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

Posted on February 16, 2017 by Mike Baker

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

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

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

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

________________________________________________________

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

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

Tim Ramnitz, for Respondent.

Nancy Canter, for Respondent.

Andrea M. Duron, for Petitioner.

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

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

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

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

I. Factual and Procedural Background

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

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

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

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

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

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

II. Analysis

A. Categorical Approach and Modified Categorical Approach

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

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

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

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

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

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

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

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

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

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

The petition for review is therefore DENIED.

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

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

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

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

Posted on September 30, 2016 by Mike Baker

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

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

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

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

CA7 upholds IJ denial of continuance to challenge marriage fraud finding and denial of adjustment of status

Posted on September 15, 2016 by Mike Baker

In 2009, the United States Citizenship and Immigration Services (USCIS) determined that Cadavedo, a native of the Philippines, had engaged in marriage fraud. During an interview, Cadavedo’s wife had admitted that Cadavedo had promised to pay her to marry him for immigration purposes. She gave a sworn statement to USCIS and withdrew her I-130 petition to adjust his status. That USCIS finding bars him from obtaining adjustment of his status to become a lawful permanent resident, 8 U.S.C. 1154(c). Cadavedo received a notice to appear, charging him as removable, in 2012. In 2014, an immigration judge denied Cadavedo’s request for a continuance to allow him to challenge the USCIS finding. The Board of Immigration Appeals affirmed. The Seventh Circuit denied relief. Cadavedo made his request during the hearing he sought to have continued, and his entitlement to the belated relief he wanted to seek from USCIS is speculative at best.

IJ did not err in denying alien’s request to continue hearing on his application to adjust his status to become lawful permanent resident (and thus avoid removal), where alien sought said continuance in order to challenge 2009 finding by USCIS that alien had engaged in marriage fraud. Alien’s visa petition was not prima facie approvable given prior finding of marriage fraud, and alien conceded that likelihood that USCIS would agree to entertain appeal more than 6 years late was “nil.” Also, alien failed to demonstrate that he took any action to contest fraud bar prior to instant removal hearing. Moreover, IJ’s refusal to hold contested hearing on fraud finding did not deprive alien of any due process right, where alien had no protected liberty interest in obtaining discretionary adjustment of status that would have prevented him from removal.

_________________________________

IVAN MENDOZA CADAVEDO, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-1914.

United States Court of Appeals, Seventh Circuit.
Argued May 24, 2016.
Decided August 31, 2016.

Rosanne M. Perry, for Respondent.

OIL, for Respondent.

Timothy A. Gambacorta, for Petitioner.

Claire Workman, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A089 506 066.

Before ROVNER, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Ivan Mendoza Cadavedo, a native of the Philippines, petitions for review of a Board of Immigration Appeals decision that affirmed an immigration judge’s denial of his request for a continuance. At a 2014 hearing, an immigration judge denied Cadavedo’s request for a continuance to allow him to challenge a 2009 finding by United States Citizenship and Immigration Services (“USCIS”) that he had engaged in marriage fraud. That USCIS finding bars him from obtaining adjustment of his status to become a lawful permanent resident. We hold that there was no abuse of discretion in denying Cadavedo’s request for a continuance. Cadavedo made his request during the hearing he sought to have continued, and his entitlement to the belated relief he wanted to seek from USCIS is speculative at best.

I. Background

This case revolves around Cadavedo’s past and possible future attempts to adjust his immigration status to become a lawful permanent resident. Unauthorized immigrants who have an immigrant visa immediately available to them (among other requirements) may apply to have their status adjusted to that of lawful permanent resident. 8 U.S.C. § 1255(a). There are no numerical limits on visas for immediate relatives of United States citizens, including spouses, so a visa is immediately available to such an immigrant. 8 U.S.C. § 1151(b)(2)(A)(i). To obtain this benefit, a United States citizen may petition for recognition of her relative’s classification as an immigrant entitled to a visa. 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). The immigrant may then apply for adjustment of status. See generally Matter of Hashmi, 24 I. & N. Dec. 785, 789-90 (BIA 2009) (describing process for adjustment of status). If an immigrant attempts to obtain adjustment of status through a sham marriage, however, no future petition on behalf of that immigrant may be approved. 8 U.S.C. § 1154(c); see also 8 C.F.R. § 204.2(a)(1)(ii).

In 2007, Cadavedo sought to adjust his status through his U.S. citizen wife. His wife filed an I-130 petition for recognition of Cadavedo as her spouse, and Cadavedo filed a corresponding I-485 petition to adjust his status to lawful permanent resident.

Immigration authorities interviewed the two to establish whether their marriage was bona fide. In her interview, Cadavedo’s wife admitted that Cadavedo had promised to pay her to marry him for immigration purposes. She gave a sworn statement to USCIS and withdrew her I-130 petition. USCIS denied Cadavedo’s I-485 petition to adjust his status. It notified Cadavedo that under 8 U.S.C. § 1154(c) it could not approve any future petitions on his behalf because he had entered into a marriage for the purpose of evading the immigration laws.[1]

In 2012, the Department of Homeland Security issued a Notice to Appear to Cadavedo. The Notice to Appear charged Cadavedo with removability based on overstaying his visa, 8 U.S.C. § 1227(a)(1)(B), working without authorization, § 1227(a)(1)(C)(i), and fraudulently attempting to adjust his status through a spousal preference, §§ 1182(a)(6)(C)(i), 1227(a)(1)(A). On May 16, 2013, Cadavedo appeared before an immigration judge and admitted all of the Attorney General’s factual allegations except for his marriage fraud, which he denied. The judge scheduled a hearing on the contested fraud charge for October 17, 2013.

In the fall of 2013, Cadavedo retained new counsel. Cadavedo’s new counsel sought to continue the October 17, 2013 hearing to develop his defense against the fraud charges of removability. The October 2013 federal government shutdown had the effect of granting a delay of several months, although the judge did not formally grant the continuance request.

On January 29, 2014, Cadavedo again appeared before the immigration judge. The Attorney General’s witness for the contested fraud charges did not appear for the hearing, so the Attorney General dropped that charge and proceeded on the other, uncontested grounds for removability. During the hearing, Cadavedo sought a continuance to give him an opportunity to bring a collateral challenge to USCIS’s fraud finding from 2009. Cadavedo told the judge he had a daughter who was in the process of naturalizing, and he said he wanted to seek adjustment of status through her.

The judge denied the request and ordered Cadavedo’s removal on the uncontested grounds for removability. Cadavedo appealed the denial of the continuance to the Board of Immigration Appeals. The Board affirmed the judge’s decision. It applied its precedent, Hashmi, 24 I. & N. Dec. at 790-92, and concluded that Cadavedo had failed to demonstrate good cause to continue his proceedings. The relief Cadavedo wanted to seek from USCIS was untimely, and his entitlement to receive it was speculative at best. The Board also found no deprivation of Cadavedo’s due process rights.

II. Analysis

A. Scope of Jurisdiction

We have jurisdiction to review Cadavedo’s final order of removal under 8 U.S.C. § 1252(a)(1). This includes jurisdiction to review whether the Board erred in affirming the immigration judge’s denial of a continuance along the way to reaching that final order. Calma v. Holder, 663 F.3d 868, 873 (7th Cir. 2011). Due to the limits on our jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i), we have jurisdiction to review the denial of the motion to continue unless “the agency’s rationale for denying the procedural request also establishes the petitioner’s inability to prevail on the merits of his underlying claim” for adjustment of status. Calma, 663 F.3d at 876. Our jurisdiction extends to review of the denial of a continuance “that is sought for purposes of allowing another agency to complete its review.” Id. at 877. Cadavedo sought a continuance to ask another agency to reconsider its previous determination rather than to complete its review, but we are satisfied that we have jurisdiction to hear that claim.

B. Denial of Continuance

We review the Board’s and judge’s decision to deny a continuance for abuse of discretion. Calma, 663 F.3d at 870. We will not overturn the decision “unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. at 878 (citation and internal quotation marks omitted). “Where, as here, the [Board] agrees with the [immigration judge’s] decision but supplements his reasoning, we review the [judge’s] decision as supplemented by the [Board].” Pawlowska v. Holder, 623 F.3d 1138, 1141 (7th Cir. 2010).

An immigration judge may grant a continuance “for good cause shown.” 8 C.F.R. § 1003.29. In evaluating whether the circumstances warrant a continuance to pursue an I-130 petition, the Board and judges presume that “discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing.” Hashmi, 24 I. & N. Dec. at 790. The “focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.” Id. And the Board and judges also consider: “(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.” Id.

The Board and judge did not abuse their discretion here. Cadavedo’s visa petition was not “prima facie approvable” due to the USCIS finding in 2009 that Cadavedo had engaged in marriage fraud. See 8 U.S.C. § 1154(c); 8 C.F.R. § 204.2(a)(1)(ii). We agree with the Board and judge that Cadavedo’s “apparent ultimate likelihood of success on the adjustment application” was at best speculative due to the fraud bar. Hashmi, 24 I. & N. Dec. at 790.[2]

Nothing in the record indicates that Cadavedo had a solid case to overturn the fraud bar. In his brief, Cadavedo also acknowledges that the possibility that USCIS would agree to to entertain an appeal more than six years late was “nil.” The Board and judge did not abuse their discretion by denying Cadavedo’s continuance request on these grounds. See Souley v. Holder, 779 F.3d 720, 723 (7th Cir. 2015) (no abuse of discretion in denying motion to continue to allow petitioner’s wife to file second I-130 petition after first one was denied); Calma, 663 F.3d at 878 (“sound reason” existed for denying continuance when adjustment of status was speculative and, if successful, would occur far into the future).[3]

The judge also properly considered “the reason for the continuance and other procedural factors.” Hashmi, 24 I. & N. Dec. at 790. Cadavedo requested the continuance during a hearing and after he had received a de facto three-month continuance due to the 2013 government shutdown. Nothing in the record suggests that Cadavedo informed the Board or immigration judge of any action he took to contest the fraud bar and obtain an approved I-130 petition during his de facto three-month continuance. Nor is there any indication that he did so during the years between USCIS’s notification that it had imposed the fraud bar and the 2014 hearing before the immigration judge.

Cadavedo argues that the Board abused its discretion because it failed to consider the factors for granting a continuance the Ninth Circuit identified in Baires v. INS, 856 F.2d 89 (9th Cir. 1988). But the Board properly applied the factors from Hashmi, 24 I. & N. Dec. at 790. As we have repeatedly recognized, that was the correct legal standard for the Board to apply. See Adame v. Holder, 762 F.3d 667, 672-73 (7th Cir. 2014); Aimin Yang v. Holder, 760 F.3d 660, 666 (7th Cir. 2014); Calma, 663 F.3d at 872. The Board did not abuse its discretion here in affirming the immigration judge’s denial of the request for a continuance to seek speculative relief from USCIS’s fraud bar.[4]

C. Due Process

Cadavedo also argues that the immigration judge’s decision not to hold a contested hearing on the fraud charge of removability deprived him of his due process rights by preventing him from challenging the fraud finding in the immigration court. Cadavedo, of course, has a constitutional right to removal proceedings that satisfy the requirements of due process. See Reno v. Flores, 507 U.S. 292, 306 (1993). But Cadavedo does not have a due process right to seek relief from removal that is purely discretionary, such as adjustment of status, because he has no protected liberty interest in obtaining such relief. Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005); see also Adame, 762 F.3d at 670. Cadavedo also has not demonstrated that the immigration judge’s refusal to let him challenge the fraud bar prejudiced him. See Souley, 779 F.3d at 724 (no due process problem because no prejudice from denial of continuance).

In any case, Cadavedo had sufficient process available to him to challenge the fraud bar. As the Attorney General points out, Cadavedo could have moved for reconsideration of USCIS’s denial of his petition for adjustment of status and challenged the bar that way. 8 C.F.R. § 103.5(a)(1)(i). Presumably, if Cadavedo could have demonstrated ineffective assistance of counsel in his original petition for adjustment of status, that could provide good reason for USCIS to reconsider its decision. If Cadavedo had taken steps to obtain an approved I-130 petition during his administrative proceedings, he could have asked immigration authorities to reconsider their denial of a continuance on the basis of that new information. 8 C.F.R. § 1003.2 (motion to reopen before Board); 8 C.F.R. § 1003.23 (motion to reopen before immigration judge); Matter of Coelho, 20 I. & N. Dec. 464, 471-72 (BIA 1992) (describing motion to remand to immigration judge). The immigration laws and regulations accorded Cadavedo sufficient process.

The petition for review of the Board’s decision is DENIED.

[1] Manny Aguja represented Cadavedo in his attempt to adjust his status, and Cadavedo worked for Aguja from 2004 to 2007. In 2012, attorney Aguja pled guilty to conspiracy to commit marriage fraud by participating in arranging fraudulent marriages for immigration purposes.

[2] At oral argument, Cadavedo’s counsel represented that Cadavedo has obtained an approved I-130 petition. Cadavedo’s briefing does not mention this and we have not received any written updates from Cadavedo. Absent information to the contrary, we assume USCIS continues to maintain its fraud bar against Cadavedo. In any case, we review the Board’s and immigration judge’s use of their discretion, so our review focuses on the information they had when making their decisions.

[3] Cadavedo asserts that the Board erred in identifying the daughter through whom he wished to have his status adjusted. The Board identified the daughter as the one who was in removal proceedings at the same time as Cadavedo, but he said he intended to seek adjustment of status through a daughter who he says is currently a legal permanent resident in the process of naturalizing. As the Attorney General acknowledges, the Board erred, but that error was harmless: Cadavedo did not claim that his daughter had been naturalized, only that she was applying for it, and the fraud bar would prevent Cadavedo from adjusting his status through any relative. See Calma, 663 F.3d at 878 (harmless error analysis applies).

[4] To whatever extent Cadavedo seeks review of the Board’s decision to deny him administrative closure, the Board did not abuse its discretion in denying that request for the same reasons stated in this section. See Vahora v. Holder, 626 F.3d 907, 919 (7th Cir. 2010) (court of appeals has jurisdiction to review denial of administrative closure for abuse of discretion).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Adjustment of Status, Marriage Fraud, Motion for Continuance | Leave a comment

CA7 finds BIA sua sponte remand did not reopen request for 212(c) relief but upholds deferral of removal under CAT for Iraq national

Posted on September 15, 2016 by Mike Baker

Turkhan, born in 1960 in Iraq, entered the U.S. in 1979, eventually becoming a legal permanent resident. He is an Assyrian Christian, has not left the U.S. since 1979, is married to a U.S. citizen, and is the father of children, ages 10 and 19. In 1990, he pleaded guilty to cocaine charges. In prison, he obtained his G.E.D., became a nursing assistant, worked as a mental-health companion, and received a letter of commendation. In 1994, an IJ found him deportable. Existing law allowed waiver of deportation for certain excludable legal permanent residents (Section 212(c)). At the hearing, Turkhan attempted to have relatives testify; although arrangements were to have been made, no interpreter was provided. The IJ found Turkhan statutorily eligible but denied relief. The BIA affirmed and, in 1997, declined to reconsider, citing the 1996 Antiterrorism and Effective Death Penalty and Illegal Immigration Reform and Immigrant Responsibility Acts. The Seventh Circuit denied habeas relief. In 2001, the Justice Department issued regulations for reopening section 212 cases. The Supreme Court held that persons rendered removable by guilty pleas entered before AEDPA may obtain relief. The BIA denied Turkhan’s renewed motions twice. In 2006, he additionally sought withholding of removal under the Convention Against Torture. The BIA remanded for consideration of “changed country conditions in Iraq.” An IJ found Turkhan ineligible for section 212(c) relief but granted CAT deferral of removal. The BIA affirmed. The decision did not restore Turkhan’s lawful permanent resident status nor abrogate the deportation order. The Seventh Circuit affirmed, rejecting arguments concerning the scope of the BIA remand and that Turkhan’s right to procedural due process was violated. The court was “mystified by the government’s decision … [but] the decision is not ours to make.”

After alien was found to be deportable based on his aggravated felony conviction, and after alien had unsuccessfully moved for relief under section 212(c), Bd. sua sponte remanded matter back to IJ for new determination on alien’s claim for withholding of removal under CAT based on changed condition on Iraq. On remand, IJ rejected alien’s contention that instant remand reopened his alternative request for relief under section 212(c), since remand order did not restore alien to his prior lawful permanent resident status that would allow alien to seek section 212(c) relief. Moreover, Bd. affirmed IJ’s ultimate decision that found alien ineligible for section 212(c) relief, but granted deferral of removal under CAT. Ct. rejected alien’s argument that Bd. committed legal error in finding that its own remand order did not reopen his section 212(c) claim, and there was no legal basis for forcing Bd. to reopen its original denial of alien’s request for section 212(c) relief. Also, Ct. rejected alien’s contention that certain actions taken at his section 212(c) hearing violated his due process rights, since his section 212(c) waiver request was discretionary benefit that was not subject to due process clause.

______________________________________________

SHMAEL ISAAC TURKHAN, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
Nos. 14-3456, 15-1378.

United States Court of Appeals, Seventh Circuit.
Argued April 5, 2016.
Decided September 9, 2016.

Royal F. Berg, for Petitioner.

OIL, Sunah Lee, Catherine Bye, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals No. A035-422-486.

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

WOOD, Chief Judge.

Bureaucracy’s “specific nature,” Max Weber said, “develops the more perfectly the more [it] is `dehumanized,’ the more completely it succeeds in eliminating from official business love, hatred, and all purely personal, irrational and emotional elements which escape calculation.” Max Weber, Bureaucracy, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 196, 215-16 (H.H. Gerth & C. Wright Mills eds. & trans., 1991). By this standard, the government’s treatment of this case has achieved perfection.

In 1979, Shmael Isaac Turkhan, an Assyrian Christian and citizen of Iraq, immigrated to the United States as a lawful permanent resident. He was convicted of conspiracy to distribute cocaine in 1990 but has had no trouble with the law since then. Twenty-six years later, the Department of Homeland Security, Javert-like, is still trying to deport him to Iraq. The Board of Immigration Appeals affirmed the immigration judge’s decision to defer his removal under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), implemented at 8 C.F.R. §§ 208.16, 208.17. It refused, however, to reopen the immigration judge’s order for Turkhan’s removal. This means that he can be removed whenever the conditions for CAT deferral abate.

Turkhan argues that the Board and the immigration judge erred in declining to reopen the decision requiring his removal for two reasons: first, he says, it was wrong for the Board to read its own order as a limited remand for consideration of relief under the CAT rather than as a reopening of the entire proceeding under section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994); and second, the Board should have found that Turkhan’s constitutional right to procedural due process was violated at his original section 212(c) hearing. While we are mystified by the government’s decision to contest this matter, the decision is not ours to make, and we must therefore deny Turkhan’s petition for review.

I

Turkhan was born in 1960, in Kirkuk, Iraq. On January 29, 1979, at age 19, he arrived in New York. His entry was lawful, and he eventually became a legal permanent resident. He was—and is—a practicing Assyrian Christian and has not left the United States since he entered in 1979. He is married to a U.S. citizen, is the father of two U.S. citizen children, ages 10 and 19, and is the stepfather of his wife’s other two children, whom he helped to raise.

For his first 11 years in the United States, Turkhan lived uneventfully in Chicago, Illinois (where he still resides). But on April 17, 1990, he pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. He was sentenced to 47 months’ imprisonment. By all accounts, he was a model prisoner: he obtained his G.E.D., completed a 166-hour course for nursing assistants, was awarded a certificate for finishing another course for nursing assistants and mental-health companions, and graduated from the Adult Basic Education Course. He also worked as a mental-health companion while in federal custody. A letter of commendation written by a supervisor noted that “his language abilities ha[d] proved invaluable to the correctional and medical staff in our mission to provide safe, humane and professional psychiatric services to our patients”; that he was “a positive role model for the patients and for the other inmates in our institution”; and that he “balance[d] his role as a patient advocate and compassionate Mental Health worker with [sic] the confines of his status as an inmate with great finesse and maturity.”

At the conclusion of his prison term, Turkhan was placed in deportation proceedings. On October 3, 1994, an immigration judge found him deportable based on his conviction of an aggravated felony. Turkhan turned for relief to section 212(c) of the INA, which at the time allowed the Attorney General to waive deportation for certain otherwise excludable legal permanent residents. See 8 U.S.C. § 1182(c) (1994); INS v. St. Cyr, 533 U.S. 289, 294 (2001) (noting that the Board has interpreted section 212(c) to allow for waiver of deportation). (Section 212(c) was later repealed by § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (IIRIRA) Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-597, and replaced with a narrower waiver for which Turkhan is not eligible. See 8 U.S.C. § 1229b(a)(3) (waiver available only to permanent residents not convicted of aggravated felony)).

At the hearing, Turkhan attempted to have his mother and sister testify on his behalf. They do not speak English, however, and although arrangements were supposed to have been made for an interpreter, one was not provided. According to the testimony of Gerardo Gutierrez, Turkhan’s attorney, Gutierrez was supposed to renew Turkhan’s request for an interpreter 30 days before the hearing but he forgot to do so. As a result, Turkhan was unable to present the testimony of his mother and sister. The immigration judge reviewed only their “somewhat boiler plate” affidavits, to which he gave almost no weight because they did not testify. The immigration judge found Turkhan statutorily eligible for relief under section 212(c), but denied it as a matter of discretion. The Board affirmed.

From there, Turkhan’s case meandered along a long and winding road. In May 1997, the Board denied Turkhan’s motions to reconsider and reopen his case, finding that, as an aggravated felon, he was statutorily ineligible for section 212(c) relief under changes to the INA made by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-208, Div. C, 110 Stat. 2009, and IIRIRA. Later that year, we ruled that AEDPA and IIRIRA deprived us of jurisdiction to review the Board’s decisions in Turkhan’s case. See Turkhan v. INS, 123 F.3d 487 (7th Cir. 1997), abrogated by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998). In 1999, we held that we had jurisdiction to consider Turkhan’s petition for a writ of habeas corpus, but affirmed the district court’s denial of the writ and held that Turkhan was ineligible for a section 212(c) waiver. See Turkhan v. Perryman, 188 F.3d 814 (7th Cir. 1999).

In January 2001, the Department of Justice issued new regulations providing for the reopening of certain section 212 cases. See 8 C.F.R. §§ 3.44, 212.3 (2001). Turkhan filed another motion to reopen. While that motion was pending, the Supreme Court handed down INS v. St. Cyr, 533 U.S. 289 (2001), which held that persons rendered removable by guilty pleas entered prior to AEDPA’s enactment may still obtain relief under section 212(c). The Board nevertheless denied Turkhan’s motion and his motion to reconsider.

The Department issued additional regulations in 2004. See 8 C.F.R. § 1003.44 (2004). Turkhan filed another motion to reopen, which was denied, as was its reconsideration. In 2006, he filed a new motion to reopen, seeking withholding of removal under the CAT and reasserting his eligibility for section 212(c) relief. The Board denied the motion. Turkhan filed a motion for reconsideration, along with a petition for review.

On February 27, 2007, somewhat surprisingly, the Board ordered Turkhan’s proceedings reopened. It explained that “[i]n light of [Youkhana v. Gonzales, 460 F.3d 927 (7th Cir. 2006)],” it would “grant the motion to reconsider sua sponte, vacate [its] June 12, 20[0]6 decision and remand the record so that the Immigration Judge may consider the respondent’s claims based on changed country conditions in Iraq.” In 2009, an immigration judge ruled that, despite limiting language in the Board’s remand order, Turkhan could apply for any form of relief.

Shortly thereafter, the immigration judge administering Turkhan’s case retired and a new judge took over the case. The new judge took a fresh look at the matter and held that the Board’s order did not reopen Turkhan’s application for section 212(c) relief. In 2012, that judge issued an oral decision finding Turkhan ineligible to seek section 212(c) relief but granting deferral of removal under the CAT. The Board affirmed. Turkhan then filed a motion to reconsider, in which he contended that the Board had reopened both his CAT claim and his section 212(c) application. Both the immigration judge and the Board disagreed with that view. In affirming the immigration judge’s decision, the Board noted:

The subsequent decision of the Board granting the respondent’s motion based on changed country conditions did not restore the respondent to his prior lawful permanent resident status, because such an order is merely an interlocutory measure allowing for a hearing on a new issue that has arisen; it does not abrogate the existing deportation order or confer lawful immigration status on the movant.

Turkhan moved for reconsideration, which the Board denied. Turkhan petitioned for review of both decisions. We consolidated his petitions, and now address them.

II

Where, as it did in this case, the Board “affirms the [immigration judge’s] decision and supplements with its own explanation for denying the appeal, we review the [immigration judge’s] decision as supplemented by the [Board’s] reasoning.” Champion v. Holder, 626 F.3d 952, 956 (7th Cir. 2010). In doing so, we review factual and credibility determinations to ensure that they are supported by substantial evidence; we evaluate legal conclusions de novo. Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir. 2015) (internal citations omitted). Because the criminal-alien review bar applies, this Court has jurisdiction to review only constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (D).

A

Turkhan urges that there is no such thing as a partial reopening and that the Board therefore committed legal error when it purported to take such an action. There is no basis for his contention. To the contrary, we have held that the Board’s decision that an individual is removable is still “final” when it is remanded for a background check to ensure eligibility for withholding of deportation. See Viracacha v. Mukasey, 518 F.3d 511, 513 (7th Cir. 2008) (noting that a “final order of removal” is an “order of the agency `concluding that the alien is deportable or ordering deportation'” (quoting 8 U.S.C. § 1101(a)(47)(A)).

The same logic applies here. An “order withholding removal”—of which an order based on the CAT is one— “supposes that the alien is `removable.'” Id. at 514 (citing Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir. 2007)). The Board has long held that when an order reopening proceedings is granted because “a new question has arisen that requires a hearing,” that order “is an interlocutory order allowing for such a hearing and does not dispose of the merits of the application for relief from deportation.” In Re M—- S—-, 22 I. & N., Dec. 349, 354 (BIA 1998) (internal citations omitted). There is no reason to doubt that the Board may use such a procedure. See generally Auer v. Robbins, 519 U.S. 452, 461 (1997) (formal agency interpretations of own regulations are “controlling unless `plainly erroneous or inconsistent with the regulation'” (citation omitted)). The Board’s interpretation of the relevant regulations is entirely reasonable. See 8 C.F.R. §§ 1003.2(c)(3)(ii)(excepting certain applications for withholding of deportation based on changed country conditions from ordinary motion-to-reopen time and numerical limitations), § 1003.23(b)(3)-(4) (same for CAT, differentiating conditions for granting motions to reopen based on relief sought).

Turkhan points to a number of our cases, which he reads as rejecting the Board’s reasoning in In re M—- S—-. He is mistaken. True, Orichitch v. Gonzales held that “the grant of a motion to reopen vacates the previous order of deportation or removal and reinstates the previously terminated immigration proceedings.” 421 F.3d 595, 598 (7th Cir. 2005) (quoting Bronisz v. Ashcroft, 378 F.3d 632, 637 (7th Cir. 2004)). But Orichitch involved an order to reopen the immigrant’s removal proceedings themselves, not a separate ground for withholding removal. Id. at 597. Bronisz dealt with the distinct question whether the grant of a motion to reopen is part of the original immigration proceedings, or constitutes the commencement of a new proceeding. See 378 F.3d at 636-37.

The dicta Turkhan cites from Fedorca v. Perryman simply contemplates the situation we confronted in Orichitch—a motion to reopen the removal proceedings as a whole. 197 F.3d 236, 240 (7th Cir. 1999) (“If Fedorca’s motion to reopen his deportation proceedings had been successful… it would have abrogated the 1995 deportation order.”). None of these cases says that if the Board wants to remand, it faces an “all or nothing” choice.

Turkhan also asserts that the “Department of Homeland Security agreed that [he] was a permanent resident after the 2007 reopening and remand by issuing him a new permanent resident card in 2014.” But that is misleading. About seven months after he received that card, U.S. Citizenship and Immigration Services notified him that he had received it in error and that his status had not changed. Turkhan’s argument on this point is not clear, but to the extent he is arguing estoppel, he does not come close to meeting its elements. See United States v. Anaya-Aguirre, 704 F.3d 514, 520 (7th Cir. 2013) (“When a party seeks to estop the government, the party must also show that the government committed affirmative misconduct, which requires `more than mere negligence.'” (citation omitted)).

Turkhan repeatedly refers to St. Cyr and the fact that he is eligible for section 212(c) relief. But eligibility is not the problem. The issue is whether the Board must exercise its discretion to reopen his section 212(c) application, even though it is number-barred. Having lived within the law for the 11 years before and the 26 years since his conviction, Turkhan would be a prime candidate for that discretion if it were exercised. But the government has elected to oppose reopening, and there is no legal basis for forcing the Board to take this step.

Finally, Turkhan contends that because the Board did not consider Orichitch, it erred in denying his motion to reconsider. “While the BIA need not `write an exegesis on every contention,’ its opinion must reflect that `it has heard and thought and not merely reacted.'” Akinyemi v. INS, 969 F.2d 285, 289 (7th Cir. 1992) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). The Board laid out its reasoning in its October 16, 2014 order. Turkhan repeated arguments he has made before, but he did not identify any error of law or fact, or any argument that the Board overlooked. We find no legal error in the Board’s denial of Turkhan’s motion to reconsider.

B

Turkhan also contends that the conduct of his section 212(c) proceedings violated the procedural due process rights guaranteed to him by the Fifth Amendment to the U.S. Constitution. This argument hits a stumbling block straight out of the gate: non-citizens “have a Fifth Amendment right to due process in some immigration proceedings, but not in those that are discretionary.” Champion, 626 F.3d at 957. The section 212(c) waiver was a discretionary benefit and is therefore governed by this rule. See Bakarian v. Mukasey, 541 F.3d 775, 784 (7th Cir. 2008). Because Turkhan’s section 212(c) proceeding did not adjudicate a right protected by procedural due process, the hearing by definition did not violate due process requirements.

All this said, Turkhan’s experience is troubling. As the immigration judge who granted Turkhan relief under CAT and denied it under section 212(c) noted, Turkhan’s is “an unusual case.” It has been pending for roughly 23 years. The immigration judge opined that “[t]he record clearly shows that [Turkhan] ha[s] been rehabilitated for the offense [he] … committed” 26 years ago. Turkhan has no family in Iraq. To the contrary, all his family is here, and lawfully so. “Family unity” is “one of the principal goals of the [U.S. immigration] statutory and regulatory apparatus.” Fornalik v. Perryman, 223 F.3d 523, 525 (7th Cir. 2000). Finally, Turkhan is 56 years old; he has not set foot in Iraq since he left that country more than 37 years ago, at the age of 19.

The government has continued to pursue this case vigorously despite the fact that, several years ago, it announced a policy of not seeking mandatory punishment against certain low-level, nonviolent drug offenders such as Turkhan. See Memorandum from Attorney General Eric Holder to the United States Attorneys and Assistant Attorney for the Criminal Division (Aug. 12, 2013). Perhaps if the Department allows Turkhan another chance to apply for discretionary relief, things might turn out differently. Perhaps, unlike 23 years ago, Turkhan’s lawyer might not inadvertently fail to secure an interpreter, and Turkhan’s sister and mother will be able to testify on his behalf. Perhaps the immigration judge, who gave the “boiler plate” affidavits of these witnesses little weight, will find their testimony persuasive. Turkhan has also contended that the immigration judge in his section 212(c) decision misinterpreted Turkhan’s prison records in finding that a record of his participation in a drug treatment program contradicted (and rendered not credible) his testimony that he never used drugs. But a closer look reveals that there was no such inconsistency. What Turkhan said was that he worked in that program; he was not a patient. Perhaps that misunderstanding can be resolved in a new proceeding. Perhaps, after 26 years of law-abiding life in the United States, the executive authorities might see fit to give him a chance to win the right to stay rather than live under a constant risk of being dropped back into a country he has not known since he was a teenager.

III

Because it provides only for discretionary relief, section 212(c) endows Turkhan with no right protected by procedural due process; as a result, this theory of relief cannot succeed. Neither did the Board or immigration judge err in determining that the Board could—and did— order only a partial remand of Turkhan’s case. We therefore DENY his petitions for review. Turkhan v. Lynch, Court of Appeals, 7th Circuit 2016

Posted in 212(c), 7th Circuit, 7th Circuit Cases- Aliens, Aggravated felony, Convention Against Torture | Leave a comment

CA7 lacked jurisdiction to review BIA denial of discretionary 212(h) waiver where alien was involved in violent or dangerous crime

Posted on August 30, 2016 by Mike Baker

Bd. did not err in reversing IJ’s grant of alien’s application for waiver of inadmissibility under section 212(h) of INA, where: (1) alien became removable based on his prior conviction on charge of unarmed bank robbery, which, in turn, resulted in alien’s loss of his legal permanent resident status; and (2) Bd. found that regulation (8 CFR section 1217(d)), that precluded any discretionary exercise of waiver where alien was involved in violent or dangerous crime unless extreme hardship was established, applied to circumstances of alien’s application. Moreover, while IJ found that alien’s removal would cause extreme financial hardship on his children, Bd. found that said hardship was not extreme. Ct. further noted that it lacked jurisdiction to review instant section 212(h) waiver denial and rejected alien’s argument that: (1) instant regulation was in conflict with congressional intent set forth in section 212(h); (2) Bd. applied said regulation improperly; (3) his conviction was not crime of violence; and (4) Bd. improperly failed to consider certain hardship evidence.

Cisneros came to the U.S. in 1988 at age 17 and stayed after the expiration of his visa. In 1995, he married U.S. citizen; his status was adjusted to lawful permanent resident. They divorced in 2002. Cisneros consistently supported his ex-wife and the couple’s children and now has grandchildren. He has a history of alcoholism. In 2012, Cisneros committed unarmed robbery, an aggravated felony under 8 U.S.C. 1227(a)(2)(A)(iii), resulting in loss of his legal permanent resident status and making him inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(I), because robbery is a crime of moral turpitude. Cisneros applied for a waiver under 8 U.S.C. 1182(h)(1)(B), which gives the Attorney General the discretionary power to waive inadmissibility for the spouse, parent, or child of a U.S. citizen who would suffer “extreme hardship” if removed. An immigration judge granted Cisneros’s application. DHS appealed; the BIA revoked the waiver. The Seventh Circuit denied a petition for review, noting that its authority extends only to legal or constitutional issues, not discretionary determinations.

JOSÉ ANTONIO CISNEROS, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-3238.

United States Court of Appeals, Seventh Circuit.
Argued May 26, 2016.
Decided August 25, 2016.

Petition for Review of an Order of the Board of Immigration Appeals No. A073-393-696.

Before WOOD, Chief Judge, and MANION and HAMILTON, Circuit Judges.

WOOD, Chief Judge.

José Antonio Cisneros, who had been a lawful permanent resident of the United States since 1996, had the bad judgment to commit unarmed robbery in 2012. This is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and so one result of his conviction was the loss of his legal permanent resident status. His conviction also made him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I)— that is, unable to adjust his status back to that of a lawful permanent resident—because robbery is a crime of moral turpitude. In order to regain eligibility for relief from removal through adjustment of status, Cisneros needed to deal with the problem of his inadmissibility. He therefore applied for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(h)(1)(B), which gives the Attorney General the discretionary power to waive inadmissibility based on several grounds, including a crime of moral turpitude, if the person is a spouse, parent, or child of a U.S. citizen who would suffer “extreme hardship” if removed.

The Attorney General has promulgated regulations implementing this authority. The regulations state that with respect to inadmissibility based on “violent or dangerous crimes,” she “in general, will not favorably exercise discretion under section 212(h)(2) of the Act . . . to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances.” 8 C.F.R. § 1212.7(d). The regulation identifies, as one example of such extraordinary circumstances, “cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship.” Id.

An immigration judge granted Cisneros’s application for a waiver and adjustment of status, finding that his U.S.-citizen family would suffer “exceptional and extremely unusual hardship” as a result of his removal. The Department of Homeland Security appealed, and the Board of Immigration Appeals (“the Board”) overturned that decision and revoked the waiver. Cisneros now petitions for review from the Board’s decision. Our authority, however, extends only to legal or constitutional issues, not discretionary determinations. Finding no cognizable error, we deny the petition for review.

I

Cisneros came to the United States in 1988 at age 17 and stayed after the expiration of his visa. In 1995, he married U.S. citizen Melissa Cisneros, and in 1996 his status was adjusted to lawful permanent resident. They were divorced in 2002, but remained on good terms. Cisneros’s oldest child, Maria Esmeralda, was 24 years old at the time of the removal proceeding; Marissa, his first child with Melissa, was 17 years old; and Marsea, their second daughter, was 15. Cisneros also has two stepsons from Melissa’s previous marriage. Maria had three children of her own, only two of whom are now living. According to the testimony, Cisneros consistently supported the children financially and supported Melissa after their divorce.

On a darker note, Cisneros has a history of alcoholism and a criminal record that includes robbery, battery, a 1998 DUI, and assorted convictions for driving without a license. He has enrolled in rehabilitation programs several times, most recently in 2008. The immigration judge described his testimony about the 2012 conviction:

[H]e was depressed, his car was broken, so he went on a bicycle and tried to look for a used car, something that was inexpensive that maybe his family can lend him some money, or some friends, in order to buy a new vehicle. As he was riding his bicycle, he passed by a bank that he had not entered before and told the teller to give him all her money. She gave him all the money. He then walked out of the bank and rode back to his home.

The probable-cause affidavit for Cisneros’s arrest adds that his demand for money was on a written note that he handed the teller that read, “Give me all the money.” Cisneros represents that he got just $75.

The immigration judge heard testimony from Cisneros and Melissa. Maria was unable to appear at the proceeding, for the grim reason that her boyfriend at the time had beaten her three-year-old daughter Anabel, Cisneros’s granddaughter, to death on December 23, 2014, and Maria herself was in jail on felony neglect charges. The judge described Cisneros’s history with alcoholism and his attempts to get better, as well as his close relationships with his children, stepchildren, grandchildren, and ex-wife. She went through the details of his prior convictions. She examined the circumstances that led up to the 2012 robbery. She noted his current sobriety and church attendance. She concluded, given his earning potential, the recent family tragedy, and the fact that all of the U.S. citizen family members would remain in the United States even if Cisneros was removed, that the “profound and far reaching” “economic and emotional hardship” that would result from his removal warranted an exercise of discretion in his favor. Cisneros’s removal, the immigration judge concluded, “would result in exceptional and extremely unusual hardship to his qualifying relatives, particularly his young children.”

The Board disagreed. It held that 8 C.F.R. § 1212.7(d) applies to Cisneros’s conviction because, despite the absence of any weapon or harm caused to anyone, “the potential for a physical altercation in committing” robbery renders it a dangerous crime. The Board found that Cisneros’s younger daughters—the oldest, Maria, was not a child within the meaning of the Act and therefore not a qualifying family member—would “suffer the emotional and financial hardship of separation from their father,” but it would not be exceptional or extremely unusual. The children would soon be old enough to visit him on their own, the Board added. The Board also explained that hardship is only one factor, and even if Cisneros demonstrated exceptional and extremely unusual hardship to his qualifying relatives, his “negative factors. . . far outweigh the positive.”

II

Unless a constitutional claim or question of law is present, we have no authority to review either the Attorney General’s discretionary grant or denial of a section 212(h) waiver, 8 U.S.C. § 1182(h)(2), or a final order finding a person removable because of the commission of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Vaca-Tellez v. Mukasey, 540 F.3d 665, 668 (7th Cir. 2008).

Our review of the Board’s constitutional and legal determinations is de novo. Surganova v. Holder, 612 F.3d 901, 903 (7th Cir. 2010). We give deference to the Board’s interpretation of immigration statutes. Cano-Oyarzabal v. Holder, 774 F.3d 914, 916 (7th Cir. 2014) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). If a statute is unambiguous, we implement its plain meaning. If it is unclear, we defer to the Board’s interpretation so long as its interpretation is reasonable. Hamlin v. Holder, 755 F.3d 506, 511 (7th Cir. 2014).

Cisneros’s petition for review presents four arguments: (1) that section 1212.7(d) is an invalid regulation in conflict with congressional intent and the relevant statute, (2) that even if the regulation is valid, the Board applied it improperly, (3) that his crime was not violent or dangerous, and (4) that the Board committed legal error by failing to consider certain material facts in its hardship analysis.

A

We begin with his argument about the validity of the regulation. He contends that it impermissibly narrows the statutory language. Section 212(h)(1)(B) allows the Attorney General to waive inadmissibility if removal would result in “extreme hardship” to a citizen or lawful resident spouse, parent, or child. Yet the regulation, section 1212.7(d), significantly narrows the scope for discretion with respect to violent or dangerous crimes. We must decide whether the regulation has permissibly cabined the executive branch’s own authority, or if instead it is an impermissible refusal to exercise the discretion that Congress has required the executive to exercise. We note that Cisneros has not waived this argument by failing to ask the Board to set aside the Attorney General’s regulation. Such an action would lie beyond the Board’s power. See Matter of Anselmo, 20 I. & N. Dec. 25, 30 (BIA 1989) (“Neither this Board nor an immigration judge has authority to consider a challenge to the Attorney General’s determination[.]”). He thus had no duty to present this argument to the Board. Isaaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010).

Section 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B), sets out the “extreme hardship” waiver. Section 212(h)(2) states that once the terms of 212(h)(1)(A) or (B) or (C) are met and the Attorney General has, using the “discretion . . . pursuant to such terms, conditions and procedures as he may by regulations prescribe,” consented to the petitioner’s application, waiver can occur. The Attorney General argues that section 1212.7(d) is just that: a “term,” “procedure,” or “condition” prescribed by regulation in order to implement the authority granted by the statute. Congress expressly left it up to the Attorney General to promulgate regulations to guide the discretion granted in the statute, and she has done so. Chevron, 467 U.S. at 843-44 (“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.”). Cisneros responds that there is no gap to fill—rather, section 1212.7(d)’s “exceptional and extremely unusual hardship” language conflicts with and replaces section 1182(h)(2), and therefore is invalid.

The Attorney General has the better of this debate. The plain language of the statute grants the Attorney General discretion over inadmissibility waivers and the authority to regulate that discretion. She has chosen to decline, as a matter of policy, to exercise her discretion in favor of a petitioner who has committed a “violent or dangerous” crime, unless that person can demonstrate a hardship even greater than that which those who commit non-violent, non-dangerous crimes must show. Granting Cisneros’s point that “extreme hardship” is a lower threshold than “exceptional and extremely unusual hardship,” the fact remains that the statute permits the Attorney General to fine-tune her discretion in this way. Indeed, in Lopez v. Davis, 531 U.S. 230 (2001), the Supreme Court came to much the same conclusion with respect to a regulation promulgated by the Bureau of Prisons on the subject of early release. The statute there denied early release to inmates convicted of violent offenses, but the regulation added an additional category of ineligible inmates—those whose current offense is a felony involving a firearm. Id. at 238. The statute merely described eligibility for early release, not an entitlement to it, and so the Bureau was within its rights to identify another group for whom release was inappropriate. The Attorney General’s regulation in our case does the same thing, and so the same result should follow.

The regulation in our case does not render it impossible for persons who have committed violent or dangerous crimes to obtain relief. It just imposes a higher bar. We are not sure, nor could the government enlighten us, about how many people might fail the stricter regulatory test yet qualify for the more lenient statutory test. In the end, however, this does not matter. This is a regulation formally promulgated through statutory authority, and so it qualifies for Chevron deference. In accordance with Chevron’s two-part test, we first ask whether Congress “directly spoke[] to the precise question at issue,” and if not, we ask whether the Attorney General’s construction of the statute is permissible. Yi Di Wang v. Holder, 759 F.3d 670, 673 (7th Cir. 2014) (quoting Chevron, 467 U.S. at 842-43 & n.9).

Congress spoke directly to the question how a petitioner can show he is eligible for a discretionary inadmissibility waiver: by demonstrating extreme hardship to a qualifying family member. 8 U.S.C. § 1182(h)(1)(B). Just as in Lopez, Congress did not constrain the Attorney General’s authority to draw lines within the set of people identified by the statute.

Cisneros quibbles about the source of the “exceptional and extremely unusual” phrase, which comes from a case involving a refugee waiver, not a section 1182(h) waiver. In re Jean, 23 I. & N. Dec. 373 (U.S. Att’y Gen. 2002), but we see no significance in the source of the language the Attorney General chose to adopt. We approved of the heightened In re Jean standard for refugee waivers in Ali v. Achim, 468 F.3d 462 (7th Cir. 2006), finding that it did not conflict with section 1159(c) because section 1159(c) does not require, but only allows, waiver in the listed circumstances. Nothing in section 212(h) compels a different result.

This regulation differs from the one at issue in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), where the First Circuit found invalid a rule categorically barring people on parole from inadmissibility waivers. The First Circuit noted that “[t]he Supreme Court itself has ruled that the two questions of discretion as to the ultimate relief and discretion as to eligibility exclusions are distinct.” Id. at 23 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 433-34 (1987)). Even if no petitioner who meets “extreme hardship” but not “exceptional and extremely unusual hardship” is ever granted a waiver under section 1212.7(d), the regulation is nonetheless not a categorical bar of the kind in Succar. It does not render people convicted of violent or dangerous crimes ineligible; it raises the threshold for obtaining the ultimate relief.

Our conclusion is in accord with five of our sister circuits. See Perez Pimentel v. Mukasey, 530 F.3d 321, 325 (5th Cir. 2008) (“Congress has not spoken to the standards the Attorney General may employ under § 1182(h)(2), and the regulation is directed only to the Attorney General’s discretion under that subsection”); Samuels v. Chertoff, 550 F.3d 252, 257 (2d Cir. 2008) (“Because proof of `extreme hardship’ constitutes only a threshold showing, Section 1212.7(d) is not inconsistent with Section 212(h)”); Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir. 2007) (“The Attorney General has not changed or altered the statutory `extreme hardship’ standard. Instead, he has promulgated a regulation to guide [immigration judges] in the way they exercise their relatively unfettered grant of discretion after the statutory requirements are met.”); Talavera v. U.S. Att’y Gen., 628 F. App’x 997, 999 (11th Cir. 2015) (nonprecedential holding that the Attorney General was empowered to “issue regulation 1212.7(d) to provide guidance about how to weigh an alien’s criminal offense against any hardships caused by his removal”); Idowu v. U.S. Att’y Gen., 512 F. App’x 222, 226 (3d Cir. 2013) (nonprecedential, citing Samuels and Mejia). We see no reason to create a conflict with them.

B

Cisneros next urges that even if the regulation is valid, the Board improperly applied it in his case. He points to the following sentence from the Board’s decision: “the respondent has not demonstrated the kind of extraordinary circumstances that would render him eligible for a waiver under 212(h) of the Act.” Therefore, he claims, the agency decision does not warrant deference because it did not focus on the right question. See Mata-Guerrero v. Holder, 627 F.3d 256, 259 (7th Cir. 2010) (“Chevron deference . . . assumes that an agency has taken a careful look at the general legal issue and has adopted a reasonably consistent approach to it.”).

The government responds that Cisneros takes the sentence out of context. The full sentence reads: “As the respondent has not demonstrated the kind of extraordinary circumstances that would render him eligible for a waiver under 212(h) of the Act in light of his conviction, he does not merit a favorable discretionary determination.” The Board’s decision continues by noting that “the hardship presented is but one factor to consider in making a discretionary determination,” and concludes that “the respondent does not merit the relief he seeks in the exercise of discretion . . . Although the respondent has several notable equities, the negative factors in his case far outweigh the positive.”

The Board’s decision shows that it followed the regulation and asked whether, given Cisneros’s eligibility for relief, a favorable exercise of discretion was merited. Finding no “exceptional and extremely unusual” hardship, it said no. The Board did not consider Cisneros “ineligible” because of his violent or dangerous crime and did not commit any error in applying section 1212.7(d).

C

Cisneros next argues that his crime should not have been classified as “violent or dangerous.” If this was wrong, then it would have been error to apply section 1212.7(d) to him. His argument is that the Board improperly applied a categorical approach to determine that his crime fell in that category; it should instead have analyzed the facts and circumstances underlying his robbery conviction. See Taylor v. United States, 495 U.S. 575 (1990) (establishing a categorical approach to classify state crimes); Shepard v. United States, 544 U.S. 13 (2005) (clarifying the modified categorical approach); see also Descamps v. United States, 133 S. Ct. 2276 (2013) (describing modified categorical approach).

The categorical approach is a method often used to determine whether a prior conviction should be used, usually for purposes of sentencing enhancement. Critically, the court looks only at the elements of the crime, not at the particular way in which it was committed. Section 1212.7(d) does not explicitly state whether a facts-and-circumstances approach or a categorical approach (or a modified categorical approach) is appropriate for determining whether a crime is “violent or dangerous” for purposes of the regulation. Cisneros draws support for his argument that a facts-and-circumstances approach is required from In re Jean, where the Attorney General described the crime in some detail. 23 I. & N. Dec. at 383. But in the end, the Attorney General there concluded that it made no difference whether the crime was a violent one, because the applicant was unfit in any event for discretionary relief. Id.

Neither does our decision in Ali clarify whether the categorical approach is required. 468 F.3d 462. Ali did not address the appropriate way for immigration judges and the Board to determine whether a crime was “violent or dangerous.” Cisneros claims that we rejected the categorical approach in that case, but he conflates our rejection of a categorical bar on certain petitioners with a categorical approach to analyzing the crime of conviction.

The Ninth Circuit requires the Board to “mak[e] a determination based on the facts underlying [the] conviction that [the] crime was violent or dangerous” before applying the heightened regulatory standard. See Rivas-Gomez v. Gonzales, 225 F. App’x 680, 683 (9th Cir. 2007) (nonprecedential); cf. Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015) (finding the Board had discretion not to apply a categorical approach in determining whether a crime was “violent or dangerous”). The Eleventh Circuit has stated that “Jean required neither a `categorical’ nor a `fact-based’ approach to determining whether a refugee’s conviction renders him a `violent or dangerous individual,'” but rather only “an adequate consideration of the nature of the refugee’s crime.” Makir-Marwil v. U.S. Att’y Gen., 681 F.3d 1227, 1235 (11th Cir. 2012). The Eleventh Circuit seems to favor an elements approach for very serious crimes and a facts-and-circumstances approach for others. Id. The Board has suggested, in dictum, that a “facts” approach might be preferable to a categorical one for “violent or dangerous” crime determinations. See Matter of Dominguez-Rodriguez, 26 I. & N. Dec. 408, 413 n.9 (BIA 2014).

We see nothing in the statute that compels the Attorney General to adopt one or the other of these methodologies. Because she created the regulation to guide her own discretion, she retains the authority to decide how to interpret the term “violent or dangerous” crime, as long as the interpretation is permissible under the INA. Chevron, 467 U.S. at 843; see also Makir-Marwil, 681 F.3d at 1235 (“all Jean requires is an adequate consideration of the nature of the refugee’s crime”).

We need not pursue this argument further, because the Board does not seem to have applied a strict categorical approach here. It noted that Cisneros’s crime “did not involve a weapon and did not cause harm to any individual,” but it concluded that “the potential for a physical altercation in committing such a crime is itself sufficient to determine it is a dangerous crime.” The Board thus did consider Cisneros’s specific acts and found that the crime met the regulation based on those acts. It did not end its analysis simply by pointing to robbery as the crime of conviction. Given that the Attorney General created the category of crime at issue here, and given her broad discretion, we cannot say that the Board’s determination that Cisneros’s crime was “violent or dangerous” was impermissible.

D

Last, Cisneros argues that the Board erred by failing to consider certain material facts in its hardship analysis. He takes issue with the fact that the Board did not mention his infant granddaughter’s recent traumatic and horrific death, nor the fact that his ex-wife testified that she might be homeless without his financial support. But the Board is not required to recite every fact that Cisneros raised as evidence of extreme hardship to his family. While Cisneros tries to characterize the issue as a legal error, it is really a challenge to the Board’s exercise of discretion and thus one that we are not permitted to review. See Papazoglou v. Holder, 725 F.3d 790, 794 (7th Cir. 2013) (because the Board applied the correct legal standards, the petitioner’s argument “ultimately constitute[d] a disagreement with the Board’s exercise of discretion in refusing to grant the waiver.”). While the “wholesale failure to consider evidence” would be an error of law, see Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008) (citation and quotation marks omitted), the Board did not ignore “wholesale” Cisneros’s evidence of hardship.

III

Because the Board made no legal error in reversing the immigration judge’s grant of relief from removal, we DENY the petition for review.

Posted in 212 (h) waiver, 7th Circuit, 7th Circuit Cases- Aliens, Uncategorized, Waivers, Waivers of Inadmissibility | Leave a comment