CA7 upholds IJ denial of Kyrgyzstan political asylum application

Posted on August 30, 2016 by Mike Baker

Record contained sufficient evidence to support IJ’s denial of alien’s asylum petition on grounds that alien was not credible, even though alien claimed that he faced persecution for his political activism as member of youth wing of political opposition party in Kyrgyzstan. Record supported IJ’s and Bd.’s finding that alien was not credible with respect to certain important factual allegations regarding identify of individual who allegedly was member of different political party and who had allegedly detained and beaten alien on several occasions. Moreover, alien presented implausible story as to why said individual would travel 400 kilometers to persecute alien and proffered inconsistent testimony as to when he had joined his own political party. As such, IJ could deny application, even if said inconsistencies and implausible stories did not go to heart of asylum application.

In 2013, Santashbekov applied for asylum claiming that he faced persecution for his political activism as a member of the youth wing of the Ata Meken party in his native Kyrgyzstan, 8 U.S.C. 1101(a)(42), 1158(b)(1)(A). After the 2010 revolution, according to the U.S. State Department, Kyrgyzstan continued to face instability and human rights problems, including arbitrary arrests and torture by law enforcement and security forces. The immigration judge characterized Santashbekov’s testimony about his own situation as “vague” and “extremely confusing.” Santashbekov testified that he had experienced persecution by Kurmanov, who Santashbekov believes is a member of an opposing political party and a police or government official; Kurmanov and his associates asked him to repudiate Ata Meken and detained and beat him several times in 2011. Santashbekov changed his address and his name, which was formerly Sultanhodzhaev. He submitted hospital paperwork that confirms that he received medical treatment in Kyrgyzstan corresponding to the beatings he described. He submitted criminal court documents showing that Kurmanov was prosecuted and that Santashbekov was named as a “plaintiff” in the proceeding. The Board affirmed the immigration judge’s denial, also noting inconsistencies in Santashbekov’s testimony. The Seventh Circuit upheld the denial as supported by substantial evidence.

DANIIAR SANTASHBEKOVICH SANTASHBEKOV, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 15-2359.

United States Court of Appeals, Seventh Circuit.
Argued April 6, 2016.
Decided August 24, 2016.

Richard Harvey Trais, for Petitioner.

Joseph A. O’Connell, for Respondent.

OIL, for Respondent.

Timothy G. Hayes, for Respondent.

Jennifer L. Bennett, for Petitioner.

Petition for Review of an Order of the Board of Immigration Appeals No. A205-800-334.

Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Daniiar Santashbekov petitions for review of an order of the Board of Immigration Appeals denying his application for asylum. The immigration judge found that Santashbekov’s claims of political persecution were not credible, and the Board affirmed. We deny Santashbekov’s petition because substantial evidence supports the judge’s and Board’s credibility findings.

I. Factual and Procedural Background

In early 2013, Daniiar Santashbekov filed an application for asylum claiming that he faced persecution for his political activism as a member of the youth wing of the Ata Meken party in his native Kyrgyzstan. His asylum application was denied, and he was served with a Notice to Appear for removal proceedings on April 24, 2013. Santashbekov admitted his removability but renewed his application for asylum.

The Attorney General or Secretary of Homeland Security may grant asylum to an immigrant who has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” in his home country. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). The applicant for asylum has the burden of proof, which may be satisfied by the applicant’s own testimony if it is credible. 8 U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C). A trier of fact may base a credibility determination on a wide variety of factors, “using whatever combination of considerations seems best in the situation at hand.” Mitondo v. Mukasey, 523 F.3d 784, 789 (7th Cir. 2008); see 8 U.S.C. § 1158(b)(1)(B)(iii). The trier of fact may base an adverse credibility decision on inconsistencies, inaccuracies, or falsehood, and there is no longer any requirement that an “inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim. . . .” 8 U.S.C. § 1158(b)(1)(B)(iii).

Santashbekov’s application stems from political unrest in Kyrgyzstan. In April 2010, opposition parties protested and ousted the then-president. Ata Meken was one of the opposition parties, and it became part of a new coalition government. After the 2010 revolution, according to the U.S. State Department, Kyrgyzstan continued to face instability and human rights problems, including arbitrary arrests and torture by law enforcement and security forces.

The immigration judge characterized Santashbekov’s testimony about his own situation as “vague” and “extremely confusing.” In essence, Santashbekov testified that he had joined the youth wing of the Ata Meken party at his university in Bishkek in October 2010. After he gave a political speech at his university in December 2010, he began experiencing persecution by a man named Kurmanov, who Santashbekov believes is a member of an opposing political party and a police or government official. Santashbekov testified that Kurmanov and his associates asked him to repudiate the Ata Meken party and detained and beat him several times in 2011. He testified that after the beatings, he was afraid to leave his home and changed his address in Bishkek. Santashbekov also changed his name, which was formerly Sultanhodzhaev. Santashbekov testified that his supervisor at the Ata Meken party, Zhoomart Saparbaev, recommended that he flee the country and helped him.

Santashbekov also submitted documentary evidence to the immigration judge. He submitted hospital paperwork that confirms that he received medical treatment in Kyrgyzstan corresponding to the beatings he described. He submitted criminal court documents showing that Kurmanov was prosecuted and that Santashbekov was named as a “plaintiff” in the proceeding. And Santashbekov submitted a document confirming that he legally changed his name in December 2011. Finally, he submitted a letter from Saparbaev saying that Santashbekov had “helped us working with young people in various activities.” The letter does not mention the Ata Meken party or detail Santashbekov’s political involvement, but it is on letterhead from the Jogorku Kenesh, Kyrgyzstan’s national legislature.

The immigration judge did not believe Santashbekov’s testimony. He made an adverse credibility determination based on the vague and sometimes contradictory nature of Santashbekov’s testimony. The judge also found that Santashbekov’s documentary evidence was insufficient to support his claims of political activity or persecution. The judge concluded that Santashbekov did not carry his burden of proof and denied the application for asylum. The Board affirmed the immigration judge’s denial, also noting inconsistencies in Santashbekov’s testimony.[1]

II. Analysis

Where the Board affirms the immigration judge’s decision and adds its own analysis, as it did here, we review the immigration judge’s decision and the Board’s additional reasoning. Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th Cir. 2015). Our review is deferential. We review administrative findings of fact, including credibility determinations, for substantial evidence. Tawuo v. Lynch, 799 F.3d 725, 727 (7th Cir. 2015). Under that standard, we must uphold factual determinations “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Balogun v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004). We may not reverse an administrative finding of fact “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). An immigration judge’s credibility findings should be overturned only under “extraordinary circumstances.” Balogun, 374 F.3d at 498, citing Pop v. INS, 270 F.3d 527, 531 (7th Cir. 2001). Still, an adverse credibility finding must be supported by specific and cogent reasons, and the judge must consider explanations offered for gaps and inconsistencies. See Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir. 2015) (granting relief); Tawuo v. Lynch, 799 F.3d at 726 (denying relief).

Here, substantial evidence supports the Board’s and the immigration judge’s finding that Santashbekov’s testimony was not credible. The Board and the judge noted that Santashbekov testified vaguely about Kurmanov’s identity. He could not identify the political party to which Kurmanov belonged or the part of the government in which he worked. Similarly, as the Board and the judge noted, despite being prompted by the immigration judge, Santashbekov did not explain why Kurmanov would travel the 400 kilometers from Bishkek to Karakol to persecute him, as Santashbekov had claimed he had. Immigration authorities may discredit testimony for lack of “inherent plausibility.” 8 U.S.C. § 1158(b)(1)(B)(iii). Santashbekov’s vagueness and his failure to clarify the parts of his story the judge found implausible provided sufficient grounds to support an adverse credibility finding. See Shmyhelskyy v. Gonzales, 477 F.3d 474, 479 (7th Cir. 2007) (affirming adverse credibility determination where, among other things, testimony about fear of persecution was “vague and unconvincing”).

There are also inconsistencies in Santashbekov’s story. Despite a request for clarification at the hearing, Santashbekov did not explain to the judge why his new name appeared on a criminal court document dated August 2011, though he testified that he began using his new name in December 2011 and a name-change document showed the same date. Santashbekov also gave different years for when he joined the Ata Meken party in his asylum application and in his testimony before the immigration judge. He testified that he joined the Ata Meken party in October 2010, but his asylum application said he joined in October 2009.

An inconsistency need not go to the heart of an applicant’s claims to justify an adverse credibility determination, but “the inconsistencies spotted by the [judge] should not be trivial.” Tawuo, 799 F.3d at 727, 728 (inconsistencies in story not “earthshaking,” but provided substantial evidence for credibility determination nonetheless); see also Chun Sui Yuan v. Lynch, No. 15-2834, ___ F.3d ___, ___, 2016 WL 3536667, at *7 (7th Cir. June 28, 2016) (granting petition; inconsistencies identified by Board were “either so easily explained or so trivial as to call into doubt the Board’s decision”); Shmyhelskyy, 477 F.3d at 480 (“We have not hesitated to reverse an [immigration judge’s] credibility assessment when grounded in trivial details or easily explained discrepancies.”). Here, Santashbekov’s mistakes regarding important dates and his vague testimony support the adverse credibility determination.

While Santashbekov’s documentary evidence may corroborate some aspects of his testimony, it does not undermine the judge’s credibility finding. As the Board noted, the letter from Saparbaev does not mention any of the particulars of Santashbekov’s claimed political activity or persecution (although a letter from a member of the national legislature may suggest that Santashbekov was somehow involved in politics). As the judge noted, Santashbekov did not submit other evidence from any other party members verifying his political activities. And as the Board noted, the medical evidence corroborates that Santashbekov was injured at the relevant times, but it does not independently establish that political persecution was the cause. The judge did not err by giving the medical records limited weight because of the vague testimony about how they were obtained. See Tawuo, 799 F.3d at 729 (it was asylum applicant’s burden to authenticate documents; no error in refusing to let applicant submit more documents to corroborate testimony after immigration judge found initial round of documents “wanting”).

Some aspects of the Board’s and judge’s decisions, however, are troubling. For example, the judge wrote that Santashbekov’s parents and sibling in Kyrgyzstan remain “well and intact.” But in his asylum application and in the hearing before the judge, Santashbekov said the same people who persecuted him had also beaten his brother and broken his brother’s leg. Santashbekov submitted a medical document corroborating his brother’s injury (although, as noted above, the judge did not err by giving medical records limited weight).

Similarly, the Board and immigration judge found that Santashbekov’s testimony that he was not involved in the April 2010 protests, and that nothing bad happened to him as a result of the protests, was inconsistent with his asylum application. The application indicated that his political persecution was due “to the incidents related to the April 7, 2010 protests and the following chaos” (emphasis added). We are mindful of our deference to the Board and immigration judge in the area of credibility, but Santashbekov’s asylum application did not claim he was involved directly in the April 2010 protests. His asylum application made clear that his persecution was due to the chaos related to and following the April 2010 protests that led to the then-president’s ouster. We do not see a basis for discrediting Santashbekov here.

We are also troubled by the Board’s and immigration judge’s concern that Santashbekov’s asylum application did not include many of the details in his testimony before the judge, such as his December 2010 political speech. Material omissions may certainly support an adverse credibility finding. Shmyhelskyy, 477 F.3d at 480 (we may uphold adverse credibility findings when petitioner is “unable to explain a significant discrepancy between her hearing testimony and her asylum application”), citing Korniejew v. Ashcroft, 371 F.3d 377, 386 (7th Cir. 2004). However, the I-589 asylum application form provides small boxes to detail an applicant’s experiences, containing space for about ten lines of text. We caution against drawing adverse credibility conclusions from an applicant providing differing levels of detail in such different contexts. The limited space on the I-589 form provides a readily apparent reason why Santashbekov was able to provide a more detailed account of his alleged persecution at the hearing than on the application. Cf. Shmyhelskyy, 477 F.3d at 481 (applicant “provided no reason for his failure to allege this beating in his asylum application”). The Board’s and the immigration judge’s decisions were thus not flawless, but both considered Santashbekov’s claims and evidence, made reasoned decisions, and supported their decisions with substantial evidence.

Finally, Santashbekov argues that the Board and immigration judge violated his due process rights by dismissing his arguments “with no analysis” and failing to “give fair and proper weight to the evidence at hand . . . .” See Reno v. Flores, 507 U.S. 292, 306 (1993) (Fifth Amendment entitles aliens to due process of law in deportation proceedings). This argument is wide of the mark. The Board and the judge provided ample analysis to justify their decisions. Santashbekov’s argument that the Board and judge incorrectly weighed the evidence “is indistinguishable from a straightforward claim that [their decisions were] not supported by substantial evidence on the record.” Albu v. Holder, 761 F.3d 817, 822 (7th Cir. 2014). That argument fails both as a due process claim and on the merits.

Accordingly, Santashbekov failed to carry his burden of proof to establish his eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). The petition for review of the Board’s decision is DENIED.

[1] Santashbekov also applied for withholding of removal and protection under the United Nations Convention Against Torture. He has not argued for withholding of removal in his petition for judicial review, and he did not raise the torture claim before the Board or on judicial review. An unauthorized immigrant who does not meet burden of proof for an asylum claim necessarily fails to meet the more stringent requirements for withholding of removal and relief under the Convention Against Torture. Shmyhelskyy v. Gonzales, 477 F.3d 474, 481-82 (7th Cir. 2007).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, Ata Meken party in Kyrgyzstan, political asylum, Uncategorized | Leave a comment

CA7 upholds IJ finding that family members perceived as having money is not ‘membership in a particular social group’

Posted on August 30, 2016 by Mike Baker

Record contained sufficient evidence to support IJ’s denial of alien’s application for withholding of removal to Mexico based on his proposed social group of Mexican nationals whose family members have suffered persecution at hands of Zetas gang and other drug cartels in Veracruz, Mexico. Alien was removable based on his Wisconsin drug possession conviction, and record showed that alien had not experienced past persecution prior to his entry into U.S. Moreover, although alien presented evidence of pervasive drug violence by drug cartels in Mexico, he failed to present any evidence that Zetas gang would target him because of his family ties. Also, alien had failed to present evidence that he could not reasonably relocate to another part of Mexico to avoid persecution.

Salgado unlawfully entered the U.S. in 1996 and stayed continuously for 20 years. He has children, born in 2001 and 2003, who are U.S. citizens. In 2005 Salgado was convicted in Wisconsin of possessing cocaine. In 2013, when Salgado was arrested for driving under the influence, DHS charged him with removability for having been convicted of a controlled-substance offense, 8 U.S.C. 1182(a)(2)(A)(i)(II), and for being present in the U.S. unlawfully, 1182(a)(6)(A)(i). An IJ ordered removal but the BIA remanded for consideration of Salgado’s claim that his lawyer had provided ineffective assistance by neglecting to seek relief from removal. On remand, Salgado applied for statutory withholding of removal and withholding under the Convention Against Torture, arguing that he has a well-founded fear of persecution on account of his membership in “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz” and “Mexican nationals who have lived in the U.S. for many years and who, upon being removed to Mexico, are perceived as having money.” The IJ found his asylum application untimely because he did not file it within a year of entering the U.S. and no changed or extraordinary circumstances excused the late filing, The Seventh Circuit dismissed a petition for review, rejecting claims that the BIA improperly rejected the proposed social group and misapplied the CAT legal standard. Gutierrez v. Lynch, Court of Appeals, 7th Circuit 2016

EBER SALGADO GUTIERREZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 16-1534.

United States Court of Appeals, Seventh Circuit.
Argued August 9, 2016.
Decided August 24, 2016.

Petition for Review of an Order of the Board of Immigration Appeals, No. A205-154-421.

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Eber Salgado Gutierrez, a 40-year-old citizen of Mexico, was ordered removed from the United States for being unlawfully present in the country and for having been convicted of a drug crime. He petitions for review of an order of the Board of Immigration Appeals upholding the immigration judge’s denial of withholding of removal (based on social-group membership) and relief under the Convention Against Torture. We have jurisdiction to review only two of his arguments: (1) his claim that the agency improperly rejected his proposed social group, and (2) his claim that the agency misapplied the legal standard under the CAT. Because these arguments are without merit, we dismiss in part and deny in part Salgado’s petition for review.

I. Background.

Salgado unlawfully entered the United States in 1996 and lived in this country continuously for the next 20 years. In 2001 he met his current girlfriend, Mariela Rico Cuervas, also a Mexican citizen without lawful status in the United States. They have two children, a daughter born in 2001 and a son born in 2003—both U.S. citizens.

In 2005 Salgado was convicted in Wisconsin of possessing cocaine. See WIS. STAT. § 961.41(3g)(c). The Department of Homeland Security got wind of the drug conviction eight years later, in mid-2013, when Salgado was arrested for driving under the influence. The agency detained him in early 2014 and issued a Notice to Appear charging him with removability for having been convicted of a controlled-substance offense, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and for being present in the United States unlawfully, id. § 1182(a)(6)(A)(i). Salgado admitted through his attorney that he was removable on both grounds and sought no relief from removal; the IJ ordered him removed to Mexico, but the Board of Immigration Appeals later remanded the case so that the immigration court could address Salgado’s claim that his lawyer had provided ineffective assistance by neglecting to seek relief from removal. On remand the IJ concluded that Salgado had been prejudiced by his first lawyer’s ineffective assistance and permitted him to apply for relief.

Salgado applied for both statutory withholding of removal, see id. § 1231(b)(3)(A), and withholding under the Convention Against Torture, see 8 C.F.R. §§ 1208.16(c), 1208.18.[1] He argued that he has a well-founded fear of persecution on account of his membership in two social groups: (1) “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz” and (2) “Mexican nationals who have lived in the U.S. for many years and who, upon being removed to Mexico, are perceived as having money.” (Salgado also sought withholding of removal based on political opinion but has abandoned that argument.)

Salgado and his girlfriend testified at the removal hearing about why he feared returning to Mexico, and the IJ found them largely credible. They provided the following account: Before moving to the United States, Salgado lived with his parents in Tres Valles, a town in the Mexican state of Veracruz, and worked at the butcher shops owned by his father. The family closed the shops sometime after Salgado went to the United States because the Zetas, a Mexican drug cartel, extorted them and pressured all local businesses to sell drugs on the gang’s behalf.

Salgado testified that three of his family members had been harmed by Mexican drug traffickers. In 1995, shortly before Salgado left Mexico, his cousin was killed by a local drug gang, purportedly for having witnessed a murder by members of the gang. Ten years later, when Salgado’s half-brother was visiting Tres Valles from the United States, Zetas tried to kidnap him while he was walking down the street. The kidnapping was foiled when the brother resisted and witnesses called for help, but the Zetas beat him up before fleeing. Finally, one of Salgado’s nephews was kidnapped in Tres Valles in 2014 and found alive three days later, having been left for dead. Salgado attributed the kidnapping to the Zetas.

Salgado said that he feared he would be kidnapped or even killed by the Zetas if he returned to Mexico. He testified that the Zetas identify people who have returned from the United States and target them for kidnapping. Three of Salgado’s siblings still live in Tres Valles, and he maintained that they, too, would be endangered if he returned. Salgado also has two sisters who live elsewhere in Mexico—one in Mexico City, the other in the state of Oaxaca—but he stated that the Zetas would target him even if he relocated to those areas. Salgado insisted that he would not be safe anywhere in Mexico and that the Mexican authorities could not protect him from the Zetas.

In support of his claims for relief, Salgado also submitted documentary evidence, including (among other things) letters from family members and friends stating that he would be targeted by drug gangs in Mexico, especially if he returned to Tres Valles; newspaper articles describing the criminal activities of the Zetas (including murders of journalists and other citizens) in Tres Valles and the rest of Veracruz; and country-conditions reports chronicling violence by drug cartels across Mexico.

In a comprehensive 18-page opinion, the IJ concluded that Salgado was ineligible for both statutory withholding of removal and withholding under the CAT. The IJ began by finding that Salgado had not established past persecution. The IJ then determined that Salgado’s proposed social group—”Mexican nationals who have lived for a long time in the United States and will be perceived as wealthy individuals by the Zetas upon return to Mexico”—was not cognizable because “wealth alone is not an immutable characteristic.” Even if this social group were cognizable, the IJ continued, Salgado did not have a well-founded fear of persecution because the country-conditions documents “do not show that drug cartels or organized criminal groups in Mexico have specifically targeted Mexican citizens returning from the United States because of their perceived wealth.”

Likewise, the IJ stated, there was no evidence that the Zetas would target Salgado because of his family ties. The IJ acknowledged that there was pervasive violence by drug cartels in Mexico and that Salgado had a subjective fear that the Zetas would harm him. But the “general civil strife” in Mexico did not constitute persecution, the IJ reasoned, and moreover, Salgado’s “fear of future persecution [was] speculative and based on conjecture.”

The IJ added that even if Salgado had established that he would face persecution on account of a protected status, he nonetheless was ineligible for withholding because he had not met his burden of establishing that he could not reasonably relocate to another part of Mexico to avoid persecution. Finally, the IJ concluded that Salgado was ineligible for CAT relief because his fear of being harmed by the Zetas with the acquiescence of government officials was only speculative.

The Board upheld the IJ’s decision, echoing much of the IJ’s reasoning and concluding that the IJ’s findings were not clearly erroneous. The Board added that to the extent that Salgado feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group. The Board also agreed with the IJ’s denial of Salgado’s claim for CAT relief. The Board acknowledged our recent holdings that the proper inquiry in CAT cases is whether the alien faces a substantial risk of torture if removed, see Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015), and that the government-acquiescence standard is satisfied by showing that a local, state, or federal public official would acquiesce in torture or that the government is unsuccessfully trying to prevent torture by police officers working for drug gangs, id. at 1139; Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1184-85 (7th Cir. 2015). But those decisions did not help Salgado, the Board reasoned, because unlike the petitioners in those cases, Salgado had “not been tortured, harmed, threatened, or even inquired after by gang members.” Moreover, the Board noted that the “random incidents of violence against family members which happened years apart” were unconnected to Salgado, so the IJ did not clearly err by finding that the threat of harm to him was speculative.

Salgado petitioned for review and moved for a stay of removal. A motions panel denied the stay, and Salgado was removed to Mexico in early May 2016. At the time of his removal, he had been detained by the Department of Homeland Security for a little over two years.

II. Analysis.

We begin our analysis by noting that we lack jurisdiction to consider several of Salgado’s arguments because 8 U.S.C. § 1252(a)(2)(C) generally bars judicial review of final orders of removal for aliens who, like Salgado, are removable under § 1182(a)(2) for having been convicted of a controlled-substance offense.[2] See Isunza v. Lynch, 809 F.3d 971, 973 (7th Cir. 2016); Guevara v. Gonzales, 472 F.3d 972, 974 (7th Cir. 2007). Although we retain jurisdiction to review questions of law and constitutional claims, see 8 U.S.C. § 1252(a)(2)(D); Isunza, 809 F.3d at 973, most of Salgado’s arguments do not meet this standard. Salgado argues that the Board erred in finding (1) that his fear of future persecution was not well-founded; (2) that he could reasonably relocate within Mexico; and (3) that he does not face a substantial risk of being tortured by or with the acquiescence of government officials in Mexico. These are not questions of law; Salgado simply disagrees with the weight that the agency assigned to particular evidence. See Kiorkis v. Holder, 634 F.3d 924, 929 (7th Cir. 2011); Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1119 (7th Cir. 2008); Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008).

Salgado attempts to get around the jurisdictional bar by recasting his objections to the agency’s factual findings as legal errors. He asserts, for instance, that the Board “ignored” and “did not fully consider” the evidence, see Jawad v. Holder, 686 F.3d 400, 403-04 (7th Cir. 2012) (recognizing that a claim that the agency ignored evidence is a claim of legal error). We reject this attempt to manufacture a legal issue because the record reveals that the IJ thoroughly considered Salgado’s evidence before concluding that he was ineligible for relief. See id. at 404; Chavez-Vasquez, 548 F.3d at 1119. And because the IJ’s discussion of the evidence was comprehensive, Salgado’s argument that the Board did not mention every piece of evidence misses the mark. Where, as here, the Board agrees with the IJ but adds observations of its own, we review the IJ’s decision as supplemented by the Board’s opinion. See Wang v. Holder, 759 F.3d 670, 673 (7th Cir. 2014); Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013); Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011); Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir. 2010).

Salgado raises two arguments that we do have jurisdiction to consider, but both lack merit. First, he maintains that the Board applied the wrong legal standard when it concluded that one of his proposed social groups—Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico—is not cognizable.[3] Specifically, he challenges the Board’s conclusion that to the extent he feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group under the Board’s decision in In re W—-G—-R—-, 26 I. & N. Dec. 208 (BIA 2014). Relatedly, he contends that the Board mischaracterized his proposed social group “by referring to only half of its attributes”—namely, the attribute of having lived in the United States but not the attribute of being perceived as wealthy.

Salgado is correct that the Board wrongly rejected his proposed social group simply because it is too broad and diverse; we have “specifically rejected `broadness’ as a per se bar to protected status.” N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014); see Cece v. Holder, 733 F.3d 662, 674 (7th Cir. 2013) (en banc). But this error doesn’t help Salgado because even if his proposed social group were cognizable, he would not be entitled to relief given the agency’s finding that he could avoid harm by relocating to another part of Mexico. See Kaharudin v. Gonzales, 500 F.3d 619, 624 (7th Cir. 2007); 8 C.F.R. § 1208.16(b)(2), (b)(3)(i). Because the agency’s determination about relocation is a factual finding that does not present a legal question, § 1252(a)(2)(C) bars judicial review of the agency’s conclusion. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 806 n.12 (11th Cir. 2016).

The other problem with Salgado’s challenge is that we recently declined to recognize a social group nearly identical to the one he proffers. In Dominguez-Pulido v. Lynch, the petitioner proposed a social group “made up of individuals deported from the United States who have money or who are perceived to have money, and who have family members in the United States who could pay ransom.” 821 F.3d 837, 844-45 (7th Cir. 2016). We concluded that this group is not cognizable for purposes of asylum and statutory withholding of removal “because its primary characteristic is wealth or perceived wealth, specifically the ability to pay a ransom,” and further that the petitioner’s “attempt to narrow his proposed group by adding the trait of `being deported from the U.S.’ does not render his group cognizable.” Id. at 845 (citing Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); In re W—-R—-G—-, 26 I. & N. Dec. at 223).

Salgado does not attempt to distinguish Dominguez-Pulido, nor does he argue that it was wrongly decided and should be revisited; instead, he contends in his reply brief that the Chenery doctrine bars the government from relying on Dominguez-Pulido because “the agency did not consider or rely upon it.” That argument misapprehends Chenery, which prohibits defending an administrative decision on a new ground not set forth in the agency’s original decision. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); see Lara v. Lynch, 789 F.3d 800, 805-06 (7th Cir. 2015). There is no Chenery violation here because by citing Dominguez-Pulido, the government is not relying on a new ground but rather providing additional legal authority to support the Board’s conclusion that Salgado is ineligible for withholding of removal because his proposed social group is not cognizable.

Finally, turning to the denial of his request for CAT relief, Salgado argues that the Board failed to apply Rodriguez-Molinero v. Holder, in which we clarified that the “more likely than not” standard articulated in many CAT opinions “cannot be and is not taken literally” to the extent that it suggests attaching a numerical probability to the likelihood of torture; the proper inquiry is simply whether “there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.” 808 F.3d at 1135-36. He maintains that the Board should have granted CAT relief based on his documentary evidence about the Zetas and this court’s statements in Rodriguez-Molinero regarding the inability of the Mexican government to control the Zetas— statements that he says are “binding in [his] case.”

This argument lacks merit for two reasons. First, there is no indication that the Board misapplied the legal standard for CAT relief. The Board set out the correct legal standard, quoting the standard we articulated in Rodriguez-Molinero. But the Board then distinguished Salgado’s circumstances from those of the petitioners in Rodriguez-Molinero and Mendoza-Sanchez v. Lynch: Unlike the petitioners in those cases, Salgado “has not been tortured, harmed, threatened, or even inquired after by gang members.” Instead, the Board stated, Salgado’s evidence consisted of “random incidents of violence against family members which happened years apart and are unrelated and not connected in any way to the respondent.” No step of the Board’s analysis suggests that it misunderstood or misapplied the legal standard for obtaining CAT relief. Second, our statements in Rodriguez-Molinero about the Mexican government’s inability to control the Zetas do not establish that the Zetas are likely to single out Salgado for torture if he returns to Mexico. See Lenjinac v. Holder, 780 F.3d 852, 856 (7th Cir. 2015).

Accordingly, Salgado’s petition for review is DISMISSED in part and DENIED in part.

POSNER, Circuit Judge, concurring.

I agree with the panel’s conclusion that the petitioner is not entitled to relief because, deported to Mexico in May of this year and residing in Veracruz, where members of his extended family live—but which is also where the fearsome Mexican drug gang known as the Zetas is centered—he’s failed to make any showing that he can’t relocate from Veracruz to some place in Mexico in which he won’t be persecuted either by the Zetas or by some other gang. In addition he’s failed to show that in Veracruz or elsewhere the Zetas have targeted his family or him. (Compare Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1183 (7th Cir. 2015) (petitioner had snitched on La Linea, another powerful Mexican drug gang); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1136-37 (7th Cir. 2015) (petitioner owed the Zetas $30,000).) Members of his family have it is true had violent, in one instance fatal, encounters with Zetas, but for reasons that don’t appear to have been related to their family membership or identity. The Board of Immigration Appeals described these encounters as “random incidents of violence against family members which happened years apart” and were not connected to the petitioner, and the petitioner has failed to rebut this assessment.

The petitioner might find it difficult to relocate even to a part of Mexico where, unlike Veracruz where he currently resides, the Zetas are as yet inactive; for wherever he relocates in Mexico he is bound to be asked questions about his origin, and his 20 years of living in the United States may make him recognizable as an alien and prevent his obtaining employment. But he doesn’t argue that, and I write separately only to address a proposition in the immigration court’s opinion (and echoed I regret to say in opinions of this court) that seems to me palpably false, though not determinative in this case.

The proposition is that the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long-established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members. The ground on which the immigration court rejected wealth as a characteristic that can define a social group is that wealth is not an “immutable characteristic.” “[T]he phrase `persecution on account of membership in a particular social group’ [has been] interpreted to mean `persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.'” Matter of M—-E—-V—-G—-, 26 I. &

EBER SALGADO GUTIERREZ, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 16-1534.

United States Court of Appeals, Seventh Circuit.
Argued August 9, 2016.
Decided August 24, 2016.

Maria T. Baldini-Potermin, for Petitioner.

Gregory Michael Kelch, for Respondent.

OIL, for Respondent.

Kerry A. Monaco, for Respondent.

Walter Bocchini, for Respondent.

Sarah Abigail Byrd, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A205-154-421.

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Eber Salgado Gutierrez, a 40-year-old citizen of Mexico, was ordered removed from the United States for being unlawfully present in the country and for having been convicted of a drug crime. He petitions for review of an order of the Board of Immigration Appeals upholding the immigration judge’s denial of withholding of removal (based on social-group membership) and relief under the Convention Against Torture. We have jurisdiction to review only two of his arguments: (1) his claim that the agency improperly rejected his proposed social group, and (2) his claim that the agency misapplied the legal standard under the CAT. Because these arguments are without merit, we dismiss in part and deny in part Salgado’s petition for review.

I. Background.

Salgado unlawfully entered the United States in 1996 and lived in this country continuously for the next 20 years. In 2001 he met his current girlfriend, Mariela Rico Cuervas, also a Mexican citizen without lawful status in the United States. They have two children, a daughter born in 2001 and a son born in 2003—both U.S. citizens.

In 2005 Salgado was convicted in Wisconsin of possessing cocaine. See WIS. STAT. § 961.41(3g)(c). The Department of Homeland Security got wind of the drug conviction eight years later, in mid-2013, when Salgado was arrested for driving under the influence. The agency detained him in early 2014 and issued a Notice to Appear charging him with removability for having been convicted of a controlled-substance offense, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and for being present in the United States unlawfully, id. § 1182(a)(6)(A)(i). Salgado admitted through his attorney that he was removable on both grounds and sought no relief from removal; the IJ ordered him removed to Mexico, but the Board of Immigration Appeals later remanded the case so that the immigration court could address Salgado’s claim that his lawyer had provided ineffective assistance by neglecting to seek relief from removal. On remand the IJ concluded that Salgado had been prejudiced by his first lawyer’s ineffective assistance and permitted him to apply for relief.

Salgado applied for both statutory withholding of removal, see id. § 1231(b)(3)(A), and withholding under the Convention Against Torture, see 8 C.F.R. §§ 1208.16(c), 1208.18.[1] He argued that he has a well-founded fear of persecution on account of his membership in two social groups: (1) “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz” and (2) “Mexican nationals who have lived in the U.S. for many years and who, upon being removed to Mexico, are perceived as having money.” (Salgado also sought withholding of removal based on political opinion but has abandoned that argument.)

Salgado and his girlfriend testified at the removal hearing about why he feared returning to Mexico, and the IJ found them largely credible. They provided the following account: Before moving to the United States, Salgado lived with his parents in Tres Valles, a town in the Mexican state of Veracruz, and worked at the butcher shops owned by his father. The family closed the shops sometime after Salgado went to the United States because the Zetas, a Mexican drug cartel, extorted them and pressured all local businesses to sell drugs on the gang’s behalf.

Salgado testified that three of his family members had been harmed by Mexican drug traffickers. In 1995, shortly before Salgado left Mexico, his cousin was killed by a local drug gang, purportedly for having witnessed a murder by members of the gang. Ten years later, when Salgado’s half-brother was visiting Tres Valles from the United States, Zetas tried to kidnap him while he was walking down the street. The kidnapping was foiled when the brother resisted and witnesses called for help, but the Zetas beat him up before fleeing. Finally, one of Salgado’s nephews was kidnapped in Tres Valles in 2014 and found alive three days later, having been left for dead. Salgado attributed the kidnapping to the Zetas.

Salgado said that he feared he would be kidnapped or even killed by the Zetas if he returned to Mexico. He testified that the Zetas identify people who have returned from the United States and target them for kidnapping. Three of Salgado’s siblings still live in Tres Valles, and he maintained that they, too, would be endangered if he returned. Salgado also has two sisters who live elsewhere in Mexico—one in Mexico City, the other in the state of Oaxaca—but he stated that the Zetas would target him even if he relocated to those areas. Salgado insisted that he would not be safe anywhere in Mexico and that the Mexican authorities could not protect him from the Zetas.

In support of his claims for relief, Salgado also submitted documentary evidence, including (among other things) letters from family members and friends stating that he would be targeted by drug gangs in Mexico, especially if he returned to Tres Valles; newspaper articles describing the criminal activities of the Zetas (including murders of journalists and other citizens) in Tres Valles and the rest of Veracruz; and country-conditions reports chronicling violence by drug cartels across Mexico.

In a comprehensive 18-page opinion, the IJ concluded that Salgado was ineligible for both statutory withholding of removal and withholding under the CAT. The IJ began by finding that Salgado had not established past persecution. The IJ then determined that Salgado’s proposed social group—”Mexican nationals who have lived for a long time in the United States and will be perceived as wealthy individuals by the Zetas upon return to Mexico”—was not cognizable because “wealth alone is not an immutable characteristic.” Even if this social group were cognizable, the IJ continued, Salgado did not have a well-founded fear of persecution because the country-conditions documents “do not show that drug cartels or organized criminal groups in Mexico have specifically targeted Mexican citizens returning from the United States because of their perceived wealth.”

Likewise, the IJ stated, there was no evidence that the Zetas would target Salgado because of his family ties. The IJ acknowledged that there was pervasive violence by drug cartels in Mexico and that Salgado had a subjective fear that the Zetas would harm him. But the “general civil strife” in Mexico did not constitute persecution, the IJ reasoned, and moreover, Salgado’s “fear of future persecution [was] speculative and based on conjecture.”

The IJ added that even if Salgado had established that he would face persecution on account of a protected status, he nonetheless was ineligible for withholding because he had not met his burden of establishing that he could not reasonably relocate to another part of Mexico to avoid persecution. Finally, the IJ concluded that Salgado was ineligible for CAT relief because his fear of being harmed by the Zetas with the acquiescence of government officials was only speculative.

The Board upheld the IJ’s decision, echoing much of the IJ’s reasoning and concluding that the IJ’s findings were not clearly erroneous. The Board added that to the extent that Salgado feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group. The Board also agreed with the IJ’s denial of Salgado’s claim for CAT relief. The Board acknowledged our recent holdings that the proper inquiry in CAT cases is whether the alien faces a substantial risk of torture if removed, see Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1135-36 (7th Cir. 2015), and that the government-acquiescence standard is satisfied by showing that a local, state, or federal public official would acquiesce in torture or that the government is unsuccessfully trying to prevent torture by police officers working for drug gangs, id. at 1139; Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1184-85 (7th Cir. 2015). But those decisions did not help Salgado, the Board reasoned, because unlike the petitioners in those cases, Salgado had “not been tortured, harmed, threatened, or even inquired after by gang members.” Moreover, the Board noted that the “random incidents of violence against family members which happened years apart” were unconnected to Salgado, so the IJ did not clearly err by finding that the threat of harm to him was speculative.

Salgado petitioned for review and moved for a stay of removal. A motions panel denied the stay, and Salgado was removed to Mexico in early May 2016. At the time of his removal, he had been detained by the Department of Homeland Security for a little over two years.

II. Analysis.

We begin our analysis by noting that we lack jurisdiction to consider several of Salgado’s arguments because 8 U.S.C. § 1252(a)(2)(C) generally bars judicial review of final orders of removal for aliens who, like Salgado, are removable under § 1182(a)(2) for having been convicted of a controlled-substance offense.[2] See Isunza v. Lynch, 809 F.3d 971, 973 (7th Cir. 2016); Guevara v. Gonzales, 472 F.3d 972, 974 (7th Cir. 2007). Although we retain jurisdiction to review questions of law and constitutional claims, see 8 U.S.C. § 1252(a)(2)(D); Isunza, 809 F.3d at 973, most of Salgado’s arguments do not meet this standard. Salgado argues that the Board erred in finding (1) that his fear of future persecution was not well-founded; (2) that he could reasonably relocate within Mexico; and (3) that he does not face a substantial risk of being tortured by or with the acquiescence of government officials in Mexico. These are not questions of law; Salgado simply disagrees with the weight that the agency assigned to particular evidence. See Kiorkis v. Holder, 634 F.3d 924, 929 (7th Cir. 2011); Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1119 (7th Cir. 2008); Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008).

Salgado attempts to get around the jurisdictional bar by recasting his objections to the agency’s factual findings as legal errors. He asserts, for instance, that the Board “ignored” and “did not fully consider” the evidence, see Jawad v. Holder, 686 F.3d 400, 403-04 (7th Cir. 2012) (recognizing that a claim that the agency ignored evidence is a claim of legal error). We reject this attempt to manufacture a legal issue because the record reveals that the IJ thoroughly considered Salgado’s evidence before concluding that he was ineligible for relief. See id. at 404; Chavez-Vasquez, 548 F.3d at 1119. And because the IJ’s discussion of the evidence was comprehensive, Salgado’s argument that the Board did not mention every piece of evidence misses the mark. Where, as here, the Board agrees with the IJ but adds observations of its own, we review the IJ’s decision as supplemented by the Board’s opinion. See Wang v. Holder, 759 F.3d 670, 673 (7th Cir. 2014); Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013); Sarhan v. Holder, 658 F.3d 649, 653 (7th Cir. 2011); Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir. 2010).

Salgado raises two arguments that we do have jurisdiction to consider, but both lack merit. First, he maintains that the Board applied the wrong legal standard when it concluded that one of his proposed social groups—Mexican nationals who have lived in the U.S. for many years and are perceived as wealthy upon returning to Mexico—is not cognizable.[3] Specifically, he challenges the Board’s conclusion that to the extent he feared persecution “on account of having lived in the United States for many years,” he was ineligible for withholding because “deportees are too broad and diverse” to qualify as a particular social group under the Board’s decision in In re W—-G—-R—-, 26 I. & N. Dec. 208 (BIA 2014). Relatedly, he contends that the Board mischaracterized his proposed social group “by referring to only half of its attributes”—namely, the attribute of having lived in the United States but not the attribute of being perceived as wealthy.

Salgado is correct that the Board wrongly rejected his proposed social group simply because it is too broad and diverse; we have “specifically rejected `broadness’ as a per se bar to protected status.” N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014); see Cece v. Holder, 733 F.3d 662, 674 (7th Cir. 2013) (en banc). But this error doesn’t help Salgado because even if his proposed social group were cognizable, he would not be entitled to relief given the agency’s finding that he could avoid harm by relocating to another part of Mexico. See Kaharudin v. Gonzales, 500 F.3d 619, 624 (7th Cir. 2007); 8 C.F.R. § 1208.16(b)(2), (b)(3)(i). Because the agency’s determination about relocation is a factual finding that does not present a legal question, § 1252(a)(2)(C) bars judicial review of the agency’s conclusion. See Jeune v. U.S. Att’y Gen., 810 F.3d 792, 806 n.12 (11th Cir. 2016).

The other problem with Salgado’s challenge is that we recently declined to recognize a social group nearly identical to the one he proffers. In Dominguez-Pulido v. Lynch, the petitioner proposed a social group “made up of individuals deported from the United States who have money or who are perceived to have money, and who have family members in the United States who could pay ransom.” 821 F.3d 837, 844-45 (7th Cir. 2016). We concluded that this group is not cognizable for purposes of asylum and statutory withholding of removal “because its primary characteristic is wealth or perceived wealth, specifically the ability to pay a ransom,” and further that the petitioner’s “attempt to narrow his proposed group by adding the trait of `being deported from the U.S.’ does not render his group cognizable.” Id. at 845 (citing Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005); In re W—-R—-G—-, 26 I. & N. Dec. at 223).

Salgado does not attempt to distinguish Dominguez-Pulido, nor does he argue that it was wrongly decided and should be revisited; instead, he contends in his reply brief that the Chenery doctrine bars the government from relying on Dominguez-Pulido because “the agency did not consider or rely upon it.” That argument misapprehends Chenery, which prohibits defending an administrative decision on a new ground not set forth in the agency’s original decision. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943); see Lara v. Lynch, 789 F.3d 800, 805-06 (7th Cir. 2015). There is no Chenery violation here because by citing Dominguez-Pulido, the government is not relying on a new ground but rather providing additional legal authority to support the Board’s conclusion that Salgado is ineligible for withholding of removal because his proposed social group is not cognizable.

Finally, turning to the denial of his request for CAT relief, Salgado argues that the Board failed to apply Rodriguez-Molinero v. Holder, in which we clarified that the “more likely than not” standard articulated in many CAT opinions “cannot be and is not taken literally” to the extent that it suggests attaching a numerical probability to the likelihood of torture; the proper inquiry is simply whether “there is, or is not, a substantial risk that a given alien will be tortured if removed from the United States.” 808 F.3d at 1135-36. He maintains that the Board should have granted CAT relief based on his documentary evidence about the Zetas and this court’s statements in Rodriguez-Molinero regarding the inability of the Mexican government to control the Zetas— statements that he says are “binding in [his] case.”

This argument lacks merit for two reasons. First, there is no indication that the Board misapplied the legal standard for CAT relief. The Board set out the correct legal standard, quoting the standard we articulated in Rodriguez-Molinero. But the Board then distinguished Salgado’s circumstances from those of the petitioners in Rodriguez-Molinero and Mendoza-Sanchez v. Lynch: Unlike the petitioners in those cases, Salgado “has not been tortured, harmed, threatened, or even inquired after by gang members.” Instead, the Board stated, Salgado’s evidence consisted of “random incidents of violence against family members which happened years apart and are unrelated and not connected in any way to the respondent.” No step of the Board’s analysis suggests that it misunderstood or misapplied the legal standard for obtaining CAT relief. Second, our statements in Rodriguez-Molinero about the Mexican government’s inability to control the Zetas do not establish that the Zetas are likely to single out Salgado for torture if he returns to Mexico. See Lenjinac v. Holder, 780 F.3d 852, 856 (7th Cir. 2015).

Accordingly, Salgado’s petition for review is DISMISSED in part and DENIED in part.

POSNER, Circuit Judge, concurring.

I agree with the panel’s conclusion that the petitioner is not entitled to relief because, deported to Mexico in May of this year and residing in Veracruz, where members of his extended family live—but which is also where the fearsome Mexican drug gang known as the Zetas is centered—he’s failed to make any showing that he can’t relocate from Veracruz to some place in Mexico in which he won’t be persecuted either by the Zetas or by some other gang. In addition he’s failed to show that in Veracruz or elsewhere the Zetas have targeted his family or him. (Compare Mendoza-Sanchez v. Lynch, 808 F.3d 1182, 1183 (7th Cir. 2015) (petitioner had snitched on La Linea, another powerful Mexican drug gang); Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1136-37 (7th Cir. 2015) (petitioner owed the Zetas $30,000).) Members of his family have it is true had violent, in one instance fatal, encounters with Zetas, but for reasons that don’t appear to have been related to their family membership or identity. The Board of Immigration Appeals described these encounters as “random incidents of violence against family members which happened years apart” and were not connected to the petitioner, and the petitioner has failed to rebut this assessment.

The petitioner might find it difficult to relocate even to a part of Mexico where, unlike Veracruz where he currently resides, the Zetas are as yet inactive; for wherever he relocates in Mexico he is bound to be asked questions about his origin, and his 20 years of living in the United States may make him recognizable as an alien and prevent his obtaining employment. But he doesn’t argue that, and I write separately only to address a proposition in the immigration court’s opinion (and echoed I regret to say in opinions of this court) that seems to me palpably false, though not determinative in this case.

The proposition is that the status of being a member of a group made up of individuals deported from the United States who, having lived in this country for many years, either have money or are believed to have money and have long-established ties to this country, and who for any of these reasons might be able to pay ransom, nevertheless can’t be deemed members of a “social group” authorized to obtain relief from deportation because of threats to the life or safety of the group’s members. The ground on which the immigration court rejected wealth as a characteristic that can define a social group is that wealth is not an “immutable characteristic.” “[T]he phrase `persecution on account of membership in a particular social group’ [has been] interpreted to mean `persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.'” Matter of M—-E—-V—-G—-, 26 I. & N. Dec. 227, 230-31 (BIA 2014). “The common characteristic that defines the group must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. at 231. And a group consisting of people whose “primary characteristic is wealth or perceived wealth, specifically the ability to pay a ransom” does not qualify because “wealth, standing alone, is not an immutable characteristic of a cognizable social group.” Dominguez-Pulido v. Lynch, 821 F.3d 837, 844-45 (7th Cir. 2016).

That is a mistake, for a variety of reasons, one being that wealth doesn’t stand alone in the definition of the social group urged by the petitioner; it must be wealth available for payment of a ransom. But a more serious mistake was the invocation of “immutability” as a touchstone of eligibility for being a member of a “social group.” Very few characteristics of a group or individual are immutable any more. For example, modern medical techniques enable people to change their sex, though doubtless sex is one of the mutable characteristics that the Board of Immigration Appeals would concede that a person “should not be required to change” as a condition of avoiding persecution. But getting back to wealth, I note that wealth does not often “stand alone” in these cases. In Tapiero de Orejuela v. Gonzalez, 423 F.3d 666, 672 (7th Cir. 2005), we said that Colombian cattle farmers were not defined merely by their wealth but also by their land, their profession, and their education. And similarly Salgado-Gutierrez is defined by his having lived in the United States for twenty years—for being, as a consequence, to a degree American—a fact of his personal history that he can’t escape from.

Furthermore, having or being thought to have wealth is in an important practical sense “immutable.” Suppose a person facing deportation from the United States gives away all his money and arrives in his country of origin, which in this case is Mexico, penniless. The Zetas seize him and demand money. He explains that he has none. Are the Zetas likely to leave him alone? No, they’re likely to torture him, and if unable by that route to extract any money from him they are very likely to kill him.

Suppose finally that a deportee is the only wealthy person from the country to which he is to be deported. He thus is not a member of the social group to which the petitioner in this case belongs, and suppose he’s not a member of any other social group either. Does that mean he can’t avoid deportation even if he proves that he’s certain to be persecuted if deported? That would be ridiculous, though it is the implication of the statute, 8 U.S.C. § 1231(b)(3)(A), that ties deferral or cancellation of deportation to membership in a social group, and of the BIA decisions approvingly cited in the majority opinion in the present case.

[1] Salgado also applied for asylum, but the IJ concluded (and the Board agreed) that his asylum application was untimely because he did not file it within a year of entering the United States and no changed or extraordinary circumstances excused the late filing. See 8 U.S.C. § 1158(a)(2)(B), (D); 8 C.F.R. § 1208.4(a)(2), (4), (5). Salgado has not pursued his asylum claim, so we do not discuss it further.

[2] Salgado was ineligible to apply for deferral of removal under the CAT—the denial of which we would retain jurisdiction to review, see Moral-Salazar v. Holder, 708 F.3d 957, 962 (7th Cir. 2013); Wanjiru v. Holder, 705 F.3d 258, 263-65 (7th Cir. 2013)—because that form of relief is available only to certain persons who, unlike Salgado, are barred from withholding due to a conviction for a particularly serious crime and other crimes not relevant here, see 8 C.F.R. §§ 1208.17(a), 1208.16(d)(2) & (3).

[3] Salgado has abandoned his claim that he faces persecution because he belongs to the social group of “Mexican nationals whose family members have suffered persecution at the hands of the Zetas and other drug cartels in Veracruz.” He does not mention this proposed social group anywhere in his brief.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Convention Against Torture, membership in a particular social group, withholding of removal | Leave a comment

CA7 finds that use of false social security number in order to work may not be crime of moral turpitude

Posted on August 25, 2016 by Mike Baker

Arias v. Lynch, No. 14-2839 (August 24, 2016) Petition for Review, Order of Bd. of Immigration Appeals Petition granted. Arias v. Lynch, Court of Appeals, 7th Circuit 2016

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Arias came to the U.S. without authorization in 2000. She has raised three children here and has consistently paid income tax. Her longtime employer calls her an “excellent employee.” Her sole criminal conviction, falsely using a social security number to work (42 U.S.C. 408(a)(7)(B)), was classified as a “crime involving moral turpitude” by the BIA, which disqualified Arias from seeking discretionary cancellation of removal under 8 U.S.C. 1229b(b)(1). The Seventh Circuit remanded for reconsideration. Many violations of the cited statute would amount to crimes involving moral turpitude, but for both legal and pragmatic reasons, it is unlikely that every violation of the statute necessarily qualifies as a crime involving moral turpitude. The BIA misapplied the framework for identifying crimes involving moral turpitude that it was bound to apply at the time of its decision; after the BIA’s decision, the Attorney General vacated that framework in its entirety. The court noted the current vacuum of authoritative guidance on how the Board should determine whether a crime involves moral turpitude.

Ct. of Appeals granted alien’s petition for review of Bd.’s order, which affirmed IJ’s denial of alien’s application for cancelation of removal, where: (1) said removal was based on alien’s conviction under 42 USC section 408(a)(7)(B) for use of false social security number in order to work for employer; and (2) IJ and Bd. found that said conviction was crime of moral turpitude that precluded alien from obtaining any cancelation of removal relief. Ct. doubted that said offense was categorically crime of moral turpitude in all factual settings, and in any event, remand was required, since: (1) framework used by IJ and Bd. under Silva-Trevino I was subsequently vacated by Attorney General, and thus reconsideration was warranted under new framework/standard; and (2) it is uncertain under any new framework whether IJ and Bd. will be able to look beyond elements of alien’s offense in order to find that said offense is crime of moral turpitude.

“It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude. A rule that all crimes that involve any element of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude as conduct that is “inherently base, vile, or depraved.” At the same time, there is significant precedent indicating that deceptive conduct is morally turpitudinous. In the end, though, we do not need to try to resolve this conflict definitively in this case.”

POSNER, Circuit Judge, concurring in the judgment. “It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals. To prosecute and deport such a harmless person (to Ecuador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous.”

_________________________________________________

MARIA EUDOFILIA ARIAS, Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States, Respondent.
No. 14-2839.

United States Court of Appeals, Seventh Circuit.
Argued October 30, 2015.
Decided August 24, 2016.

Linda T. Coberly, for Petitioner.

Edward C. Durant, for Respondent.

OIL, for Respondent.

Juria L. Jones, for Respondent.

Lisa Katharine Koop, for Petitioner.

John Frederick Stanton, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals, No. A087 774 871.

Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner Maria Eudofilia Arias came to this country without authorization in 2000. She has raised three children here. Her longtime employer calls her an “excellent employee.” She now faces removal from the United States after the Board of Immigration Appeals characterized her sole criminal conviction—falsely using a social security number to work—as a “crime involving moral turpitude.” This characterization bars Arias from seeking discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1). Arias has petitioned for review of the removal order.

We grant the petition and remand the case to the Board for further proceedings. Arias was convicted under a statute making it a federal crime to misrepresent a social security number to be one’s own “for any . . . purpose.” 42 U.S.C. § 408(a)(7)(B) (emphasis added). Many violations of that statute would amount to crimes involving moral turpitude. For both legal and pragmatic reasons, though, we doubt that every violation of the statute necessarily qualifies as a crime involving moral turpitude.

We remand this case on two narrower grounds. First, the Board misapplied the framework for identifying crimes involving moral turpitude that it was bound to apply at the time of its decision. See Matter of Silva-Trevino (Silva-Trevino I), 24 I. & N. Dec. 687 (Att’y Gen. 2008) (establishing framework). Then, after the Board’s decision but before Arias’s petition for our review became ripe for decision, the Attorney General vacated the Silva-Trevino I framework in its entirety. See Matter of Silva-Trevino (Silva-Trevino II), 26 I. & N. Dec. 550, 554 (Att’y Gen. 2015). Given the Board’s legal error and the current vacuum of authoritative guidance on how the Board should determine whether a crime involves moral turpitude, we remand to the Board to reconsider Arias’s case.

In Part I, we recount the factual and procedural background of this case. In Part II, we examine the difficulty in treating violations of § 408(a)(7)(B) categorically as crimes involving moral turpitude. In Part III, we explain the reasons for our remand based on the Board’s legal error and the current uncertainty about how the Board should decide whether a conviction is for a crime involving moral turpitude.

I. Factual and Legal Background

Since coming to the United States from Ecuador without authorization in 2000, Arias has worked for the Grabill Cabinet Company in Grabill, Indiana. The company called Arias an “excellent employee” in a letter Arias submitted to the immigration court in support of her application for cancellation of removal. To work for Grabill Cabinet, Arias provided a false social security number. She has presented evidence that she has filed an income tax return for every year she has been in the United States through 2012.

Arias has also raised a family in the United States. Arias and her husband have been married since 1989. Their three children have grown up in the United States. The two younger children, five and fourteen years old, are United States citizens. Her oldest child, twenty-six years old, was born in Ecuador but has received relief from removal through the Deferred Action for Childhood Arrivals program.

In 2010, Arias was charged in federal court with falsely using a social security number to work for Grabill Cabinet in violation of 42 U.S.C. § 408(a)(7)(B). Section 408(a)(7)(B) makes it a crime to misrepresent a social security number to be one’s own to obtain a benefit or “for any other purpose.” Arias pled guilty and was sentenced to just about the lightest felony sentence one is likely to find in modern federal practice: one year of probation and a $100 special assessment. After Arias completed her probation successfully, she received employment authorization and Grabill Cabinet rehired her. In the letter from the company that Arias submitted to the immigration court, Grabill Cabinet said that it “did not have any problems” welcoming her back to her old job. Her indictment charged Arias with an “intent to deceive Grabill,” although it is evident that Grabill itself did not have a problem with Arias’s deception and does not view itself as a victim. There is no indication in the record that Arias has broken any state or federal laws other than her unauthorized immigration into this country and false use of a social security number to work.

In 2010, Arias received a notice to appear for removal proceedings. She admitted removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Attorney General may cancel the removal of unauthorized immigrants who have been in the United States for at least ten years and who can show that their removal would cause “exceptional and extremely unusual hardship” to their children, spouses, or parents who are United States citizens, among other requirements. Id.

Such discretionary cancellation is barred, however, if the immigrant has been convicted of a “crime involving moral turpitude.” 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229b(b)(1)(C). “Moral turpitude” is not defined in the statute. The Board and federal courts have labored for generations to provide a workable definition. See generally Jordan v. De George, 341 U.S. 223, 227-29 (1951) (holding that conspiracy to evade payment of liquor tax was crime involving moral turpitude, and noting that all varieties of fraud are treated likewise); id. at 232-45 (Jackson, J., dissenting) (“moral turpitude” is too vague to support deportation).

The immigration judge held that Arias’s crime of conviction was a crime involving moral turpitude. The judge relied on two of this circuit’s cases: Marin-Rodriguez v. Holder, 710 F.3d 734 (7th Cir. 2013), and Miranda-Murillo v. Holder, 502 F. App’x 610 (7th Cir. 2013), a non-precedential order. A one-member panel of the Board affirmed. The Board said it was using the categorical approach, the first step in the now-vacated Silva-Trevino I framework, to determine that a violation of § 408(a)(7)(B) necessarily involves moral turpitude. See Silva-Trevino I, 24 I. & N. Dec. at 689-90. Citing this court’s opinion in Marin-Rodriguez, 710 F.3d at 738, the Board held: “An intent to deceive for the purpose of wrongfully obtaining a benefit is an element of the offense, and therefore the offense is categorically a crime involving moral turpitude.”

Arias petitioned for judicial review of the Board’s decision denying cancellation of removal. Under 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review the legal question whether a crime involves moral turpitude. Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009). Arias argues that her crime of conviction does not categorically involve moral turpitude because, while the statute requires deception, it does not always require fraud, which necessarily involves detriment to the person or entity defrauded. Arias presented these arguments to the Board sufficiently to allow our review, and, in any case, the Board’s discussion of deceit in the context of moral turpitude opens up that issue for our review. See Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011); Juarez v. Holder, 599 F.3d 560, 564 n.3 (7th Cir. 2010).

II. Crimes Involving Moral Turpitude

The issue is whether a violation of 42 U.S.C. § 408(a)(7)(B) is a crime involving moral turpitude. We have not decided the issue in a precedential opinion, and other circuits are split. The Fifth and Eighth Circuits have said yes (including opinions regarding the closely related subparagraph, § 408(a)(7)(A)). Guardado-Garcia v. Holder, 615 F.3d 900, 901-02 (8th Cir. 2010); Lateef v. Department of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth Circuit has said no. Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000).

The Board has defined a crime involving moral turpitude as “conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007) (citation and internal quotation marks omitted). We have adopted definitions substantively in line with the Board’s. See, e.g., Sanchez v. Holder, 757 F.3d 712, 715 (7th Cir. 2014); see also Padilla v. Gonzales, 397 F.3d 1016, 1019 (7th Cir. 2005) (“We have recently stated that a crime of moral turpitude is one that is deliberately committed and `serious,’ either in terms of the magnitude of the loss that it causes or the indignation that it arouses in the law-abiding public.”), overruled on other grounds by Ali v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008); see generally Julia Ann Simon-Kerr, Moral Turpitude, 2012 Utah L. Rev. 1001, 1044-68 (2012) (recounting history of moral turpitude as a concept in immigration law).

Taking the Board’s definition at face value, it is difficult to see how a violation of § 408(a)(7)(B) is categorically a crime involving moral turpitude. In fact, the Board reached its decision in this case by misstating the provisions of the statute. The Board wrote incorrectly that § 408(a)(7)(B) has as a necessary element an “intent to deceive for the purpose of wrongfully obtaining a benefit.” That is not correct. The statute criminalizes falsely representing a social security number to be one’s own for purposes of obtaining various social security benefits but also “for any other purpose.”

It is not difficult to imagine some purposes for which falsely using a social security number would not be “inherently base, vile, or depraved.” For example, hospitals and other health care providers often ask for patients’ social security numbers. Would it be “inherently base, vile, or depraved” for a person without a social security number to take a child who has fallen ill to a hospital and to give a false social security number to obtain treatment for her sick child, knowing she is ready, willing, and able to pay for the care? Not unless the terms “base, vile, or depraved” have ceased to have any real meaning.

Courts and the Board do not always apply the above definition according to its literal terms. They instead often use two heuristics to decide what is “inherently base, vile, or depraved” and what is not. First, crimes that are malum in se (inherently wrong), as opposed to malum prohibitum (wrong only because prohibited), are often said to involve moral turpitude. See, e.g., Padilla, 397 F.3d at 1020; In re Fualaau, 21 I. & N. Dec. 475, 477 (BIA 1996) (“Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.”); Matter of Flores, 17 I. & N. Dec. 225, 227 (BIA 1980). Second, courts and the Board have focused on the presence of a “vicious motive” or an “evil intent” to determine whether a crime involves moral turpitude. See, e.g., Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165-66 (9th Cir. 2006); Partyka v. Attorney General, 417 F.3d 408, 413 (3d Cir. 2005); Flores, 17 I. & N. Dec. at 227 (“The test to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.”); see generally Simon-Kerr, supra, 2012 Utah L. Rev. at 1059-68 (recounting history of scienter test for moral turpitude).

The broad “any other purpose” term in § 408(a)(7)(B) makes it difficult to see how a violation of the statue could categorically involve evil intent or be malum in se. There need not be any evil intent in the hypothetical about a parent using a false social security number to secure medical care for a sick child, unless deception without more, no matter how admirable the goal, involves evil intent (i.e., moral turpitude). Along those same lines, it seems like giving a false social security number “for any . . . purpose” should not be categorically malum in se or inherently wrong. The Ninth Circuit has held that a violation of § 408(a)(7)(B) is not malum in se. Beltran-Tirado, 213 F.3d at 1183-84 (reasoning that Congress could not have intended violations of § 408(a)(7)(B) to be crimes involving moral turpitude because of legislative history indicating that unauthorized immigrants exempt from prosecution under § 408 under an amnesty program should not be considered to have exhibited moral turpitude). But see Marin-Rodriguez, 710 F.3d at 740-41 (rejecting Beltran-Tirado’s legislative history argument).

We acknowledge that the Board’s holding that Arias’s violation of § 408(a)(7)(B) categorically is a crime involving moral turpitude does have a basis in law. Despite the confusion about how to determine what moral turpitude is, there is a consensus that fraud is close to the core of moral turpitude. In Jordan v. De George, the Supreme Court rejected an argument that the moral turpitude standard was unconstitutionally vague in the case of an immigrant facing deportation for conspiring to defraud the United States of liquor taxes. The Court reasoned: “Whatever else the phrase `crime involving moral turpitude’ may mean in peripheral cases, the decided cases make it plain that crimes in which fraud was an ingredient have always been regarded as involving moral turpitude.” 341 U.S. at 232; see also Simon-Kerr, supra, 2012 Utah L. Rev. at 1008 (arguing that legal concept of moral turpitude developed from eighteenth- and nineteenth-century “honor norms” and therefore includes “oath-breaking, fraud, and their extensions” as part of its “core of settled meaning”) (internal quotation marks omitted).

We and other courts have sometimes used broader language, writing that any crime involving the larger concept of “deception,” in contrast to the narrower concept of fraud, involves moral turpitude. See, e.g., Marin-Rodriguez, 710 F.3d at 738 (“Crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous.”); Guardado-Garcia, 615 F.3d at 902 (“Crimes involving the intent to deceive or defraud are generally considered to involve moral turpitude.”) (citation and internal quotation marks omitted); Hyder, 506 F.3d at 391 (“We have repeatedly emphasized that crimes whose essential elements involve fraud or deception tend to be CIMTs.”); Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005) (“Crimes entailing deceit or false statement are within the core of the common-law understanding of `moral turpitude.'”). In Padilla, in deciding that obstruction of justice was a crime involving moral turpitude, we wrote: “Crimes that do not involve fraud, but that include dishonesty or lying as an essential element also tend to involve moral turpitude.” 397 F.3d at 1020 (citation and internal quotation marks omitted).

But note the qualifier, “tend to.” Despite the broad language, cases finding crimes of moral turpitude based on deception rely on other aggravating factors, especially actual or intended harm to others. See Abdelqadar, 413 F.3d at 670 (buying food stamps for cash from proper recipients); Padilla, 397 F.3d at 1017-18 (obstruction of justice by giving false information to police officer); see also Guardado-Garcia, 615 F.3d at 902 (using false social security number to gain access to secure area of major airport).

There is also a basis in Board precedents, which are also entitled to our deference, for the idea that a crime involving moral turpitude requires more than simple dishonesty. In tort law, liability for fraud requires loss to the person defrauded. See Restatement (Second) of Torts § 531. Some Board precedents seem to follow this distinction. For example, in Matter of Delagadillo, the Board held that the violation of a Mexican anti-fraud statute was not categorically a crime involving moral turpitude. 15 I. & N. Dec. 395, 396-97 (BIA 1975). The Board reasoned that the statute as written did not “require the taking of another’s property.” Id. at 396. Because the statute “could therefore punish any act of deception used in retrieving one’s own property” it did not categorically involve moral turpitude. Id. The Board then looked to the specific facts of the conviction at issue. The Board held that the immigrant’s actions—fabrication of a property transfer “in an unsuccessful attempt to reduce his wife’s potential settlement in a divorce action”—was not “so base or vile as to be deemed morally turpitudinous under United States standards.” Id. at 397. Similarly, in Matter of B—-M—-, the Board held that making a false statement to an immigration inspector was not a crime involving moral turpitude because “the offense may have consisted only of a false and not a fraudulent statement.” 6 I. & N. Dec. 806, 808 (BIA 1955). But see Matter of P—-, 6 I. & N. Dec. 795, 798 (BIA 1955) (holding that conviction under statute containing “inherent intent to deceive or mislead” was crime involving moral turpitude).

Arias’s case brings into focus the troubling results that would follow from a rule that every crime that involves any element of deception involves moral turpitude. As of 2014, unauthorized immigrants made up about five percent of the United States labor force. Jens Manuel Krogstad & Jeffrey S. Passel, 5 Facts About Illegal Immigration in the U.S., Pew Research Center (November 19, 2015), available at http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-immigration-in-the-u-s. Has every one of those millions of workers who gives a social security number to her employer committed a crime involving moral turpitude? Those persons are removable because they are not in the United States lawfully. The issue for Arias and all the others is whether they are barred from even discretionary relief because they have provided false social security numbers so that they can work and pay taxes.

It seems inconsistent with the terms “base, vile, or depraved” to hold that an unauthorized immigrant who uses a false social security number so that she can hold a job, pay taxes, and support her family would be guilty of a crime involving moral turpitude, while an unauthorized immigrant who is paid solely in cash under the table and does not pay any taxes would not necessarily be guilty of a crime involving moral turpitude. A rule that all crimes that involve any element of deception categorically involve moral turpitude would produce results at odds with the accepted definition of moral turpitude as conduct that is “inherently base, vile, or depraved.” At the same time, there is significant precedent indicating that deceptive conduct is morally turpitudinous. In the end, though, we do not need to try to resolve this conflict definitively in this case. As we explain next, we remand because of the unsettled state of the law regarding how the Board must go about determining which crimes involve moral turpitude.

III. The Changing Legal Framework

Given the difficulty that courts and the Board have had in defining the boundaries of moral turpitude, perhaps we should not be surprised to find great uncertainty regarding how the Board should decide whether an immigrant has been convicted of a crime involving moral turpitude. In between the Board’s order and the briefing in Arias’s petition for our review, the Attorney General vacated the order that had set the approach the Board used to determine that Arias’s crime involved moral turpitude. No replacement framework has yet emerged. The current uncertainty about method and an error the Board made in applying the old framework warrant a remand to the Board to reconsider Arias’s conviction under a new framework the Board adopts or the Attorney General mandates. See Mata-Guerrero v. Holder, 627 F.3d 256, 257 (7th Cir. 2010) (remanding to the Board a decision that a crime involved moral turpitude because Board had used an approach that had since been replaced by Silva-Trevino I framework).

In 2008, the Attorney General established a three-step process for determining whether a crime involved moral turpitude. See Silva-Trevino I, 24 I. & N. Dec. 687 (Att’y Gen. 2008). Step one of Silva-Trevino I used the categorical approach, looking to the elements of the statute of conviction to determine whether there is a “realistic probability” that the statute could be applied to conduct that does not involve moral turpitude. Where step one was inconclusive, step two looked beyond the statutory elements to records of conviction, such as charging documents, jury instructions, and guilty plea agreements and transcripts to see if the defendant’s crime involved moral turpitude. Where that was also inconclusive, step three allowed an immigration judge or the Board to consider additional evidence regarding the defendant’s actual conduct.

We approved the Silva-Trevino I approach. Sanchez v. Holder, 757 F.3d 712, 718 (7th Cir. 2014); Mata-Guerrero, 627 F.3d at 260; see also Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir. 2012). Some other circuits, however, held that allowing an immigration judge to look beyond the record of conviction violated the unambiguous language of the statute. See, e.g., Silva-Trevino v. Holder, 742 F.3d 197, 198 (5th Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907, 916 (9th Cir. 2013); Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012). In light of these other circuits’ decisions, the Attorney General vacated Silva-Trevino I and directed the Board to address in appropriate cases how “adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude” under the Immigration and Nationality Act. Silva-Trevino II, 26 I. & N. Dec. 550, 553 (Att’y Gen. 2015). The Board has not yet acted on that instruction, leaving a vacuum of authority regarding how it should determine whether a crime involves moral turpitude.

To add to the confusion, the Board did not correctly apply the Silva-Trevino I framework in its opinion holding that Arias’s violation of § 408(a)(7)(B) involved moral turpitude. The Board selectively quoted the statute and then stated: “An intent to deceive for the purpose of wrongfully obtaining a benefit is an element of the offense, and therefore the offense is categorically a crime involving moral turpitude.” As noted above, § 408(a)(7)(B) criminalizes false use of a social security number not only to obtain a benefit but also “for any other purpose.” The Board rephrased the statute to fit Arias’s particular circumstances, which indicates that the Board looked beyond the statute to determine that Arias’s crime of conviction involved moral turpitude. This was permissible under Silva-Trevino I, but only if examination of the statute proved inconclusive. Silva-Trevino I, 24 I. & N. Dec. at 690.[1]

The Board failed to analyze whether the statute was inconclusive before looking beyond the elements of the statute. This was an error under Silva-Trevino I. It is unclear whether it would be an error now. Since Silva-Trevino II, it is uncertain whether and under what circumstances the Board will be permitted to look beyond the elements of the statute. In addition, in light of Silva-Trevino II, our decision today does not amount to overruling our earlier opinion in Marin-Rodriguez. 710 F.3d 734. That decision was grounded in the now-vacated framework of Silva-Trevino I. Because the Silva-Trevino I framework has since been vacated and the Attorney General has directed the Board to determine a new framework for judging which crimes involve moral turpitude, we REMAND to the Board to consider Arias’s case under an appropriate legal framework for judging moral turpitude.

POSNER, Circuit Judge, concurring in the judgment.

I agree that we should grant the petition and therefore remand the case to the Board of Immigration Appeals for reconsideration of the Board’s refusal to cancel the order that the petitioner be removed (deported) from the United States.

I do not however agree with the respect that Judge Hamilton’s opinion accords the concept of “moral turpitude.” It is preposterous that that stale, antiquated, and, worse, meaningless phrase should continue to be a part of American law. Its meaninglessness is well illustrated by this case; and even if it is to be retained in immigration law it was misapplied by the Board of Immigration Appeals.

The concept plays a particularly malign role in immigration adjudication, as this case illustrates, because conviction of a crime involving moral turpitude bars the Attorney General from canceling the removal, or adjusting the status, of an alien. See 8 U.S.C. §§ 1229b(b)(1)(C), 1182(a)(2)(A)(i)(I).

The term “crime involving moral turpitude” first appeared in Brooker v. Coffin, 5 Johns. 188 (N.Y. 1809); see Note, “Crimes Involving Moral Turpitude,” 43 Harv. L. Rev. 117, 118 n. 7 (1929). Without defining the term, the court concluded that prostitution and other disorderly-conduct offenses were not crimes of moral turpitude, and therefore falsely accusing someone of such an offense could not support a suit for slander. Brooker v. Coffin, supra, 5 Johns. at 191-92. But the term appeared rarely in case law until legislators began to invoke it, notably in the closing years of the nineteenth century, when in the Act of March 3, 1891, ch. 551, 51st Cong., 2d Sess., Congress, worried by the swelling tide of immigration to the United States, forbade the admission, among other categories of disfavored aliens (such as polygamists), of aliens “who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude.” Why Congress chose the term “moral turpitude” to describe crimes that should bar aliens is unclear because there was no attempt to explain it either in the statute itself or in the legislative history. See Staff of House Committee on the Judiciary, 100th Cong., Grounds for Exclusion of Aliens Under the Immigration and Nationality Act: Historical Background and Analysis 10 (Comm. Print. 1988).

Congress has never defined “moral turpitude,” but courts and the immigration agencies have tended to adopt a slight variant of the definition in Black’s Law Dictionary: an “act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general. . . . [An] act or behavior that gravely violates moral sentiment or accepted moral standards of [the] community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others.” Black’s Law Dictionary 1008-09 (6th ed. 1990). Thus Lagunas-Salgado v. Holder, 584 F.3d 707, 710 (7th Cir. 2009), remarked that “the BIA has described a crime of moral turpitude as including `conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'” The most recent edition of Black’s offers a simpler but broader definition: “conduct that is contrary to justice, honesty, or morality; esp., an act that demonstrates depravity.” Black’s Law Dictionary 1163 (10th ed. 2014).

It’s difficult to make sense of these definitions, which approach gibberish yet are quoted deferentially in countless modern opinions. See, e.g., Blake v. Carbone, 489 F.3d 88, 103 (2d Cir. 2007); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 636 (3d Cir. 2002); Hamdan v. INS, 98 F.3d 183, 186 (5th Cir. 1996); In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007); In re Ajami, 22 I. & N. Dec. 949, 950 (BIA 1999). What does “the public conscience” mean? What does “inherently base, vile, or depraved”—words that have virtually dropped from the vocabulary of modern Americans—mean and how do any of these terms differ from “contrary to the accepted rules of morality”? How for that matter do the “accepted rules of morality” differ from “the duties owed between persons or to society in general”? And—urgently—what is “depravity”? A partial list of its synonyms, according to a Google search, includes corruption, vice, perversion, deviance, degeneracy, immorality, debauchery, dissipation, profligacy, licentiousness, lechery, prurience, obscenity, indecency, a wicked or morally corrupt act, the innate corruption of human nature due to original sin, moral perversion, bestiality, flagitiousness, and putrefaction.

The definitions constitute a list of antiquated synonyms for bad character, and why does the legal profession cling to antiquated synonyms? Why are we so backward-looking? The answer lies in the American legal culture—in the fact that law is backward-looking, that the legal profession revels in antiquity, cherishes jargon, and lacks respect for proper English usage—”base or vile” is not an expression used by sophisticated speakers of modern English, or for that matter unsophisticated, and the word “turpitude” has disappeared from the language as spoken and written today. The language I quoted from Black’s—who talks like that? Who needs to talk like that? Lawyers apparently, and they go a step further into the lexical mud by intoning an adjectival form of “turpitude”: “turpitudinous.”

We suggested in Mei v. Ashcroft, 393 F.3d 737, 741 (7th Cir. 2004)—a case that hinted at misgivings about the utility of moral turpitude as a criminal category—that the distinction between crimes that are and crimes that are not crimes of moral turpitude corresponds, as noted in Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000), and Orlando v. Robinson, 262 F.2d 850, 851 (7th Cir. 1959), to the distinction between crimes that are malum in se and crimes that are malum prohibitum. The former refer to crimes that because they violate the society’s basic moral norms are known by everyone to be wrongful, the latter to crimes that are not intuitively known to be wrongful. United States v. Urfer, 287 F.3d 663, 666 (7th Cir. 2002); United States v. Beavers, 206 F.3d 706, 710 (6th Cir. 2000) (“the lack of intuitive wrongfulness is the hallmark of all laws that are malum prohibitum”). In application, however, the distinction turns out to be paper thin. In South Carolina, for example, simple possession of cocaine is classified as a crime involving moral turpitude, State v. Major, 301 S.C. 181, 391 S.E.2d 235, 237 (1990), but simple possession of marijuana is not. State v. Harvey, 275 S.C. 225, 268 S.E.2d 587, 588 (1980). An alien convicted of making false statements on an employment application and using a fake Social Security number was held in Beltran-Tirado v. INS, supra, not to have committed a crime involving moral turpitude, but the crime of making false statements in a driver’s license application was held in Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993), to involve moral turpitude. The holdings of the Board of Immigration Appeals are consistent with regard to some crimes but “there are a number of miscellaneous cases involving indecent acts, gambling, perjury, and other crimes where the findings of moral turpitude vary widely.” Toutounjian v. INS, 959 F. Supp. 598, 603 (W.D.N.Y. 1997).

The background that I have sketched may help prepare the reader for the mysterious ways in which the federal government classifies crimes against itself (for that is the nature of the crime that the petitioner in this case, Maria Arias, committed—a crime against the government) as “turpitudinous” or not.

The U.S. Department of State Foreign Affairs Manual (FAM), in Volume 9 Visas, 9 FAM 40.21(a) N2.3-2 Crimes Committed Against Governmental Authority (2015), divides crimes against government into those that are, and those that are not, crimes of moral turpitude:

a. Crimes committed against governmental authority which fall within the definition of moral turpitude include:

(1) Bribery;

(2) Counterfeiting;

(3) Fraud against revenue or other government functions;

(4) Mail fraud;

(5) Perjury;

(6) Harboring a fugitive from justice (with guilty knowledge); and

(7) Tax evasion (willful).

b. Crimes committed against governmental authority, which would not constitute moral turpitude for visaissuance purposes, are, in general, violation of laws which are regulatory in character and which do not involve the element of fraud or other evil intent. The following list assumes that the statutes involved do not require the showing of an intent to defraud, or evil intent:

(1) Black market violations;

(2) Breach of the peace;

(3) Carrying a concealed weapon;

(4) Desertion from the Armed Forces;

(5) Disorderly conduct;

(6) Drunk or reckless driving;

(7) Drunkenness;

(8) Escape from prison;

(9) Failure to report for military induction;

(10) False statements (not amounting to perjury or involving fraud);

(11) Firearms violations;

(12) Gambling violations;

(13) Immigration violations;

(14) Liquor violations;

(15) Loan sharking;

(16) Lottery violations;

(17) Possessing burglar tools (without intent to commit burglary);

(18) Smuggling and customs violations (where intent to commit fraud is absent);

(19) Tax evasion (without intent to defraud); and

(20) Vagrancy.

The division between the two lists is arbitrary. The first is open-ended and therefore provides incomplete guidance on how to avoid committing a crime of moral turpitude against the government. The second list, the list of crimes that do not involve moral turpitude, includes a number of crimes that are as serious, as “turpitudinous”—one steeped in the jargon of crimes of moral turpitude might say—as those in the first list: desertion from the Armed Forces, prison escape, smuggling, and failure to report for military induction (i.e., draft dodging, when there is a draft). Some of the crimes in the second list make no sense, such as possessing burglar tools without intent to commit burglary and committing tax evasion without intent to defraud. Others are defined so broadly as to include criminal behavior serious enough to belong on the first list, examples being breach of the peace, firearms violations, and loan sharking. The pair of lists seems the product of a disordered mind. They make no sense.

The petitioner’s crime was the use of a social security number that had been assigned to another person by the Social Security Administration. That was a felony. 42 U.S.C. § 408(a)(7)(B). She had used the number to obtain a job. There is no indication that had she not done this, an American citizen would have gotten the job in her stead rather than one of the 10 or 11 million other illegal aliens who live in the United States and like Arias need to work in order to support themselves. The statute does not require proof of intent to cause harm—an absence that one would think would negate an inference of moral turpitude. Nor is it required that the violation be material; nor was there proof in this case that the violation wrongfully deprived anyone of social security benefits or increased the expenses of government. Unsurprisingly Arias was punished very lightly: she was merely placed on probation for a year and assessed $100, which is the mandatory assessment for felony convictions. See 18 U.S.C. § 3013. So: no incarceration, no fine, just a year’s probation and an assessment equivalent to the amount of money she earns in 9.1 hours of work (for her wage is $10.97 per hour).

Conceivably her very light sentence reflects in part the fact that she has two young children, has worked without incident since coming to the United States in 2000, and has paid federal income tax. Or may be the judge thought her crime trivial, as do I. (Has the Justice Department nothing better to do with its limited resources than prosecute a mouse? Has prosecutorial discretion flown out the window?) She did not steal or invent the social security number; it was given her by the persons who smuggled her into the United States.

After completing her probation she was allowed to resume her employment with the same company she’d worked for until her arrest, and she obtained a glowing letter of support from the general manager. She does manual work for the company, described by the general manager as “sealer sanding doors, wear thru and working with specialty paints.” It is the kind of work that illegal immigrants typically do, because it is not pleasant work and it is not well paid.

To prosecute and deport such a harmless person (to Ecuador, her country of origin)—indeed a productive resident of the United States—would be a waste of taxpayers’ money, but to deport her on the ground that her crime was one of moral turpitude would be downright ridiculous. The crime she committed does not appear in the State Department’s list of crimes of moral turpitude, and it is less serious than many of the crimes in the second list (those that are not crimes of moral turpitude). It is somewhat similar to crime category 13 in the second list—”immigration violations”—but she was not convicted of violating immigration law, but instead of violating a section of 42 U.S. Code, Chapter 7, Subchapter II. The title of the subchapter is “Federal Old-Age, Survivors, and Disability Insurance Benefits.” Her crime could also be placed in category 10 on the second list—”false statements (not amounting to perjury or involving fraud).” The State Department explicitly tells us that false statements do not constitute crimes of moral turpitude.

And yet the government argues that the petitioner’s conduct was “deceptive” and therefore a crime of “moral turpitude.” But glance again at the second list, the list of crimes that are not crimes of moral turpitude. In addition to crime 10—”false statements”—which by definition involves deception, crimes 1, 3, 4, 15, 18, and 19 on that list may also involve deception. When a panel of this court said in Marin-Rodriguez v. Holder, 710 F.3d 734, 738 (7th Cir. 2013), a case factually almost identical to this one, that “crimes entailing an intent to deceive or defraud are unquestionably morally turpitudinous,” it was deviating from the Manual without explanation.

Interestingly, the immigration judge in our case said that “unfortunately” the Seventh Circuit had ruled in Marin-Rodriguez that the type of conviction involved in Arias’s case was “inherently turpitudinous.” The judge’s instincts were sound, but she felt bound by our decision. The Board of Immigration Appeals affirmed her ruling primarily on the authority of Marin-Rodriguez. But Marin-Rodriguez was wrong and should be overruled. The court had no basis for rejecting what for a change was proper guidance from the State Department’s Manual.

The idea that fraudulent intent colors any crime “turpitudinous” had received its authoritative modern statement in Jordan v. De George, 341 U.S. 223 (1951), like this a deportation case, where we read for example that “fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.” Id. at 229. But notice that the word used by the Court to describe a crime of moral turpitude was “fraud,” not “deception,” and De George was a fraud case in the core sense of “fraud”: it was a conspiracy to defraud the federal government of tax revenues.

Yet, though it was a much stronger case for deportation than this case, the majority opinion evoked a remarkable dissent by Justice Jackson, id. at 232-245, joined by Justices Black and Frankfurter. The dissent picked apart the concept of “moral turpitude.” It exposed its emptiness (“Congress did not see fit to state what meaning it attributes to the phrase `crime involving moral turpitude.’ It is not one which has settled significance from being words of art in the profession. If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity and moral turpitude seems to mean little more than morally immoral. The Government confesses that it is `a term that is not clearly defined,’ and says: `the various definitions of moral turpitude provide no exact test by which we can classify the specific offenses here involved.’ Except for the Court’s opinion, there appears to be universal recognition that we have here an undefined and undefinable standard”). Id. at 234-235. And the dissent argued convincingly that deportation was an extreme sanction to impose on De George, the alien, without a more definite standard guiding its imposition. See id. at 240-242.

Alas, a great dissent by a great Justice has been forgotten. The concept of moral turpitude, in all its vagueness, rife with contradiction, a fossil, an embarrassment to a modern legal system, continues to do its dirty work. Even so, and despite the precedent of Marin-Rodriguez, there is a route to justice in this case. It is to recognize that this is not a fraud case. Although convicted of a crime against the government, the petitioner, unlike her predecessor De George, was not seeking any money from the government. So far as appears her crime harmed no one, least of all the government though it is the “victim” of her crime, and so even the muddled overbroad Foreign Affairs Manual provides no basis for classifying her crime as one of moral turpitude. This case is identical to Beltran-Tirado v. INS, supra, where the Ninth Circuit held that using a false social security number on an employment verification form in order to obtain employment was not a crime of moral turpitude. Consider, too, In re Delagadillo, 15 I. & N. Dec. 395 (BIA 1975), where the Board of Immigration Appeals held that an applicant for admission to the United States who had “fabricated a property transfer in an unsuccessful attempt to reduce his wife’s potential settlement in a divorce action” had not committed a crime “so base or vile as to be deemed morally turpitudinous.” The Ninth Circuit and the Board of Immigration Appeals recognized in these cases, as the State Department does in its manual, that deception alone is not enough to make a crime one of moral turpitude. Our prior cases that have purported to extend De George’s fraud rule to cover any deception have generally done so in dicta, because the cases involved more than simple deception. See Abdelqadar v. Gonzales, 413 F.3d 668, 671 (7th Cir. 2005); Padilla v. Gonzales, 397 F.3d 1016, 1017-18, 1020-21 (7th Cir. 2005).

In Lagunas-Salgado v. Holder, 584 F.3d 707 (7th Cir. 2009), an alien had been convicted of making “false Social Security and alien registration cards so that others could find employment.” Id. at 708. The Board of Immigration Appeals deemed his crime one of moral turpitude and a panel of this court affirmed. It was a more serious crime than our petitioner’s, because Lagunas-Salgado had sold false papers to about 50 people, some for as much as $100; and he was sentenced to five months in prison and two years of probation, a much heavier sentence than Arias received. The panel opinion in Lagunas-Salgado remarks with apparent approval the BIA’s conclusion “that petty larceny and issuing a worthless check involve moral turpitude” but that “crimes such as importing, selling, or possessing drugs do not involve moral turpitude because evil intent is not an element of the offense.” Id. at 710. That is an absurd distinction, given that the congressional mandate is to identify crimes that are morally reprehensible and thus a proper ground for deportation.

Yet the approach I’m suggesting derives support from Lagunas-Salgado. The panel was emphatic that it was a fraud case, 584 F.3d at 711-12, and I read Jordan v. De George to hold that crimes of fraud are ipso facto crimes of moral turpitude. Lagunas-Salgado gave away some of his false documents but sold others, and was “deceiving the government” because “he knew the persons receiving the false documents would use them in an attempt to obtain work that they could not otherwise lawfully obtain.” Id. at 712. The petitioner in our case did not forge documents, let alone for gift or sale to other persons. The impact of her conduct on her “victim,” the U.S. Government, was negligible, as reflected in the nominal sentence that she received relative to the heavier (though still light) sentence imposed on Lagunas-Salgado.

Marin-Rodriguez is closer to our case, but the alien in that case had been convicted under a different statute, 18 U.S.C. § 1546, which is entitled “Fraud and misuse of visas, permits, and other documents,” authorizes sentences of up to 10 years in prison (even longer if the offense was committed in connection with drug trafficking or terrorism), and thus punishes more heavily conduct more reprobated than the conduct in which the petitioner in this case engaged. The court in Marin-Rodriguez was mistaken, however, as I’ve said, in assuming that all deceptive acts, no matter how harmless, are crimes of moral turpitude. See 710 F.3d at 738. It based that proposition on De George, Abdelqadar, and Padilla, despite the fact that none of those cases involved harmless deception.

If anything is clear it’s that “crime of moral turpitude” shouldn’t be defined by invoking broad categorical rules that sweep in harmless conduct. Yet that’s what the Board of Immigration Appeals did in this case, in upholding the immigration judge’s conclusion that the petitioner had committed a crime of moral turpitude; it said that a violation of 42 U.S.C § 408(a)(7)(B) is “categorically a crime involving moral turpitude.”

[1] Although the Board’s interpretation of whether a crime involves moral turpitude for the purposes of the Immigration and Nationality Act is often entitled to Chevron deference, Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008), Chevron deference does not protect clear legal errors such as the Board’s misapplication of the Silva-Trevino I framework or misstatement regarding the contents of 42 U.S.C. § 408(a)(7)(B).
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Posted in 7th Circuit, 7th Circuit Cases- Aliens, CIMT, Crime involving moral turpitude, false social security number | Tagged | Leave a comment

Failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity

Posted on May 17, 2016 by Mike Baker

The following Immigration Policy Memorandum is now available

Matter of L-S-M-, Adopted Decision 2016-03 (AAO Feb. 23, 2016) PM-602-0133

This policy memorandum (PM) designates the attached decision of the Administrative Appeals Office (AAO) in Matter of L-S-M- as an Adopted Decision. Accordingly, this adopted decision establishes policy guidance that applies to and binds all U.S. Citizenship and Immigration Services (USCIS) employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases.

Matter of L-S-M- clarifies that the exception to the civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity. See sections 240B(d)(1)-(2) of the Immigration and Nationality Act. That said, the civil penalties only apply if an alien’s failure to timely depart was voluntary. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), followed.

(1) The exception under section 240B(d)(2) of the Immigration and Nationality Act to the civil penalties for failure to comply with an order of voluntary departure, available for certain victims of domestic violence or related abuse, does not extend to U-1 nonimmigrant victims of qualifying criminal activity.

(2) The civil penalties under section 240B(d)(1) of the Immigration and Nationality Act apply only to aliens who voluntarily fail to comply with an order of voluntary departure. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), followed.

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CA7 requires satisfying Lozada’s procedural requirements even where ineffective assistance of counsel is “clear and obvious from the record.”

Posted on May 17, 2016 by Mike Baker

Guzman-Rivadeneira came to the U.S. from Ecuador. In 1993 he was convicted in California of possession of counterfeit prescription blanks. After returning to Ecuador, he returned to the U.S. and became a lawful permanent resident because his mother is a U.S. citizen. On his application, he falsely responded that he had never been arrested or convicted of a crime. In 2012, Guzman-Rivadeneira pled guilty to a controlled substance misdemeanor. Guzman-Rivadeneira returned from another trip abroad in 2014 and was charged as removable for: conviction of a crime involving moral turpitude (1993 conviction), 8 U.S.C. 1182(a)(2)(A)(i)(I); conviction of a controlled substance offense; procurement of a visa by fraud; and lack of a valid entry document. He argued that a 1997 California court order reducing the 1993 conviction to a misdemeanor should be given retroactive effect; that he was eligible for a discretionary waiver of removability for his visa fraud, and that as a legal permanent resident he would be eligible for cancellation of other grounds of removal. The BIA upheld the IJ’s denial of relief. The Seventh Circuit declined a petition based on the “moral turpitude” issue. Guzman-Rivadeneira’s original lawyer conceded that the 1993 conviction involved moral turpitude, and in appealing to the BIA, his new lawyer did not seek relief from that concession, not did she take the steps needed to claim ineffective assistance of counsel. Guzman-Rivadeneira v. Lynch, No. 14-3734 (7th Cir. 2016)

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