A conviction under section 21-3843(a)(1) of the Kansas Statutes Annotated for violation of the no-contact provision of a protection order issued pursuant to section 60-3106 of the Kansas Protection from Abuse Act constitutes a deportable offense under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2006).

________________________________________________________

MARTIN GARCIA-HERNANDEZ, Petitioner,
v.
DANA J. BOENTE, Acting Attorney General of the United States, Respondent.
No. 15-2835

United States Court of Appeals, Seventh Circuit.
Argued April 26, 2016.
Decided February 7, 2017.

Tim Ramnitz, for Respondent.

Nancy Canter, for Respondent.

Andrea M. Duron, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals No. A089-283-449.

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This case lies at the intersection of immigration law and legal measures to prevent domestic violence. Even if a state court does not impose severe punishment for an alien’s violation of a domestic protective order, the immigration consequences may be severe, as in this case.

Petitioner Martin Garcia-Hernandez, a citizen of Mexico, sought cancellation of removal, arguing that his removal would cause exceptional and extremely unusual hardship for his U.S.-citizen children. See 8 U.S.C. § 1229b(b)(1). An immigration judge concluded that he was statutorily ineligible for this discretionary form of relief because of a 2010 conviction for violating a domestic protection order in Illinois. See 8 U.S.C. § 1227(a)(2)(E)(ii). The Board of Immigration Appeals affirmed. On judicial review, we agree that Garcia-Hernandez’s conviction renders him ineligible for the relief he seeks. We deny the petition for review.

I. Factual and Procedural Background

Garcia-Hernandez entered the United States from Mexico without inspection in 2000. In February 2010, Sara Talavera, the mother of two of Garcia-Hernandez’s children, obtained an emergency court order of protection against him after having moved out of the home they shared. The protection order was soon extended to be effective for one year.

About a month later, Garcia-Hernandez was charged under 720 ILCS 5/12-3.4 (formerly 720 ILCS 5/12-30) with violating the protection order by “confronting the complainant [Talavera] at the protected address and harassing her” and with violating the provision in the protection order requiring him to stay away from Talavera, her children, and their residence whenever any of them was present. Garcia-Hernandez pled guilty. He was sentenced to twelve months of supervision and participation in a domestic-violence clinic.

Shortly after his conviction, Garcia-Hernandez was placed in removal proceedings and charged as inadmissible for being present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Garcia-Hernandez conceded that he was removable but said he intended to seek cancellation of removal for nonpermanent residents because of the hardship his children will face if he is removed. 8 U.S.C. § 1229b(b).

Removal may be cancelled under § 1229b(b)(1) if an alien has been physically present in the United States for ten years, has been a person of good moral character during those years, and establishes that removal would result in “exceptional and extremely unusual hardship” to the alien’s spouse, parent, or child who is a U.S. citizen or lawful permanent resident. There is one other requirement under § 1229b(b)(1): the alien may not have been convicted of an offense under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3).

The relevant provision here is § 1227(a)(2), which sets forth numerous provisions for crimes that will render an alien both removable and ineligible for discretionary cancellation of removal. The legal issue for the immigration judge, the Board, and now us is whether Garcia-Hernandez’s conviction for violating the protection order makes him legally ineligible for cancellation of removal under the terms of § 1227(a)(2)(E)(ii). That provision makes removable any alien who a court “determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued.” The immigration judge determined that Garcia-Hernandez’s offense qualified under (E)(ii) because the charging document to which he pled guilty said that he had harassed Talavera and violated the injunction to stay away from her. There is no doubt here that the protection order qualifies under (E)(ii) or that Garcia-Hernandez was the person enjoined by that order.

On appeal to the Board of Immigration Appeals, Garcia-Hernandez argued that § 1227(a)(2)(E)(ii) did not apply because the charging document did not say that he had actually made credible threats of violence or caused repeated harassment or bodily injury. In his view, he had failed to comply only with the protection order’s stay-away provision. The Board upheld the judge’s decision, adding that § 1227(a)(2)(E)(ii) is not limited to cases involving actual harassment or threats but also extends to violations of provisions meant to prevent those behaviors, such as no-contact or stayaway provisions.

II. Analysis

A. Categorical Approach and Modified Categorical Approach

To determine whether an alien’s prior criminal conviction qualifies as a removable offense under 8 U.S.C. § 1227(a)(2), courts apply the “categorical approach” or “modified categorical approach,” first adopted for domestic criminal law in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). The categorical and modified categorical approaches are triggered by statutes that spell out consequences for criminal convictions. See Moncrieffe v. Holder, 569 U.S. ___, 133 S. Ct. 1678, 1684-85 (2013) (“conviction” is the “relevant statutory hook” for applying categorical approach); cf. Nijhawan v. Holder, 557 U.S. 29, 39-40 (2009) (declining to apply categorical approach to loss element for crimes of fraud and deceit that involved losses of more than $10,000 under “aggravated felony” provision of immigration statute, 8 U.S.C. § 1101(a)(43)(M)(i)).

Section 1227(a)(2) spells out numerous categories of criminal offenses that will render an alien removable. All but three of those provisions are framed in terms of criminal convictions. The three exceptions are § 1227(a)(2)(B)(ii), which applies to “Any alien who is, or at any time after admission has been, a drug abuser or addict,” § 1227(a)(2)(F), which applies to aliens involved in human trafficking, and the provision at issue here, § 1227(a)(2)(E)(ii), which applies to those who violate protection orders. The full text of (E)(ii) provides:

Any alien who at any time after admission is enjoined under a protection order issued by a court and whom [sic] the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.

Much of the legal argument in this case has focused on whether the Illinois statute and charges to which Garcia-Hernandez pled guilty “categorically” involved violation of a portion of the protection order that involved “protection against credible threats of violence, repeated harassment, or bodily injury,” or whether the modified categorical approach might apply. At the time of oral argument, the statute appeared to be divisible, so that the modified categorical approach would apply. The Supreme Court’s later decision in Mathis v. United States, 579 U.S. —, 136 S. Ct. 2243 (2016), narrowed the field of statutes that can be deemed divisible, so we have taken a fresh look at the overall issue.

The text of (E)(ii) does not depend on a criminal conviction but on what a court “determines” about the alien’s conduct. Based on that significant textual difference between (E)(ii) and other provisions, we find that neither the categorical approach nor the modified categorical approach controls this case. What matters is simply what the state court “determined” about Garcia-Hernandez’s violation of the protection order.

The key language, “the court determines,” does not require a conviction of a particular kind or the categorical approach at all. What matters is what the court “determines.” Section 1227(a)(2)(E)(ii) makes clear that the protection order can be one that is issued and enforced in another proceeding (such as a divorce action in which a court holds the alien in contempt for violating the order). Given the reference to a “conviction” in § 1229b(b)(1), we assume that a criminal conviction is needed, but the focus on what the court “determines” points, as in Nijhawan, away from any sort of categorical test with respect to that particular element of the federal statute. If a court “determines” that the alien has engaged in conduct that violates a portion of the order that “involves protection against credible threats of violence, repeated harassment, or bodily injury,” that is enough for purposes of (E)(ii).

This emphasis on the court’s determinations about the alien’s conduct is consistent with the text of (E)(ii) and with the concurring opinion in Szalai v. Holder, which explains why use of the court’s determinations about actual conduct is appropriate in deciding whether an alien is removable under § 1227(a)(2)(E)(ii). See 572 F.3d 975, 982-87 (9th Cir. 2009) (Wu, J., concurring). In that case, the majority applied the categorical and modified categorical approaches to conclude that the petitioner’s violation of a “100 yard stay away provision” in a restraining order under Oregon law was one that involved protection against credible threats of violence, repeated harassment, or bodily injury, thereby satisfying § 1227(a)(2)(E)(ii). Id. at 982. Judge Wu’s concurring opinion argued that the language of § 1227(a)(2)(E)(ii) calls for a focus on the state court’s determinations rather than the categorical or modified categorical approaches. Id. at 984-86.[1]

In this case, the immigration judge looked at documents in the record of conviction to determine the portions of the protection order that Garcia-Hernandez was charged with and convicted of violating. The state court determined that Garcia-Hernandez violated the “stay away” portion of the protection order by going to Talavera’s residence and confronting her. The immigration judge thus found that Garcia-Hernandez, by violating the protection order’s “stay-away” provision, engaged in conduct that violated portions of the protection order that “involve[d] protection against credible threats of violence, repeated harassment, or bodily injury.” § 1227(a)(2)(E)(ii).

Under Board precedent, a violation of a stay-away provision fits within the scope of § 1227(a)(2)(E)(ii). In In re Strydom, 25 I. & N. Dec. 507, 510-11 (2011), the Board broadly interpreted the language of (E)(ii) (“involves protection against credible threats of violence, repeated harassment, or bodily injury”) to include even provisions requiring offenders to stay away from victims or to refrain from contacting them. The Board explained that the purpose of such provisions is to prevent future threats of violence, harassment, or injury—regardless of whether the offender, in violating the order, actually had engaged in these behaviors. Id.

The Tenth Circuit has deferred to the Board’s interpretation of § 1227(a)(2)(E)(ii) to cover a no-contact provision, see Cespedes v. Lynch, 805 F.3d 1274, 1277-78 (10th Cir. 2015), and the Ninth Circuit, in two decisions preceding Strydom, construed the language of § 1227(a)(2)(E)(ii) similarly, see Szalai, 572 F.3d at 982; Alanis-Alvarado v. Holder, 558 F.3d 833, 839-40 (9th Cir. 2009). We agree with the Board’s reading of § 1227(a)(2)(E)(ii) and agree that the state court’s determinations here render Garcia-Hernandez ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(C).[2]

The petition for review is therefore DENIED.

[1] See also Hoodho v. Holder, 558 F.3d 184, 189 n.2 (2d Cir. 2009) (noting that not every removability provision requires categorical approach, and leaving question open regarding § 1227(a)(2)(E)(ii)).

[2] On judicial review, Garcia-Hernandez has raised a new argument about which side bore the burden of proof on the issue. The argument was waived by failing to raise it before the Board, but the burden of proof would not matter here. The state court’s findings are sufficiently clear.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Domestic battery, Order of Protection, Section 1227(a)(2)(E)(ii), Violation of Order of Protection | Leave a comment

Illinois Supreme Court holds that counsel was required to give Defendant only a general warning of possibility of immigration consequences

Posted on September 30, 2016 by Mike Baker

Defendant pled guilty to burglary and was sentenced to 3 years probation. At time of plea, Defendant was a citizen of Dominican Republic, and a resident alien of U.S. based on his marriage to a U.S. citizen. During plea hearing, judge advised him that a burglary conviction may have consequences of deportation, exclusion from admission to U.S., or denial of naturalization under laws of U.S. Defendant later filed motion to withdraw his guilty plea, alleging ineffective assistance of counsel and involuntariness. The immigration consequences of conviction were not “succinct, clear, and explicit”, so as to require a warning by counsel that deportation was presumptively mandatory. Thus, counsel was required to give Defendant only a general warning of possibility of immigration consequences. Defendant sufficiently alleged that his counsel’s performance was constitutionally deficient, as counsel gave him no advice about immigration consequences before entering his guilty plea. Court’s admonishments cured any prejudice, and thus court properly denied Defendant’s motion to withdraw guilty plea.(GARMAN, FREEMAN, THOMAS, KILBRIDE, KARMEIER, and THEIS, concurring.)

“Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward ***, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” (Emphasis added.) Id. at 369.

People v. Valdez
Illinois Supreme Court 2016 IL 119860
September 22, 2016
District: 3d Dist
Holding: Appellate court reversed; circuit court affirmed.

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Posted in Guilty Pleas, Immigration Consequences of Criminal Convictions, ineffective assistance of counsel | Leave a comment

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Illinois Supreme Court holds that counsel was required to give Defendant only a general warning of possibility of immigration consequences

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