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

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

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

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

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

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

Richard Hanus, for Petitioner.

Jennifer R. Khouri, for Respondent.

Laura Halliday Hickein, for Respondent.

Tim Ramnitz, for Respondent.

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

Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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