ALVARADO FONSECA v. HOLDER- Anti-Drug Abuse Act of 1988, ex post facto clause 7th Circuit

Posted on January 14, 2011 by Mike Baker

A Mexican citizen’s petition for review of the BIA’s dismissal of his appeal of an IJ’s deportation order on the ground that his 1984 state court conviction for armed robbery constituted an aggravated felony, is denied where: 1) because petitioner failed to exhaust his administrative remedies, his argument that Anti-Drug Abuse Act of 1988, section 7344(b) bars his deportation, cannot be considered; and 2) In light of the Supreme Court’s statement in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) that, deportation “is not, in a strict sense, a criminal sanction,” Padilla does not provide sufficient guidance to deviate from the long line cases establishing that statutes retroactively setting criteria for deportation do not violate the ex post facto clause.

Clemente ALVARADO-FONSECA, Petitioner, v. Eric H. HOLDER, Jr., Respondent.

No. 10-1917.

Argued Dec. 3, 2010. — January 06, 2011
Before FLAUM, ROVNER and EVANS, Circuit Judges.

An immigration judge ordered Clemente Alvarado-Fonseca, a Mexican citizen, removed to Mexico on the ground that his 1984 state court conviction for armed robbery constituted an aggravated felony, a deportable offense. On appeal to the Board of Immigration Appeals (“BIA”), Alvarado-Fonseca argued that he was not removable because the definition of aggravated felony in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) could not be applied retroactively. The BIA dismissed the appeal. Alvarado-Fonseca now argues that a provision in the Anti-Drug Abuse Act of 1988 (“ADAA”) precludes his deportation. Alvarado-Fonseca waived that argument by failing to raise it before the BIA. In light of that failure to exhaust, we must deny the petition.

I. Background

A. Factual Background

Alvarado-Fonseca, a citizen of Mexico, was admitted to the United States as a lawful permanent resident alien on April 27, 1973, at the age of ten. In 1984, a twenty-one-year-old Alvarado-Fonseca was convicted of armed robbery in Illinois state court, and was sentenced to six-years in prison. Now 47 years old, Alvarado-Fonseca has since married a United States citizen, with whom he has two children.

On April 2, 2007, the Department of Homeland Security commenced removal proceedings against Alvarado-Fonseca by filing a Notice to Appear (“NTA”) against him in the Immigration Court. The NTA charged that Alvarado-Fonseca was removable from the United States under three provisions of the Immigration and Nationality Act (“INA”): (1) section 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a theft or burglary offense as defined in § 101(a)(43)(G) of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(G)); (2) section 237(a)(2)(A)(iii) for conviction of an aggravated felony relating to a crime of violence as defined in § 101(a)(43)(F) of the INA (see 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F)); and (3) section 237(a)(2)(C) for a conviction that involved the use or possession of a firearm (see 8 U.S.C. § 1227(a)(2)(C)).

B. Statutory Background

The thrust of Alvarado-Fonseca’s argument in this Court turns on the interplay of several amendments to the federal immigration laws. A short discussion of each of the relevant enactments is helpful.

1. The Anti-Drug Abuse Act of 1988

Congress first made conviction for an “aggravated felony” a deportable offense in 1988, when it amended the INA through the Anti-Drug Abuse Act of 1988 (“ADAA”). See ADAA § 7344(a). At that time, the statutory definition of “aggravated felony” did not include theft offenses or crimes of violence. Section 7344(b) of the ADAA provided that the amendments applied only “to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony.” Therefore, under the ADAA, only aliens convicted of an aggravated felony on or after November 18, 1988 were deportable. In his petition, Alvarado-Fonseca relies on the temporal restriction set forth in ADAA § 7344(b) for his position that he cannot be deported for his 1984 conviction.

2. The Immigration Act of 1990

In 1990, Congress enacted the IMMAct, § 501(a) of which broadened the definition of “aggravated felony” to include any crime of violence for which a term of imprisonment of at least 5 years is imposed. The new definition applied only to crimes committed on or after November 29, 1990. See IMMAct § 501(b).

Section 602(c) of the IMMAct provided:

SAVINGS PROVISION.-Notwithstanding the amendments made by this section, any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that (1) any such alien entered the United States before the date of enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act.

See 104 Stat. 5081-82 (1990).

3. The Immigration Technical Corrections Act of 1994

On October 25, 1994, Congress again broadened the definition of “aggravated felony” to include theft offenses for which the term of imprisonment imposed is at least five years. See ITCA § 222(a). The ITCA provided that “[t]he amendments made by ․ section [222(a) ] shall apply to convictions entered on or after the date of enactment of this Act.” ITCA § 222(b).

4. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Congress revisited the definition of “aggravated felony” again in 1996 with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See IIRIRA § 321(a). Section 321(b) of IIRIRA amended the INA to read: “Notwithstanding any other provision of law (including any effective date), [the amended definition of aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996.” Section 321(c) of IIRIRA states that “[t]he amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred.”

C. Procedural Background

In the proceedings before the Immigration Judge (“IJ”), Alvarado-Fonseca contended that he had previously appeared before an IJ and had been granted a waiver of deportation; however he could produce no evidence of such a waiver. Alvarado-Fonseca also applied for cancellation of removal. On April 14, 2009, the IJ concluded in a written opinion that Alvarado-Fonseca was removable on all three charges based on his conviction for armed robbery. Specifically, the IJ found that armed robbery “certainly is an offense relating to a theft offense, identified in § 101(a)(43)(G) of the INA.” Furthermore, the IJ determined that armed robbery constitutes a crime of violence as defined in INA § 101(a)(43)(F) because it involves a clear risk of harm to an individual. Finally, the IJ found that Alvarado-Fonseca was removable pursuant to § 237(a)(2)(C) because he had been convicted of a crime that involved the use or possession of a firearm. The IJ dismissed Alvarado-Fonseca’s application for cancellation of removal, concluding that he was ineligible for cancellation because he had been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (barring a permanent resident alien from eligibility for cancellation of removal if he has been convicted of an aggravated felony).

On appeal of the IJ’s decision to the BIA, Alvarado-Fonseca argued that he was not removable pursuant to § 237(a)(2)(C) because he had not been convicted of a firearm offense.1 Alvarado-Fonseca also maintained that, because he was not deportable at the time he was convicted, he cannot be removed today. Specifically, Alvarado-Fonseca argued that the IIRIRA’s expanded the definition of “aggravated felony”-enacted in 1996-could not be applied to his 1984 conviction because (1) there is a presumption against retroactive application, and (2) retroactive application would violate his due process rights.

On March 17, 2010, the BIA dismissed Alvarado-Fonseca’s appeal, rejecting Alvarado-Fonseca’s argument that the IIRIRA’s aggravated felony provision should not apply retroactively. For that conclusion the BIA relied in part on our decision in Flores-Leon v. INS, 272 F.3d 433 (7th Cir.2001), which we discuss further below. The BIA did not determine whether Alvarado-Fonseca was removable under § 237(a)(2)(C), noting that even if he was not, he had failed to establish that he was not otherwise removable under § 237(a)(2)(A)(iii).

II. Discussion

Generally, we lack jurisdiction to review an order removing an alien who has been convicted of committing an “aggravated felony.” See 8 U.S.C. § 1252(a)(2)(C); Gaiskov v. Holder, 567 F.3d 832, 835 (7th Cir.2009). However, pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review questions of law and constitutional claims. Here, Alvarado-Fonseca raises legal questions regarding the interpretation of the aggravated felony provisions of the INA and a constitutional claim founded on the ex post facto clause. Therefore, we have jurisdiction to consider the petition. While we review questions of law and constitutional claims de novo, we defer to the BIA’s reasonable interpretation of the INA, “so long as it is ‘consistent with the language and purposes of the statute.’ “ Gattem v. Gonzales, 412 F.3d 758, 763 (7th Cir.2005).

A. Exhaustion

In the instant petition, Alvarado-Fonseca effectively concedes that he is removable under our decision in Flores-Leon v. INS, 272 F.3d 433 (7th Cir.2001), but argues that we instead should follow the Ninth Circuit’s decision in Ledezma-Galicia v. Holder, 599 F.3d 1055 (9th Cir.2010). As the discussion below demonstrates, contrary to Alvarado-Fonseca’s interpretation, the two cases are not necessarily in conflict. More importantly, Alvarado-Fonseca’s failure to raise before the BIA the arguments addressed in Ledezma-Galicia, which he effectively adopts in his petition, precludes us from considering this line of reasoning.

In Flores-Leon, we squarely rejected the argument Alvarado-Fonseca advanced before the BIA-namely, that the IIRIRA’s definition of aggravated felony cannot be applied retroactively. The petitioner in Flores-Leon had been convicted in 1994 of a crime that was not classified as an aggravated felony until 1996. We concluded that the amended definition could be applied to the earlier conviction, holding that “the amended definition of ‘aggravated felony’ [set forth in IIRIRA § 321(a) ] should be applied to any and all criminal violations committed by an alien after his or her entry into the United States, regardless of whether they were committed before or after the amended definition went into effect.” 272 F.3d at 439. We reasoned that Congress had “clearly manifested an intent to apply the amended definition of ‘aggravated felony’ retroactively” in IIRIRA § 321(b), which states that “[n]otwithstanding any other provision of law (including any effective date), [the amended definition of aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996.” Id.

Ledezma-Galicia involved a petitioner who, like Alvarado-Fonseca and unlike Flores-Leon, was convicted before Congress enacted the ADAA in 1988, thereby making conviction for an “aggravated felony” a deportable offense for the first time. 599 F.3d at 1058. Ledezma-Galicia argued that the temporal limitation set forth in ADAA § 7344(b) remains in effect and prohibits his removal. Id. at 1061. The government responded that the ADAA’s temporal limitation on the aggravated felony ground of deportation did not survive the later passage of the IMMAct in 1990 and the IIRIRA in 1996. Specifically, the government argued that IMMAct § 602(c) and IIRIRA § 321(b) override ADAA § 7344(b). Id. In a split decision, the Ninth Circuit rejected both of the government’s arguments and found that the petitioner could not be deported.

With respect to IIRIRA § 321 (the only provision at issue in Flores-Leon ), the Ninth Circuit stated that “it is settled law that the ․ definitional statute, IIRIRA § 321, which defines certain crimes as aggravated felonies, applies regardless of the date of the crime.” Id. at 1074 (quoting Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir.2006)) (emphasis in original). That is precisely what we said in Flores-Leon. The Ledezma-Galicia court went on to explain that, under Ninth Circuit precedent, “the IIRIRA’s effective date provisions do not control ‘the substantive immigration consequences of IIRIRA’ (emphasis added)-even when those consequences turn on an aggravated felony conviction.” Id. (quoting Lopez-Castellanos, 437 F.3d at 852-54). In other words, the Ninth Circuit has held that while the definition of “aggravated felony” applies to all aliens, that does not necessarily mean that all aliens convicted of an aggravated felony can be deported as a result. We have never explicitly considered whether the consequences of being an aggravated felon, such as removability, should be considered separately from the definition. Flores-Leon may be read as implicitly holding that both the definition and consequences of being an aggravated felon apply retroactively. But even if that is the case, such that our case law is in conflict with the Ninth Circuit’s, we cannot resolve that tension here, for the reasons below.

The Ledezma-Galicia court went on to conclude that nothing in the IIRIRA affected the temporal limitation set forth in ADAA § 7344(b). 599 F.3d at 1074-75. It also found that IMMAct § 602(c) does not override ADAA § 7344(b). In reaching that conclusion, the Ninth Circuit refused to defer to the BIA’s contrary interpretation that the second sentence of IMMAct § 602(c) overrides ADAA § 7344(b)). Id. at 1062-73. Based on those determinations, the Ninth Circuit found that Ledezma-Galicia was not removable as an aggravated felon.

Thus, the decision on which Alvarado-Fonseca now relies turns on ADAA § 7344(b), and its relationship to IIRIRA § 321(b) and IMMAct § 602(c). By relying on Ledezma-Galicia, Alvarado-Fonseca is asking us to consider whether ADAA § 7344(b) remains in effect.2 But Alvarado-Fonseca did not raise the potential relevance of either ADAA § 7344(b) or IMMAct § 602(c) before the IJ or the BIA. Rather, in his administrative proceedings, Alvarado-Fonseca focused on the fact that he was convicted before the IIRIRA was enacted in 1996; now he bases his argument on the fact that he was convicted before the 1988 passage of the ADAA.

Consequently, as the government contends, Alvarado-Fonseca failed to exhaust the argument he now advances.3 “An alien ordered removed from this country is required to exhaust the administrative remedies available to him before seeking judicial review of the removal order.” Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir.2008); see also 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if ․ the alien has exhausted all administrative remedies available to the alien as of right”). Part of the duty to exhaust is the obligation to present all arguments to the BIA in the first instance that it has the power to address. Ghaffar, 551 F.3d at 655. Because Alvarado-Fonseca failed to exhaust his administrative remedies, we cannot consider his argument that ADAA § 7344(b) bars his deportation.

By requiring that the BIA be given the first opportunity to consider questions of law under the INA, the exhaustion requirement acknowledges and respects the BIA’s role as the primary interpreter of immigration law, as well as its expertise in interpreting the INA. Zeqiri v. Mukasey, 529 F.3d 364, 369-70 (7th Cir.2008). It would undermine the BIA’s authority to ignore the exhaustion requirement here.4

B. Ex Post Facto Clause

Alvarado-Fonseca also contends that deporting him for the commission of an aggravated felony would violate the ex post facto clause, which prohibits the retroactive application of criminal laws that materially disadvantage the defendant. See U.S. Const. art. I, § 9, cl. 3; Flores-Leon, 272 F.3d at 440. Alvarado-Fonseca concedes that the ex post facto clause applies only to criminal laws, and that both this circuit and the Supreme Court have long held that removal under the immigration laws is a civil proceeding, not a criminal punishment. See Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (“And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation.”); Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir.2004); Flores-Leon, 272 F.3d at 440. However, he argues that we should revisit that conclusion in light of the Supreme Court’s recent decision Padilla v. Kentucky, — U.S. —-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

In Padilla, the Court held that counsel for an alien charged with a crime has a constitutional obligation to tell the client that a guilty plea carries a risk of deportation. Id. at 1486. In reaching that conclusion, the Court noted that “deportation is a particularly severe ‘penalty,’ “ and that removal proceedings, while “civil in nature,” are “intimately related to the criminal process.” Id. at 1481. However, the Court also reaffirmed that deportation “is not, in a strict sense, a criminal sanction.” Id. In light of that statement, we cannot agree that Padilla provides sufficient guidance to deviate from the long line cases establishing that statutes retroactively setting criteria for deportation do not violate the ex post facto clause.

III. Conclusion

For the foregoing reasons, the petition for review is Denied.

FOOTNOTES

1. Alvarado-Fonseca offered no explanation for his position that armed robbery should not be considered a conviction for “using, owning, possessing, or carrying, ․ any weapon ․ in violation of any law” under INS § 237(a)(2)(C), and we can think of none. See 8 U.S.C. § 1227(a)(2)(C). However, contrary to the government’s request, we cannot deny the petition on the ground that Alvarado-Fonseca is removable pursuant to INS § 237(a)(2)(C). While the BIA noted that the IJ found Alvarado-Fonseca to be removable under § 237(a)(2)(C), it did not rely on § 237(a)(2)(C) as a basis for its ruling. Nor did the BIA adopt the IJ’s opinion. Therefore, the BIA’s decision is “the exclusive focus of our review.” Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007). Under SEC v. Chenery Corp., 332 U.S. 194 (1947), we cannot uphold the BIA’s ruling on “a ground that is not articulated-or at least discernable-in the decision itself.” Atunnise v. Mukasey, 523 F.3d 830, 838 (7th Cir.2008). Because the BIA did not rely on § 237(a)(2)(C) in dismissing Alvarado-Fonseca’s appeal, we cannot deny the petition on that basis.

2. We have not addressed that issue. Both the BIA and a number of our sister circuits have considered it, and have reached varying conclusions based on the interplay of the ADAA, the IMMAct, and the IIRIRA. See Lewis v. INS, 194 F.3d 539, 543 n. 5 (4th Cir.1999) (deferring to BIA’s interpretation that the second sentence of IMMAct § 602(c) overrides ADAA § 7344(b)); Lettman v. Reno, 207 F.3d 1368 (11th Cir.2000) (same); Bell v. Reno, 218 F.3d 86 (2d Cir.2000) (rejecting BIA’s interpretation that IMMAct § 602(c) overrides ADAA § 7344(b), but nevertheless concluding that petitioner convicted before 1988 is deportable under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony after entry into the United States, because IMMAct § 602(d) overrides ADAA § 7344(b)); Ledezma-Galicia, 599 F.3d 1055 (concluding that neither IMMAct § 602 nor IIRIRA § 321(b) overrides ADAA § 7344(b)).

3. Alvarado-Fonseca did not file a reply brief to refute the government’s exhaustion argument and argue that he properly preserved this issue.

4. As noted above, the BIA has concluded in other cases that IMMAct § 602(c) overrides ADAA § 7344(b). Presumably, the BIA would have dismissed Alvarado-Fonseca’s appeal on that ground if he had presented the argument he now raises in his administrative appeal. Therefore, one might argue that Alvarado-Fonseca should be excused from administrative exhaustion on futility grounds. (Alvarado-Fonseca does not attempt to avoid the exhaustion requirement by advancing this argument, or any other for that matter). However, we rejected a similar argument in United States v. Roque-Espinoza, 338 F.3d 724, 729 (7th Cir.2003), noting that “the law would never change if litigants did not request the responsible tribunals to reconsider earlier rulings.”

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LIN v. HOLDER JR-Chinese asylum and withholding of removal 7th Circuit

Posted on December 24, 2010 by Mike Baker

A Chinese citizen’s petition for review of a BIA’s affirmance of an IJ’s denial of an application for asylum and withholding of removal based on his wife’s alleged abortion, is denied where: 1) even if the abortion and sterilization certificates should have been given more weight, they contain nothing to suggest that these procedures were forced upon petitioner’s wife; 2) petitioner has given no reason to disturb the IJ’s adverse credibility finding as, petitioner failed to meet his burden of explaining to the IJ’s satisfaction the inconsistencies in his testimony and documents; 3) petitioner was afforded an opportunity for a full and fair hearing; 4) although the petitioner failed to exhaust his claim of ineffective assistance of counsel, this claim is without merit; and 5) the failure to exhaust aside, petitioner’s claim that the IJ should have determined whether he was competent to testify is rejected as, when an alien raises the issue of his competency with the IJ, the IJ generally is not expected to sua sponte initiate a competency evaluation.

Long-Gang LIN,Petitioner, v. Eric H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 10-1401.

Argued Sept. 28, 2010. — December 23, 2010
Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.

Nathaniel K. Hsieh, Attorney, Chicago, IL, for Petitioner.Blair O’Connor, Attorney, Oil, Attorney, Claire Workman, Attorney, Department of Justice, Washington, DC, for Respondent.

Long-Gang Lin sought asylum and withholding of removal based on his wife’s alleged forced abortion. An Immigration Judge (“IJ”) denied relief based on an adverse credibility determination. The Board of Immigration Appeals (“Board”) affirmed. Lin petitions for review of the Board’s decision, contending that the Board erred in affirming the IJ’s adverse credibility determination. He also argues that the IJ and Board failed to recognize the ineffective assistance of his counsel and that he was denied his right to a fair hearing. Lastly, he claims that the IJ should have inquired into his competency to testify.

I. BACKGROUND

Lin is a native and citizen of the People’s Republic of China. He entered the United States on August 25, 2005. The Department of Homeland Security (“DHS”) served him with a Notice to Appear and charged that he was subject to removal. Lin admitted the allegations in the Notice and applied for asylum and withholding of removal. He submitted supporting documentation, including purported abortion and sterilization certificates for his wife. DHS submitted Forensic Document Laboratory (“FDL”) findings concerning the certificates, and the IJ continued the proceedings to allow Lin to respond. Thereafter, Lin submitted a letter from his attorney challenging the FDL findings.

On April 16, 2008, the IJ held a hearing at which Lin testified. He stated that the documentation attached to his asylum application was genuine. He said that he had reviewed the contents of his application and that everything in it was true. Lin was born in Fuzhou City, Fujian Province, China in 1967 and married Yong Chen in 1996. They have a daughter who was born in 2000. Lin stated that he had a second-grade education and could not read or write. He worked at a thermos factory from 1987 through 1996, when he was fired for being “disruptive.” He explained that he would “sometimes hav[e] troubles with [his] co-workers, like ․ coming to blows.” In 1996, Lin opened a diner but was forced to close it in 2001 to make room for new development. Neither Lin nor his wife has worked since 2001; they have supported themselves and their daughter on their savings. Lin’s wife still lives in Fuzhou.

Lin said that he and his wife wanted to have a second child because it had been “quite a while” since their daughter’s birth. He “knew a little bit” about China’s one child policy, including that they had to apply for permission to have a second child. They did not do so. He also knew that if they had a second child, they would have to pay a social compensation fee which they could not afford. According to Lin, his wife complied with the requisite quarterly pregnancy tests, but he had no documentation to prove it. He claimed that he told her not to go for the check-ups, but she did because the neighborhood birth control office told her she had to report.

Lin testified that his wife became pregnant with their second child in September 2004 and that on September 10, people from the neighborhood committee came to their house and discovered the pregnancy. He said that the committee conducted random checks and checks when they suspected someone might be violating the family planning laws. When questioned regarding how far along his wife was in the pregnancy, Lin stated that she was a little more than three months pregnant and that she looked pregnant. According to Lin, the members of the committee took his wife by force to the neighborhood committee office. He claimed he tried to resist and they “came to some physical contact”-“almost” to the point of “using fists.” He did not injure anyone, but said he threatened to do so. He added that they pushed each other, but did not knock each other down. Lin stated that he followed his wife to the neighborhood committee office where there was more “pushing around.” They were in the office for about twenty minutes. Lin claimed his wife was eventually taken away to a local hospital to have an abortion. When asked if she had any operation other than the abortion, he responded that she had not. He explained that he did not go to the hospital with his wife because the committee members told him that it was his “wife’s ․ problem only” and if he followed her, he would be “in trouble too.” The IJ asked Lin about the purpose of the stop at the committee office on the way to the hospital. Lin could offer no explanation other than that “they took my wife there.”

Lin later stated that the abortion occurred on December 25, 2005. Subsequently, when asked when his wife was taken to the hospital, he answered, “December 5, 2003.” The IJ asked Lin if he was sure about the date, and Lin replied that the abortion occurred in December 2004. He then claimed that “the matter that happened at the hospital ․ happened the next day.” The IJ sought clarification of the dates and events. Lin said that the people from the neighborhood committee came to his house “August 20 something 2004.” The IJ indicated that Lin was giving different answers to the same question and again asked him for the date on which the neighborhood committee went to his house and discovered his wife’s pregnancy. Lin said, “2004.” The IJ asked him to be more specific, and Lin claimed that “they discover[ed] the pregnancy in May 2004.” This prompted the IJ to ask how the members of the committee discovered that his wife was pregnant in May 2004. Lin claimed that her pregnancy was visible at that time. The IJ pressed further on the date, and Lin said that the officials came to his house in May to “do [a] regular check” for compliance at which time his wife was not pregnant. He stated that they came again in September 2004 and found her pregnant. The IJ asked if a pregnancy test was administered. Lin said that ultrasound technology was used in a hospital. The IJ asked when the abortion occurred; Lin answered, “December the 5th, 2004.” The IJ inquired whether Lin knew that was the third date he had given, and Lin explained that he had remembered that the date was December 5, 2004. According to Lin, his wife did not agree to the abortion but that did not “matter because the decision was made by the committee.”

Lin stated that he had an x-ray report to prove that his wife had an abortion. He claimed the doctor sent the report to his house in China and his wife mailed it to him. He claimed that the report said that pregnancy is forbidden and his wife is not allowed to become pregnant. When the IJ asked if anything was done to prevent his wife from becoming pregnant again, Lin said, “They didn’t do anything. They just told us that no pregnancy anymore.” Lin testified that both he and his wife were physically capable of having another child.

The IJ asked Lin why he feared returning to China. Lin responded that he “would be unemployed” and he could not find work because he was uneducated and illiterate. Lin admitted that this was part of the reason he came to the United States and claimed the other part was the loss of his second child.

As mentioned, Lin submitted documentation to support his claim. In his political asylum statement submitted with his application, Lin wrote that his wife became pregnant for the second time in September 2004 and that on December 5, 2004, the family planning officials came to their home and took her to the hospital to have an abortion and sterilization. Lin had a letter and translation of a radiology examination report, indicating that Yong Chen, his wife, had both fallopian tubes sterilized. He also submitted a letter from his wife in which she said that she became pregnant the second time in September 2004 and that she was taken on December 5 to a hospital to have a forced abortion and sterilization. She claimed that she received the abortion and sterilization certificates from the officials of the neighborhood family planning office later that month. Finally, Lin provided translated certificates indicating that an abortion and sterilization were performed on Yong Chen on December 5, 2004. DHS submitted the findings of a forensic document examiner who determined that “[i]t is unlikely that [the abortion and sterilization certificates] are genuine.” Several reasons were given to support this determination. Lin responded with a letter from his then-attorney Li Nan Chiang.

On April 16, 2008, the IJ issued an oral decision. Based on Lin’s concession of removability and admission of allegations in the Notice to Appear, the IJ found him removable as charged. She then considered his application for asylum and withholding of removal. The IJ took into account Lin’s “limited education and alleged functional illiteracy” and his demeanor while testifying and found him not credible. She noted that he “was unable to provide the most basic of information that forms the very foundation of his claim” and determined that “[t]he inconsistencies in his testimony are so significant ․ that they warrant this finding of incredibility.”

The IJ gave several reasons for her adverse credibility determination. First, Lin was unable to provide a plausible explanation as to how the members of the neighborhood committee immediately determined that his wife was pregnant. The IJ also relied on the “substantial inconsistencies” in the dates for the abortion that Lin provided, noting he had given three different dates. The IJ said that she did not find “anything in [Lin’s] behavior, demeanor, background, et cetera to say that he cannot remember simple facts.” Even more important to the IJ, though, was that Lin’s written statements indicated his wife had not only a forced abortion but also an involuntary sterilization; however, Lin never mentioned the latter procedure while testifying, even when asked if anything other than the abortion was done to her. Lin even testified that he and his wife were physically able to have another child. The IJ was also troubled by the FDL report that found the abortion and sterilization certificates suspect, but she did not give great weight to that report or counsel’s reply thereto. She found that the certificates did not deserve full evidentiary weight in part because Lin failed to provide very detailed testimony, and none about the sterilization. In addition, the IJ noted Lin’s testimony that he had “physical contact” with the family planning officials, which she viewed with skepticism because his written materials made no mention of it. Having found Lin not credible, the IJ denied his application for asylum and withholding of removal and ordered him removed to China.

Lin appealed to the Board. He asserted that the IJ “gave undue weight to the adverse FDL findings.” He also claimed that given his second-grade education and “brain injuries” from working at a state-owned enterprise in China, the IJ should have inquired into and given weight “to such injuries as persecution.” In an attached affidavit, Lin added that he had worked in a factory where he was exposed to mercury sprayed on thermos bottles and that both his parents died from cancer after having worked at the factory “all their lives.”

On January 25, 2010, the Board summarily affirmed the IJ’s decision. The Board noted that in a July 28, 2009, decision it had suspended Lin’s former counsel Li Nan Chang from practicing before the Board, the immigration courts, and the DHS. Because Lin had retained new counsel who filed the appeal and appellate brief, the Board proceeded to decide the appeal. Lin petitioned for review with this court.

II. ANALYSIS

Lin raises several arguments on appeal. He first argues that the IJ erred in placing insufficient weight on the certificates of his wife’s abortion and sterilization procedures based on perceived deficiencies and lack of detail in his testimony. He claims that his documentation “should have served the REAL ID purpose of corroborating otherwise incredible testimony.” He argues that the IJ erred in failing to probe into his background and alleged exposure to harmful chemicals and that the Board erred in not addressing this alleged explanation for the inconsistencies in his testimony. He also asserts that the IJ and Board erred in failing to recognize the ineffective assistance of his counsel. Finally, he claims that the IJ erred in failing to determine whether he was competent to testify.

Where, as here, the Board summarily affirms, we review the IJ’s decision. Juarez v. Holder, 599 F.3d 560, 564 (7th Cir.2010). Our review is deferential and we “ask only whether [the decision] is supported by ‘reasonable, substantial, and probative evidence on the record considered as a whole.’ “ Lin v. Holder, 620 F.3d 807, 810 (7th Cir.2010) (quoting Toptchev v. I.N.S., 295 F.3d 714, 720 (7th Cir.2002)). We “will reverse only if the evidence compels a contrary conclusion.” Surganova v. Holder, 612 F.3d 901, 904 (7th Cir.2010).

In order to establish eligibility for asylum and withholding of removal, Lin bears the burden of proving that he is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(B)(i); Lin, 620 F.3d at 810. Thus, he had to show past persecution or a well-founded fear of persecution on account of his race, religion, nationality, membership in a protected social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). He alleges persecution based on China’s coercive family planning polices and alleged practices committed against his wife, on account of his political opinion. Lin may prove that he is a refugee based on his own testimony alone if the IJ finds it is credible. 8 U.S.C. § 1158(b)(1)(B)(ii). However, as the IJ recognized, “[g]iven the importance of the applicant’s credibility in asylum proceedings, ‘an adverse credibility finding will doom the applicant’s claimed eligibility as a ‘refugee.’ “ Hassan v. Holder, 571 F.3d 631, 637 (7th Cir.2009) (quoting Musollari v. Mukasey, 545 F.3d 505, 508-09 (7th Cir.2008)).

Before we evaluate the adverse credibility determination, we need to address some of the government’s arguments. The government first argues that we may not consider Lin’s unexhausted claims that: (1) his counsel was ineffective; (2) the IJ should not have proceeded with the hearing because of counsel’s ineffective assistance; (3) the IJ should have determined Lin’s competency to testify; (4) the IJ erred in its findings regarding Lin’s belated claim of physical contact; (5) the FDL report’s suspicions of the sterilization certificate were baseless; and (6) the weight given to the abortion and sterilization certificates contradicted the purpose of the REAL ID Act-allegedly to corroborate otherwise incredible testimony. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right.”); Muratoski v. Holder, 622 F.3d 824, 830-31 (7th Cir.2010) (denying petition for review where alien failed to exhaust administrative remedies). “ ‘The duty to exhaust includes the obligation to first present to the [Board] any argument against the removal order as to which the Board is empowered to grant the alien meaningful relief.’ “ Muratoski, 622 F.3d at 830 (quoting Ghaffar v. Mukasey, 551 F.3d 651, 654 (7th Cir.2008)). Lin’s failure to exhaust the claims identified above prevents us from reviewing them.2

The government contends that the exhaustion requirement is jurisdictional. We have said that it is not. See, e.g., Issaq v. Holder, 617 F.3d 962, 968 (7th Cir.2010) (failure to exhaust “is not ․ a jurisdictional rule in the strict sense ․ [but] a case-processing rule that limits the arguments available to an alien in this court”).

The government next argues that Lin has waived several challenges to the IJ’s decision, including most of the reasons for the adverse credibility finding as well as his claim that the weight given to the alleged abortion and sterilization certificates contradicts the purpose of the REAL ID Act. The “statement of facts and procedural history” section of Lin’s opening brief mentions the following reasons supporting the IJ’s credibility determination: (1) Lin was unable to provide a plausible explanation as to how the neighborhood committee members determined that his wife was pregnant; (2) Lin’s written statements indicated his wife was forced to undergo sterilization, but Lin never mentioned it when testifying; and (3) Lin first claimed that he had “physical contact” with the family planning officials when testifying. But the brief only mentions these in passing. Merely mentioning that the IJ made these findings without advancing any argument supported by citations to relevant authority is insufficient to challenge those findings on appeal. See, e.g., Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008) (“Federal Rule of Appellate Procedure 28 requires an argument consisting of more than a generalized assertion of error, with citations to supporting authority.”) (quotations and citations omitted); Asere v. Gonzales, 439 F.3d 378, 381 (7th Cir.2006). Lin has not made any cogent argument to challenge these reasons for the adverse credibility finding. Thus, he has waived any challenge to them. But even if he had not waived these challenges, we would not disturb the IJ’s credibility finding for the reasons we discuss later.

Lin has waived other arguments too. He claims that the abortion and sterilization certificates he submitted “should have served the REAL ID Act’s purpose of corroborating otherwise incredible testimony” and that the IJ’s decision to give them less weight because of the inconsistencies in his testimony contravenes the purpose of the Act. But he offers no authority to support these arguments. The failure to adequately develop and support these arguments results in waiver. See Jin v. Holder, 572 F.3d 392, 397 (7th Cir.2009); Asere, 439 F.3d at 381 (citing Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 529 (7th Cir.2003) (“It is not enough for [plaintiff] merely to refer generally to these actions in her statement of facts; ․ she must identify the legal issue, raise it in the argument section of her brief, and support her argument with pertinent authority.”). In any event, “under the REAL ID Act, corroborating evidence may be required even if the applicant is credible.” Rapheal v. Mukasey, 533 F.3d 521, 527 (7th Cir.2008) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)).

Turning to the IJ’s adverse credibility determination, Lin’s only argument is that the IJ placed insufficient weight on the abortion and sterilization certificates. Yet the IJ was entitled to give them whatever weight she thought they deserved in light of all the evidence. See Weng v. Holder, 593 F.3d 66, 72 & n. 5 (1st Cir.2010) (concluding that documentary evidence did not compel a finding of persecution “especially in the absence of credible testimony on [the alien’s] part”); Feto v. Gonzales, 433 F.3d 907, 911 (7th Cir.2006) (stating that the IJ was entitled to weigh documentary evidence along with other evidence in the case). The IJ reasoned that the certificates were “not entitled to full evidentiary weight” because Lin “did not provide very detailed testimony,” particularly with respect to his wife’s sterilization. A lack of detail is a “major clue” that someone is lying. Mitondo v. Mukasey, 523 F.3d 784, 788-89 (7th Cir.2008). Indeed, Lin did not provide much detail about his wife’s abortion, sterilization, or the events surrounding these procedures. Even if the certificates should have been given more weight, they contain nothing to suggest that these procedures were forced upon Lin’s wife. We find no reason to disturb the IJ’s weighing of the certificates.

And in the end, even Lin acknowledges the discrepancies and inconsistencies in his testimony and supporting documents. Indeed, he notes the existence of a “remarkable number of inconsistencies” in his testimony. Yet he offers no argument why such unexplained discrepancies could not support the IJ’s adverse credibility determination. Any such argument is therefore waived. Jin, 572 F.3d at 397 & n. 3. (He attempts to offer an explanation, but that effort fails, as we address later.) Besides, an IJ may properly base a credibility determination on “the consistency between the applicant’s ․ written and oral statements ․ [and] the internal consistency of each such statement․” 8 U.S.C. § 1158(b)(1)(B)(iii); see, e.g., Hassan, 571 F.3d at 637 (“[T]he IJ may rely on inconsistencies between the applicant’s hearing testimony and earlier statements.”). Further, the addition of factual assertions in an applicant’s testimony that were not included in the written asylum application can support an adverse credibility finding. Hassan, 571 F.3d at 638-39 (deferring to adverse credibility determination where alien testified about four events of persecution but omitted them from his written application); Xiao v. Mukasey, 547 F.3d 712, 717 (7th Cir.2008) (upholding adverse credibility finding where alien failed to disclose the abortion during her airport interview and credible fear interview); Song Wang v. Keisler, 505 F.3d 615, 621 (7th Cir.2007) (upholding adverse credibility determination where alien based his asylum application on his wife’s sterilization and omitted mention of a forced abortion and of a fight that occurred at the hospital before his wife had an abortion).

Lin not only gave inconsistent dates for his wife’s abortion but also omitted any mention of her sterilization during his testimony. The IJ reasonably could have expected that Lin would testify about events that go to the heart of his claim. See Song Wang, 505 F.3d at 621. He even contradicted his claim by testifying that she was physically capable of having children. In addition, Lin’s claim of physical contact with the family planning officials first surfaced during his testimony. Further, Lin was unable to provide significant details about the abortion, sterilization, and the physical contact at the neighborhood committee office. He failed to offer an adequate and consistent explanation as to how the family planning officials knew his wife was pregnant, and he had no explanation for the brief stop at the neighborhood office. These were just some of the inconsistencies; there were more. Lin bore the burden of explaining to the IJ’s satisfaction the inconsistencies in his testimony and documents-some of which go to the heart of his claim. See Fedosseeva v. Gonzales, 492 F.3d 840, 846 (7th Cir.2007). He did not do so. Even Lin acknowledges that “a single inconsistency going to the heart of an asylum claim may be grounds for an adverse credibility determination.” (Br. 16 citing Huang v. Gonzales, 453 F.3d 942, 945-46 (7th Cir.2006)). Lin has given us no reason to disturb the IJ’s adverse credibility finding.

Lin argues that he did not have an opportunity for a full and fair hearing. He submits that the IJ should have probed into his background and exposure to harmful chemicals, which he claims “wreaked havoc on [his] cognitive abilities.” He complains that the Board did not address this explanation for his inconsistent testimony. He also claims that the IJ should not have proceeded with the hearing given counsel’s alleged obvious ineffectiveness.

Due process requires that an alien be afforded a meaningful opportunity to present a claim, Barradas v. Holder, 582 F.3d 754, 767 (7th Cir.2009); Capric v. Ashcroft, 355 F.3d 1075, 1088-89 (7th Cir.2004) (emphasizing it is the opportunity to present a claim that is protected), but “imposes no obligation to ensure that the alien actually makes a meaningful presentation,” Capric, 355 F.3d 1089. We examine “whether, given the totality of the circumstances, [the alien] had a full and fair opportunity to put on his case.” Barradas, 582 F.3d at 767. Lin had such an opportunity. The record does not suggest that the IJ interfered with Lin’s ability to present his claim. Lin could have testified about his claimed exposure to harmful chemicals, but he omitted any mention of this in his testimony and asylum application. Because he never brought this matter to the IJ’s attention, the IJ had no reason to suspect that an alleged chemical exposure caused Lin’s inability to remember simple details. There certainly is no basis for concluding that Lin’s testimony that he worked ten years in a factory manufacturing thermos bottles should have been a clue to the IJ that he was exposed to harmful chemicals or that those chemicals caused a brain injury which affected his ability to testify truthfully or accurately. And absent notice of Lin’s alleged exposure to harmful chemicals, there was no reason for the IJ to inquire further into the matter.

Lin also had the opportunity to explain the inconsistencies in his testimony to the Board. But the Board is not permitted to engage in fact-finding on appeal. See Figueras v. Holder, 574 F.3d 434, 437 (7th Cir.2009); 8 C.F.R. § 1003.1(d)(3)(iv). Lin did not move to remand to the IJ or reopen the proceedings for consideration of evidence of his background and exposure to harmful chemicals. Thus, the Board did not err in declining to address Lin’s proffered explanation for the inconsistencies in his testimony.

Regarding whether the IJ should have proceeded with the hearing given the “obvious” ineffective assistance of Lin’s counsel, Lin did not exhaust this claim. That barrier aside, Lin still could not prevail. He argues that his case is like Gjeci v. Gonzales, 451 F.3d 416, 424 (7th Cir.2006), where we concluded that by proceeding with the merits hearing, the IJ deprived the alien of a fundamentally fair hearing. But that case is distinguishable: Gjeci’s counsel withdrew; the IJ refused to grant a continuance to allow Gjeci to obtain new counsel; Gjeci’s counsel retained documents central to Gjeci’s claim; and Gjeci did not fully comprehend the consequences of his counsel’s withdrawal. Id. at 421-24. Furthermore, the record demonstrated prejudice-the IJ placed great weight on the evidence that the documents had been falsified and said he would have been inclined to grant Gjeci’s petition if the documents were authentic. Id. at 420, 423. Here, Lin was represented by counsel during the proceedings; the IJ granted him a continuance to allow a response to the FDL findings and his counsel submitted a response; and the IJ did not place great weight on the findings.

Lin further claims that it was highly unlikely that his counsel was capable of providing anything other than incompetent representation at the time of the IJ’s hearing. He first contends that the lack of compliance with the re-fingerprinting order was his counsel’s fault. The IJ noted that she did not serve written instructions about the re-fingerprinting. Anyway, she did not deem Lin’s claim abandoned, but allowed Lin and his counsel to proceed. Thus, the belated fingerprinting did not prejudice Lin.

Second, Lin argues that counsel could not produce any explanation for the “gross ․ discrepancies” in his testimony, presumably a reference to counsel’s failure to raise the alleged brain injury claim. But Lin wholly fails to substantiate his claim that the alleged exposure to mercury could have caused the gross discrepancies in his testimony. He does not, for example, offer any expert evidence that exposure to mercury such as Lin had-whatever that may have been; we don’t know because he has offered no evidence of it-could cause someone to forget simple details. So even now Lin has not substantiated his claim that his work at the thermal bottling plant and claimed exposure to mercury “explains” the substantial inconsistencies in his testimony. Thus, it is far from clear that counsel’s failure to produce evidence of this alleged explanation for the gross testimonial discrepancies would amount to ineffective assistance.

Another area of ineffectiveness, Lin alleges, was counsel’s waiver of closing argument. But Lin has not shown any prejudice resulted from the lack of argument. In addition, Lin argues that the timing of events leading to the disciplinary action against Chiang substantiates his claim of ineffective assistance. According to Lin, “[t]he ARDC [the Illinois Attorney Registration and Disciplinary Commission] found him incompetent in handling cases before April of 2008,” which was when the IJ held the hearing in this case. Yet Lin has offered no evidence to substantiate this claim. We do know that on July 28, 2009, the Board suspended Chiang from practicing before the Board, the immigration courts, and DHS pursuant to 8 C.F.R. § 1003.103(a). But representation by counsel whose license has been suspended does not automatically render that assistance per se ineffective. See United States v. Williams, 934 F.2d 847, 851-52 (7th Cir.1991). The fact that Chiang may have been ineffective in other matters does not direct the conclusion that he was ineffective here. Instead, Lin would have to show that an error or omission by Chiang prejudiced his case. He has not done so. Moreover, the IJ cited a host of reasons for finding Lin not credible. The record shows that Lin had a full and fair opportunity to present his claim.

Finally, Lin argues that the IJ should have determined whether he was competent to testify. He asserts that his very limited education and alleged brain injuries affected his cognitive abilities and competence to testify, not his credibility. The failure to exhaust aside, Lin could not prevail on this argument. When an alien raises the issue of his competency with the IJ, the IJ generally is not expected to sua sponte initiate a competency evaluation. See, e.g., Munoz-Monsalve v. Mukasey, 551 F.3d 1, 6 (1st Cir.2008). Lin was represented by counsel at the hearing before the IJ; counsel could have raised the issue of Lin’s competency, but did not. Furthermore, although Lin gave inconsistent answers and was unable to recall details of key events, there is nothing to suggest that this was due to a lack of competency rather than, as the IJ found, a lack of credibility.

III. CONCLUSION

For the foregoing reasons, the petition for review is Denied.

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

Matter of Soram, ID 3701, 25 I&N Dec. 378 (BIA 2010) – Unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health

Posted on November 19, 2010 by Mike Baker

The crime of unreasonably placing a child in a situation that poses a threat of injury to the child’s life or health in violation of section 18-6-401(1)(a) of the Colorado Revised Statutes is categorically a crime of child abuse under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006), even though no proof of actual harm or injury to the child is required. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008), clarified.

The Board, in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (B.I.A. 2008), interpreted the term “crime of child abuse” in INA § 237(a)(2)(E)(i) broadly to mean: any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking. Moreover, as in the “sexual abuse of a minor” context, we deem the term “crime of child abuse” to refer to an offense committed against an individual who had not yet reached the age of 18 years.

The Board then reviewed how the courts in Colorado have interpreted the “threat of injury” portion of Colo. Rev. Stat. § 18-6-401(1)(a), noting that (1) Colorado courts have repeatedly held that a violation of this statute is not a strict liability offense and that a culpable mental state must be shown in order for a conviction to lie and (2) the respondent here was convicted of “knowingly or recklessly” permitting a child to be unreasonably placed in a situation that posed a threat of injury to the life or health of the child under Colo. Rev. Stat. § 18-6-401(7)(b)(I). The Board found this “knowingly or recklessly” mens rea to be consistent with its definition of a crime of child abuse, which requires an “intentional, knowing, reckless, or criminally negligent act or omission.” The Board further noted that Colorado courts have held that the term “knowingly” in the statute “refers to the actor’s general awareness of the abusive nature of his conduct in relation to the child or his awareness of the circumstances in which he commits an act against the well-being of the child” and that “a person acts ‘recklessly’ when he consciously disregards a substantial and unjustifiable risk that, in light of the child’s circumstances, a particular act or omission will place the child in a situation which poses a threat of injury to the child’s life or health.” The Board concluded that the phrase “an act or omission that constitutes maltreatment of a child” under its definition of a crime of child abuse is sufficiently broad to encompass endangerment-type crimes and that the offense defined by the Colorado statute is categorically a crime of child abuse. In so holding, the Board observed that Colorado’s purpose in including the endangerment clause in its child abuse statute was similar to that of Congress in enacting INA § 237(a)(2)(E)(i)–“to single out those who have been convicted of maltreating or preying upon children.”

The Board found that the full range of conduct proscribed by Colo. Rev. Stat. § 18-6-401(a) falls squarely within the definition of a “crime of child abuse” and therefore concluded that the respondent’s offense categorically qualifies as a “crime of child abuse” under INA § 237(a)(2)(E)(i). The Board therefore dismissed the respondent’s appeal.

Posted in BIA, Board of Immigration Appeals | Leave a comment

Bribery of a public official is not an aggravated felony. Matter of GRUENANGERL, 25 I&N Dec. 351 (BIA 2010)

Posted on October 15, 2010 by Mike Baker

Matter of GRUENANGERL, 25 I&N Dec. 351 (BIA 2010) Interim Decision #3698
http://www.justice.gov/eoir/vll/intdec/vol25/3698.pdf

The crime of bribery of a public official in violation of
18 U.S.C. § 201(b)(1)(A) (2006)is not an offense “relating
to” commercial bribery and is therefore not an aggravated
felony under section 101(a)(43)(R) of the Immigration and
Nationality Act, 8 U.S.C.§ 1101(a)(43)(R) (2006).

Posted in Aggravated felony, BIA, Board of Immigration Appeals | Leave a comment

Cancellation of Removal/Good Moral Character/false claim of citizenship

Posted on October 7, 2010 by Mike Baker

Issue: Petitioner Muratoski challenges BIA’s interpretation of the regulation regarding the exception to an adverse finding of good moral character based on a false claim of citizenship (8 U.S.C. § 1101(f); Matter of Guadarrama de Contreras, 24 I. & N. Dec. 625 (BIA 2008)).

Outcome: The Seventh Circuit held that petitioner did not preserve this issue for review because he did not present it in his BIA proceedings. At the BIA, petitioner appealed the IJ’s adverse finding on good moral character but not the BIA’s interpretation of 8 U.S.C. § 1101(f) as articulated in Guadarrama de Contreras.  Based on failure to exhaust, the Seventh Circuit held that it did not have jurisdiction to hear petitioner’s appeal, but nevertheless concluded that the BIA’s interpretation of 8 U.S.C. § 1101(f) and the IJ’s application were proper in this case.

MURATOSKI v. HOLDER

Adil MURATOSKI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 09-3378.

Argued April 6, 2010. — September 20, 2010 Before KANNE, ROVNER and TINDER, Circuit Judges.

“Adil Muratoski petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”). The BIA denied Muratoski’s Motion to Reconsider its earlier decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision. The IJ denied Muratoski’s application for cancellation of removal because he lacked good moral character. Because Muratoski did not preserve the issue he now asks us to review, we deny his petition.

I.

Adil Muratoski is a native and citizen of Macedonia who entered the United States in August 1986. Shortly thereafter, the former Immigration and Naturalization Service (“INS”) served Muratoski with an Order to Show Cause, commenced deportation proceedings against him, and charged him with being deportable from the United States as an alien who entered without inspection. During deportation proceedings held later that year, Muratoski admitted he was deportable as charged. He applied for asylum and withholding of deportation.1 On May 4, 1987, an IJ entered an order finding Muratoski deportable and denying his applications for asylum and withholding of deportation. The IJ granted Muratoski the privilege of voluntary departure, with the warning that the voluntary departure would ripen into an order of deportation if Muratoski failed to depart in the time allotted. The BIA dismissed Muratoski’s appeal on December 8, 1992, granting him thirty days to depart voluntarily. Muratoski failed to heed that order, and on March 10, 1993, the INS sent Muratoski a letter ordering him to report for deportation.

Unbeknownst to the INS, Muratoski had been working another angle in his bid to stay in the United States. In September 1992, while his case was on appeal with the Board, he met an immigration attorney at a restaurant. The attorney, whose name Muratoski no longer recalls, offered to help Muratoski become a citizen for a $3500 fee. Muratoski paid the fee and signed papers prepared by his new lawyer. The attorney accompanied him to the post office where he applied for a United States passport using a falsified birth certificate purporting that he had been born in Chicago. After his passport arrived in the mail, Muratoski continued to live in the United States for another thirteen or fourteen years without detection. During that time, he used the passport to depart and reenter the United States multiple times, even renewing the passport after it expired.

In December 2006, Immigration and Customs Enforcement (“ICE”) apprehended Muratoski at his home in Arlington Heights, Illinois. ICE officials served Muratoski with a Notice to Appear (“Notice”), placing him in removal proceedings. They later served him an amended Notice (“Amended Notice”) which charged new grounds of removability. The Amended Notice charged that Muratoski had been granted voluntary departure in 1992 but failed to voluntarily depart within the time allotted. It also charged that Muratoski effectively deported himself when he left the United States subsequent to his deportation. He then erroneously was admitted to the United States in 2002 based on the fraudulently obtained passport. The Amended Notice charged he was removable under 8 U.S.C. § 1227(a)(1)(A) because, at the time of his 2002 entry, he was inadmissible for making a false claim of citizenship, see 8 U.S.C. § 1182(a)(6)(C)(ii), and because he sought admission in 2002 after having been deported, see 8 U.S.C. § 1182(a)(9)(A)(ii). ICE also asserted that Muratoski was removable under 8 U.S.C. § 1227(a)(3)(D), as an alien who falsely represented himself to be a citizen. On February 15, 2007, Muratoski admitted the factual allegations against him in the Amended Notice and conceded removability. Five days later, as we will discuss below, he applied for cancellation of removal.

Continuing his strategy of fighting removal on multiple fronts, on January 8, 2007, Muratoski moved to reopen the 1992 deportation order with the BIA. In that motion, Muratoski asserted that an attorney obtained the passport for him and that he was unaware of the fraudulent nature of the passport. He also maintained that he was eligible for cancellation of removal. The BIA denied the motion to reopen on March 2, 2007, finding that it was unsupported by any evidence. The BIA also found that Muratoski’s February 15, 2007 admission of the allegations listed in the Notice to Appear undercut his claim that he believed his passport was genuine.

Returning to the other path to relief that Muratoski pursued, on February 20, 2007, he applied for cancellation of removal. In general, the Attorney General may cancel removal of an alien who is inadmissible or deportable from the United States if the alien, among other things, has “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date” of an application for cancellation of removal; and “has been a person of good moral character during such period.” 8 U.S.C. § 1229b(b)(1)(A)-(B). Section 1101(f) provides a list of persons who are per se excluded from receiving a finding of good moral character. Among the categories excluded are drunkards, gamblers, aggravated felons and persons who assisted Nazi persecutions. Section 1101(f) also contains a “catch-all” provision as well as an exclusion to the catch-all:

The fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character. In the case of an alien who makes a false statement or claim of citizenship, or who registers to vote or votes in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of such registration or voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such statement, claim, or violation that he or she was a citizen, no finding that the alien is, or was, not of good moral character may be made based on it.

8 U.S.C. § 1101(f). Under this provision, the fact that a person is not in one of the listed categories does not preclude a finding that the person lacked good moral character. But if a person makes a false claim of citizenship, and that person meets the other criteria listed (having U.S. citizen parents, residing in the United States prior to age 16, a reasonable belief that he or she was a citizen at the time the claim was made), then a finding of lack of good moral character may not be based on that false claim of citizenship. Other false claims of citizenship may be the basis of a finding of lack of good moral character. See Guadarrama de Contreras, 24 I. & N. Dec. 625, 627 (BIA 2008) (a person “who has made a false claim of United States citizenship may be considered a person who is not of good moral character,” but Section 1101(f) of the Act “does not, however, mandate such an outcome.”).

The IJ held a hearing on Muratoski’s February 20, 2007 application for cancellation of removal. Muratoski testified that he obtained his passport with the assistance of the unnamed attorney. Muratoski also admitted he had used the passport to travel to and from the United States multiple times between 1992 and 2006. He confirmed that during his 1986 and 1987 deportation hearings, he had conceded that he was a citizen of the former Yugoslavia. He conceded that, although he thought at one time he was a United States citizen, he came to realize he had been mistaken. He testified that he paid the unnamed attorney $3500, signed some papers, and filed them at the post office with the attorney’s assistance. After his passport arrived in the mail several weeks later, the attorney told Muratoski he was a United States citizen.

But among the papers he submitted with his passport application was a birth certificate purporting that he had been born in Chicago. Nonetheless, he testified that, at the time, he did not know the document was a birth certificate or that it was false. The IJ apparently did not believe Muratoski’s claim of ignorance about the false nature of the documents supplied to gain the passport. He found Muratoski was not eligible for cancellation of removal because he lacked good moral character. See 8 U.S.C. § 1229b(b)(1). The IJ, citing 8 U.S.C. § 1101(f), based that finding on the fact that Muratoski had falsely represented himself to be a United States citizen. He ordered Muratoski removed to Macedonia.

Muratoski timely appealed that order to the Board. He contended that the IJ had failed to consider whether he reasonably believed himself to be a United States citizen at the time he obtained his passport. The BIA dismissed the appeal on May 22, 2008, noting that Muratoski did not deny that he possessed a fraudulent passport or that he used it multiple times to reenter the United States. The BIA cited Section 1101(f), listing classes of persons who are per se disabled from claiming good moral character. The BIA recognized that the “catch-all” provision in Section 1101(f) specifies that a person need not fall within one of the per se classes in order to be found lacking in good moral character, with one exception. Section 1101(f) permits an IJ to find that a person who makes a false claim of citizenship is not of good moral character unless (1) that person’s parents are citizens, (2) that person permanently resided in the United States prior to the age of 16, and (3) that person reasonably believed at the time of claiming citizenship that he or she was a citizen. A person meeting the three criteria of the exception may not be found to lack good moral character simply on the basis of making a false claim of citizenship. The BIA found that the exception to the catch-all provision in Section 1101(f) did not apply to Muratoski because he made no claim that his parents were United States citizens or that he resided in the United States before age 16. The BIA ruled that the agency was therefore not precluded from finding that Muratoski lacked good moral character on the basis of a false claim of citizenship. The BIA also found that the IJ did not clearly err in finding that Muratoski either knew or should have known he was not a United States citizen at the time he made that claim. Among the evidence supporting the IJ’s finding was the timing of Muratoski’s acquisition of the false passport and the use of a document lisiting his birthplace as Chicago.

On June 11, 2008, Muratoski filed a Motion to Reconsider (the “Motion”). In the Motion, Muratoski asked the BIA to reconsider the May 22, 2008, decision with reference to the following:

a. The issue of good moral character in the narrow review as was concluded by the Immigration Judge (the Respondent’s believing that he is a U.S. citizen).

b. The issue of Respondent’s failure to depart the U.S. as ordered by the Immigration Court after he received his U.S. passport.

R. 3, at 2-3. Specifically, Muratoski conceded that he held a fraudulent U.S. passport but argued that if he reasonably believed he was a U.S. citizen, then Section 1101(f) may not be construed against him. Muratoski complained that, in its dismissal of his original appeal, the BIA stated that Section 1101(f) required more than a reasonable belief of citizenship. The IJ focused on whether Muratoski reasonably believed he was a U.S. citizen and concluded that he knew or should have known he was not and therefore lacked good moral character in presenting himself as a citizen. Muratoski wished only for review of the IJ’s conclusion that his belief was unreasonable but the BIA addressed additional sections of 1101(f) that were not referenced by the IJ. Muratoski also objected to the BIA’s comments about his failure to depart the United States voluntarily when he had been ordered to do so in 1992. Muratoski had not addressed that issue in this round of proceedings because the IJ had not raised it. Muratoski argued in the Motion to Reconsider that at the time he was allowed voluntary departure, he thought he was a United States citizen no longer subject to the jurisdiction of the immigration court.

The BIA denied the Motion to Reconsider on August 31, 2009. It noted that it had in fact reviewed the IJ’s finding that Muratoski lacked good moral character, and had found no clear error in the IJ’s conclusion that Muratoski had represented himself to be a United States citizen when he had no reasonable belief that he was in fact a citizen. Again reviewing the circumstances of Muratoski’s claim of citizenship, the BIA noted that, in applying for his passport, Muratoski had used a birth certificate stating that he was born in Chicago. The BIA also cited the IJ’s finding that Muratoski was desperate not to leave the United States and had admitted during testimony that he would have signed anything to stay in this country. The BIA further cited the IJ’s reliance on the timing of obtaining the passport as evidence that Muratoski did not have a good-faith belief that he was a United States citizen. Muratoski had applied for the passport (using documents that claimed he was born in Chicago) after the IJ denied him political asylum and withholding of deportation, while his appeal of that decision was pending before the BIA. In those very proceedings for asylum and withholding of deportation, Muratoski had conceded he was born in Yugoslavia. In denying the motion to reconsider, the BIA cited its own decision in Matter of Guadarrama de Contreras, 24 I. & N. Dec. 625 (BIA 2008), for the proposition that certain persons who make a false claim of citizenship may be found to be lacking good moral character although Section 1101(f) does not mandate that finding.

II.

In his petition to this court, Muratoski contends that the Board misconstrued Section 1101(f) and failed to follow its own precedent in holding that he lacked good moral character on the basis of a false claim of citizenship. According to Muratoski, simply “claiming that you are a citizen is not enough to bar a finding of good moral character according to Board precedent.” Brief for Petitioner, at 15. Citing the BIA’s decision in Guadarrama de Contreras, he contends that a mere false claim of citizenship does not automatically preclude a finding of good moral character. He also maintains that the Board misconstrued Section 1101(f) in finding that a false claim of citizenship was sufficient to bar a finding of good moral character.

A.

The government first argues that we lack jurisdiction to review anything other than the Board’s denial of Muratoski’s motion to reconsider. We have the authority and the obligation in every case to assess our own jurisdiction, and we undertake this review de novo. Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 443 (7th Cir.2007); Gattem v. Gonzales, 412 F.3d 758, 762 (7th Cir.2005). Muratoski filed his petition in this court on September 29, 2009, within thirty days of the BIA’s August 31, 2009 decision denying his motion to reconsider, and his petition is therefore timely as to that decision. See 8 U.S.C. § 1252(b)(1) (“[t]he petition for review must be filed not later than 30 days after the date of the final order of removal”). See also Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir.2006) (a petition for review of a final order of removal must be filed not later than thirty days after the date of that order). Under the same authority, we may not review the Board’s underlying decision of May 22, 2008 dismissing Muratoski’s appeal of the IJ’s decision because his petition is not timely as to that decision. Asere, 439 F.3d at 380 (the thirty-day limit is jurisdictional and therefore may not be excused). Moreover, a motion to reconsider does not toll the time to seek judicial review. Stone v. INS, 514 U.S. 386, 405 (1995) (the finality of a removal order is not affected by the subsequent filing of a motion to reconsider); Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir.2006) (a motion asking the BIA to reconsider its decision does not toll the time to seek judicial review); Asere, 439 F.3d at 380 (“the case law could not be clearer on this issue; a motion to reconsider does not toll the initial 30-day filing deadline for seeking judicial review of the underlying removal order”). Thus, the only decision before us is the Board’s denial of Muratoski’s motion to reconsider, a decision that we review for abuse of discretion. Hernandez-Baena v. Gonzales, 417 F.3d 720, 724 (7th Cir.2005); Ali v. Ashcroft, 395 F.3d 722, 731 (7th Cir.2005).

B.

The government next contends that Muratoski did not exhaust the only argument he raises on appeal, and we therefore may not consider that argument. See 8 U.S.C. § 1252(d)(1) (a court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right). See also Ghaffar v. Mukasey, 551 F.3d 651, 654 (7th Cir.2008) (an alien ordered removed from this country is required to exhaust the administrative remedies available to him before seeking judicial review of the removal order). “The duty to exhaust includes the obligation to first present to the BIA any argument against the removal order as to which the Board is empowered to grant the alien meaningful relief.” Ghaffar, 551 F.3d at 654. Although the failure to exhaust may be excused when the alien is making a constitutional claim, no exception to the exhaustion requirement applies here because the BIA is empowered to grant Muratoski meaningful relief on the issue he now raises. Ghaffar, 551 F.3d at 655.

The government characterizes Muratoski’s issue on appeal as a challenge to the BIA’s construction of Section 1101(f), the statutory provision governing the finding of good moral character. According to the government, in his motion to reconsider, Muratoski asked the Board to consider only whether the IJ correctly concluded that he lacked good moral character because he did not reasonably believe he was a U.S. citizen when he portrayed himself to be one.2 The government points out that Muratoski now argues that the BIA misconstrued Section 1101(f) and also misconstrued its own precedent in Guadarrama de Contreras in finding that a false claim of citizenship automatically precluded a finding of good moral character.3

The government is correct that Muratoski did not exhaust the argument he makes now because he did not raise it in his motion to reconsider. In the motion to reconsider, Muratoski did not contend that the Board misconstrued Section 1101(f) but rather complained that the Board addressed parts of Section 1101 on which the IJ had not relied. He wished the Board to reconsider the IJ’s conclusions only on the grounds the IJ had considered. He did not cite Guadarrama de Contreras in the motion to reconsider, much less argue that the Board had misconstrued this precedent in its May 22, 2008 decision. We therefore may not consider this argument because Muratoski failed to exhaust all administrative remedies available to him as of right. See 8 U.S.C. § 1252(d)(1) (a “court may review a final order of removal only if ․ the alien has exhausted all administrative remedies available to the alien as of right.”). As Muratoski makes no other argument in his petition to this court, we must deny the petition.

C.

For the sake of completeness, if we were to consider Muratoski’s argument on the merits, his petition would still fail. Muratoski claims that the Board failed to follow Guadarrama de Contreras and misconstrued Section 1101(f). The Board did no such thing. The Board correctly found that the IJ could find, but was not compelled to find, that Muratoski lacked good moral character on the basis of his false claim of U.S. citizenship. Muratoski was not part of the excepted group of individuals who came to the United States before age 16, had citizen parents, and reasonably believed they were citizens at the time they made the false claim of citizenship. The BIA then found that the IJ did not err in finding that Muratoski lacked good moral character because he had made a false claim of citizenship and he did so at a time when he clearly had no reasonable belief that he was a citizen. He claimed to have been born in Chicago while proceedings were pending in which he had admitted he was born in Yugoslavia. He claimed to be a citizen even as his claims for asylum and withholding of deportation were pending. Although we may review non-discretionary findings of the IJ or BIA (including questions of statutory interpretation and constitutional issues), we lack jurisdiction to review a purely discretionary decision that Muratoski lacked good moral character. 8 U.S.C. § 1252(a)(2)(B)(i); Cueller Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir.2005). Because neither the IJ nor the BIA misconstrued Section 1101(f) but merely made discretionary decisions, we would be forced to dismiss the appeal for lack of jurisdiction if we considered the merits.

III.

Because Muratoski failed to exhaust his administrative remedies on the sole issue he raises in the petition for review, the petition is Denied.

FOOTNOTES

1.  A fair amount of the terminology has changed over the last twenty-five years. Removal has taken the place of deportation, for example. The Department of Homeland Security has taken over the functions of the former INS. We will apply the terms in use at the time of the events described.

2.  In its May 22, 2008 decision, the BIA weighed against Muratoski his failure to depart the United States as ordered by the immigration court after he received his passport. In the motion to reconsider, Muratoski complained that this was error. Muratoski does not repeat this argument in his petition to this court. The BIA correctly determined that Muratoski’s procurement of the passport after he had been ordered to depart undermined his claim that he reasonably thought he was a United States citizen.

3.  As we will address shortly, the Board made no such mistake. We are merely recounting the argument from Muratoski’s perspective at this stage of the analysis.”

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