CA7 affirms BIA denial of Asylum, declined remand because no evidence presented to show that new claim was previously unavailable

Posted on April 21, 2017 by Mike Baker

Barragan-Ojeda v. Sessions, No. 16-2964 (7th Cir. 2017)

Barragan‐Ojeda, an 18-year-old citizen of Mexico, entered the U.S. without authorization in 2013. He was apprehended at the border and requested asylum. Before an immigration judge, he claimed that a Mexican criminal gang had persecuted him. He mentioned that he had been the victim of employment discrimination because he was effeminate, but denied that he was gay. The IJ denied asylum. On appeal to the Board of Immigration Appeals, Barragan‐Ojeda filed an affidavit asserting that he was gay and that he had been persecuted because of his sexual orientation. The Board affirmed the denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board declined to remand. The Seventh Circuit denied a petition for review. Barragan‐Ojeda’s due process challenge was not presented to the Board and, in any event, the record did not indicate that the IJ’s conduct of the hearing evinced the kind of impatience and bias that might be characterized as a due process violation. The Board correctly evaluated the new evidence submitted by Barragan‐Ojeda under the standards applicable to a reopening and correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

Download Barragan-Ojeda v. Sessions, No. 16-2964 (7th Cir. 2017)16-2964-2017-04-05 (PDF)

____________________________________________
JUAN CARLOS BARRAGAN-OJEDA, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
No. 16-2964.

United States Court of Appeals, Seventh Circuit.
Argued December 1, 2016.
Decided April 5, 2017.

Suzanne Nicole Nardone, for Respondent.

Carlos Alberto Quichiz, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals, No. A206-516-229.

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Juan Carlos Barragan-Ojeda, a native and citizen of Mexico, entered the United States without authorization in 2013. He was apprehended at the border and requested asylum. Appearing pro se before the immigration judge (“IJ”), he claimed eligibility for asylum because a Mexican criminal gang had persecuted him. At the conclusion of his testimony, he briefly mentioned that he had been the victim of discrimination in employment because he was effeminate, but, when questioned by the IJ, he denied that he was gay.

The IJ denied asylum, and Mr. Barragan-Ojeda appealed to the Board of Immigration Appeals (“Board” or “BIA”). There, represented by counsel, Mr. Barragan-Ojeda filed an additional affidavit asserting facts not before the IJ: he claimed that he was gay and that he had been persecuted because of his sexual orientation. The Board adopted and affirmed the IJ’s denial of asylum on the ground asserted in the original application. With respect to the new ground, the Board treated the appeal as a motion to remand and determined that the requirements for such a motion were not satisfied. Mr. Barragan-Ojeda now petitions for review in this court. He submits that the IJ denied him due process in the conduct of the proceedings and that the Board erred in denying him asylum on the basis of his sexual orientation.

We deny the petition for review. Mr. Barragan-Ojeda’s due process challenge is premised on the IJ’s conduct of the hearing; this sort of claim must be presented to the Board before it can be presented here, and Mr. Barragan-Ojeda did not do so. In any event, nothing in the record suggests that the IJ’s conduct of his hearing evinced the kind of impatience and bias that might be characterized as a violation of due process of law.

The Board correctly evaluated the new evidence submitted by Mr. Barragan-Ojeda under the standards applicable to a reopening. It correctly denied relief because he submitted no evidence to establish that his new claim was previously unavailable.

I

BACKGROUND

Mr. Barragan-Ojeda was born in Mexico on March 6, 1995 and entered the United States in July 2013 at age 18. He was apprehended at the border and requested asylum. The Department of Homeland Security (“DHS”) then placed him in removal proceedings. The IJ continued his case for over a year, in part to give him an opportunity to locate an attorney if he wished to be represented in proceedings.[1] On April 23, 2015, Mr. Barragan-Ojeda appeared pro se before the IJ for an individual merits hearing on his asylum claim. His current attorney asserts in his brief that Mr. Barragan-Ojeda made a preliminary, off-the-record request to the IJ for a closed asylum hearing, but that the IJ denied the request. Members of Mr. Barragan-Ojeda’s family were present.

Before the IJ, Mr. Barragan-Ojeda testified, with the assistance of an interpreter, that he had entered the United States in 2013 to “save [his] life,” which was threatened by a large criminal gang in Mexico called the Caballeros Templarios.[2] His family resides in the Mexican state of Michoacán, where they own land and where his father is a farmer and a proprietor of a liquor store. Members of the gang extorted money from his family from 2012 until 2013, when his father refused to continue paying them. At that point, his father “tried to get us out of the town.”[3] Mr. Barragan-Ojeda came to the United States, but his parents elected to stay in the same town in Michoacán. Mr. Barragan-Ojeda stated that after he left Mexico, shots were fired through the windows of his parents’ home. He also claimed that his family members were victims of extortion. When asked if “all businessmen or all people in the area” were similar targets, he replied, “Yes. Yes. They ask for every business you have, for every car you have, for every motorcycle.”[4] His parents had not relocated, he continued, because they “have their whole life there. They have their houses. They have their parcels. They have their land.”[5] His family also had not sought government protection because “the government is also joined in with organized crime.”[6]

Mr. Barragan-Ojeda supported his application with two articles in Spanish discussing the murder of his uncle. When asked, he said that he did not know the circumstances of his uncle’s death. He also submitted a letter from his father. The letter noted that his uncle had been shot to death in their hometown and that the family was in danger and afraid of the police. It also noted, for the first time, that Mr. Barragan-Ojeda had received a phone call in which he had been “threatened that he would be killed.”[7] According to his father, he would be targeted “because he was cooperating with the self-defense groups because he would take . . . food to those that are in the movement.”[8] When asked by the IJ about this statement, Mr. Barragan-Ojeda clarified that, on one occasion, his grandmother had sent plantains to a group of local people opposing the extortion by the gang, and Mr. Barragan-Ojeda had dropped off the box. Afterwards, he received a threatening phone call, likely because gang informants were part of the group.

The IJ began an oral ruling in which he denied Mr. Barragan-Ojeda’s claim on the basis that the harm he faced was too generalized and not tied to a protected ground; specifically, he had not identified a viable social group. Before finishing his ruling, however, the IJ engaged Mr. Barragan-Ojeda in one final exchange:

Q. Sir, is there anything else you want to tell me concerning your fear of going back to Mexico?

A. It’s just that there are many things.

Q. Well, is there any other reason why you fear going back other than what you have told me?

A. What about discrimination for being effeminate?

Q. Well, that doesn’t qualify you for asylum. I mean are you saying that you’ve been mistreated by someone or people discriminate against you because of the way you look?

A. Yes.

Q. But what difficulties have you had?

A. Well, at work, when I would look for work they would tell me that they needed men and not little girls.

Q. I mean do you think, are you a homosexual or not?

A. No.

Q. But you think people perceive you that way.

A. Yes.

[Q.] Well, you left Mexico shortly after graduating high school. The fact that you believe you faced discrimination would not constitute persecution. So I don’t see that you qualify to remain in the United States under the law.[[9]]

The IJ then continued an oral decision in which he noted that Mr. Barragan-Ojeda appeared to be attempting to define his social group as victims of extortion in Mexico, but that this group, defined only by a relationship to the persecutors, was not sufficient under Board precedent. The IJ also examined several other potential social groups, including those who support the self-defense group, or young men from families that had been extorted by criminal gangs, but he determined that these groups were too generalized and that the record was insufficient to establish a connection between these groups and his mistreatment. In the IJ’s view, the primary goal of the violence was extortion, not punishment.

Finally, the IJ turned to his last exchange with Mr. Barragan-Ojeda. He concluded that, although homosexuals are considered a social group for purposes of asylum claims, Mr. Barragan-Ojeda had denied being homosexual and “his limited testimony concerning job prospects because of his appearance does not lead this Court to conclude that he faces a more likely than not chance of persecution on account of being an imputed homosexual.”[10]

Before the Board of Immigrations Appeals, Mr. Barragan-Ojeda, now with the support of retained counsel, submitted an additional one-paragraph statement, the translation of which states, in full:

I was drinking with two drug-trafficking friends who were using cocaine after beginning to molest me and they became enraged because I told them to stop and one of them took a gun and the other started physically abusing me and the other deceived me. I thought I was going to die at this moment and I thought they would kill me and carry me to the river to shut me up. Out of fear I did not tell my father but instead told a friend of mine what had occurred, that I was gay, and that I was frightened because it was dangerous here. If they saw me the next day they were going to wake me up to kill me to ensure that nothing was said about what happened on June 20th[,] 2013. I could not live a normal life in the village and I went on the streets with fear. After the day July 2, 20[1]3, I received a call to carry food to the community police and they told me that I was a dead man for cooperating with the community police who now had called the rural police and federal police. They came to us in the night outside the house of a friend who wanted to obligate to say where they sold drugs to us. We did not know because we did not use them. Also I am afraid to return to Mexico because this guy apparently is involved with politics and he is the ex-hus-band of my aunt, the sister of my father and is a principal member of the rural police who before were called the community police. Also, I do not want to return to Mexico because of the discrimination against people with my sexual appearance.[[11]]

Mr. Barragan-Ojeda also submitted a number of secondary sources, including the State Department Country Report for Mexico, four short news items from the Mexican press about incidents of violence against homosexuals, and one news item about the arrest of a leader of the Caballeros Templarios. Notably, in his brief to the Board, he made only passing reference to the original claims made before the IJ. Instead, he focused on his new claim of rape in his additional statement and on the persecution faced by gay men in Mexico.[12] The brief contends, without citation to record evidence in the form of a statement from Mr. Barragan-Ojeda or otherwise, that Mr. Barragan-Ojeda had not disclosed his sexual orientation at the first hearing because he was not ready to admit it publicly given his youth and inexperience, his upbringing and the rejection of homosexuality in Mexican culture, his shame as a rape victim, his nerves, his lack of counsel, and the presence of members of his family in the courtroom. The brief asserts, again without citation to evidence, that the IJ had denied a request to close the hearing.

The Board denied relief. It first adopted and affirmed the decision of the IJ denying the application for asylum on the grounds originally presented, namely extortion by the Caballeros Templarios. The Board held that Mr. Barragan-Ojeda had not established “that one central reason for the threats of harm by the Caballeros Templarios was on account of his membership in a particular social group or on account of any other protected ground.”[13] The Board further ruled that his “vague testimony that he faced employment discrimination due to his effeminate demeanor also does not establish the basis for an asylum claim.”[14]

The Board then turned to the new evidence submitted with the appeal, noting that Mr. Barragan-Ojeda had claimed “for the first time on appeal that he is a homosexual and was persecuted and fears persecution on account of his status as a homosexual.”[15] The Board noted that, under its precedents, an appeal “that presents a previously unraised basis for relief,” including claims based on a new protected ground or “the same protected ground . . . predicated on a new or substantially different factual basis” rather than one “that merely clarifies or alters the initial claim,” is treated as a “new application.”[16] The sexual orientation and assault basis for the claim was new, the Board concluded, and, therefore, would be treated as a motion to remand to the IJ and assessed under the same standard as a motion to reopen. That standard, found at 8 C.F.R. § 1003.2(c)(1), could be met only if the alien presented evidence that “was not available and could not have been discovered or presented at the former hearing.” The Board concluded that Mr. Barragan-Ojeda had not satisfied this requirement. His appellate brief to the Board claimed that his declaration regarding his sexual orientation and the sexual assault was not presented to the IJ “due to his youth, his lack of representation, and his fear of admitting that he identifies as a homosexual.”[17] The Board noted, however, that Mr. Barragan-Ojeda was “18 years old when he was placed in removal proceedings, was advised of the privilege of being represented by counsel, and proceedings were continued to allow him an opportunity to retain counsel before the merits hearing was held more than a year and a half after he first appeared before the [IJ].”[18] Finally, the Board noted that Mr. Barragan-Ojeda’s affidavit did not address any of these matters.

II

DISCUSSION

In his petition for review to this court, Mr. Barragan-Ojeda repeats the position he took before the Board. He declines to challenge the decision of the IJ and the Board with respect to the extortion and violence his family faced from the Caballeros Templarios. He first asserts various due process challenges to his proceedings before the IJ. He then focuses on the sexual-orientation-based claim that he asserted for the first time on appeal to the Board. More specifically, he contends that the IJ violated his right to due process of law when he denied Mr. Barragan-Ojeda’s off-the-record request for a closed hearing and in the IJ’s conduct of the hearing, especially in the judge’s questioning of Mr. Barragan-Ojeda. He next argues that his sexual orientation disclosure is not “new” evidence, but simply a clarification of his prior testimony. He also maintains that his testimony was credible throughout his proceedings. Finally, he contends that, as a homosexual, he is within a particular social group and has established his eligibility for asylum.

A.

We first examine Mr. Barragan-Ojeda’s claim that he was denied due process of law when the IJ denied his request, made before the record of proceedings was opened, that the proceedings be closed and the gallery be cleared.[19] He also asserts that the IJ subjected him to inappropriate questioning that amounted to a cross-examination.[20]

As the Government’s brief correctly notes, Mr. Barragan-Ojeda did not raise these due process challenges before the Board. “Although due process claims generally do not require exhaustion because the BIA does not have authority to review constitutional challenges, when those issues involve procedural errors correctable by the BIA, applicants must raise such claims as part of their administrative appeal.” Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004). Because the Board had the authority to correct the kinds of procedural failings asserted in this case,[21] Mr. Barragan-Ojeda was required to raise them in the course of his administrative appeal. We therefore do not consider the substance of these claims.

For the sake of completeness, however, we note that, even if Mr. Barragan-Ojeda had preserved these claims by presenting them to the Board, they would not warrant relief. First, Mr. Barragan-Ojeda has based his claim about the alleged denial of closure of proceedings solely on unsupported assertions in his brief, without citation to any evidence such as a supplemental declaration filed with the Board. Therefore, neither the Board nor this court has any basis for establishing that these off-the-record conversations had occurred.

As to the contention that the IJ took on the role of the Government attorney, Mr. Barragan-Ojeda cites no specific examples of inappropriate comments, interruptions, or anything else similar to IJ conduct we previously have found problematic. The statute specifically allows the IJ to “receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1) (emphasis added). We have found no due process violation when an IJ, using these statutory authorities, merely has taken an active and impartial role in the proceedings. When the IJ does not demonstrate “impatience, hostility, or a predisposition against” an alien’s claim, and where the questions assisted in the development of the record on relevant points, the mere fact that the IJ elicited testimony is not inappropriate and certainly does not raise due process concerns. Hasanaj v. Ashcroft, 385 F.3d 780, 784 (7th Cir. 2004).[22] “An IJ, unlike an Article III judge, is not merely the fact finder and adjudicator but also has an obligation to establish the record.” Id. at 783 (internal quotation marks omitted) (quoting Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002)). Particularly with a pro se respondent such as Mr. Barragan-Ojeda, fair questioning by the IJ often is required to obtain information from the alien necessary for a reasoned decision on the claim. The authority can be misused, and we have not hesitated to grant an alien’s petition where the IJ’s conduct has been hostile or abusive, or has prevented rather than facilitated the creation of an evidentiary record in support of an alien’s claim. See, e.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir. 2005) (noting frequent interruptions and hostility toward the alien by the IJ); Podio v. I.N.S., 153 F.3d 506, 510 (7th Cir. 1998) (finding a due process violation based on the IJ’s impatience, frequent interruptions, and arbitrary refusal to hear testimony that would have corroborated the alien’s case). Mr. Barragan-Ojeda’s general complaints about the IJ’s conduct simply do not rise to this level. Indeed, we have examined the transcript of the proceedings before the IJ. That record reveals no basis for Mr. Barragan-Ojeda’s contention. The IJ carefully and thoroughly asked him about his claim and explored alternate characterizations of the claim that might allow relief. There is no basis for an allegation of unfairness.

B.

We now consider Mr. Barragan-Ojeda’s contention that he is eligible for asylum on the basis of his sexual orientation and as a victim of sexual assault. These grounds were raised for the first time before the Board and supported there by a short supplemental declaration. The Board treated this matter as a motion to remand or reopen for consideration of new evidence. It relied on its own decision in Matter of M—-A—-F—-, 26 I. & N. Dec. 651 (BIA 2015), which held that an asylum claim “that presents a previously unraised basis for relief,” including one “based on the same protected ground” but “predicated on a new or substantially different factual basis,” is a “new application.” Id. at 655. The Board rejected Mr. Barragan-Ojeda’s argument that he simply was clarifying or slightly altering his claim. Rather, it held that he had presented a new claim that had to be treated as a motion to reopen.[23]

The Board was on solid ground in concluding that the mere prior mention of effeminacy and employment-related discrimination was insufficient to raise within his original claim an entirely new narrative of sexual orientation, sexual assault, and discrimination against gay men in Mexico. Indeed, even if we were to consider the sexual orientation basis to have been raised effectively in the earlier proceeding because of his testimony about effeminacy, his appellate submissions introduce facts “substantially different from those in the earlier application.” Id. at 655. Mr. Barragan-Ojeda’s request for asylum is not simply presented in more detail, it is wholly transformed by the new assertions he made before the Board.

Furthermore, even if his claim before the Board could be characterized as a continuation of the original application, the Board had no authority to evaluate on its own that factual submission. The Board cannot make factual findings in the course of an appeal; the regulations instruct a party seeking to introduce new facts into the evidentiary record to submit a motion to remand.[24] We have acknowledged that such motions, which are “really in the nature of a motion to reopen,” should be evaluated under the substantive standards for reopening set forth in 8 C.F.R. § 1003.2(c)(1). Darinchuluun v. Lynch, 804 F.3d 1208, 1217 (7th Cir. 2015) (quoting Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992)). The applicable regulations provide, moreover, that a motion “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1).

In any event, such a motion should be granted only when the “evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” Id. (emphasis added). Finally, in the case of discretionary relief such as asylum, a motion to reopen should not be granted if the ability to seek “relief was fully explained” in the course of earlier proceedings “and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.” Id.

The Board appropriately concluded that Mr. Barragan-Ojeda’s additional submissions on appeal did not meet the requirements for a motion to remand. Specifically, it correctly ruled that his motion was not “accompanied by evidence which was not available and could not have been discovered or presented at the former hearing.”[25] Counsel’s brief suggested that “his youth, his lack of representation, and his fear of admitting that he identifies as a homosexual” prevented him from presenting the full facts before the IJ.[26] As the Board noted, however, Mr. Barragan-Ojeda’s own supplemental “affidavit d[id] not address his reasons for making this claim for the first time on appeal.”[27] Under these circumstances, the attorney’s assertions about Mr. Barragan-Ojeda’s state of mind before the IJ simply do not suffice to establish that reopening was warranted. See INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984) (noting that, in request to reopen, “[c]ounsel’s unsupported assertions in respondent’s brief do not establish that respondent could satisfy” the requirements for relief).[28] In short, even if the claim of persecution on the ground of homosexuality had been properly before the Board, it could not have considered that matter; nor could it have remanded the matter for further proceedings before the IJ.

Conclusion

Mr. Barragan-Ojeda has not demonstrated that he was denied due process of law by the IJ’s considering his asylum claim. The Board was on solid ground in evaluating Mr. Barragan-Ojeda’s claim as a motion to remand. His submissions on appeal amounted to a wholesale replacement of his original requests for relief before the IJ, supported by entirely new facts. On the merits of a request for remand, Mr. Barragan-Ojeda created no evidentiary record of his reasons for failing to disclose his sexual orientation claim before the IJ. Without any such evidence, the Board had no basis to conclude that the evidence he sought to introduce on appeal was previously unavailable. The Board therefore did not err in denying a remand to present his new evidence.

PETITION DENIED.

[1] The IJ gave him a list of organizations that could assist him at little or no cost.

[2] A.R. at 249.

[3] Id. at 251 (testimony of Mr. Barragan-Ojeda).

[4] Id.

[5] Id. at 252.

[6] Id.

[7] Id. at 255.

[8] Id.

[9] Id. at 258.

[10] Id. at 219.

[11] Id. at 48.

[12] His briefs to the Board and to this court both also state that he was “castrated” in Mexico, but reference only his testimony regarding discrimination. See Pet’r’s Br. 2. The claim appears, therefore, to be metaphorical.

[13] A.R. at 3.

[14] Id. (citing Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th Cir. 2007), for the principle that discrimination falls short of persecution).

[15] Id. at 4.

[16] Id. (internal quotation marks omitted).

[17] Id. (opinion of the Board).

[18] Id. at 4-5.

[19] See 8 C.F.R. § 1240.11(c)(3)(i) (providing that the IJ “shall inquire” whether the alien requests closure of proceedings and that they are to be “open to the public unless the alien expressly requests” otherwise).

[20] See, e.g., Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538-39 (7th Cir. 2005) (holding that the IJ violated the alien’s right to due process in part by “questioning [that] clearly assume[d] the role of counsel for the Government”).

[21] As we have explained:

Before we can reach most issues, however, the alien is required to raise them before the BIA. The only exception is where the BIA itself would be powerless to address the problem, as might be the case with some fundamental constitutional claims. As we have noted before, however, many due process arguments are based on procedural failings that the BIA is capable of addressing. In those instances, the alien must exhaust his or her remedies at the BIA before bringing the claim before this court.

Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir. 2006) (emphasis added) (citations omitted). The Board would not have been powerless to address the issues raised here. On the desire to testify in a closed hearing, we have held that where “the Board could have addressed” the claim by “remand[ing] the case to the IJ for another hearing,” the failure to exhaust a due process claim is not excused. Lin v. Holder, 630 F.3d 536, 542 n.2 (7th Cir. 2010). We also have acknowledged that claims of bias on the part of the IJ, such as would be evident from inappropriate questioning, are resolvable by the Board in the first instance. Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008) (“There are literally dozens of Board decisions resolving claims of bias. When bias has been established, the Board has the authority to remand a case for a new hearing before a different IJ, and our research reveals that the BIA has done so on multiple occasions. . . .”). These types of objections relating to the conduct of the hearing are distinguished from those the Board cannot resolve, such as constitutional challenges to statutory or regulatory provisions. See, e.g., Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006).

[22] In Hasanaj v. Ashcroft, 385 F.3d 780, 784 (7th Cir. 2004), we reviewed multiple instances of the IJ questioning the petitioner and noted: “These questions were to develop the record with whatever the Petitioner had to offer for his case. The questions reflect what the IJ still needed to know in order to make a fully informed decision. There are no questions, or group of questions that indicate that this IJ was anything but thorough and fair in his obligation to this Petitioner.”

[23] A.R. at 4 (citing Matter of Ige, 20 I. & N. Dec. 880, 884 (BIA 1994)).

[24] 8 C.F.R. § 1003.1(d)(3)(iv) provides:

Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.

[25] A.R. at 4; see also 8 C.F.R. § 1003.2(c)(1).

[26] Id. (opinion of the Board).

[27] Id. at 4 n.1.

[28] We need not consider, therefore, whether any of the reasons counsel proffers could justify, on the appropriate record, a failure to mention sexual orientation earlier in the removal proceedings. Cf. Moab v. Gonzales, 500 F.3d 656, 661 (7th Cir. 2007) (concluding that, in a credible fear interview, it was “reasonable that [the petitioner] would not have wanted to mention his sexual orientation for fear that revealing this information could cause further persecution as it had in his home country”).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, Motions to Reopen, Persection of gays in Mexico, political opinion | Leave a comment

CA7 vacated BIA denial of untimely Motion to Reopen for ignoring evidence of changed circumstances in both Sudan or South Sudan

Posted on April 20, 2017 by Mike Baker

Arej v. Sessions, No. 15-2061 (7th Cir. 2017)

Bd. erred in affirming IJ’s denial of alien’s motion to reopen his removal proceedings that previously resulted in order directing alien’s removal to Sudan, where purpose of motion to reopen was to obtain opportunity to file late asylum application in which alien alleged that his removal to either Sudan or South Sudan would subject him to either religious persecution or to dangerous civil war. Record showed that alien had filed motion to reopen beyond applicable 90-day deadline for doing so, and while Bd. found that alien had failed to present evidence of changed circumstances in either Sudan or South Sudan so as to explain late filing of motion to reopen, Ct. of Appeals found that new consideration of alien’s motion to reopen was required, where Bd. had ignored evidence of changed circumstances in both Sudan or South Sudan.

In 2011 the southern half of Sudan (predominantly Muslim) broke away to form the Republic of South Sudan, the population of which practices Christianity or African traditional religion. Arej, born in South Sudan, was sent as a child to live in the north, where he concealed his Christian faith and his southern ethnicity. He eventually fled to Egypt. He was admitted to the U.S. as a refugee in 2005. He remains a citizen of Sudan. In the U.S., Arej committed assaults; one resulted in a death. After he completed his two-year prison sentence, an IJ ordered him removed to Sudan. Arej sought asylum on the ground that South Sudan was “increasingly volatile and dangerous.” He had missed the 90‐day deadline for filing a motion to reopen and sought an exception on the basis of changed circumstances since the issuance of the removal order. Removed to the north, Arej would be in danger as a southerner, but civil war had broken out in South Sudan; it was reported that 20 percent of the population had been displaced and an “untold number” killed. The IJ denied Arej’s motion. The BIA dismissed an appeal. The Seventh Circuit vacated, finding that the BIA ignored the growing violence in the south and U.N. concerns about genocide, which constituted evidence that conditions have materially changed.

_______________________
DENG AREJ, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
No. 15-2061

United States Court of Appeals, Seventh Circuit.
Argued March 1, 2017.
Decided March 28, 2017.

Jamie M. Dowd, for Respondent.

Jonathan A. Robbins, for Respondent.

Andrew Nathan O’Malley, for Respondent.

Emily C.R. Vermylen, for Petitioner.

Alex Kardon, for Petitioner.

Rory K. Schneider, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals, No. A094-549-699.

Before POSNER, SYKES, and HAMILTON, Circuit Judges.

POSNER, Circuit Judge.

The Sudan is a very large region in northeastern Africa, the site of a number of ancient civilizations that flourished along the Nile. It became an independent nation in 1956 (before that it had been controlled by Britain and Egypt), but since 2011 it has accommodated two nations—the Republic of the Sudan and the Republic of South Sudan. Until 2011, when the southern half of the nation broke away to form the Republic of South Sudan, the Sudan was the largest nation in Africa.

The population of the Republic of the Sudan is almost entirely Muslim, whereas most of the population of the Republic of South Sudan practices Christianity or African traditional religion. The religious difference between the two nations is germane to this immigration case, as we’ll see.

The petitioner, Deng Arej, was born in South Sudan before it was an independent nation, and was sent as a child to live in the northern part of Sudan because his parents were afraid that if he remained in the south he’d be drafted into the south’s army as a child soldier. When relocated to the north he concealed both his Christian faith and his southern ethnicity to avoid being killed by northern soldiers. Later, fearing that he would be drafted into the northern army, he fled to Egypt. He was admitted to the United States as a refugee in 2005. Though a native of South Sudan, now as we said an independent nation, he remains a citizen of the Republic of the Sudan.

Once in the United States, Arej committed a series of assaults (one in a fight that resulted in a death, although he was not convicted of murder) and was sentenced to two years in prison. In April 2014, after he completed his prison sentence, an immigration judge ordered him removed (i.e., deported) to the Republic of the Sudan. He might have preferred to be removed to South Sudan, now that it’s an independent nation, as he is of South Sudanese origin and a Christian—but the record does not say which nation he prefers: probably, as we’ll see, neither. There have been previous removals of Sudanese immigrants, but it is unclear how many of them were removed to the northern republic and how many to the southern, and how many removed to one of the two countries moved or tried to move to the other.

In January 2015, awaiting removal more than eight months after having been ordered removed, Arej sought U.S. asylum on the ground that South Sudan (to which he may have intended to move from the Republic of the Sudan were he removed to that republic) was “increasingly volatile and dangerous” and by May 2014 on the brink of civil war. And as he wasn’t even a citizen of the country, he might be unable to obtain protection from its government. He may have thought it obvious that he shouldn’t be removed to the north either, in view of his vulnerability to persecution there, being Christian; in any event he was opposing, on plausible grounds, removal to either country.

He had missed the 90-day deadline for filing a motion to reopen the proceedings, however, which would have allowed him to petition for asylum. But he sought an exception to the deadline on the basis of changed circumstances since the issuance of the removal order. A civil war in South Sudan had broken out in December 2013 and by February 2015 a South Sudanese legal scholar was quoted in evidence that Arej submitted to the Board of Immigration Appeals as reporting that 20 percent of his country’s population had been displaced and an “untold number” of them killed. Removed to the north, Arej would be in danger as a southerner, but if therefore he fled to the south, he would find himself in the midst of a civil war. He was between a rock and a hard place.

But the immigration judge denied Arej’s motion to reopen (a motion that if granted would have made it possible for him to apply for asylum in the United States), remarking that Arej “states no facts constituting changed circumstances.” He appealed to the Board of Immigration Appeals, which however dismissed his appeal perfunctorily, remarking—inaccurately—that the fact that there was a “`[civil] war. . . in progress [in South Sudan]’ . . . does not amount to a showing that circumstances have materially changed in Sudan or South Sudan since the time of the entry of the order of removal.” That remark ignored the growing violence in the south during this period. Further ignoring evidence, the Board added that Arej had failed to present evidence that “establishes that, since the time of his ultimate removal hearing, conditions have materially changed in Sudan or South Sudan.” That was incorrect; he had presented such evidence, which we summarized above.

Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.

Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti.ms/2lHeELw. “Tens of thousands of civilians have been killed”; “every major cease-fire that has been painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).

The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.

SYKES, Circuit Judge, concurring in the judgment.

Deng Arej, a citizen of Sudan, was admitted to this country as a refugee in 2005 and thereafter committed multiple violent crimes in the State of Kentucky. Between December 2010 and May 2013, he was charged and convicted of these crimes in several separate state-court proceedings and was sentenced to serve short concurrent prison terms. The Department of Homeland Security thereafter initiated proceedings to remove him from this country. His serious criminal conduct made him removable on several grounds. See 8 U.S.C. § 1227(a)(2)(A)(ii) (making aliens removable for committing a crime of moral turpitude); id. § 1227(a)(2)(E)(i) (making aliens removable for committing a crime of domestic violence); id. § 1227(a)(2)(A)(iii) (making aliens removable for committing an aggravated felony).

During the removal proceedings, Arej declined the opportunity to apply for asylum, withholding of removal, or deferral of removal under the Convention Against Torture. On April 23, 2014, an immigration judge ordered him removed to Sudan. Arej waived his right to appeal the removal order to the Board of Immigration Appeals (“BIA” or “the Board”).

On January 9, 2015—more than eight months later—Arej moved to reopen the removal proceedings, saying that he now wished to apply for asylum “in the interest of justice and humanitarian concerns.” A motion to reopen must be filed within 90 days of the entry of the order of removal, id. § 1229a(c)(7)(C)(i), so his motion was untimely by more than five months. An exception to the time bar exists if the alien can demonstrate that conditions in the country to which he has been ordered removed have materially changed since the removal order was entered. Id. § 1229a(c)(7)(C)(ii). Arej submitted no evidence and otherwise made no effort to fit his case within this exception, so the immigration judge denied the motion as untimely.

Arej appealed to the BIA and this time submitted documentary evidence in an effort to show a material change in country conditions in the Sudan and South Sudan. The Board rejected his argument and dismissed the appeal. Its dismissal order refers in general terms to the “numerous documents” Arej submitted on appeal and summarily concludes that this “additional evidence” failed to establish that conditions “materially changed in Sudan or South Sudan” since the removal order was entered. The Board also concluded “upon consideration of the totality of the record” that sua sponte reopening was unwarranted.

Arej petitioned for review, but our jurisdiction is severely limited by his status as a criminal alien; we do not have authority to review the BIA’s decision for abuse of discretion. More specifically, the Immigration and Nationality Act (“INA”) provides that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in . . . section 1227.” Id. § 1252(a)(2)(C). Without jurisdiction to review the underlying removal order, we also lack jurisdiction to review the denial of a motion to reopen that order. Cruz-Mayaho v. Holder, 698 F.3d 574, 577 (7th Cir. 2012). But the INA preserves our jurisdiction to review questions of law and constitutional claims. 8 U.S.C. § 1252(a)(2)(D). Accordingly, we lack jurisdiction to review how the BIA evaluated and weighed Arej’s evidence or to test its decision for abuse of discretion; we may review its decision only for errors of law and constitutional infirmities.

My colleagues address jurisdiction only fleetingly, though they do cite § 1252(a)(2)(D) and Iglesias v. Mukasey, 540 F.3d 528 (7th Cir. 2008). Iglesias holds that when an alien asserts that the BIA “completely ignored the evidence he presented,” he has raised “a good faith claim of legal error” that counts as “a question of law” under § 1252(a)(2)(D). Id. at 531. Relying on Iglegias, my colleagues conclude that the Board ignored Arej’s evidence. Majority Op. at p. 4. That’s incorrect.

The dismissal order is admittedly a brief summary disposition, but it’s clear that the Board was aware of the additional evidence Arej submitted on appeal. The Board acknowledged in general terms that Arej submitted “numerous documents” on appeal and ruled that this “additional evidence” is insufficient to show changed country conditions. The order also specifically states that the Board considered the “totality of the record” in declining to reopen sua sponte. That’s more than the BIA said in Iglesias; the order denying reopening in that case contained not a word about the alien’s evidence. 540 F.3d at 531-32.

Still, other language in Iglesias suggests that Arej has indeed raised a colorable claim of legal error, though it’s very narrow. Our opinion in Iglesias listed in summary fashion the key items of evidence the petitioner had presented to the BIA in his appeal. Id. at 532. We then say this: “Had the BIA at least mentioned this evidence, we could have some confidence that these materials had been considered. Unfortunately, the brevity of the decision leaves us with the impression that the BIA committed legal error. . . .” Id. at 532. This suggests to me that it’s a legal error under Iglesias for the Board to deny a motion to reopen with a generic assurance that it has considered the “totality of the record,” as it did here. We have limited jurisdiction to correct that legal error, but not to look for factual errors or an abuse of discretion.

In Iglesias we ultimately denied the alien’s petition for review, finding the legal error harmless. 540 F.3d at 532-33. The government has not raised harmless error here, so that argument is waived.

Accordingly, I agree with the court’s decision to vacate the BIA’s order and remand for further proceedings, but I arrive at that conclusion on narrower grounds. I respectfully concur in the judgment only.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, changed country conditions, Motions to Reopen | Leave a comment

CA7 affirms denial of withholding of removal to Mexico and CAT relief; BIA fact-finding as to state-court conviction was harmless

Posted on April 20, 2017 by Mike Baker

Delgado-Arteaga v. Sessions, No. 16-1816 (7th Cir. 2017)

Record contained sufficient evidence to support IJ’s order denying alien’s application for withholding of removal to Mexico, where said denial was based, in part, on finding that alien’s prior Illinois drug trafficking conviction qualified as “particularly serious crime,” and that alien had failed to establish either that his prior conviction did not have adverse effect on juveniles or that alien played only peripheral role in his drug-trafficking conviction. Ct. rejected alien’s claim that Bd. erred by not referring his appeal to three-member panel, where Ct. found that single Bd. member had discretion to refer alien’s case to three-member panel. While Ct. further found that Bd. had erred in engaging in fact-finding when affirming IJ’s conclusion that alien’s state-court conviction qualified as particularly serious crime, alien did not establish any prejudice where other evidence found by IJ sufficiently supported IJ’s conclusion.

Delgado, a citizen of Mexico, entered the U.S. without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver and sentenced to six months’ imprisonment. In 2015, DHS initiated removal proceedings. More than seven years and three petitions later, the Board of Immigration Appeals affirmed an IJ’s denial of withholding of removal, 8 U.S.C. 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. 1208.16(c). Delgado challenged aspects of the expedited removal process under 8 U.S.C. 1228(b) and a corresponding regulation and claimed that the Board committed various legal errors. The Seventh Circuit dismissed Delgado’s petition for review in part for lack of jurisdiction. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” The court denied the remainder of his arguments. The Board engaged in impermissible fact-finding, but the error was harmless.

_________________________________
JESUS DELGADO-ARTEAGA, Petitioner,
v.
JEFF SESSIONS, Attorney General of the United States, Respondent.
No. 16-1816

United States Court of Appeals, Seventh Circuit.
Argued November 29, 2016.
Decided March 23, 2017.

Melissa Lynn Neiman-Kelting, for Respondent.

Daniel W. Thomann, for Petitioner.

Anna E. Juarez, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A089-281-390.

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

BAUER, Circuit Judge.

Over seven years and three petitions later, these proceedings have come to a conclusion. Petitioner, Jesus Delgado-Arteaga (“Delgado”), petitions for review of an order of the Board of Immigration Appeals’ decision affirming the immigration judge’s denial of withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges aspects of the expedited removal process under 8 U.S.C. § 1228(b) and a corresponding regulation, 8 C.F.R. § 1208.31(g)(2)(i). He also claims that the Board committed various legal errors. For the following reasons, we dismiss the petition for review in part for lack of jurisdiction and deny the remainder of his petition for review.

I. BACKGROUND.

Delgado, a native and citizen of Mexico, entered the United States without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver in violation of 720 Ill. Comp. Stat. § 570/401(c)(2). He was sentenced to six months’ imprisonment with two years of probation.[1]

On March 3, 2015, the Department of Homeland Security, initiated expedited removal proceedings pursuant to 8 U.S.C. § 1228(b). See 8 C.F.R. § 238.1 (setting forth procedures). DHS served Delgado a Notice of Intent, charging that Delgado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). On March 16, 2015, DHS issued a Final Administrative Removal Order (“FARO”), finding Delgado deportable as charged and ordering that he be removed to Mexico. Delgado expressed a fear of returning to Mexico to a DHS officer who then referred him to the Chicago Asylum Office for a reasonable fear interview.

On March 31, 2015, an asylum officer interviewed Delgado with his attorney present. On April 15, 2015, the asylum officer found that Delgado was credible, but concluded that he did not establish a reasonable fear of persecution or torture in Mexico. Delgado requested that an IJ review the asylum officer’s negative decision. After a review, the IJ found that Delgado had established a reasonable possibility that he would be persecuted or tortured in Mexico. Accordingly, on April 30, 2015, the IJ vacated the asylum officer’s decision, and placed Delgado in “withholding-only” proceedings. See 8 C.F.R. § 1208.31(g)(2)(i). The IJ permitted Delgado to file an application for withholding of removal and relief under the CAT, which he filed on June 16, 2015. See id.

On August 5, 2015, the IJ held a hearing on the merits. Both Delgado and his wife testified in support of his applications. He argued that he had not been convicted of an aggravated felony and that he should have been allowed to apply for asylum under 8 U.S.C. § 1158. At the hearing, the IJ concluded that it was not authorized to review DHS’s determination that Delgado was convicted of an aggravated felony. The IJ ruled that Delgado was not eligible for asylum on two grounds: he was not permitted to apply for it in “withholding-only” proceedings; and, he was in removal proceedings pursuant to 8 U.S.C. § 1228(b). Thus, the IJ considered only Delgado’s applications for withholding of removal and relief under CAT.

On September 23, 2015, the IJ denied both applications. First, the IJ found that Delgado’s testimony and corroborating evidence was insufficient to meet his burden of proof under the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). Alternatively, the IJ concluded that even if Delgado established his burden of proof, the IJ would have denied Delgado’s application for withholding of removal because he had been convicted of a “particularly serious crime.” The IJ found that 720 Ill. Comp. Stat. § 570/401(c)(2) was categorically a “drug trafficking crime,” and thus, an illicit trafficking aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Because Delgado’s conviction was an aggravated felony, the IJ concluded it was presumed to be a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii).

The IJ noted that the Attorney General has determined that drug trafficking aggravated felonies “presumptively constitute” particularly serious crimes absent “extraordinary and compelling circumstances.” Y—-L—-, 23 I. & N. Dec. 270, 274 (BIA 2002); see Bosede v. Mukasey, 512 F.3d 946, 949-51 (7th Cir. 2008). In order to rebut this presumption, the applicant must establish that his conviction involved “(1) a very small quantity, (2) a very modest payment, (3) only peripheral involvement, (4) the absence of any violence or threat of violence, (5) the absence of any connection to organized crime or terrorism, and (6) the absence of any adverse or harmful effect on juveniles.” Bosede, 512 F.3d at 951 (citing Y—-L—-, 23 I. & N. Dec. at 276-77). If the applicant satisfies all six criteria, the applicant must also show “other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit).” Id. (quoting Y—-L—-, 23 I. & N. Dec. at 277).

The IJ held that Delgado’s conviction was a “particularly serious crime” because Delgado failed to meet the factors as required under Matter of Y—-L—-. Specifically, the IJ found that Delgado failed to show that his conviction did not have an adverse effect on juveniles because Delgado lived with a nine-year-old child. The IJ also found that Delgado failed to establish a peripheral role in his drug-trafficking conviction. Lastly, even if Delgado met his burden under Matter of Y—-L—-, the IJ concluded that it would have denied the application because Delgado did not show it was more likely than not that he would face persecution in Mexico.

Delgado appealed to the Board, and requested review by a three-member panel. He challenged essentially every aspect of the IJ’s decision. Additionally, he argued that the IJ incorrectly declined to consider an asylum application because 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires.

On March 14, 2016, a single-member Board adopted and affirmed the IJ’s decision, and entered an order dismissing Delgado’s appeal. The Board declined to consider Delgado’s argument that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires, reasoning that it lacked authority to make such a ruling. The Board concluded that the IJ properly found that Delgado’s aggravated felony conviction presumptively constituted a “particularly serious crime.” The Board explicitly agreed with the IJ’s finding that Delgado failed to establish that he had only peripheral involvement in his drug-trafficking conviction. In addition, the Board found that Delgado failed to establish two other requirements under Matter of Y—-L—-: that his conviction was not connected to any organized crime; and, that the drugs were to be distributed solely for social purposes. A motion to reconsider was denied. Thereafter, Delgado filed this petition for review.

II. DISCUSSION.

Generally, we lack jurisdiction to review denials of discretionary relief, including asylum. See 8 U.S.C. § 1252(a)(2)(B); Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016). “But, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review.” Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir. 2016) (citation omitted). Where, as here, the Board adopts and affirms the IJ’s decision and provides its own analysis, we review both decisions. Halim v. Holder, 755 F.3d 506, 511 (7th Cir. 2014).

First, Delgado contends that DHS lacks legal authority to issue removal orders on behalf of the Attorney General pursuant to 8 U.S.C. § 1228(b), and that § 1228(b) requires removal orders be issued by IJs. Second, he argues that he should have been permitted to apply for asylum under 8 U.S.C. § 1158 because the regulation at 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires. Lastly, he argues that the Board committed various legal errors and failed to follow its procedures when adjudicating his case, such as failing to refer the case to a three-member panel, engaging in improper factfinding, and overlooking his arguments on appeal.

A. No Jurisdiction to Review Challenges to the Expedited Removal Process

Delgado challenges DHS’s FARO dated March 16, 2015, arguing that DHS lacked legal authority to order Delgado’s removal under 8 U.S.C. § 1228(b), and that the plain language of § 1228(b) requires that final orders of removal be issued by IJs.

We need not address these claims because Delgado’s challenges to DHS’s removal order were rendered moot when the IJ vacated DHS’s FARO and, ultimately, ordered his removal. Article III limits our review to “Cases” and “Controversies,” and an “actual controversy” must exist through all stages of review. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “[I]f an event occurs . . . that makes it impossible for the court to grant `any effectual relief whatever’ to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (citation omitted). A case becomes moot “when the issues presented are no longer `live’ or the parties lack a legally cognizable interest in the outcome.” Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (citation omitted).

Here, no live case or controversy exists because we cannot grant any effectual relief to Delgado. He asks that we overturn DHS’s FARO and remand for further proceedings before an IJ; in other words, Delgado asks that we overturn an already vacated order. Assuming that it were possible to grant such relief, it remains true that the IJ issued the final removal order, not DHS. As a result, the case is moot and we lack jurisdiction to review this challenge.

Lastly, we note that the jurisdictional problem here is further highlighted when considering the Tenth Circuit’s decision in Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033-35 (10th Cir. 2016). There, the petitioner brought an identical challenge, but it failed on the merits. Despite the same arguments, there is one critical factual difference: the petitioner in Osuna-Gutierrez was ordered removed by DHS, whereas Delgado was ordered removed by an IJ. This difference shows how the issue presented by Delgado is no longer “live.” While it is tempting to fall in line with the Tenth Circuit, this factual difference precludes us from reaching the merits. Because there is no case or controversy, we must dismiss Delgado’s challenge for lack of jurisdiction.

B. No Jurisdiction to Review Challenge to 8 C.F.R. § 1208.31(g)(2)(i)

Next, Delgado contends that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires because it impermissibly precluded him from applying for asylum under 8 U.S.C. § 1158(a)(1). He claims that § 1158 permits all aliens to apply for asylum regardless of whether the alien is subject to administrative removal under § 1228(b). In other words, Delgado claims that he was “injured” when the regulation denied him the opportunity to apply for asylum.

We lack jurisdiction to review this challenge because Delgado cannot meet the injury-in-fact element required for standing. To establish an injury in fact, Delgado must show that he “suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (citation and quotation marks omitted).

Delgado cannot claim he suffered an “invasion of a legally protected interest” when 8 C.F.R. § 1208.31(g)(2)(i) precluded him from applying for asylum. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); see Ali v. Ashcroft, 395 F.3d 722, 732 (7th Cir. 2005) (noting “denial of such relief does not implicate due process”). Because Delgado fails to establish an injury in fact, he lacks standing to challenge § 1208.31(g)(2)(i). Therefore, we dismiss this challenge for lack of jurisdiction.

C. Challenges to the Board’s Decision and Procedures

1. Three-Member Panel

Delgado argues that the Board erred by not referring his case to a three-member panel. A single member may take “advantage of the streamlined procedures found in 8 C.F.R. §§ 1003.1(e)(4), (e)(5) for routine cases that can be processed quickly.” Joseph v. Holder, 579 F.3d 827, 832 (7th Cir. 2009). The regulations give a single member discretion to refer an appeal to a three-member panel under six different circumstances, but referral is not required. 8 C.F.R. § 1003.1(e)(6) (listing circumstances); see Ward v. Holder, 632 F.3d 395, 398-99 (7th Cir. 2011) (noting “discretion . . . is left to the panel member assigned to the case”). In Ward, we were unable to find that the Board “violated the review procedures set forth in § 1003.1(e) when a single member rendered a decision on petitioners’ appeal in his discretion without referring it to a panel of three.” 632 F.3d at 399. Like the single member in Ward, the single member here had the discretion to refer the appeal to a three-member panel, but did not do so. Delgado fails to demonstrate that the Board violated the review procedures as set forth in 8 C.F.R. § 1003.1(e).

2. Improper Fact-Finding

Next, Delgado contends that the Board violated 8 C.F.R. § 1003.1(d)(3)(iv) by engaging in improper fact-finding when it affirmed the IJ’s conclusion that Delgado was convicted of a “particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii). “An argument that the Board has exceeded the scope of review permissible under [8 C.F.R. § 1003.1(d)(3)(iv)] is a legal one, for the purpose of § 1252(a)(2)(D).” Rosiles-Camarena v. Holder, 735 F.3d 534, 536 (7th Cir. 2013). The regulation provides that “[e]xcept for taking administrative notice of commonly known facts . . ., the Board will not engage in factfinding in the course of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see Estrada-Martinez v. Lynch, 809 F.3d 886, 894 (7th Cir. 2015) (“The Board must not find facts in the first instance. . . .”); Lin v. Holder, 630 F.3d 536, 545 (7th Cir. 2010) (“[T]he Board is not permitted to engage in fact-finding on appeal.”).

Delgado argues that the Board impermissibly found that Delgado failed to establish two additional requirements under Matter of Y—-L—-: the absence of organized crime involvement and “other, more unusual circumstances” (i.e., drugs were to be distributed solely for social purposes). See Y—-L—-, 23 I. & N. Dec. at 276-77. In response, the government does not dispute Delgado’s argument, but claims that the Board’s additional fact-finding was harmless error.

We agree with Delgado that the Board exceeded the permissible scope of review when it made the two findings at issue in the first instance. Nonetheless, Delgado fails to show that he was prejudiced by the Board’s impermissible factfinding. See Issaq v. Holder, 617 F.3d 962, 967 (7th Cir. 2010); Perez-Fuentes, 842 F.3d at 512 (noting that a petitioner must show that the alleged error “may have had the potential to change the outcome of the hearing” (citation omitted)). Here, the Board adopted the IJ’s decision, and explicitly agreed with the IJ’s finding that Delgado did not establish that he had only peripheral involvement in the drug-trafficking conviction. By adopting the IJ’s decision, the Board also agreed with the IJ’s finding that Delgado failed to show that his conviction did not have an adverse effect on a juvenile. Despite the Board’s impermissible fact-finding, Delgado still fails to satisfy two factors under Matter of Y—-L—-. He did not show how he was prejudiced.

3. Arguments to the Board

Delgado argues that the Board overlooked and failed to consider his arguments on appeal. “A claim that the [Board] has completely ignored the evidence put forth by a petitioner is an allegation of legal error.” Perez-Fuentes, 842 F.3d at 512 (quoting Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)). This includes a claim that the Board “failed to exercise discretion at all by completely ignoring an argument.” Iglesias, 540 F.3d at 530-31. Although the Board “does not have to write an exegesis on every contention, it must consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id. at 531. “We have frequently remanded cases when the BIA’s or the IJ’s failure to discuss potentially meritorious arguments or evidence calls into question whether it adequately considered th[ose] arguments.” Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007) (collecting cases).

Delgado lists, as we have done similarly here, several arguments that he claims were ignored by the Board: (1) his request for a three-member panel in his appeal to the Board; (2) that the IJ failed to properly develop the record; (3) that the IJ conducted an incorrect “pattern or practice” analysis under 8 C.F.R. § 1208.16(b)(2)(i); and, (4) his argument concerning an unpublished Board decision concerning Florida state law (the Board addressed and rejected this last argument).

Delgado’s claim, alone, that the Board “completely ignored” an argument, does not sufficiently “enable a reviewing court” to determine whether that argument is “potentially meritorious.” “[I]t is not the work of this Court to formulate arguments for the parties.” Kurzawa v. Jordan, 146 F.3d 435, 447-48 (7th Cir. 1998), nor will we attempt to do so here. “[F]ailure to adequately develop and support these arguments results in waiver.” Lin, 630 F.3d at 543. Delgado’s challenge is perfunctory; he simply lists these arguments one-by-one, without any explanation. Therefore, we will consider these arguments waived.

III. CONCLUSION.

For the foregoing reasons, we DISMISS Delgado’s petition for review in part for lack of jurisdiction and DENY the remainder of his petition for review.

[1] In 2010, Delgado was subject to removal proceedings pursuant to 8 U.S.C. § 1229a, but those proceedings were terminated. He filed a petition with this Court, objecting to the termination of the § 1229a proceedings. Once DHS initiated proceedings under § 1228(b), Delgado filed a motion for voluntary dismissal of his first petition, which this Court granted. Delgado v. Lynch, 14-3127 (7th Cir. April 15, 2015). He filed a second petition with this Court after he was issued the Final Administrative Removal Order, but before he completed the reasonable fear interview. The government filed a motion to dismiss the petition, which we granted because the FARO was not “final” for purposes of our review. Delgado v. Lynch, 15-1810 (7th Cir. Aug. 7, 2015).

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

CA7 upholds Dist. Ct. dismissal of appeal under Administrative Procedure Act seeking to review denial of visa application

Posted on April 20, 2017 by Mike Baker

Morfin v. Tillerson, No. 15-3633 (7th Cir. 2017)

Dist. Ct. did not err in dismissing plaintiff-alien’s action under Administrative Procedure Act, seeking to review denial of visa application as part of his process to obtain permanent resident status, where consular official based said denial on belief that plaintiff had been involved in drug trafficking. Consular official gave legitimate reason for denying plaintiff’s visa application, and plaintiff’s indictment on drug charge supplied said official with reason to believe that plaintiff had trafficked in cocaine. As such, Dist. Ct. was prevented from reviewing instant denial under Mandel, 408 U.S. 753.

Ulloa, a citizen of Mexico, married Morfin, a U.S. citizen. Morfin sought approval for his permanent residence, but Ulloa was present in the U.S. without authority and was required to return to Mexico to obtain a visa for lawful entry. He applied at the consulate in Juarez. After twice interviewing Ulloa, the State Department denied him a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. The U.S. Attorney dismissed the indictment and Ulloa denies the charge, but he lacks a favorable adjudication. The couple sued under the Administrative Procedure Act, 5 U.S.C. 702, alleging that the denial was arbitrary and not supported by substantial evidence. The district court found that it lacked jurisdiction because decisions on visa applications are committed to agency discretion and are outside the scope of judicial review under the APA. The Seventh Circuit affirmed. While the APA does not curtail jurisdiction granted by other laws, the consular officer gave a legitimate reason for denying Ulloa’s application. Precedent prevents the judiciary from reweighing the facts and equities. Whether Congress acted wisely in making “reason to believe” some fact sufficient to support the denial of a visa application is not a question open to review by the judiciary.

_____________________________
ESMERALDA Y. MORFIN and ADRIAN ULLOA, Plaintiffs-Appellants,
v.
REX W. TILLERSON, Secretary of State, and JOHN F. KELLY, Secretary of Homeland Security, Defendants-Appellees.
No. 15-3633.

United States Court of Appeals, Seventh Circuit.
Argued December 2, 2016.
Decided March 20, 2017.

Craig A. Oswald, for Defendant-Appellee.

Justin R. Burton, for Plaintiff-Appellant.

Charles Roth, for Plaintiff-Appellant.

Stacey I. Young, for Defendant-Appellee.

Devin Theriot-Orr, for Amicus Curiae.

Robert Pauw, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 10198 — John Z. Lee, Judge.

Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

In 2009 Adrian Ulloa, a citizen of Mexico, married Esmeralda Morfin, a citizen of the United States. She began the process of getting approval for his permanent residence (and ultimately citizenship). But because Ulloa was present in the United States without authority, this process required him to return to Mexico and obtain a visa for a lawful entry. In 2014 he applied at the consulate in Ciudad Juarez. After twice interviewing Ulloa, the State Department denied his request for a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. See 21 U.S.C. §841(a)(1). The U.S. Attorney dismissed the indictment a few months later (the record does not show why), and Ulloa denies the charge, but the absence of a trial means that he lacks a favorable adjudication.

In this suit under the Administrative Procedure Act, 5 U.S.C. §702, Morfin and Ulloa asked the district court to find that the decision not to give Ulloa a visa is arbitrary and not supported by substantial evidence. Defendants (the Secretaries of State and Homeland Security) replied that decisions to grant or deny visa applications are committed to agency discretion and so are outside the scope of judicial review under the APA. See 5 U.S.C. §701(a)(2). The district court agreed and dismissed the suit for lack of subject-matter jurisdiction. That was a misstep. As we explain in Builders Bank v. FDIC, 846 F.3d 272 (7th Cir. 2017), §701(a)(2) does not curtail jurisdiction granted by other laws. Commitment of a topic to agency discretion is a reason to decide in the agency’s favor but does not imply that a court lacks adjudicatory competence. We concluded in Builders Bank that §701(a)(2) “is no more a limit on subject-matter jurisdiction than are doctrines of absolute and qualified immunity, statutes of limitations, and many other rules that prevent courts from deciding whether the defendant acted properly.” 846 F.3d at 275.

But the fact remains that for more than a hundred years courts have treated visa decisions as discretionary and not subject to judicial review for substantial evidence and related doctrines of administrative law. See Kleindienst v. Mandel, 408 U.S. 753, 765-70 (1972) (collecting cases). Mandel recognized a potential exception for situations in which denial of a visa violates the constitutional rights of a U.S. citizen (in Mandel the right was the First Amendment), and Morfin tries to take advantage by contending that the rejection of Ulloa’s application violated her right to due process of law under the Fifth Amendment. A similar line of argument was advanced in Kerry v. Din, 135 S. Ct. 2128 (2015), and did not prevail. The district judge concluded that Din forecloses Morfin’s contention.

Before considering Din we must say a few words about Mandel. The Court concluded that the First Amendment creates at least a conditional right of U.S. citizens to receive information, in this country, from foreign nationals. But the Justices did not find this a sufficient reason for the judiciary to make an independent decision about when a foreign national is entitled to a visa. Instead the Court reaffirmed earlier opinions saying that Congress has plenary authority to exclude particular categories of aliens. The possibility of an exception for speech arose only because Congress had authorized the Attorney General to waive some speech-related conditions of excludability. The Justices did not decide whether review of a decision not to waive a condition of inadmissibility ever would be proper. They thought the final decision on that subject unnecessary because the Attorney General had informed “Mandel’s counsel of the reason for refusing him a waiver. And that reason was facially legitimate and bona fide.” 408 U.S. at 769. The Court wrapped up:

We hold that when the Executive exercises this [waiver] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Id. at 770. That holding set the stage for Din, in which the plaintiffs tried to find a constitutional theory that would not require the judiciary to look behind the Executive Branch’s reasons for denying a visa.

Fauzia Din, a citizen of the United States, married Kanishka Berashk, a citizen of Afghanistan. After the State Department denied Berashk’s application for a visa to enter this nation, Din filed suit. She contended that the Department had violated her right under the Due Process Clause of the Fifth Amendment to live with her husband, at least without a formal hearing to determine whether Berashk was excludable. Recognition of such a right would have avoided any need for the judiciary to review the substance of the State Department’s decision. But a majority of the Court ruled against Din. Three members (the Chief Justice plus Justices Scalia and Thomas) concluded that the Fifth Amendment does not apply, because a citizen has neither a liberty nor a property interest in an alien’s presence in the United States. 135 S. Ct. at 2131-38. Four members (Justices Ginsburg, Breyer, Sotomayor, and Kagan) disagreed with that reading of the Fifth Amendment and concluded that a U.S. citizen is entitled to an administrative procedure at which she can test the accuracy of allegations or beliefs that lead the State Department to deny her spouse a visa. 135 S. Ct. at 2141-47.

The Court’s other two members (Justices Kennedy and Alito) thought that they did not have to decide whether the U.S. spouse has a liberty or property interest, because the case could be resolved in the same way as Mandel: with a conclusion that judges will not go behind apparently legitimate explanations. 135 S. Ct. at 2139-41. The State Department had revealed the basis of its decision—that Berashk was a terrorist excluded by 8 U.S.C. §1182(a)(3)(B). The Department had not set out facts supporting this view, but Justices Kennedy and Alito thought that unnecessary (135 S. Ct. at 2140):

The provisions of §1182(a)(3)(B) establish specific criteria for determining terrorism-related inadmissibility. The consular officer’s citation of that provision suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements. Given Congress’ plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), it follows that the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.

Justices Kennedy and Alito considered the possibility that a groundless decision might fall outside the set of “facially legitimate and bona fide” reasons but wrote that the exclusion of Berashk could not be so classified, for he conceded working as an officer of the Taliban government when that group ruled Afghanistan.

[This] provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.

135 S. Ct. at 2141.

The district court found that Din forecloses Morfin’s claim, and we agree with that conclusion. Morfin advances the same due process argument as Din. Whether the denial of Ulloa’s visa application affected any of Morfin’s liberty or property interests is unresolved after Din, because Justices Kennedy and Alito did not address that subject. Instead they left things as Mandel had left them—and the opinion in Mandel spoke for a majority of the Court, sparing us the need to determine how to identify the controlling view in Din given that the concurring opinion is not a logical subset of the lead opinion (or the reverse). See Marks v. United States, 430 U.S. 188 (1977). Mandel tells us not to go behind a facially legitimate and bona fide explanation.

The consular officer in Ciudad Juarez gave Ulloa a facially legitimate and bona fide explanation. The officer relied on 8 U.S.C. §1182(a)(2)(C), which disqualifies “[a]ny alien who the consular officer or the Attorney General knows or has reason to believe—(i) is or has been an illicit trafficker in any controlled substance”. The State Department cited this provision when denying Ulloa’s application, just as it had cited §1182(a)(3)(B) when denying Berashk’s. And just as in Din, the record forecloses any contention that the State Department was imagining things. Ulloa had been indicted for possessing a substantial quantity of cocaine with intent to distribute.

All §1182(a)(2)(C) requires is “reason to believe” that the applicant is or was a drug dealer. An indictment provides a “reason to believe” that its accusation is true; indeed, it conclusively establishes probable cause to believe that the accusation is true. That’s why Kaley v. United States, 134 S. Ct. 1090 (2014), holds that a federal court cannot go behind the face of the indictment to explore a defendant’s contention that the charge is not based on probable cause. The question in Kaley was whether the defendant could deny the charge of the indictment and so free up resources for paying counsel, resources that otherwise would be sequestered as the proceeds of crime. The Court said no; the indictment is conclusive on the question whether there is probable cause to believe that the accused committed the charged acts. Likewise a federal court will not go behind the face of an indictment when an alien seeks to undermine the State Department’s reasons for denying a visa.

Perhaps the refusal to issue Ulloa a visa could be said to lack a “facially legitimate and bona fide reason” (in Mandel’s words) if the consular official had concluded that the indictment’s charges were false, or if Ulloa had presented strong evidence of innocence that the consular officer refused to consider. But neither his complaint nor his appellate brief makes such an argument.

Because the consular officer gave a legitimate reason for denying Ulloa’s application, and the indictment supplies “reason to believe” that he trafficked in cocaine, Mandel prevents the judiciary from reweighing the facts and equities. Whether Congress acted wisely in making “reason to believe” some fact sufficient to support (indeed, compel) the denial of a visa application is not a question open to review by the judiciary. The district court’s judgment is modified to reject plaintiffs’ claim on the merits rather than for lack of jurisdiction and as so modified is

AFFIRMED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Consular non-reviewability, Consular Nonreviewability Doctrine | Leave a comment

CA7 affirms rejection of mandamus petition seeking review of denial of visa application by consular official

Posted on April 20, 2017 by Mike Baker

Yusev v. Sessions, No. 16-1338 (7th Cir. 2017)

Dist. Ct. did not err in dismissing plaintiff-aliens’ petition for writ of mandamus seeking review of denial of plaintiff’s visa application by consular official during plaintiff’s process of becoming permanent resident. Consular official denied said application on ground that plaintiff had committed crime of moral turpitude, had been previously removed from U.S., and had personally engaged in terrorists activity that consisted of rock-throwing incident when plaintiff was 13 years old. Ct. could not review instant denial under consular nonreviewability doctrine, where consular based denial on facially legitimate and bona fide reason. Ct. further noted that there was nothing in record to suggest that visa was denied for constitutionally troublesome reason such as religious discrimination, or that consular official was proceeding in bad faith.

Hazama, a U.S. citizen, is married to Ghneim, a citizen of the Palestinian Authority, currently residing there. Hoping to obtain a permanent resident visa for Ghneim, Hazama filed a Petition for Alien Relative with USCIS, which was approved in 2011. Ghneim still had to wait until a visa number became available and had to appear for an interview with a consular officer. Ghneim appeared for his interview at the Jerusalem Consulate in 2013. The officer denied the application, citing: the commission of a crime of moral turpitude, 8 U.S.C. 1182(a)(2)(A)(i)(I); previous removal from the U.S., section 1182(a)(9)(A)(ii); and unlawful presence in the U.S., section 1182(a)(9)(B)(i)(II). Ghneim’s petition for a waiver of the “previously removed” and “unlawful presence” grounds was denied. In 2015, an officer again denied Ghneim’s application, for having personally engaged in terrorist activities, 8 U.S.C. 1182(a)(3)(B)(i). The district court found that the consular official’s reliance on the terrorism provision satisfied all relevant legal standards. The Seventh Circuit affirmed, rejecting their mandamus petition. The Supreme Court has consistently recognized that unadmitted, nonresident aliens have no free-standing constitutional right to enter the U.S.. Congress delegated broad power to the Executive Branch to decide who will have the privilege of entering; courts generally have no authority to second-guess those decisions.

____________________________________________
SAMIRA HAZAMA and AHMED ABDEL HAFIZ GHNEIM, Plaintiffs-Appellants,
v.
REX W. TILLERSON, Secretary of State, et al., Defendants-Appellees.
No. 15-2982.

United States Court of Appeals, Seventh Circuit.
Argued December 2, 2016.
Decided March 20, 2017.

Craig A. Oswald, for Defendant-Appellee.

Charles Roth, for Amicus Curiae.

Durwood H. Riedel, for Defendant-Appellee.

Julie Ann Goldberg, for Plaintiff-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 15 C 4002—Milton I. Shadur, Judge.

Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

WOOD, Chief Judge.

In an effort to seek judicial review of a consular official’s unfavorable decision on a visa application, Samira Hazama and Ahmed Abdel Hafiz Ghneim filed a petition for a writ of mandamus in the district court for the Northern District of Illinois, where Hazama resides. The district court concluded that it lacked subject-matter jurisdiction over the petition, because it thought that review was precluded under the Supreme Court’s decisions in Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128 (2015). The district court was correct that this case cannot go forward, but mistaken to think that the problem was jurisdictional. In Morfin v. Tillerson, No. 15-3633, decided today, we concluded that plaintiff loses on the merits. The same result is proper here, both for the reasons stated in Morfin and because the criteria for mandamus relief have not been met. See United States v. Vinyard, 529 F.3d 589, 591 (7th Cir. 2008) (mandamus proper only if the order would inflict irreparable harm, is not effectively reviewable at the end of the case, and so far exceeds the bounds of judicial discretion that it is usurpative, in violation of a clear and indisputable legal right, or patently erroneous).

Hazama is a U.S. citizen; she is married to Ghneim, who is a citizen of the Palestinian Authority and currently resides there. Hoping to obtain a permanent resident visa for Ghneim, Hazama filed an I-130 Petition for Alien Relative with the U.S. Citizenship and Immigration Service of the Department of Homeland Security (USCIS). Her petition was approved by USCIS on August 25, 2011, but that alone did not assure Ghneim’s right to immigrate to the United States. First, he had to wait until a visa number became available, then (while still outside the country) he had to appear for an interview with a consular officer, and ultimately he had to file form I-485, the Application to Register Permanent Residence or Adjust Status.

Ghneim never made it to the end of the line. He showed up for his interview at the U.S. Consulate in Jerusalem on January 24, 2013. The consular officer denied the application for three reasons: the commission of a crime of moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I); previous removal from the United States, id. § 1182(a)(9)(A)(ii); and unlawful presence in the United States, id. § 1182(a)(9)(B)(i)(II). Ghneim tried to address these grounds, but his petition for a waiver of the “previously removed” and “unlawful presence” grounds was ultimately denied. In the meantime, on January 22, 2015, a consular officer again denied Ghneim’s application, this time for having personally engaged in terrorist activities. See 8 U.S.C. § 1182(a)(3)(B)(i).

Hazama and Ghneim filed the present Complaint for Writ of Mandamus on May 5, 2015. In it, they attack only the terrorism ground for denying the visa. The omission of the other three grounds is perplexing, because it would do little good to set aside one ground if there are three alternate grounds for upholding the agency’s decision. Their choice may reflect the assumption that the three omitted grounds may be waivable. We do not know, and in light of our disposition of the appeal, we need not inquire further. For present purposes we confine ourselves to the applicability of the terrorism ground to Ghneim.

The Complaint also seeks declaratory and injunctive relief under the Administrative Procedure Act, based on the government’s alleged failure to adjudicate Ghneim’s application. Finally, it asserts that the refusal was not facially legitimate and bona fide. The government moved to dismiss, both for lack of subject-matter jurisdiction and for failure to state a claim. The district court held a hearing on the government’s motion on August 26, 2015, but despite her awareness that the court had scheduled this hearing—reflected in her effort on August 20 to seek a postponement—counsel for Hazama and Ghneim did not attend. In the end, however, counsel’s inability to attend made little difference. The district court, noting that the petitioners had relied heavily on the Ninth Circuit’s decision in Din and that the Supreme Court had vacated that ruling, found that the consular official’s reliance on the terrorism provision satisfied all relevant legal standards. Hazama and Ghneim have appealed from that decision.

The Supreme Court has consistently recognized that unadmitted, nonresident aliens have no free-standing constitutional right to enter the United States. See Mandel, 408 U.S. at 762. Nothing in Din, which admittedly failed to produce an authoritative opinion of the Court, casts any doubt on that proposition. Congress has delegated broad power to the Executive Branch to decide who will have the privilege of entering. Id. at 770. In general, courts have no authority to secondguess the Executive’s decisions—rulings that are typically made by consular officers of the Department of State. See Samirah v. Holder, 627 F.3d 652, 662 (7th Cir. 2010).

That said, the Court has never entirely slammed the door shut on review of consular decisions on visas. The language in Mandel suggests at least two possible exceptions to the general norm of nonreviewability: “We hold that when the Executive exercises [the power to admit] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” 408 U.S. at 770 (emphasis added). In addition, as the final allusion to the First Amendment implies, some courts have held that if a visa denial affects the constitutional rights of American citizens, then it may be reviewable. Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016); see also Din, 135 S. Ct. at 2141-42 (dissenting opinion of Breyer, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., recognizing this right); Id. at 2139 (concurrence in judgment of Kennedy, J., joined by Alito, J., assuming arguendo that such a right exists).

Like the concurring Justices in Din, we can assume for the sake of argument that Hazama has enough of an interest in the grant of a visa to her husband that this case can go forward. Yet that assumption does nothing to meet her greater challenge, which is to show that the consular decision was not facially legitimate and bona fide. The act that prompted the consular officer to find that Ghneim had engaged in “terrorism” was admittedly minor, when compared with the worst terrorist acts one can imagine. As a 13-year-old boy in Palestine, Ghneim threw rocks at Israeli soldiers; the latter were armed with automatic rifles. Citing several other cases that involved rock-throwing, Hazama urges us to find that his actions were so inconsequential that they cannot suffice as a facially legitimate and bona fide reason for the visa denial. On one point we agree with her: this was a discretionary call, and it would not have been outside the consular officer’s discretion to consider this as an act of juvenile rebellion rather than an act of terrorism.

The Supreme Court has made it clear, however, that whatever residual authority the courts have to review these decisions cannot be triggered by every possible recharacterization of an act. Mandel, Din, and all of the earlier cases are premised on the non-reviewability of these decisions, and a recharacterization exception would open the door to plenary reviewability—most things, after all, are open to interpretation. The same problems would arise if we were to accept the suggestion of amicus curiae and adopt a rule under which we would examine whether the officer “properly construed and applied” the relevant provisions of law. All we can do is to look at the face of the decision, see if the officer cited a proper ground under the statute, and ensure that no other applicable constitutional limitations are violated. Once that is done, if the undisputed record includes facts that would support that ground, our task is over.

We found that additional support in Morfin, and we find it here as well. The consular officer in Jerusalem knew several things before making his decision: first, this particular act of rock-throwing took place in one of the least settled places in the world—a place where peace efforts have failed for 70 years; second, rocks are not benign objects—to the contrary, they can be lethal, as the barbaric practice of stoning illustrates; third, Ghneim did not deny that he had thrown the rocks; and fourth, Ghneim had several other blots on his record. Nothing here suggests that his visa was denied for a constitutionally troublesome reason such as religious discrimination, and so we have no need to consider how such a case should be approached. In addition, there is nothing in this record to suggest that the consular officers involved were proceeding in bad faith. At oral argument, Hazama’s lawyer asserted that the U.S. consulate in Jerusalem regularly prolongs its consideration of visa applications and denies those coming from citizens of the Palestinian Authority, but we have not taken this allegation into account in resolving this appeal, because it was not presented to the district court and (probably for that reason) there is no support in this record for a finding of the alleged systematic bias.

Finally, even if we were to find that Hazama was entitled to a reasoned explanation of the denial, she would still be out of luck. Ghneim, and so we assume Hazama, received a full explanation in a signed letter of a page and a half. The letter laid out all the grounds for refusal, explained why they applied, cited relevant precedent, and explained the agency review process. That was more than enough.

Hazama has raised several other points, but they all represent an effort to dilute or eliminate the consular nonreviewability doctrine, or they are procedural points that lay within the district court’s discretion. The fact that she cannot succeed under ordinary standards of appellate review demonstrates that her petition for mandamus must also fail. We therefore AFFIRM the judgment of the district court, with instructions that the judgment be modified to reflect that it rejects an adjudication on the merits, not for lack of subject-matter jurisdiction.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Consular non-reviewability, Consular Nonreviewability Doctrine, Mandamus | Leave a comment