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

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

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

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

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

EASTERBROOK, Circuit Judge.

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

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

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

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

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

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

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

The petition for review is dismissed for want of jurisdiction.

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

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

April 2016 Visa Bulletin

Visa Bulletin For April 2016

Number 91
Volume IX
Washington, D.C

View as Printer Friendly PDF

 

A. STATUTORY NUMBERS

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

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

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

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

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

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

FAMILY-SPONSORED PREFERENCES

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

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

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

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

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

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

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

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

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

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

B.  DATES FOR FILING FAMILY-SPONSORED
     VISA APPLICATIONS

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

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

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

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

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

EMPLOYMENT-BASED PREFERENCES

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

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

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

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

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

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

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

Employment- Based

All Chargeability Areas Except Those Listed

CHINA – mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01SEP12 08NOV08 C C
3rd 15FEB16 15AUG13 08AUG04 15FEB16 01MAY08
Other Workers 15FEB16 01MAR07 08AUG04 15FEB16 01MAY08
4th C C C C C
Certain Religious Workers C C C C C

5th
Non-Regional
Center
(C5 and T5)

C 01FEB14 C C C

5th
Regional
Center
(I5 and R5)

C 01FEB14 C C C

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

B.  DATES FOR FILING OF EMPLOYMENT-BASED
     VISA APPLICATIONS

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

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

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

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

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

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

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

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

Region All DV Chargeability Areas Except Those Listed Separately  
AFRICA 23,800  
ASIA 5,800

Except:
Nepal:      5,100

EUROPE 24,500  
NORTH AMERICA (BAHAMAS) 6  
OCEANIA 950  
SOUTH AMERICA,
and the CARIBBEAN
925  

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

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

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

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

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

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

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

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

E.  OBTAINING THE MONTHLY VISA BULLETIN

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

listserv@calist.state.gov

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

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

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

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

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

VISABULLETIN@STATE.GOV

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

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

   
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Illinois Supreme Court on immigration consequences of entering a guilty plea

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

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

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

Supreme Court of Illinois.
Filed November 19, 2015.

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

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

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

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

OPINION

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

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

¶ 2 I. BACKGROUND

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

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

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

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

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

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

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

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

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

¶ 12 II. ANALYSIS

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

¶ 14 Section 113-8 of the Code states:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶ 35 III. CONCLUSION

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

¶ 37 Appellate court judgment affirmed.

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

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

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