7th Circuit, Aliens, Immigration case law updates, Asylum

Kadia v. Holder, No. 07-3604 (02/20/2009) Asylum/Withholding of Removal/Convention Against Torture

Kadia v. Holder (Tinder)
Oral Argument | Full Text

The alien testified that: she was arrested by members of a special police unit and accused of spying, supporting a strike, being a member of an opposition political party, and sending arms to her native village; she was beaten, raped, and detained for 18 days; she suffered a miscarriage; and she fled and went into hiding after she was taken to a hospital for treatment. The IJ found that the alien was not entirely credible and that she failed to show that the harm that she suffered constituted persecution on account of a protected ground. The BIA stated that it did not need to address the adverse credibility finding. It concluded, without explanation, that the alien failed to meet her burden of showing her eligibility for asylum and other relief. The court held that a remand was necessary because the BIA failed to provide a reasoned analysis, which would allow for proper appellate review of its decision. The BIA could not have reached its conclusion without implicitly adopting the IJ's adverse credibility finding. If the alien's testimony was true, the treatment she described might constitute past persecution based on imputed political opinion, which could qualify her for asylum.

The petitioner fled Cameroon in the spring of March 2007 and presented her claim for asylum and related relief before the U.S. immigration court. She claimed that members of Cameroon's special anti-gang police physically abused and detained her because they believed that she held subversive political opinions. She testified that in December 2006 two men, not in uniforms, came to her home and showed her an arrest warrant and a badge. They identified themselves as members of the Cameroon anti-gang or special police force. They took her to an unfamiliar location and accused her of going to America to give away their country's military secrets, being a member of the opposition party, the Southern Cameroon National Council (SCNC), supporting a university strike, and sending arms to her village. They also mentioned a tribal chieftaincy problem between her uncle and her brother. She was detained for 18 days during which period she was beaten and raped. Her captors took her to a hospital where she had a miscarriage. Two days later she escaped and went into hiding until she was able to leave Cameroon. She did not tell her superior police officers what had happened to her because she was too frightened.

In denying her relief applications, the IJ expressed his belief that the petitioner's story was not entirely credible. He also denied the claim based on his finding that she failed to show that the harm she suffered constituted persecution on account of a protected ground. He declared that the petitioner's inconsistent testimony and the fact that she never sought help from her police department superiors raises serious doubts whether the harm she suffered, if true, was on account of an imputed political opinion and not a tribal issue. The BIA purported to “adopt and affirm” the IJ's decision but added that it agreed with the IJ insofar as he found that the petitioner failed to meet her burden of establishing eligibility for asylum, withholding of removal, and CAT protection as the evidence failed to sufficiently establish that the petitioner was persecuted or would more likely than not be persecuted on a protected ground. The Board indicated that, in light of this finding, it did not need to address the IJ's adverse credibility finding.

The circuit court held that the BIA's order was insufficient because it lacked a reasoned analysis. It considered that the BIA's conclusion that it need not address the IJ's credibility determination could not be squared with its finding that the petitioner failed to establish persecution on account of a protected ground. The court explained that it has defined persecution as “punishment or the infliction of harm which is administered on account of race, religion, nationality, group membership or political opinion, which rises above the level of mere harassment.” It remarked that the petitioner's alleged experiences would seem to establish harm above the level of mere harassment and that the violence she suffered was motivated by the political opinion that her captors attributed, rightly or wrongly, to her. The court declared that, if her story is credited, then her detention and abuse would seem to constitute past persecution based on imputed political opinion. The court indicated that it could not affirm the BIA if the basis for its decision is unclear. It stated that the BIA could not have affirmed the IJ without adopting his adverse credibility finding, which it declined to reach, and therefore the court concluded that the BIA's decision was not supported by a reasoned analysis. Accordingly, the court remanded the case to the BIA for clarification of the reasons for its decision and commented that this would inevitably require the Board to address the IJ's adverse credibility finding.
__________________________________

Duad v. Holder, No. 07-3566 (02/12/2009) Suspension of Deportation/Hearsay Evidence in Removal Proceedings

Duad v. Holder (Wood)
Oral Argument | Full Text

Petitioner alien, a native and citizen of Malaysia, sought review of an order of the Board of Immigration Appeals (BIA) affirming the immigration judge's (IJ) denial of suspension of deportation pursuant to the former § 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C.S. § 1254 (repealed).

The court noted that it lacked jurisdiction under 8 U.S.C.S. § 1252(a)(2)(B)(ii) to review the BIA's conclusion that the alien had not shown the kind of extreme hardship necessary to earn suspension of deportation. The alien argued that the BIA erred in accepting hearsay documents and violated the alien's right to due process in doing so and that the documents were all that permitted the IJ to find that the alien did not meet the requirement of good moral character. The court found that the contested materials played little or no role in the IJ's decisionmaking process. The IJ had before him a BIA decision in which it found that substantial and probative evidence existed showing that the alien's marriage was entered into for purposes of evading the immigration laws, and the IJ also heard oral testimony about the death of a child in the alien's care and the investigation surrounding it. That evidence, standing alone, would have been enough to support the IJ's finding that on balance the alien did not merit withholding of deportation. The court noted that the IJ's decision to admit various unsworn documents did not violate the alien's due process rights.

The petitioner, a native and citizen of Malaysia, entered the U.S. in 1984 as a nonimmigrant to enable her to work with the Malaysian Consulate as a student counselor. In the late 1980s, she converted from Islam to Buddhism, and, in 1989, she married a Buddhist gentleman was a U.S. citizen. Before that marriage ended in divorce, the U.S.husband had filed an I-130 family petition on behalf of Ms. Duad. The INS denied that petition, finding that the marriage was a fraud. In 1991, she married a Jewish man, another U.S. citizen, and the petitioner ran a small day-care service from her home. In 1996, deportation proceedings were commenced against the petitioner for overstaying her nonimmigrant authorization. In October 1998, a child who had been in the petitioner's care died from a cerebral hematoma. The petitioner was charged with homicide but was acquitted after a trial. Her insurance company settled a civil wrongful-death action brought against her. The state authorities proceeded to revoke her day-care license. After 13 years of marriage to her second husband, divorce proceedings ensued in 2004.

The petitioner had a legal permanent resident daughter and grandchildren residing in the U.S. and no close family in Malaysia. In support of her suspension application, she asserted that she feared religious persecution because Malaysia is predominately Muslim and is intolerant toward both Buddhism and Judaism. She also relied on the fact that she was 65 years of age and the retirement age in Malaysia is 55. Although the IJ gave her the benefit of the doubt on the issue of “good moral character,” a necessary requirement for suspension of deportation, notwithstanding the fraudulent marriage to the first husband and the unfortunate death of the child, in assessing the “extreme hardship” factor, the IJ denied relief after balancing these negative factors against the positive factors. He acknowledged that deportation would cause hardship but observed that country conditions in Malaysia were not as bleak as the petitioner had painted them to be. He admitted various
unsworn documents into evidence, including a DCFS letter, presented on the date *656 of the hearing, which informed the petitioner that it was recommending revocation of her day-care license and that her renewal application would be denied.
__________________________________
Khan v. Filip, Nos. 06-3966 & 07-2252 (1/29/09)

Khan v. Filip (Sykes)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order finding under 8 USC sec. 1158(a)(3) that alien's asylum application was untimely, and that alien's evidence regarding his depression was insufficient to constitute "extraordinary circumstances" to justify 5-year delay in filing asylum application. Moreover, while alien showed that he was mistreated in home country, he failed to show, for purposes of his withholding of removal claim, that any mistreatment was motivated by his political beliefs.
__________________________________
Stepanovic v. Filip, No. 07-3883 (1/28/09)

Stepanovic v. Filip (Kanne)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order finding alien was ineligible for cancellation of removal even though alien claimed that he was "battered spouse" as set forth in sec. 240(A)(b)(2) of INA. Bd.'s order qualified as denial of discretionary relief that was not subject to appellate review under 8 USC sec. 1252(a)(2)(B), and alien otherwise merely challenged Bd.'s rejection of aliens' factual claim that he was abused spouse.
__________________________________
Ghaffar v. Mukasey, No. 07-3474 (12/29/08)

Ghaffar v. Mukasey (Rovner)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider appeal of Bd.'s denial of alien's asylum application alleging persecution on account of his status as Shiah Muslim where application had not been filed within one year of his arrival in U.S. as required by section 208(a)(2)(B) of INA. Moreover, Ct. of Appeals could not review IJ's determination that 1.5 year delay was not caused by extraordinary circumstances where alien failed to raise legal issue with respect to IJ's determination. Ct. also found that alien had waived his claim that IJ was biased and/or had denied him due process by failing to record alien's wife's testimony since alien had failed to raise said issues with Bd. His claims regarding IJ bias, and the BIA's failure to make a record of his wife's testimony, were both within the Board's power to address, and thus he was required to raise these claims before the BIA.
__________________________________
Torres v. Mukasey, No. 08-1614 (12/23/08)

Torres v. Mukasey (Kanne)
Oral Argument | Full Text

Petition for review of a denial of Honduran native's application for asylum and related relief is granted where: 1) the IJ's credibility determination was tainted due to the IJ's improper conduct during the hearings at issue; and 2) there was not substantial evidence to support the IJ's conclusions. Record failed to support IJ's denial of alien's asylum and withholding of removal applications based on alien's claim that he was persecuted by members of Honduran army due to his relationship to other members of his family. IJ played excessive role in questioning alien during asylum hearing and improperly relied on IJ's personal beliefs when making adverse credibility findings against alien. Moreover, record provided sufficient nexus between alien's mistreatment and his relationship to his other family members to support instant claim. Petition granted.
__________________________________
Chavez-Vasquez v. Mukasey, No. 08-1652 (12/8/08).

Chavez-Vasquez v. Mukasey (Ripple)
Oral Argument | Full Text

Illegal alien's petition for review of an order of removal is dismissed where: 1) the court lacked jurisdiction to hear an appeal from a judgment regarding cancellation of removal rendered under section 1229(b) of the Immigration and Nationality Act; 2) a procedural due-process claim could not be heard because petitioner had failed to raise it before the BIA; and 3) petitioner's evidence regarding country conditions in Guatemala had been considered, and the IJ's findings of fact with respect to that evidence were not reviewable.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order affirming IJ's denial of alien's application for cancellation of removal where alien claimed that removal would work extreme hardship on her two U.S. born sons. Section 1252(a)(2)(B)(i) of INA precludes Ct. of Appeals from reviewing judgments regarding requests for cancellation of removal, and subject matter of instant appeal, which concerned allegation that IJ neglected to consider evidence regarding adequacy of medical treatment for alien's sons and economic conditions in Guatemala, did not pertain to question of law.
__________________________________
Jimenez-Gonzalez v. Mukasey, No. 08-1071, No. 06-3228 (11/21/08) Recklessness is not a Crime of Violence

Jimenez-Gonzalez v. Mukasey (Ripple)
Oral Argument | Full Text

Petition for review of an order of removal based on petitioner's conviction on a state charge of criminal recklessness is granted where criminal recklessness is not a crime of violence for immigration purposes.

Mr. Jimenez-Gonzalez pleaded guilty to two counts of criminal recklessness, a Class C felony in Indiana, by shooting a firearm from his truck into an apartment located in a residential neighborhood. He was then sentenced to four years’ imprisonment. Indiana Code § 35-42-2-2(c)(3).

Aliens are removable under 8 U.S.C. § 1227(a)(2)(A)(iii) if they commit an aggravated felony. The definition of “aggravated felony” includes a conviction for a “crime of violence []as defined in section 16 of Title 18,” for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F).

A “crime of violence” is defined in 18 U.S.C. § 16(b) as an offense “that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The Supreme Court examined the scope of Section 16(b) in Leocal v. Ashcroft, holding that a conviction for drunk driving did not qualify as a crime of violence under Section 16(b). 543 U.S. at 13. In reaching that conclusion, the Court held that a crime based on strict liability or negligence could not be a crime of violence, because “[i]nterpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.” Id. at 11.

"In the wake of Leocal, five other circuits have held that reckless crimes cannot be crimes of violence under Section 16(b). See United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008) (holding that reckless assault on a police officer was not a crime of violence); United States v. Portela, 469 F.3d 496, 499 (6th Cir. 2006) (holding that reckless vehicular homicide was not crime of violence); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-31 (9th Cir. 2006) (enbanc) (discussing Leocal and holding that reckless domestic violence was not a crime of violence); Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006) (holding that reckless assault was not a crime of violence); Oyebanji v. Gonzales,418 F.3d 260, 263-65 (3d Cir. 2005) (holding that reckless vehicular homicide was not a crime of violence). These circuits have interpreted Leocal to limit the scope of Section 16(b) to crimes that require purposeful conduct, rather than negligent or reckless conduct.

Today we join our sister circuits and hold that reckless crimes are not crimes of violence under Section 16(b). As the Third Circuit persuasively reasoned, “[t]he cornerstone of the Leocal Court’s reasoning was that the concept of the use of physical force against the person or property of another ‘requires active employment’ and ‘naturally suggests a higher degree of intent than negligent or merely accidental conduct.’” Oyebanji, 418 F.3d at 263 (quoting Leocal, 543 U.S. at 9 (emphasis in original)). And we believe that accidental and reckless crimes are not the type of “violent” crimes Congress intended to distinguish as worthy of removal. See Leocal, 543 U.S. at 11; Garcia, 455 F.3d at 468-69."
__________________________________
Siddique v. Mukasey, No. 08-1127 (10/31/08) frivolous asylum

Siddique v. Mukasey (EASTERBROOK)
Oral Argument | Full Text

Petition denied and dismissed in part. Record contained sufficient evidence to support IJ's order finding that alien made frivolous asylum application where alien admitted to lying during asylum hearing and presented forged document to support his claim of persecution. Record showed that alien had lied about existence of murdered wife and child, and IJ could properly find as result that alien was permanently disqualified from receiving any remedies under immigration laws, such as his request to adjust status based on his subsequent marriage to U.S. citizen.

According to Siddique, people regularly lie to the government in Pakistan to get benefits, so he thought that he should proceed in the same fashion in the United States. We need not decide whether Siddique’s latest representation about life in Pakistan is correct (his history does not inspire confidence). Aliens must tell the truth to officials in the United States. The possibility of cultural differences is one reason why Congress directed immigration officials to notify aliens, at the outset of the asylum process, that honesty is essential, and to foreclose remedies under the immigration laws only if an alien tells material lies after being informed about the consequences of frivolous applications. 8 U.S.C. §1158(d)(4)(A), (6). Siddique received the required notice. He chose to disregard the warning and must pay the price of his decision. He should count himself lucky that he has not been prosecuted for perjury. The petition for review is dismissed for want of jurisdiction to the extent that it challenges the IJ’s discretionary decisions and denied to the extent that it contests the permanent bar on any benefit under the immigration laws.
___________________________________
Adebowale v. Mukasey, No. 07-2201 (10/24/08)

Adebowale v. Mukasey (Coffey)
Oral Argument | Full Text

Petition by a Nigerian-born citizen of the United Kingdom for review of denial of his motion to reopen asylum proceedings is dismissed for lack of jurisdiction where the IJ's determination that petitioner failed to demonstrate exceptional circumstances required to reopen was a factual one not subject to appellate review.

Adebowale claimed that he misread the notice of his hearing and thought that the hearing was set for September 9, not September 7. Without elaborating, he stated that his mistake might have resulted from an alleged disorientation accompanying a “viral infection” during the previous week and the stress of his being “threatened with homelessness.” The IJ did not demand medical evidence, but instead noted that the lack of any corroborating evidence, including medical records, harmed the credibility of Adebowale’s factual allegations. Adebowale did not even describe the symptoms that he suffered or explain why his illness prevented him from attending the hearing or accurately reading the date on the hearing notice. Indeed, Adebowale said only that he suffered from a “viral illness” that disoriented him and possibly contributed to his mistake.
_____________________________________
Malik v. Mukasey, No. 07-3821 (10/23/08) Motion to Continue

Malik v. Mukasey (Evans)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider aliens' appeal of Bd.'s order affirming IJ's denial of aliens' motion to continue removal proceedings so that aliens could apply to become lawful permanent residents based on their recent marriages to U.S. citizens. Ct. of Appeals generally lacks jurisdiction under 8 USC sec. 1252(a)(2)(B)(ii) to review instant discretionary ruling, and basis for said ruling, i.e., that aliens had lied about identity of native country and that adjustment petitions were without merit, were acceptable reasons for denying continuance.
_____________________________________

Johnson v. Mukasey, No. 08-1126 (10/01/08)

Johnson v. Mukasey (Posner)
Oral Argument | Full Text

In an action to remove a permanent resident because of a drug conviction, petition for review denial of motions to reopen and reconsider after a ten-year delay in executing the removal order is denied where the discretionary denial of a motion to reconsider is not reviewable.
________________________________________
Fernandez v. Mukasey, No. 06-3476, 06-3987, 06-3994 (9/15/08)

Fernandez v. Mukasey (Manion)
Oral Argument | Full Text

Petitions by three aliens for review of their orders of removal are denied where each of the petitioners' most recent state court convictions for misdemeanor drug possession constituted an aggravated felony under the Immigration and Nationality Act, because each occurred after a previous drug conviction became final.

"The sole issue on this appeal is whether the second (or, as is the case with Mateo, third) of each of the petitioners’ multiple state-court convictions for drug possession was accurately characterized as an aggravated felony under § 101(a)(43)(B) of the INA.

Petitioners Florencio Victor Jimenez-Mateo, Julio Calderon, and Omar Cendejas- Fernandez (collectively “petitioners”) were ordered removed from this country. The orders of removal were based on findings that petitioners’ most recent state-court convictions for drug possession offenses constituted aggravated felonies under § 101(a)(43)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(B), because each of the petitioners had previously been convicted of a controlled substance offense. The petitioners have filed timely petitions for review in this court. They assert that their first and second state-court convictions for simple drug possession cannot amount to an “aggravated felony” under § 101(a)(43)(B) of the INA. Because we have already found in United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007), that such convictions do constitute an “aggravated felony” under § 101(a)(43)(B) of the INA, we deny their petitions for review."
________________________________________
Esquivel v. Mukasey, No. 07-2260 (9/11/08)

Esquivel v. Mukasey (Coffey)
Oral Argument | Full Text

Petition for review of a finding that petitioner was ineligible for a waiver of inadmissibility is denied where: the waiver in prior proceedings of the removal effect of petitioner's conviction for attempted murder did not require it to be waived in subsequent proceedings. That a § 212(c) waiver doesn't effectively expunge a conviction from an alien’s criminal record for immigration purposes or bar subsequent consideration of that conviction. The BIA has established that a § 212(c) waiver does not waive the basis for excludability itself; it merely waives the finding of excludability.
________________________________________
Jezierski v. Mukasey, No. 07-3569 (9/10/08). Motion to Reopen

Jezierski v. Mukasey (Posner)
Oral Argument | Full Text

Ct. of Appeals lacked jurisdiction to consider alien's petition for review of Bd.'s order denying her motion to reopen her removal proceedings on grounds that her counsel was ineffective. Ct. of Appeals lacks jurisdiction to review petition to reopen removal proceedings unless petition presents question of law, and Bd.'s rationale for denying motion to reopen, i.e., that alien failed to establish prejudice arising from counsel's representation, was not question of law that would confer jurisdiction on Ct. of Appeals.

An attorney's failure to file an appeal brief with the BIA in a removal proceeding does not create a presumption of prejudice.

"[T]here is no such rule. The alien derives it from a series of Ninth Circuit cases that hold that the Board's failure to consider the alien's arguments because his lawyer did not file a brief (or did not appeal at all) establishes a presumption of prejudice. Granados-Oseguera v. Gonzales, 464 F.3d 993, 997 (9th Cir. 2006); Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000). There was no failure by the Board in this case. The Board does not require an alien who is appealing the adverse decision of an immigration judge to file a brief, and when no brief is filed the Board will still decide the merits of the appeal, and did so in this case. (The Board reserves the right to dismiss the appeal summarily if the alien, after indicating that he intends to appeal, fails to do so. 8 C.F.R. § 1003.1(d)(2)(i)(E). Sometimes the Board exercises the right, e.g., In re Ibrahim Al- Hamidieh, A95 518 117, 2007 WL 4699755 (BIA Dec. 4, 2007), sometimes not. E.g., In re Jose Alfredo Rodriguez-Murrieta, A90 116 459, 2007 WL 4699778 (BIA Nov. 30, 2007). To repeat, the Board did decide the merits of alien's appeal.) In deciding whether to reopen, the Board asked itself whether the removal proceeding might have come out differently had the alien been represented by competent counsel, and concluded that it would not have. That conclusion was not the answer to a question of law, but a discretionary determination."

________________________________________
Ali v. Mukasey, No. 07-2462 (9/8/08).

Ali v. Mukaseyy (Williams)
Oral Argument | Full Text

Record contained sufficient evidence to support IJ's deportation order after finding that alien, who entered U.S. on H-1B work visa, had wrongfully begun working for second employer before he could lawfully do so. Alien admitted to Special Agent that he was working for second employer prior to said employer filing petition on alien's behalf. Moreover, alien failed to preserve for review his claim that instant Special Agent violated 8 CFR sec. 287.3(a) by arresting and interviewing him.

Where an alien failed to object that the arresting officer was also his examining officer, the objection is waived.

"We cannot reach Ali's argument, however, because his brief to us marks the first time that he raised this argument. An alien must exhaust all available administrative remedies that are available as of right before we can review a claim. See 8 U.S.C. § 1252(d)(1); Huang v. Mukasey, 525 F.3d 559, 564 (7th Cir. 2008). Exhaustion is not required when there is a fundamental, substantive constitutional violation, Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir. 2008), but that is not the case here."
________________________________________
Sharashidze v. Mukasey, No. 07-2611 (9/8/08). Asylum/reopen

Sharashidze v. Mukasey (Wood)
Oral Argument | Full Text

Petition for Review, Order of Bd. of Immigration Appeals. Appeal dismissed.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s order denying alien's request to reopen proceedings where IJ had previously terminated alien's grant of asylum based on alien's state conviction for indecent solicitation of sex act from minor, which qualified as aggravated felony for immigration purposes. Alien's motion to reopen was untimely, and alien failed to identify any legal, jurisdictional or constitutional error with respect to Bd.'s denial of motion to reopen. Petition for review of a BIA order of removal on the basis of conviction on an aggravated felony is dismissed for lack of jurisdiction where all of petitioner's arguments sought review of factual questions, and the court had jurisdiction to review only for legal or constitutional error.

Arguing a due process violation does not exempt an alien from the ordinary time limits for moving to reopen an asylum case.

"Sharashidze argues that the fact that he is arguing that his due process rights were violated somehow exempts him from the ordinary time limits that apply, but he is wrong: 8 U.S.C. § 1252(a)(2)(D), which authorizes this court to decide constitutional claims and questions of law, is explicitly constrained by the 30-day time limit in § 1252(b)(1). See Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007) ('Section 1252(a)(2)(D) plainly states that other limitations on judicial review in "this section"-that is, section 1252-still apply.'). Unless some other principle confers jurisdiction upon this court, we may review the denial of the motion to reopen (and only for legal, jurisdictional, and constitutional error) but not the underlying denial of the petition for review of the IJ's decision. See Asere v. Gonzales, 439 F.3d 378, 380-81 (7th Cir. 2006)."
_________________________________
Bakarian v. Mukasey, No. 06-3228 (9/4/08)Cancellation of Removal

Bakarian v. Mukasey (Manion)
Oral Argument | Full Text

In an immigration case in which the government sought removal of
petitioner as having been convicted of crimes of moral turpitude,
petition for review of denial of cancellation of removal and waiver of
inadmissibility is denied where: 1) petitioner did not meet the
continuous-residence standard for eligibility of a cancellation of
removal; and 2) petitioner's failure to raise the application of the
stop-time rule before the BIA was not excused by futility, and the court
therefore lacked jurisdiction to hear the issue on appeal.
__________________________________
Vaca-Tellez v. Mukasey, No. 07-2397 (9/2/08). Petition for Review, Order of Bd. of Immigration Appeals. Petition denied. Aggravated felony/PSMV

Vaca-Tellez v. Mukasey (Rovner)
Oral Argument | Full Text

Bd. did not err in affirming IJ's removal order based on existence of alien's "aggravated felony" arising out of alien's guilty plea to Illinois charge of burglary with intent to commit theft of motor vehicle. Alien's conviction qualified as "theft offense" under 8 USC sections 1101(a)(43)(G) and (U) for purposes of satisfying definition of aggravated felony. Ct. rejected alien's argument that govt. failed to establish existence of aggravated felony where record failed to contain transcript of his plea hearing on underlying conviction. Fact that defendant never was charged with or convicted of attempted theft in underlying offense did not require different result.
____________________________________
Ndonyi v. Mukasey, No. 07-3196 (9/2/08) Asylum

Ndonyi v. Mukasey (Kanne)
Oral Argument | Full Text

Petitioner claimed persecution in Cameroon on the basis of her political and religious beliefs, petition for review of BIA order is granted, order of removal vacated, and cause remanded where: 1) the evidence on the record did not support agency determinations that petitioner did not suffer past persecution; and 2) the government did not meet its subsequent burden to establish that petitioner lacked a well-founded fear of future persecution.
________________________________________
Alvear-Velez v. Mukasey, No. 07-2133 (9/2/08) aggravated felony/res judicata

Alvear-Velez v. Mukasey (Ripple)
Oral Argument | Full Text

Petition for review of a BIA decision to remove petitioner on the ground that he had been convicted of an aggravated felony is denied where: 1) although a prior deportation proceeding based on the same felony conviction had already been concluded, res judicata did not apply to preclude the use of the conviction in a new removal proceeding because intervening legislation had retroactively expanded the definition of an aggravated felony to include petitioner's crime; and 2) transitional rules set forth in the Immigration Reform and Immigrant Responsibility Act applied only to procedural requirements for removing aliens and not to the substantive changes to the definition of aggravated felony.
________________________________________
Aioub v. Mukasey 07-3666 (08/29/2008) Asylum/Withholding/Marriage Fraud

Aioub v. Mukasey (Kanne)
Oral Argument | Full Text

Petitioner alien sought review of an order of the Board of Immigration Appeals (BIA), which adopted an Immigration Judge's (IJ's) decision finding the alien removable on account of marriage fraud in violation of 8 U.S.C.S. § 1227(a)(1), and which denied the alien's petition for asylum and withholding of removal. The Seventh Circuit affirmed decisions by the IJ and the BIA, which exercised discretion to deny the petitioner's asylum claim because of their findings that he committed marriage fraud. The court also sustained the agency's determination that he did not establish a clear probability of future persecution in his native Bangladesh because of his conversion from Islam to Christianity.

The alien, a native of Bangladesh, came to the United States on a student visa and then married a United States citizen two years later. Before a DHS agent, he admitted that the marriage was fraudulent. Consequently, the petitioner was charged with removability pursuant to INA § 237(a)(1)(G)(ii) [8 USCA § 1227(a)(1)(G)(ii)] for attempting to obtain permanent residence through marriage fraud. In his hearing before the IJ, he claimed that his admission to the agent was a result of the fact that, at the time, he was a “mental disaster.” The government produced the DHS agent as a witness who related that the U.S.-citizen wife informed him that the petitioner provided her and her fiancé with an apartment and a vehicle for her participation in the fraudulent marriage. The “wife” testified that she had shared an apartment with the petitioner, but that they never consummated the marriage and she actually became pregnant with the child of her fiancé. When interviewed by the DHS agent, she withdrew the I-130 family application that she had filed for the petitioner.The woman he married testified that, while she moved into the alien's apartment, they never consummated the marriage, she slept in a separate bedroom with another man and her daughter, and she married the alien only to assist him in obtaining immigration benefits. Both she and her boyfriend admitted that the arrangement had been made in exchange for money and access to the alien's apartment and vehicle. The IJ found the alien removable on account of marriage fraud and denied asylum and withholding of removal. The BIA adopted that decision. On review, the court found that there was substantial evidence supporting the IJ's factual finding that the alien's marriage was fraudulent, that the IJ did not abuse his discretion in denying the asylum application, and that the IJ did not err in denying withholding of removal. There was no evidence compelling a finding that the alien would suffer future persecution in Bangladesh. The alien admitted that he could relocate to the largest city in Bangladesh, find employment, and remain relatively anonymous. The court denied the petition for review.

The petitioner's asylum case was based on his conversion to Christianity while he was in detention. He related that, when he told his father in Bangladesh of this development, the family became the target of discriminatory sanctions after the father told the local villagers of his son's conversion. The petitioner testified that he fears retribution should he return to Bangladesh. His expert witness, a college professor, agreed with the State Department's International Religious Freedom Report that a Bangladeshi Christian could absolutely practice Christianity openly, but some of the local villagers have a phobia towards non-Muslims. The professor explained that, as a convert, the petitioner might experience a harsh reaction in his local community, but other Bangladeshis would have no way of knowing of the petitioner's conversion to Christianity.

The IJ ruled against the alien petitioner on the deportation charge and also denied his claims for asylum and withholding of removal. The IJ concluded that the asylum application was not barred by the one-year filing rule because his conversion constituted changed circumstances. He proceeded to rule that the fraudulent marriage to obtain permanent residence warranted a discretionary denial of asylum and that the petitioner did not meet his burden with respect to the alternate withholding claim. The BIA adopted and affirmed the IJ's decision.

The court found that there was substantial evidence supporting the IJ's factual finding that the petitioner had entered into a fraudulent marriage. The court next reviewed the discretionary denial of asylum for abuse of discretion. In finding that the IJ did not abuse his discretion, the court referred to its prior holding in Alsagladi v. Gonzales, 450 F.3d 700, 702 (7th Cir. 2006), [FN12] that immigrants who “take the easy, but dishonest path when a more honorable if more difficult one is open cannot insist on administrative lenity.” In turning to the withholding of removal claim, the court referred to the petitioner's own expert and the State Department report, which indicated that Bangladesh is a tolerant nation, and the fact that the petitioner himself admitted that he could relocate to the largest city of Bangladesh, find employment, and remain relatively anonymous. Accordingly, it agreed with the agency that he did not establish a clear probability of future persecution on account of his new religion.

________________________________________

Kholyavskiy v. Mukasey, No. 07-1020 (8/28/08) Asylum/Religious Persecuton

Kholyavskiy v. Mukasey (Ripple)
Oral Argument | Full Text

Petition for Review, Order of Bd. of Immigration Appeals. Petition granted and denied in part and remanded.

In asylum proceeding where alien alleged that he suffered past persecution in Russia on account of his Jewish religion, alien was entitled to new evaluation by Bd. of his appeal from IJ denial of his asylum claim where Bd. did not consider cumulative significance of alien's young age (i.e. 8 to 13 years old) when various acts of harassment by school mates and others occurred. Bd. must also evaluate alien's claim for humanitarian asylum based on assertion that he cannot obtain certain medications if forced to return to Russia.
_______________________________
Asylum/REAL ID Act's Corroboration Rule/Hearing by Video Conference

Rapheal v. Mukasey No. 07-1391 (MANION)
Oral Argument | Full Text (07/02/08).

In Rapheal v. Mukasey, 2008 WL 2600798 (7th Cir. 2008), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review in favor of a native and citizen of Liberia, who is also a citizen of Nigeria, and held that the BIA, in denying her claims for asylum, withholding of removal, and Convention Against Torture (CAT) [FN10] relief, committed legal error by failing to consider her credibility before rejecting her claim based upon lack of corroborative evidence. The court also ruled that her video-conferenced hearing violated her right to a fair hearing because she was deprived of the opportunity to examine critical documentary evidence used against her.

In January 2006, the petitioner flew from Germany to the U.S. She presented a passport belonging to another person. Only after immigration officials contacted the passport's owner by phone did the petitioner admit the fraud. Consequently, removal proceedings were commenced against her. She admitted the fraud, but applied for asylum, withholding of removal, and protection under the CAT. Her immigration court hearing was held via video conference. She stated that her father was a well-known doctor and that rebels blamed him for acting as a “voodoo doctor” for Liberia's former president, Charles Taylor. She claimed that she was forced to flee Liberia after rebels murdered her family and seriously injured her. She found herself in a refugee camp in Nigeria where she was repeatedly raped and otherwise abused. She testified that a guard at the camp cut her thumb off so that she could have a “taste of the pain” that Taylor caused the Nigerian people. She later married a Nigerian at the camp, and they had two children together. She testified that her husband was murdered, and the children were killed in a fire, and she attributed these tragedies to her husband's political activities.

The IJ found that the petitioner was not credible because she had earlier told immigration officers that her maiden name was “Kocoker,” whereas, in her testimony, she asserted that she had never heard this name before. The IJ noted that the petitioner failed to submit any corroborative evidence of her identity, her parents' identity, or her husband's identity or evidence that her family was well-known in Liberia. Therefore, he denied all relief and ordered her deported to Germany with an alternate order to Liberia. The BIA concluded that it did not need to reach the credibility issue because she was not entitled to relief due to her lack of corroborative evidence. [FN11]

Preliminarily, the court explained that when the Board issues its own opinion, rather than adopting or merely supplementing the IJ's opinion, the court's task is to review only the Board's opinion. The court indicated that it did not need to determine what the Board intended, but suggested that, in the future, it should exercise greater care in identifying whether it intends a stand-alone decision or merely supplementation of the IJ's decision. In addressing the petitioner's argument that the Board could not require her to provide corroborative evidence without making an explicit credibility finding, in reliance upon the Seventh Circuit's Gontcharova v. Ashcroft, 384 F.3d 873 (7th Cir. 2004), [FN12] decision, the court concluded that the REAL ID Act of 2005 [FN13] effectively superseded this decision by providing that “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” [FN14] The court pointed out that this new provision requires corroborating evidence even if the applicant is credible. The court nonetheless ruled that the Board needed to consider the petitioner's credibility before ruling on the need for corroborative evidence, given its ruling that corroboration was required in light of the conflicting documents in the record. The court pointed out that, had the Board credited her testimony that immigration officials incorrectly noted Kocoker as her maiden name, the alleged disparity would not have served as a basis for requiring corroborative evidence.

The court also reasoned that the IJ's adverse credibility finding was inextricably intertwined with his ruling on the need for corroborative evidence. The court proceeded to hold that the IJ and the BIA did not err in holding that corroborative evidence was reasonably obtainable. It rejected the petitioner's argument that the IJ was required to warn her about the need for such evidence, reasoning that the REAL ID Act clearly states that corroborative evidence may be required, thereby placing immigrants on notice of the consequences of failing to provide same. The court stated that normally it would just remand the case to the Board to rule on credibility and then to rule anew on the need for corroborative evidence, but in light of its determination that the petitioner was deprived of a fair hearing, a new hearing was required to allow the petitioner to review the immigration document involving the disputed maiden name. The court noted that video hearings are authorized by Congress under INA § 240(b)(2)(A)(iii) [8 USCA § 1229a(b)(2)(A)(iii)], but ruled that the petitioner's rights were violated under INA § 240(b)(4)(B) [8 USCA § 1229a(b)(4)(B)] because she did not have a reasonable opportunity to examine evidence used against her.
________________________________
Borrego v. Mukasey, No. 07-2183 (7th Cir. 2008 08/25/200)
Nonimmigrant Waiver Under INA § 212(d)(3)(A)/
Prior False Claim to U.S. Citizenship

Borrego v. Mukasey (Manion)
Oral Argument | Full Text

Petitioner alien, using an alias, falsely claimed to be a United States citizen in an attempt to gain entry into the United States in 1997. The alien's attempt was foiled, and she was barred from entering the United States for a period of five years. Less than four years later, the alien obtained a B-2 visa under her real name and returned to the United States. The alien was later discovered and ordered removed. The alien sought review.

The sole issue the alien presented in her petition for review was whether a waiver pursuant to § 212(d)(3)(A)(ii) of the Immigration and Nationality Act (INA) could be granted retroactively. The alien argued that it could and that the Board of Immigration Appeals erred in concluding otherwise. If such a waiver could be granted retroactively, then the alien would be able to seek an adjustment of status. The court disagreed with the alien, noting that the text of § 212(d)(3)(A)(ii) of the INA did not contemplate a waiver application by someone who had already gained admission to the United States, such as the alien. The statute spoke in terms of a waiver applicant who was "seeking admission," not one who was already admitted. Furthermore, the statute's last sentence giving the Attorney General the power to set conditions on admission for those applying for entry demonstrated that the statute's drafters had in mind a waiver applicant who was not yet admitted. Thus, under the clear language of § 212(d)(3)(A)(ii), the alien was not eligible for a waiver because she had already obtained admission.

The petition was filed by a citizen of Mexico who was apprehended at the U.S./Mexico border in 1997 and was returned to Mexico pursuant to an expedited removal order for having falsely claimed to be a U.S. citizen, rendering her inadmissible under INA § 212(a)(6)(C)(ii) [ 8 USCA § 1182(a)(6)(C)(ii)]. She was also informed that she was prohibited from entering or attempting to enter the U.S. for a period of five years unless she obtained permission from the Attorney General (AG) to reapply for admission. In 2001, during the period of the aforesaid five-year bar, she applied for and obtained a B-2 visitor visa. She did not inform the consul of her five-year bar on admission, nor did she seek the required permission from the AG. In her visa application (which was in Spanish), she responded “no” to the question of whether she had ever attempted to enter the U.S. by means of fraud or had been deported within the past five years. Upon receiving the visa stamp, she entered the U.S. in January 2001. She subsequently married a U.S. citizen, and, together, they filed the applications in furtherance of her adjustment of status in 2003. Upon ascertaining her immigration history, the INS denied her adjustment and commenced removal proceedings against her, alleging her deportability pursuant to INA § 237(a)(1)(A) [8 USCA § 1227(a)(1)(A)] as an alien who (1) sought to procure admission by fraud; (2) sought admission within five years of a previous removal order; and (3) falsely represented herself as a U.S. citizen. Before the IJ, the petitioner challenged the 1997 removal order and also sought permission to reply for admission, retroactively, under INA § 212(a)(9)(A)(iii) [8 USCA § 1182(a)(9)(A)(iii)].

The IJ determined that he lacked jurisdiction to review the 1997 removal order and proceeded to rule that the petitioner was not eligible for a waiver of inadmissibility or adjustment of status. Consequently, he ordered her removal to Mexico. Before the BIA, the petitioner challenged the IJ's rulings and also claimed that she was eligible for a waiver of inadmissibility under INA § 212(d)(3) [8 USCA § 1182(d)(3)] (waiver provision for nonimmigrants). In affirming the IJ's order and, citing to Matter of Fueyo, 20 I. & N. Dec. 84 (B.I.A. 1989), the Board indicated that such a waiver cannot be granted retroactively in removal proceedings.

Before the Ninth Circuit Court, the petitioner only presented her argument for the § 212(d)(3) waiver. The court agreed with the Board that the INA does not contemplate a waiver application by someone who has already gained admission to the U.S. as, by its very nature, the relief sought can only confer advance permission for a future entry, and, therefore, the statute makes no provision for this waiver to be granted retroactively, referring to the stated rationale in the Fueyo precedent. The court considered that the clear language of the statute does not embrace the situation of an applicant who had already obtained admission to the U.S. The court distinguished its recent holding in Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008), [FN30] which involved a petitioner who was in possession of a K-3 nonimmigrant visa, but had not yet been admitted to the U.S., given that she had been placed into removal proceeding at the port of entry and thus was in the posture of “seeking admission.” The court also deemed it relevant that petitioner Borrego was solely responsible for the erroneous issuance of her visa given her deception in her responses to the relevant questions on the visa application form. The court stated that it must enforce the consequences of the petitioner's failure to disclose her inadmissibility and to seek a waiver at the proper time. [FN31]
________________________________
Iglesias v. Mukasey, No. 07-2910 (08/22/2008) Motion to Reopen/Jurisdiction

Iglesias v. Mukasey (Williams)
Oral Argument | Full Text

In Iglesias v. Mukasey, 2008 WL 3877302 (7th Cir. 2008), the U.S. Court of Appeals for the Seventh Circuit held that it possessed jurisdiction to review the alien petitioner's claim that the BIA abused its discretion in denying his motion to reopen (MTR) based on his marriage to a U.S. citizen, but denied the petition for review on the merits, concluding that the alleged legal error by the BIA in ignoring evidence presented by the petitioner was harmless.

The petitioner, a native and citizen of Colombia, came to the U.S. in 2002 on a visitor's visa. He applied for asylum as his visitor authorization was expiring. He claimed that he was an agricultural specialist whose life would be in danger if sent back to Colombia. Removal proceedings were commenced against him in 2003, and he proceeded to apply for asylum, withholding of removal, and CAT relief before the immigration court. The IJ denied relief and ordered removal to Colombia.

While the petitioner's timely appeal was pending before the BIA, he married a U.S. citizen who filed an I-130 immediate relative petition on behalf of the petitioner, which if approved, would allow him to file for adjustment of status as relief from removal. DHS had scheduled the couple to be interviewed in June 2007, but the BIA dismissed the appeal of the removal order in April 2007. The petitioner then filed his MTR with the Board, invoking the Board's Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (B.I.A. 2002), [FN27] precedent decision governing MTRs in marriage-based cases. He submitted numerous documents in an attempt to show that the marriage was bona fide, but the BIA agreed with DHS, which opposed the motion, and issued a one-page decision, stating that the petitioner had not presented “clear and convincing” evidence to show a bona fide marriage. However, the Board's decision did not mention any of the actual evidence submitted by the petitioner.

The court noted that it had recently issued a decision, Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008), [FN28] holding that the 2005 REAL ID Act strips the courts of jurisdiction over discretionary decisions made by the BIA and that, hence, the court generally lacks jurisdiction over claims that the BIA abused its discretion in denying a MTR, but also reiterated that the Act permits discretionary decisions to be reviewed when they entail constitutional claims or questions of law. The court also noted that the petitioner did not phrase his argument in terms of “constitutional claims or questions of law” and that his brief only argued that the BIA “abused its discretion.” However, the court took cognizance of the fact that petitioner Iglesias submitted his briefs before the court decided Kucana, which abrogated earlier precedent indicating that the court generally had jurisdiction to review denials of MTRs. The court recognized that a claim labeled as challenging an abuse of discretion might also encompass a genuine claim of legal error, just as a legal or constitutional claim might disguise what is in reality just a factual allegation. The court ruled that the petitioner's due process rights were not implicated based on the court's prior holdings, including in Hamdan v. Gonzales, 425 F.3d 1051 (7th Cir. 2005), [FN29] that an alien petitioner has no liberty or property interest in obtaining purely discretionary relief, such as the reopening of a case. However, the court indicated that a claim that the BIA has completely ignored the evidence put forth by a petitioner is an allegation of legal error and a matter which the court can review.

Turning to the merits, the court outlined the documents presented by the petitioner with his MTR, including a marriage certificate, wedding pictures, third-party affidavits, and a receipt from the Social Security Administration indicating that his wife had applied for a new social security number under her married name. The court concluded that the BIA was saved from its legal error in not mentioning this evidence because most of the documents only went to show that the petitioner is married, not that his marriage is bona fide. The court pointed out that the three third-party affidavits were actually form affidavits containing very little information. The court ultimately ruled that, because the BIA could have reasonably concluded that the evidence did not constitute clear and convincing proof of the marriage's bona fides, it was not required to remand the case given that the BIA's alleged error in not mentioning this evidence in its decision was harmless.

Petitioner alien, a 52-year-old citizen and native of Colombia, sought review of an order of the Board of Immigration Appeals (BIA) denying the alien's motion to reopen. The alien claimed that the BIA abused its discretion when it denied the alien's motion to reopen his immigration case because it completely ignored the evidence he presented regarding his marriage to an American citizen.

The court concluded that the alien's allegation that the BIA completely ignored the evidence he presented was a good faith claim of legal error that the court could review under 8 U.S.C.S. § 1252(a)(2)(D). The court held that while the BIA committed legal error in failing to mention the substantial evidence that the alien produced regarding his marriage, the error was harmless as most of the alien's documentary evidence only went to show that he was married, not that his marriage was bona fide. Although the alien submitted a brief letter from his personal banker, the BIA would have been within its discretion in holding that it was not enough to show that the couple was financially hitched. Moreover, the affidavits that the alien presented contained very little information from which to conclude that the marriage was bona fide. For example, there was only one line in the friend's affidavit that could support a finding that the marriage was bona fide. However, that line was not written by the friend but was part of the form affidavit, so the BIA would have been within its discretion in holding that the affidavit was not "clear and convincing" evidence that the marriage was bona fide.


________________________________
Habeas Corpus/Detention During Removal Proceedings

Al-Siddiqi v. Achim No. 07-3872 (EVANS)
Oral Argument | Full Text (06/27/08).

In Al-Siddiqi v. Achim, 2008 WL 2550753 (7th Cir. 2008), the U.S. Court of Appeals for the Seventh Circuit reluctantly affirmed a decision by a district court, which denied a petition for habeas corpus filed by a citizen of Qatar, on behalf of whom an IJ had authorized release on bond, but whom DHS continued to detain through various bureaucratic machinations. The circuit court disagreed with the district court's ruling that it lacked jurisdiction to redress his continued detention, but indicated it was constrained to deny habeas relief, given the fact that, on the date of oral argument before the Seventh Circuit, the IJ issued a voluntary departure order, with a provision that the petitioner remain in custody until he leaves the U.S.

Petitioner, a 25-year-old citizen of Qatar, came to the United States to study. For a little over two years he attended various colleges in Madison and Milwaukee, Wisconsin, but in December 2006 he didn't maintain a full course load, resulting in the termination of his student visa. Finding petitioner's excuses insufficient, an IJ ordered him removed. Subsequently, an immigration judge (IJ) ordered petitioner released from detention upon the posting of a bond. Since then, petitioner had repeatedly tried, without success, to post the bond. The Department of Homeland Security (DHS) refused to release petitioner, justifying under various rationales its defiance of the IJ's bond order. The instant court found that the IJ ordered petitioner detained pursuant to his right to impose conditions on petitioner's voluntary departure order, 8 U.S.C.S. § 1229c(a), (b); 8 C.F.R. § 1240.26(c)(3), not under his authority to review DHS's bond determinations. Now petitioner remained in custody not because DHS refused to honor the IJ's former bond order, but because the IJ determined that he should remain in custody as a condition of his voluntary departure.

In the meantime, DHS received a five-paragraph letter from the FBI stating that the petitioner was linked to a network believed to facilitate the recruitment of individuals who may pose a threat to national security. The letter noted that the petitioner was receiving failing grades and that he routinely traveled out of town and alleged other “suspicious” activity, which the court described as devoid of context. After receipt of this letter, DHS “revoked” the IJ's bond order. The court questioned what legal authority allowed this action. The petitioner responded by asking the IJ for reconsideration and filing his habeas petition in the U.S. District Court for the Southern District of Illinois, which transferred the case to the Eastern District of Wisconsin. The IJ conducted another bond hearing but raised the bond amount to $60,000 after apparently considering that the FBI letter was insufficient to demonstrate that the petitioner was a threat to national security. DHS appealed the IJ's bond ruling to the BIA, but two days later it withdrew the appeal, on the same day when the BIA affirmed the actual removal order. The petitioner then filed a petition with the circuit court for review of the BIA's order and his motion for a stay of removal was granted by the circuit court. DHS again refused to accept the bond, so the petitioner filed an amended habeas petition and moved for summary judgment, alleging that DHS' refusal to honor the bond was without legal authority and a violation of his right to due process. The government proceeded to move the BIA to reopen the removal proceedings. The petitioner did not oppose this request, but informed the BIA that his non-opposition was contingent on enforcement of the IJ's order to release him on $60,000 bond. The BIA granted the reopening motion, but indicated that it could not address the bond issue as that involved a separate proceeding. Thereafter, the district court denied the habeas petition, reasoning that it lacked jurisdiction pursuant to INA § 236(e) [8 USCA § 1226(e)] to review DHS' “discretionary” decisions on bond matters. The district court also held that the petitioner did not exhaust administrative remedies, and that his individual due process interest in personal liberty is secondary to the potential threat posed by alleged terrorist activity.

The petitioner appealed this ruling to the circuit court. In the meantime, he applied for asylum in his reopened removal proceedings, asserting that he would be killed or tortured if forced to return to Qatar because the FBI suspects he has ties to terrorism. The IJ denied this application, but granted voluntary departure with the stipulation that the petitioner remain in custody because of the lack of confidence that the petitioner would comply with the voluntary departure order.

The circuit court concluded that 8 USCA § 236(e) did not deprive it of authority to review statutory and constitutional challenges to detention, pointing out that the Supreme Court, in Demore v. Kim, 538 U.S. 510 (2003), [FN18] held habeas review survives. The court considered that it had jurisdiction to review the petitioner's claims that DHS' refusal to honor the IJ's bond order is without legal justification and violated his due process rights. The court held that DHS never provided support for its position that the BIA's reopening order invalidated the IJ's bond order, and its position was in conflict with its own regulation, 8 CFR § 1003.19(d), which provides that a bond hearing is separate from the removal proceeding itself. The court also observed that the IJ's granting of voluntary departure constituted a rejection of DHS' contention that the petitioner posed a terrorist threat, as INA § 240B(b)(1)(B) [8 USCA § 1229c(b)(1)(B)] specifically precludes voluntary departure when an alien is removable on terrorist grounds. However, the circuit court concluded that the IJ's supervening voluntary departure order and accompanying custody order sufficiently changed the landscape, requiring the court to affirm the denial of the habeas petition. The court expressed that this action was not an endorsement of DHS' less than forthright efforts to keep the petitioner detained. Among other remarks, the court noted that DHS could have invoked INA § 236(c)(1)(D) [8 USCA § 1226(c)(1)(D)] to attempt to detain him as a suspected terrorist, instead of flouting the IJ's order and refusing to follow its own rules.
________________________________

LaGuerre v. Mukasey No. 06-4164 (per curiam)
Oral Argument | Full Text (5/20/08). CAT, domestic violence

Bd. did not err in denying alien's CAT claim and finding that alien's Illinois conviction for domestic violence qualified as "crime of violence" and "aggravated felony" that rendered him deportable under 8 USC sec. 1101(a)(43)(F) and 18 USC sec. 16. Elements of crime supported Bd.'s finding that domestic violence charge involved use of physical force by alien. Moreover, alien failed to show in CAT claim that it was more likely than not that he would be tortured if removed to Haiti.
______________________
Soumare v. Mukasey No. 07-2502 Asylum (May 8, 2008)

Soumare v.Mukasey (Kanne)
Oral Argument|Full Text Soumare v. Mukasey

Petition for review of a final order of removal is denied where: 1) the
IJ properly found that petitioner's testimony was not credible to
support his claim for asylum; and 2) the petitioner failed to
corroborate his story with any evidence.

Before an IJ may deny a claim for insufficient corroboration, the IJ
must (1) make an explicit credibility finding; (2) explain why it is
reasonable to expect additional corroboration; and (3) explain why the
alien’s explanation for not producing that corroboration is inadequate.
See Tandia v. Gonzales, 487 F.3d 1048, 1054- 55 (7th Cir. 2007);
Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir. 2006). “[T]he
importance of corroboration depends in part on the degree of specificity
and detail in a petitioner’s story.” Gontcharova v. Ashcroft, 384 F.3d
873, 877 (7th Cir. 2004).

Where the testimony of an asylum applicant contradicted his asylum application, it was not error to deny asylum.

"Based on the record, we believe that substantial evidence supports the IJ's finding that Soumare did not testify credibly. Soumare's testimony was not detailed, and it contradicted his asylum applications. See Capric, 355 F.3d at 1085 ('A credibility analysis assesses the applicant's claim only for internal consistency, detail, and plausibility, . . . .'). Soumare testified that he worked for RPG for six years, but could not recall what the letters RPG stood for, nor could he provide an approximation of how many people he recruited for RPG or the names of any individuals he recruited into the organization. Soumare could not definitively state when his father's store was vandalized or whether he or his brother managed the store at the time of the vandalism-even though Soumare claimed that he and his family were targeted by the Guinean regime because of suspicions that the income from the family business was being redirected to the rebels."
___________________________________

Huang v. Mukasey, No. 07-2074 (May 8, 2008) CAT; credibility

Huang v. Mukasey (Flaum)
Oral Argument|Full Text Huang v. Mukasey

Petition for review of an order of removal is denied where: 1)
petitioners' asylum applications were untimely filed; 2) the court
cannot consider the asylum claim since petitioners failed to exhaust
their administrative remedies; and 3) petitioners did not present
credible evidence as to their claim under the Convection Against
Torture.

Where the testimony of aliens seeking withholding of removal under the Convention against Torture was incredible, withholding was properly denied.

"We are satisfied that there was a substantial basis for the IJ to conclude that the petitioners were not credible. For instance, Huang and Dong were not fully able to explain why they would each pay $50,000 to get smuggled into the U.S., but why they could not afford (or find resources to pay) the $370 fine. Some support for this inconsistency can be found in Huang's testimony, where she stated that greater economic opportunity was part of her motivation for coming to the U.S. But there are other, more telling inconsistencies as well. The abortion certificate that Huang presented as evidence for her claim, for example, is generally only given to individuals who undergo a voluntary abortion, so that they may give it to their employer to get leave to rest. COUNTRY REPORT at 22-23.

Huang did not claim to have a voluntary abortion, and, perhaps more significantly, she was self-employed. The fine associated with this procedure stated that it was for 'early birth without marriage,' but there was no birth. In general, petitioners have not presented an adequate explanation for why they would be required to pay a social compensation fee when no child was born. Also, it was unclear why Dong would be summoned to the Public Security Bureau when Huang was the one who became pregnant and who was specifically named in the notice of the fine. With respect to Dong's time in prison, it was curious that he omitted any claims of torture in his initial asylum application, and offered as his reason that he was not asked about it. And the detention notice that he claims he kept with him in jail for the entire year is, according to evidence in the record, never given to the individual who is detained. The timing of certain events also raised suspicion with respect to the veracity of petitioners' story. Huang's pregnancy and the couple's cultural marriage were discovered by Family Planning officials-in a different village-rather swiftly.

This was in spite of the fact that Huang saw a private doctor, not a government doctor. Additionally, while it may be entirely plausible, it is a little difficult to imagine that Dong would be arrested only thirty minutes after having returned to town from ten days of hiding.
___________________________________
Chatta v. Mukasey, No. 07-2179 (4/21/08). Asylum

Chatta v. Mukasey (EVANS)
Oral Argument|Full Text Chatta v. Mukasey

Chatta v. Mukasey, No. 07-2179 (4/21/08). Petition for Review, Order of Bd. of Immigration Appeals. Petition denied. (Evans)

Petition for review of a denial of an application for asylum, withholding of removal and relief under the Convention Against Torture is denied where: 1) substantial evidence supported the IJ's determination that petition was not credible; 2) petitioner did not show that the government perpetuated or condoned the alleged persecution; and 3) petitioner did not show that he would be subject to torture.

Record contained sufficient evidence to support IJ's denial of asylum request by alien (native of Pakistan) where alien alleged that he feared persecution based on his religion. Alien's allegations of persecution were not credible given his contrary statements in his airport interview that he had no reservations about returning to Pakistan. Moreover, alien failed to show that Pakistani govt. was unable or unwilling to protect him from acts of private citizen who, according to alien, had harmed him in past
_____________________
Ali v. Mukasey, No. 07-1970 April 4, 2008 'Moral turpitude' offense

Ali v. Mukasey (EASTERBROOK)
Oral Argument|Full Text Ali v. Mukasey

Petition for review of a finding that a resident alien's criminal offense was one of moral turpitude such that a waiver of ineligibility for admission was unavailable is denied where: 1) when deciding how to classify convictions under criteria that go beyond the criminal charge, such as the amount of the victim's loss, or whether the crime is one of moral turpitude, the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction; and 2) substantial evidence supports the IJ's decision (which the BIA joined) that petitioner's crime entailed concealment and deceit, thus was a crime of moral turpitude.

Where a permanent resident alien is convicted for conspiracy "to commit any offense against the United States, or to defraud the United States," which he did by selling firearms without a license or required paperwork to people not authorized to own them, the IJ correctly classified the offense as "involving moral turpitude;" and, the agency did not err when it used his presentence report to make the moral turpitude classification.

"The Board was on stronger ground, however, in treating Ali's offense as a species of fraud, which has long been seen as a crime of moral turpitude. See Jordan, 341 U.S. at 227-28, 232; Palmer v. INS, 4 F.3d 482, 485 n.6 (7th Cir. 1993); Matter of Kochlani, 24 I.&N. Dec. 128, 130-31 (2007) (reaffirming the Board's precedents on this issue). Ali does not deny that, if his conviction is for fraud, then he is ineligible for discretionary relief. But he insists that unlicensed dealing in firearms does not entail fraud. If his conviction were under 18 U.S.C. §924(a)(1)(D), as he supposes, Ali might have a point-Bryan v. United States, 524 U.S. 184 (1998), on which the agency's brief relies, has nothing to do with moral turpitude-but the actual offense of conviction is 18 U.S.C. §371. That crime may be committed in either of two ways: conspiracy to commit some other federal crime, or conspiracy to defraud the United States. The IJ and Board concluded that Ali's violation of §371 entailed fraud (implying that the subsection of §924 underlying the crime was §924(a)(1)(A)). And with good reason. The judgment of conviction describes the crime as '[c]onspiracy to defraud the United States.' The presentence report adds: 'it was further part of the conspiracy that the defendants misrepresented, concealed and hid, and caused to be misrepresented[,] concealed and hidden, the purpose of and the acts done in furtherance of the conspiracy'. The presentence report also stated that Ali and his confederates sold the guns to someone who, they believed, would resell them to known thugs (members of the Latin Kings street gang) in exchange for cocaine. ... "...[W]e now conclude that when deciding how to classify convictions under criteria that go beyond the criminal charge-such as the amount of the victim's loss, or whether the crime is one of 'moral turpitude', the agency has the discretion to consider evidence beyond the charging papers and judgment of conviction. Because it resolves a disagreement within the circuit, this opinion has been circulated to all active judges under Circuit Rule 40(e). No judge favored a hearing en banc.

"Section 1229a(c)(3)(B) does not include presentence reports among the documents that the agency may use to determine what crime Ali committed. See Conteh, 461 F.3d at 58-59. That is not, however, how the agency used the report. The judgment of conviction itself contains what is required to that end (the crime is conspiracy to defraud the United States, in violation of §371). The agency used the presentence report to ensure that the judgment was not a mistake (in other words, to ensure that there really was deceit, rather than just a conspiracy to violate a record-keeping law) and to make the moral turpitude classification, a matter that stands apart from the elements of the offense."
_____________________________________
Irasoc v. Mukasey; April 3, 2008 (Asylum, religious persecution)

Irasoc v. Mukasey No. 07-2406 (EVANS)
Oral Argument|Full Text Irasoc v. Mukasey

Petition for review of a denial of withholding of removal is granted where the IJ employed an incorrect legal standard because he required a showing of serious injuries when denying petitioner's claim of past persecution.

The IJ also held that Irasoc failed to meet his burden of proof with respect to withholding of removal. He reasoned that Irasoc had openly practiced his religion for most of his adult life and proselytized throughout Romania without “great difficulty.” Further, he said that religious freedom has “flourished” in Romania since the overthrow of the Communist government; the Romanian Pentecostal Church itself has over 30,000 members. The IJ concluded that the July 2002 incident was not past persecution because it was a single episode of mistreatment during which Irasoc was not “serious harmed.” Separately, the IJ determined that Irasoc had failed to establish a “more likely than not” fear of future persecution.

To establish eligibility for withholding of removal, an applicant must show a “clear probability” of persecution on account of his religion, race, or nationality. 8 U.S.C. § 1231(b)(3)(A); Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007). The applicant must demonstrate either that he suffered past persecution (which creates a presumption of future persecution) or, in the absence of such evidence, that it is more likely than not that he would face future persecution in the country to which he would be returned. Binrashed, 502 F.3d at 670-71; Tariq, 505 F.3d at 656-57. If the applicant demonstrates past persecution,the burden shifts to the government to rebut the presumption that the applicant would endure future persecution if removed. Binrashed, 502 F.3d at 670-71.

Here, the IJ applied an incorrect legal standard in determining that Irasoc did not suffer past persecution from the genital beatings. In particular, the IJ found that Irasoc had failed to establish that he was “seriously harmed.” Yet we have reversed the BIA for requiring that a petitioner suffer “serious injuries” as a prerequisite to a finding of past persecution. Asani, 154 F.3d at 722-24. We have, instead, held that past persecution is defined only as “punishment” or “the infliction of harm” adminis- tered on account of nationality, religion, race, group membership, or political opinion. Id. at 723, 724. And we have, on multiple occasions, determined that past persecution “need not necessarily threaten the petitioner’s life or freedom.” Id. at 723; see Tarraf v. Gonzales, 495 F.3d 525, 534-35 (7th Cir. 2007) (“Physical abuse causing serious injuries is not the sine qua non of perse- cution.”). In determining whether an incident constitutes past persecution, we do not simply evaluate the applicant’s claim “against a generic checklist.” Tarraf, 495 F.3d at 535. While the frequency and intensity of the episode(s) are variables in the analysis, even a single incident can reflect past persecution as long as the specifics reveal the severity of the particular situation. Id.; Zhu v. Gonzales, 465 F.3d 316, 319 (7th Cir. 2006) (injury must be considered alongside specific details of incident); Dandan, 339 F.3d at 573 (number of times applicant subjected to detention or abuse, and details of abuse, is relevant to analysis of claim).
_____________________________________________________________
Desai v. Mukasey No. 07-1831 March 28, 2008. (FLAUM, Circuit Judge)
Argument | Full Text No. 07-1831 Desai v. Mukasey

Petition for review of a finding of removability is denied where a state conviction for the delivery of a look-alike drug was a crime with a relation to a federal controlled substance sufficient to render petitioner a removable alien.

"On March 6, 2002, Desai was charged with Unlawful Delivery of a Look-Alike Substance in violation of Illinois law, 720 ILCS 570/404(b). He pled guilty to this class 3 felony and received probation.

The BIA correctly determined that the phrase “relating to” is intended to have a broadening effect. Given this understanding of what the phrase “relating to” means, we must apply it to the Illinois Controlled Substances Act, 720 ILL. COMP. STAT. 570/102(y), which defines a “Look-Alike Substance” as follows: a substance, other than a controlled substance which (1) by overall dosage unit appearance, including shape, color, size, markings or lack thereof, taste, consistency, or any other identifying physical characteristics of the substance, would lead a reasonable person to believe that the substance is a controlled substance, or (2) is expressly or impliedly represented to be a controlled substance or is distributed under circumstances which would lead a reasonable person to believe that the substance is a controlled substance.

This state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal controlled substance, in the sense that violating it in the way that Desai did—by distributing something that would lead one to believe it contained Psilocybin—brings it into association with a federal controlled substance.

We have recently held that possessing “a pipe for smoking marijuana is a crime within the scope of § 1182(a)(2)(A)(i)(II) because drug paraphernalia relates to the drug with which it is used.” Escobar Barraza v. Mukasey, ___ F.3d ___, No. 07-2502, slip op. at 6 (7th Cir. Mar. 13, 2008) (emphasis added). It is the fact that there is a relation between the pipe and the controlled substance that justifies making the possession of the pipe illegal. So too here, it is the fact that there is a relation between the Look-Alike and the controlled substance that justifies making the distribution of the Look-Alike illegal. To put it more bluntly, the idea of distributing a “Psilocybin Look- Alike” would not even exist as a legal (or linguistic) concept without its connection to, or relationship with, Psilocybin. The simulacrum and the thing itself are always connected.

So our task is simply to examine whether the state law is one relating to a federal controlled substance. This of course does not give states free rein to define their criminal laws in a manner that would allow them to effectively usurp the federal government’s authority to determine who is permitted to enter and live in this country. If a state decides to outlaw the distribution of jelly beans, then it would have no effect on one’s immigration status to deal jelly beans, because it is not related to a controlled substance listed in the federal CSA. But if a state, like Illinois, decides to outlaw the distribution of a substance that is purported to be and would lead a reasonable person to believe it to be “shrooms,” we have explained why there is enough of a relation to the federal controlled substance to warrant removal from the United States for violating the law."
___________________________________________
07-1097 Haxhui v. Mukasey: Asylum; persecution

Haxhui v. Mukasey No. 07-1097 March 19, 2008 (Flaum, J.)
Opinion | Full Text Haxhui v. Mukasey

Where an asylum seeker suffered persecution for anti-corruption activities in Albania, it was error to deny him asylum.

"Haxhiu's military duties are no obstacle to his asylum claim because his anti-corruption activities persisted beyond his employment with the Albanian Army. See Musabelliu, 442 F.3d at 996; Pavlyk, 469 F.3d at 1089. He approached the press after his termination-and suffered persecution for doing so. The threats to his family, realized at least with respect to his son (the cause of his daughter's harm is unknown), came about because of his attempt to engage in 'classic political activit[y].' See Pavlyk, 469 F.3d at 1089; see also Musabelliu, 442 F.3d at 995 (providing as an example of political speech that may attract persecution 'someone who writes an op-ed piece or otherwise urges the people to rid themselves of corrupt officials'). Indeed, this round of threats specifically cited Haxhiu's public speech as the impetus for harm to him and his family. Thus, it was premature for the IJ to conclude his analysis at this stage. And it is not decisive that the corruption of which Haxhiu complained did not pervade every level of the Albanian government; a political opinion in opposition to corruption carries no such requirement. See generally Pavlyk, 469 F.3d at 1089; Musabelliu, 442 F.3d at 995-96; Marquez, 105 F.3d at 381."

Petition Granted.
____________________________________________________
Escobar-Barraza v. Mukasey No. 07-2502 March 13, 2008 (EASTERBROOK)
Oral Argument | Full Text Escobar-Barraza v. Mukasey, No. 07-2502

Petition for review of a determination of inadmissibility is granted where, although the petitioner was inadmissible, he qualified for a waiver under 8 U.S.C. section 1182(h) since his conviction for possession of drug paraphernalia related to a single offense of simple possession of 30 grams or less of marijuana.

"Possessing a pipe for smoking marijuana is a crime within the scope of § 1182(a)(2)(A)(i)(II) because drug paraphernalia relates to the drug with which it is used, and that statute speaks of a crime "relating to a controlled substance (as defined in section 802 of title 21)". If possession of drug paraphernalia relates to the controlled substance for the purpose of § 1182(a), why not for the purpose of § 1182(h)? The Board's observation that a conviction for possessing paraphernalia differs from a conviction for possessing marijuana is true, but § 1182(h) is not limited to a conviction for possessing less than 30 grams of marijuana. The phrase is: "such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana" (emphasis added). The Board's understanding deprives the italicized phrase of any function, treating "relates to" as if it were "is". Neither the Board's opinion nor the brief and argument by the Department of Justice has suggested what "relates to" means, or how that phrase can bring a paraphernalia conviction within § 1182(a)(2)(A)(i)(II) but not § 1182(h). Consider someone who is arrested while smoking marijuana from a pot pipe at a concert. In most states, that's three crimes: possessing marijuana, possessing drug paraphernalia, and using drugs in a public place. If the state obtains a conviction for possessing marijuana, then § 1182(h) applies if the alien had 30 grams or less. (A 6-ounce (170 gram) can of loose tobacco, see Top Tobacco, L.P. v. North Atlantic Operating Co., 509 F.3d 380 (7th Cir. 2007), is sold as enough for 200 cigarettes; this implies that 30 grams of marijuana is considerably more than one person could smoke at a concert.) Likewise, we should suppose, if the prosecutor charges the alien with smoking pot in public, that conviction "relates to" the marijuana being smoked. Section 1182(h) speaks of a conviction that relates to an "offense" of possessing marijuana; an "offense" may or may not lead to a "conviction" for that possession. That's how a conviction for smoking pot in public relates to the offense of possessing marijuana. And it is hard to see why things should be different if the prosecutor charges the alien with possessing paraphernalia to smoke the weed. Not even Thomas Reed Powell--who famously defined the legal mind as one that can think of something that is inextricably connected to something else without thinking about what it is connected to--could miss the fact that a pot pipe is related to the pot that it is used to smoke.

So there is no logical problem in treating a pot pipe as related to marijuana, whether or not the pipe and the marijuana are found together in a pouch.

Pipes, roach clips, and other paraphernalia designed for use with personal-possession quantities of marijuana come within § 1182(h) because the paraphernalia relates to the drug, and the implied quantity is under 30 grams. Scales, bagging gear, trays and lamps for growing whole plants, and other apparatus for use with larger quantities or distribution do not relate to "simple possession" and so fall outside the waiver. Drawing the line will be difficult in some cases but is easy in Escobar's. His conviction for possessing one pot pipe "relates to a single offense of simple possession of 30 grams or less of marijuana". He is therefore eligible for consideration under § 1182(h)."
________________________________________

US v. De Horta Garcia, No. 07-2060 Removal; discretionary waiver

US v. De Horta Garcia No. 07-2502 No. 07-2060 March 13, 2008. (BAUER)
Oral Argument | Full Text No. 07-2060: US v. De Horta Garcia

Conviction for illegal re-entry is affirmed over defendant's challenge to the denial of his right to seek a discretionary waiver of deportation during his original deportation hearing where: 1) defendant is barred from a collateral attack on his deportation order since the alleged violation did not make the deportation order fundamentally unfair; and 2) relief under INA section 212(c) is not available to any alien whose removal proceeding began after repeal except those who affirmatively abandoned rights or admitted guilt in reliance on section 212(c) relief, and defendant did not demonstrate such affirmative reliance.

The AEDPA's bar against discretionary waivers applies retroactively to aliens who offended before its passage, but were convicted after its passage.

"De Horta Garcia notes, however, that other circuits have taken alternative approaches to the reliance question. First, some circuits have applied St. Cyr to aliens who did not plead guilty or concede deportability before enactment, but did take some affirmative action in their prosecution that evidenced reliance on § 212(c) before enactment. E.g., Restrepo v. McElroy, 369 F.3d 627, 634-35 (2d Cir. 2004); Ponnapula v. Ashcroft, 373 F.3d 480, 494-96 (3d. Cir. 2004). Second, two circuits, the Third and the Tenth have criticized the majority of circuits for requiring a showing of actual detrimental reliance and have only required objectively reasonable reliance. Id. at 489-90; Hem v. Maurer, 458 F.3d 1185, 1197 (10th Cir. 2006). The Fourth Circuit has gone further and not required a showing of reliance at all, reasoning, in part, that it is always reasonable to rely on governing law.

Olatunji v. Ashcroft, 387 F.3d 383, 389-96 (4th Cir. 2004). De Horta Garcia attempts to rely on these alternative approaches, but his arguments are far too cursory to reach the compelling reason we require before revisiting circuit precedent. See Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006)."

Affirmed.
______________________________________

Gao v. Mukasey, Immigration Asylum; motion to reopen; equitable
tolling March 11, 2008

Gao v. Mukasey No. 06-4431 March 11, 2008 (POSNER)
Oral Argument | Full Text No. 06-1931: Gao v. Mukasey

Where an asylum applicant waited 75 days to file an untimely motion to reopen, equitable tolling does not excuse the lengthy delay.

"The petition was filed on the 106th day, which was the 75th or 76th day after the petitioner discovered that he had a ground for filing a petition to reopen. The preparation of such a petition does not require an elaborate investigation. All that is required is that the petitioner submit an affidavit explaining (1)(a) what his former counsel was hired to do and (b) how he failed, (2) affirming that the petitioner has notified the former counsel of his allegations of ineffective assistance and given counsel an opportunity to respond, (3) attaching the lawyer's response, if any, and (4) indicating whether the petitioner has filed his complaint about his former counsel with the appropriate disciplinary authorities.

In re Lozada, 19 I. & N. Dec. 637 (BIA 1988); see also Patel v. Gonzales, 496 F.3d 829, 830 (7th Cir. 2007); Benslimane v. Gonzales, 430 F.3d 828, 831 (7th Cir. 2005); Yang v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007). Obtaining the necessary information should not take two and a half months-at least not normally; and the petitioner has failed to point to any circumstances that made this the abnormal case in which a diligent attempt to comply with the 90-day deadline would have failed, in which event an appeal to equitable tolling would lie."

Petition Denied.
______________________________________

Hussain v. Mukasey No. 07-3688 & 07-3832 March 6, 2008 (POSNER)
Oral Argument | Full Text No. 07-3688 & 07-3832: Hussain v. Mukasey

Where an alien obtained entry by fraud, the government need not separately allege that the alien engaged in terrorism as grounds for denying asylum.

"Although Hussain was found removable for engaging in terrorist activity, it was not a ground stated in the charge that initiated the removal proceeding against him, and so, he argues, it cannot be the basis for barring him from seeking cancellation of removal. But all that the statutory bar requires is that the alien be removable on grounds of terrorism.

8 U.S.C. § 1229b(c)(4). That makes sense because one purpose of the terrorism statute is to bar forms of post-removal relief to aliens who have been ordered removed on a lesser ground, such as fraudulent entry. As held in such cases as Salviejo-Fernandez v. Gonza- les, 455 F.3d 1063, 1065-66 (9th Cir. 2006), and Brown v. Ashcroft, 360 F.3d 346, 352-53 (2d Cir. 2004), that purpose does not require that involvement in terrorism be the stated ground of removal."

Petitions Denied.

Viracacha v. Mukasey No. 07-1548 March 3, 2008 (EASTERBROOK)
Oral Argument | Full Text No. 07-1548: Viracacha v. Mukasey

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s denial of alien's asylum application based on fact that said petition had been filed nearly three years after applicable one-year deadline for filing asylum claims. Under 8 USC sec. 1158(a)(3), Ct. of Appeals is generally precluded from considering Bd. denials of untimely asylum applications, and alien's appeal failed to contain either constitutional question or question of law where alien merely challenged IJ's determination that any change in Columbian conditions was not material.

Judicial review under 8 U.S.C. 1252 (a)(2)(D) is limited to questions of law.

“Provisions foreclosing judicial review of particular administrative decisions are common. The most famous such exclusion is in the Administrative Procedure Act of 1946, 5 U.S.C. §701(a)(2) (decisions ‘committed to agency discretion by law’ are not judicially reviewable), and to our knowledge no serious argument has ever been made that §701(a)(2) is unconstitutional. The Supreme Court has applied it repeatedly without a single Justice expressing doubt about its validity (though there is often debate about whether a given question has been so “committed”). See, e.g., Lincoln v. Vigil, 508 U.S. 182 (1993); Heckler v. Chaney, 470 U.S. 821 (1985). Given the preservation of legal and constitutional claims in §1252(a)(2)(D), the preclusive effect of §1158(a)(3) is less sweeping than that of the APA. The use that the panel in Ramadan was able to make of the “canon of avoiding constitutional questions” shows why many thoughtful people think the canon a bad one—for constitutional questions lurk everywhere, and judges who seek to avoid them can end up rewriting statutes that would be deemed perfectly valid if the question were faced and resolved. See Henry J. Friendly, Benchmarks 210 (1967); William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L. Rev. 831 (2001).”

Negrete-Rodriguez v. Mukasey No. 06-1931 March 3, 2008. (MANION)
Oral Argument | Full Text No. 06-1931: Nerete-Rodriguez v. Mukasey

Petition for review of a removal order involving a determination that petitioner was ineligible for cancellation of removal is denied where the BIA properly categorized petitioner's Illinois felon-in-possession conviction as an aggravated felony.

A state court conviction for felon in possession of a firearm is an aggravated felony.

“The Illinois statute under which Negrete was convicted, 720 ILCS 5/24-1.1(a), is clearly the state law counterpart to § 922(g)(1). Although not ‘mere surplusage,’ a jurisdictional element does little more than ensure that the conduct regulated in a federal criminal statute is within the federal government’s limited power to proscribe, thereby preventing the federal government from usurping power from the ‘States [who] possess primary authority for defining and enforcing the criminal law.’ Brecht v. Abrahamson, 507 U.S. 619, 635 (1993). The statutory scheme expressly includes the state equivalent of a § 922(g)(1) offense in the definition of ‘aggravated felony.’ The only purpose of the commerce element of § 922(g)(1) is to obtain federal jurisdiction over the crime. Clearly Congress did not intend an element not necessary in state law to be the factor determining whether the state offense can be considered the equivalent of a § 922(g)(1) offense. That would likely eliminate the intended inclusion of most state statutes, since states do not operate under the same jurisdictional constraints as the federal government.

Negrete does list several Illinois criminal statutes that he argues incorporate an element of affecting commerce.

See, e.g., 720 ILCS 5/24-3.5(c) (unlawful purchase of a firearm); 720 ILCS 5/24-3.4 (unlawful sale of firearms by liquor licensee); 720 ILCS 5/24-3 (unlawful sale of a firearm); 720 ILCS 5/24-1(a)(7) (prohibiting, among other things, the sale of a ‘machine gun,’ sawed-off shotgun, or explosive device); 720 ILCS 5/24-3.3 (prohibiting, among other things, the sale of firearms on school premises); 720 ILCS 5/24-2.1(a) (prohibiting, among other things, the sale of firearm projectiles). An examination of those statutes, however, only confirms the previous point. While some offenses committed under those statutes may involve commerce, none of those statutes contains an express element of affecting commerce, which is what Negrete is arguing that § 101(a)(43)(E)(ii) requires for his state felon-in-possession conviction to count as an aggravated felony. Furthermore, Negrete’s citation to those statutes misses the mark. The question is not whether a state could conceivably create a felon-in-possession offense that contains an element of affecting commerce. Rather, it is whether Congress meant to limit the phrase ‘offense described in section 922(g)(1)’ contained in § 101(a)(43)(E)(ii) only to state offenses that have such an element. Nothing in the text of the statute indicates that is what Congress intended. See Castillo, 244 F.3d at 1023.” Affirmed.

Khan v. Mukasey No. 07-1138 February 25, 2008. (KANNE)
Oral Argument | Full Text 07-1138: Khan v. Mukasey

Petition for review of a denial of a request for a discretionary waiver of inadmissibility and an application for an adjustment of status is dismissed for lack of jurisdiction where petitioner failed to raise any viable constitutional claim or question of law.

"Khan has has presented a 'flabby constitutional argument' in lieu of arguing that his statutory or regulatory right was violated. See Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006). While an alien has a Fifth Amendment right to due process in immigration proceedings, see Giday v. Gonzales, 434 F.3d 543, 547 (7th Cir. 2006) (citing Reno v. Flores, 507 U.S. 292, 306 (1993)), it is well-established that a party complaining of a dueprocess violation must assert a liberty interest in order to maintain his due-process claim, see Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006). As a result, we have repeatedly held that "an alien's right to due process does not extend to proceedings that provide only such discretionary relief " because an appeal to discretion is not a substantive entitlement. Id. at 662; Hamdan v. Gonzales, 425 F.3d 1051, 1060-61 (7th Cir. 2005); see also Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004). Here, Khan was required to pursue discretionary relief-the waiver of inadmissibility-in order to remain in the country. Therefore, Khan has not asserted any liberty interest, and as a result, he cannot maintain his constitutional due-process claim." Dismissed.

Tchemkou v.Mukasey No. 06-2638 February 22, 2008 (WILLIAMS)
Oral Argument | Full Text 06-2638: Tchemkou v. Mukasey

After the grant of a petition for review of a BIA decision, petitioner's motion for attorney's fees and costs is granted where the government's position in the underlying action was not substantially justified.

Derezinski v. Mukasey No. 07-1221 February 20, 2008 (POSNER)
Oral Argument | Full Text Derezinski v. Mukasey No. 07-1221

Petition for review of a denial of a second motion to reopen removal proceedings conducted in absentia is denied where there were no changed circumstances that would justify a reopening and the petitioner could not prove that he did not receive notice of the original hearing.

Bd. did not err in denying alien's motion to reopen removal proceedings where motion was filed 11 years after Bd. had entered deportation order in absentia. While alien argued that he never received Bd.'s notice of deportation hearing, Bd. was entitled to find that alien had evaded receipt of Bd.'s notice where: (1) Bd. sent notice via certified mail that was returned "unclaimed"; (2) according to alien, he was told by postal officials that a parcel in his name had been returned to sender; and (3) plaintiff should have contacted immigration authorities at that time to learn whether any time or place of hearing had been set.

Gaberov v. Mukasey No. 07-1417, February 19, 2008 (EVANS)
Oral Argument | Full Text Gaberov v. Mukasey No. No. 07-1417

Petition for review of a denial of a motion to reopen immigration proceedings is granted where the evidence that petitioner presented of the BIA's failure to send him notice of an earlier denial of his application for asylum, coupled with his demonstration of due diligence, entitled him to equitable tolling of the 90 day time-limit to file a motion to reopen.

Wood v. Mukasey No. 06-2550 February 14, 2008. (SYKES)
Oral Argument | Full Text 06-2550: Wood, Lolita v. Mukasey

Petition for review of a denial of a continuance in removal hearings and a denial of a discretionary adjustment of status is denied where the court does not have jurisdiction over continuance and adjustment of status decisions, and the BIA properly exercised its appellate-review authority over discretionary issues when it determined petitioner did not merit a status adjustment.

The BIA does not exceed its authority by reaching and deciding an adjustment-of-status question, even though the IJ did not address it.

"Provided the BIA can do so without additional fact-finding, 8 C.F.R. § 1003.1(d)(3)(iv), we see no reason why it must avoid issues of discretion in an appeal because they were never reached by the IJ. Although this proviso is potentially important, in Wood's case the BIA did not stray from the administrative record; it premised the exercise of its discretion on the IJ's finding that Wood falsely portrayed herself as Bendikas's wife for purposes of asylum during the January 2003 hearing. We conclude the BIA acted within the scope of its appellate jurisdiction when it denied Wood the discretionary relief for which she unsuccessfully sought a continuance before the IJ."

Garcia-Meza v. Mukasey No. 07-2215 February 5, 2008. (WILLIAMS)
Oral Argument | Full Text 07-2215: Garcia-Meza, Carlos v. Mukasey

Petition for review of a final order of removal, arising from a conviction for petitioner's grabbing a police officer's fingers and twisting them, is granted and the matter remanded where the BIA's finding that petitioner's state crime of "aggravated battery of a peace officer" was a crime of moral turpitude, was based on a misapprehension of Illinois law.

Bd. erred in ordering removal of alien/lawful permanent resident under 8 USC sec. 1227(a)(2)(A)(i)(I) based on alien's Illinois conviction on charge of aggravated battery of peace officer that Bd. deemed to be 'crime of moral turpitude.' Alien's conviction concerned battery of police officer that did not result in bodily harm or violence, and thus remand was required since Bd. based its decision on mistaken belief that alien's conviction contained element of bodily harm.

Battery of a police officer is not a crime of moral turpitude absent bodily harm or intent to cause harm or use violence.

"Illinois follows the common law rule that any contact, however slight, may constitute a battery. See Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir. 2006). At oral argument, we posed the hypothetical that in Illinois, an individual angry at being given a parking ticket might crumple up the ticket and throw it on the ground and face charges of aggravated battery if the ticket hit the issuing officer's shoe. We would be surprised if the BIA concluded that such behavior is 'inherently base, vile, or depraved,' or that it would 'shock the public's conscience.' In the language of this court's decision in Mei, the magnitude of the loss it causes is small (there is no injury, although the officer might have hurt feelings), and it does not arouse great public indignation (everybody hates parking tickets). We also asked the parties for a citation of any decision in which battery or assault of a police officer without violence or bodily harm was found to be a crime of moral turpitude. The government pointed to Mei, in which we found that aggravated (meaning high-speed) fleeing from an officer is such a crime. But that case did not involve an assault or battery statute, and regardless, the difference between a 100+ mile-per-hour car chase and a little finger grabbing seems obvious enough."

"At the end of the day, it is the Board's prerogative to decide whether Garcia-Meza committed a crime of moral turpitude. For the reasons we have explained, its decision that his offense is such a crime is based on a misapprehension of Illinois law and must be vacated."

Eke v. Mukasey
No. 06-3391 January 7, 2008.

Pet. for Review, Order of Bd. of Immigration Appeals. Petition denied. Bd. did not err in finding that aliens' Illinois conviction on charge of conspiracy to violate Illinois identity fraud statute by attempting to purchase automobile constituted "aggravated felony" under 8 USC sec. 1101(a)(43)(M)(i) in govt. petition for summary removal. Value of vehicle was more than $10,000, and fact that alien never actually acquired vehicle was not material since Bd. could look to intended loss to satisfy requirements of sec. 1101(a)(43)(M)(i).

Petition for review of a denial of withholding of removal is denied over the petitioner's arguments that: 1) his convictions were not for crimes that fall within the definition of "aggravated felony"; 2) he should not have been required to provide corroborating evidence of his homosexuality; 3) the Board should have considered the pattern of persecution against homosexuals in Nigeria; and 4) his due process rights were violated when the IJ insisted on conducting the hearing on the merits by video conference.

Hussain v. Mukasey
No. 07-2448 December 18, 2007

Denial of a petition for habeas corpus alleging that petitioner's detention pending removal proceedings deprived him of liberty without due process of law is affirmed where: 1) the immigration code bars the court from ordering the release of an alien pending judicial review of the order of removal; and 2) the principle that an alien may be released if, six months after the beginning of the removal period there is no significant likelihood of removal in the reasonably foreseeable future, does not apply when judicial review of the removal order is pending.

Dist. Ct. did not err in denying alien's habeas petition, claiming that his 2.5-year detention pending resolution of his removal proceeding deprived him of liberty without due process. Alien's petition was rendered moot when IJ subsequently entered order directing that alien be removed contingent to govt. compliance with Convention Against Torture provisions. Moreover, Ct. of Appeals could not order alien's release pending its review of validity of contingent removal order.

Mekhael v. Mukasey
11/16/07 No. 06-4285

Christian Lebanese citizen's petition for review of a denial of a motion to reopen asylum proceedings is granted and the matter remanded where BIA failed to give reasoned consideration to post-hearing evidence, including the 2006 war between Israel and Hezbollah, as well as increased violence against Christians in Lebanon following the publication in Denmark of cartoons caricaturing the Prophet Muhammad.

Zheng v. Mukasey
11/09/07 Case Number: 07-3673

A motion seeking a stay of petitioner's removal to China pending review of the dismissal of his original asylum claim and a denial of his motion to reopen the asylum proceedings is denied as: 1) the motion was untimely as far as the original asylum claim was concerned; and 2) petitioner failed to establish that he was entitled to a stay as to the other claim.

Bolante v. Keisler
10/31/07 Case Number: 07-2550

A motion for release on bail by an asylum applicant is denied where: 1) a grant of a bail would conflict with the Attorney General's non-reviewable discretion to deny parole to asylum-seekers; and 2) the petitioner's entry visa was revoked prior to his arrival in the U.S., thus he was not lawfully admitted to the U.S. for constitutional purposes, and had no right to be released.

Mohammad Hussain v. Keisler
10/24/07 Case Number: 06-2932

Petition for review of an order of voluntary departure is denied where: 1) petitioner filed an asylum application but later withdrew it in exchange for a longer period of voluntary departure; and 2) the court lacks jurisdiction over petitioner's claim that his obligation to register pursuant to the National Security Entry-Exit Registration System led to the initiation of removal proceedings against him and violated his right to equal protection of the laws.

US v. Pacheco-Diaz
10/23/07 Case Number: 05-2264

Sentence for illegal reentry is affirmed over defendant's arguments
that: 1) a prior Illinois conviction for simple possession of marijuana
was insufficient to trigger an eight-level enhancement; 2) the district
court misapprehended the scope of its discretion when it declined to
further reduce his sentence for acceptance of responsibility; and 3) his
sentence was unreasonable because the court failed to meaningfully
consider the unwarranted disparity between his sentence and the
sentences of similarly situated defendants in fast-track jurisdictions.

Potdar v. Kiesler, No. 06-2441 (10/10/07).

Petition for Review, order of Bd. of Immigration Appeals. Petition
denied. Petition for review of an order vacating an earlier order to
reopen removal proceedings is denied where the court did not have
jurisdiction to review the denial of petitioner's motion for a
continuance.

Ct. of Appeals lacked jurisdiction to consider alien's appeal of Bd.'s
order denying alien's request to reopen and terminate exclusion hearing
in order to allow alien to proceed on his application for adjustment to
permanent resident status. Alien's motion to reopen was essentially
request for continuance of exclusion proceedings, which, under Ali,
precludes any review of denial by Ct. of Appeals.

Tariq v. Keisler, No. 06-2518 (10/9/07). Petition for Review, Order of
Bd. of Immigration Appeals. Petition denied.

Record contained sufficient evidence to support IJ's denial of asylum
request by alien (native of Pakistan) where alien alleged that he and
his family were persecuted by creditor while in Pakistan, and that he
would be subject to future persecution based on his Western upbringing
if forced to return to native country. Alien's asylum petition, which
was filed more than 1 year after alien reached age of majority, was
untimely. Moreover, alien could not base application for withholding of
removal on acts of creditor where: (1) creditor was mere private
citizen; (2) alien could not demonstrate that harm done by creditor was
on account of alien's membership in particular social group; and (3)
alien failed to present evidence that his Western upbringing would cause
individuals in Pakistan to attribute any political opinion to him.

Ali v. Gonzales, No. 06-3240 Petition for review of a denial of a
request for a continuance and subsequent motion for reconsideration is
dismissed for lack of jurisdiction where: 1) the jurisdiction-stripping
provision of section 242(a)(2)(B)(ii) of the Immigration and Nationality
Act (INA) generally precludes judicial review of continuance decisions
of immigration judges; and 2) selective prosecution claims by aliens are
largely barred by 8 U.S.C. section 1252(g), and petitioner's claims of
discrimination were insufficient to invoke the exception for outrageous
cases.

(9/14/07)

Moab v. Gonzales, No. 06-2710 (9/13/07). Petition for Review, Order of Bd. Of Immigration Appeals. Petition granted.

Record failed to support Bd.’s finding that alien was not credible in his asylum and withholding of removal applications where alien alleged that he endured beatings in his native country (Liberia) because he was homosexual. While Bd.’s credibility determination was based largely on fact that alien failed to mention his homosexuality in airport interview, airport interviews are not always reliable indicators of credibility, and alien’s alleged homosexuality was consistently mentioned in his asylum application.

Kadia v. Gonzalez No. 06-1299 (9/7/07). Petition for Review, Bd. of Immigration Appeals. Petition granted.

Record failed to support IJ's denial of asylum petition by alien (native of Cameroon) who alleged that he would be persecuted because of his political beliefs if forced to return to native country. While IJ found alien to be incredible based on perceived inconsistencies between his testimony and his statements made in asylum application, Ct. determined that said inconsistencies either pertained to trivial facts or were not in fact inconsistent statements. IJ also improperly questioned alien by failing to give alien full opportunity to explain events supporting his asylum claim.

Peralta-Cabrera v. Gonzalez, No. 06-2254 (9/7/07). Petition for Review, Order of Bd. of Immigration Appeals. Petition granted.

Bd. erred in denying alien's motion to reopen asylum proceedings based on contention that alien was entitled to new hearing because he never received notice of asylum hearing and because deportation order was entered in absentia. Record showed that notice was sent via certified mail to address given by alien, but that, pursuant to post office policy, post office never attempted to deliver said notice because it was not addressed to alien "in care of" actual home owner. Ct. further found that govt., which was aware that alien was staying temporarily with home owner, had responsibility to ensure that notice would be delivered in compliance with postal policy.

Chicago Immigration Court, Deportation and Removal

• Immigration updates-New Legislation
• Supreme Court cases
• Deportation Handbook, 7th Circuit
• 7th Circuit updates: Opinion Summaries for U.S. 7th Circuit Court of Appeals, Aliens, Immigration
• BIA case law summaries
• EOIR Chart: Court Decisions Relating to Board Precedents
• BIA Precedent Table (Revised 3-26-08) BIA cases published from March 30, 1995 to the present.
• Immigration Court Practice Manual: Beginning on July 1, 2008, the Practice Manual will go into effect nationwide, and local operating procedures for immigration courts will no longer be used. The requirements set forth in this manual are binding on the parties who appear before the Immigration Courts, unless the Immigration Judge directs otherwise in a particular case.
• Immigration Judge Benchbook (October 2001 | 542 pages 7.8 MB pdf)
• Relief Pre-IIRIRA/AEDEPA
• Relief from Deportation
• Crimes and Immigration Waivers
• Immigration Consequences of Criminal Activity (CRS Report-updated 10-23-2006)
• Immigration Consequences of Convictions Summary Checklist
• Removal Defense Checklist in Criminal Cases
• Aggravated Felony practice aid
• Immigration consequences of certain Illinois Offenses
• Immigration Defense for Defense Counsel, by Lory Diana Rosenberg. January 2003-August 2004.
• Immigration Handbook (59 pages | 34 MB pdf)
• Submitting I-589, I-485, EOIR-40, EOIR-42A, EOIR-42B with Immigration Court;
• Post-Order Instructions for Individuals granted relief from removal by the Immigration Court.
• Chicago Deportation Phone Numbers & Officer Dockets (10/18/2006-subject to change).

U.S. Supreme Court- Aliens, Immigration and Nationality Law

U.S. SUPREME COURT CASES (click on link)

DUI IS NOT A CRIME OF VIOLENCE:
Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

A drunk driving accident is not a "crime of violence" allowing the government to deport a permanent resident, the Supreme Court ruled in Leocal v. Ashcroft 543 U. S. ____ (2004) November 9, 2004.

The court ruled unanimously in favor of Josue Leocal, a Florida man challenging his deportation to Haiti in 2002 after pleading guilty to a felony charge of drunk driving.

The 11th U.S. Circuit Court of Appeals ruled that the DUI offense was a "crime of violence" under the immigration statute because he had caused injury to others.

The Supreme Court disagreed. It said the plain meaning of the statute suggests that the felony offense must require intent in causing harm - not mere negligence as in Leocal's case - before immigrants are subject to the drastic consequence of deportation.

DOWNLOAD

REHNQUIST, C. J., delivered the opinion for a unanimous Court.

Petitioner, a lawful permanent resident of the United States, pleaded guilty to two counts of driving under the influence of alcohol (DUI) and causing serious bodily injury in an accident, in violation of Florida law. While he was serving his prison sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings pursuant to § 237(a) of the Immigration and Nationality Act (INA), which permits deportation of an alien convicted of "an aggravated felony." INA § 101(a)(43)(F) defines "aggravated felony" to include, inter alia, "a crime of violence [as defined in 18 U.S.C. § 16] for which the term of imprisonment [is] at least one year." Title 18 U.S.C. § 16(a), in turn, defines "crime of violence" as "an offense that has as an element the use . . . of physical force against the person or property of another," and § 16(b) defines it as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." An Immigration Judge and the Board of Immigration Appeals (BIA) ordered petitioner's deportation, and the Eleventh Circuit dismissed his petition for review, relying on its precedent that a conviction under Florida's DUI statute is a crime of violence under 18 U.S.C. § 16.

Held: State DUI offenses such as Florida's, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, are not crimes of violence under 18 U.S.C. § 16. Pp. 4-11.

(a) Section 16 requires this Court to look to the elements and nature of the offense of conviction in determining whether petitioner's conviction falls within its ambit. Florida's DUI statute, like similar statutes in many States, requires proof of causation but not of any mental state; and some other States appear to require only proof that a person acted negligently in operating the vehicle. This Court's analysis begins with § 16's language. See Bailey v. United States, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 116 S. Ct. 501. Particularly when interpreting a statute featuring as elastic a word as "use," the Court construes language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U.S. 223, 229, 124 L. Ed. 2d 138, 113 S. Ct. 2050. Section 16(a)'s critical aspect is that a crime of violence involves the "use . . . of physical force against" another's person or property. That requires active employment. See Bailey, supra, 516 U.S. 137, at 145, 1333 L. Ed. 472, 116 S. Ct. 501. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another by accident. When interpreting a statute, words must be given their "ordinary or natural" meaning, Smith, supra, 508 U.S. 223 at 228, 124 L. Ed. 2d 138, 113 S. Ct. 2050, and § 16(a)'s key phrase most naturally suggests a higher degree of intent than negligent or merely accidental conduct. Petitioner's DUI offense therefore is not a crime of violence under § 16(a). Pp. 4-8.

(b) Nor is it a crime of violence under § 16(b), which sweeps more broadly than § 16(a), but does not thereby encompass all negligent conduct, such as negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The classic example is burglary, which, by nature, involves a substantial risk that the burglar will use force against a victim in completing the crime. Thus, § 16(b) contains the same formulation found to be determinative in § 16(a): the use of physical force against another's person or property. Accordingly, § 16(b)'s language must be given an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense. Pp. 8-9.

(c) The ordinary meaning of the term "crime of violence," which is what this Court is ultimately determining, combined with § 16's emphasis on the use of physical force against another (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. This construction is reinforced by INA § 101(h), which includes as alternative definitions of "serious criminal offense" a "crime of violence, as defined in [§ 16]," § 101(h)(2), and a DUI-causing-injury offense, § 101(h)(3). Interpreting § 16 to include DUI offenses would leave § 101(h)(3) practically void of significance, in contravention of the rule that effect should be given to every word of a statute whenever possible, see Duncan v. Walker, 533 U.S. 167, 174, 150 L. Ed. 2d 251, 121 S. Ct. 2120. Pp. 9-11.

(d) This case does not present the question whether an offense requiring proof of the reckless use of force against another's person or property qualifies as a crime of violence under § 16. P. 11.

Reversed and remanded
________________________________

Demore v. Kim: Mandatory Detention Allowed | Custody & No Bond/Bail: INA Sec. 236(c)(1), 8 U.S.C.S. Sec. 1226(c)(1) (April 29, 2003)

The US Supreme Court declared that lawful permanent residents with certain criminal convictions can be detained pursuant to INA §236(c) without an individual bond hearing. The Court, however, also held that § 236(e) does not preclude habeas review of challenges to detention under § 236(c) .

The Supreme Court decision in Demore v. Kim applied only to individuals who conceded deportability and explicitly did not address the adequacy of the Matter of Joseph hearing, which allows a person to be released if she or he can demonstrate that the government is "substantially unlikely to prevail" on the charges of removal. To the extent possible, non-citizens should not concede deportability and request a Matter of Joseph hearing. 22 I. & N. Dec. 799 (BIA 1999) http://callyourlawyers.com/pdfcaselaw/matterofjoseph.pdf

The Immigration Judge may make a determination on whether a lawful permanent resident “is not properly included” in a mandatory detention category, in accordance with 8 C.F.R. § 3.19(h)(2)(ii), either before or after the conclusion of the underlying removal case. If this threshold bond decision is made after the Immigration Judge’s resolution of the removal case, the Immigration Judge may rely on that underlying merits determination.

________________________________
INS v. St. Cyr: Supreme Court Allows Criminal Aliens to Apply for Waivers under former Section 212(c)

Courts have jurisdiction under 28 U.S.C. 2241 to decide the legal issue raised by St. Cyrs habeas petition. (2) Section 212(c) relief remains available for aliens, like St. Cyr, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect. Certiorari to the United States Court of Appeals for the Second Circuit No. 00767. June 25, 2001

HTML: http://supct.law.cornell.edu/supct/html/00-767.ZS.html

PDF: http://callyourlawyers.com/pdfcaselaw/St.Cyr_supct.pdf

Conviction under Immigration law includes Illinois sentence for "1410 probation" (Gill v. Ashcroft, (7th Cir.) )

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003

Ct. of Appeal lacked jurisdiction to consider appeal of instant removal order under 8 USC §1227(a)(2)(B)(i) based on existence of alien's prior Illinois state court conviction for possession of cocaine that was ultimately dismissed87 upon alien's successful completion of probation period; under 8 USC §1101(a)(48)(A), alien's state court proceeding qualified as "conviction" that precluded alien from applying for discretionary relief from removal order.

Gill pleaded guilty in an Illinois court to possession of cocaine. He was sentenced to “410 probation,” 720 ILCS 570/410. Section 410(f) provides that, if a first offender completes this probation without incident, “the court shall discharge the person and dismiss the proceedings against him.” The statute continues: A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of this Act or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. 720 ILCS 570/410(g). Gill did not deny that “410 probation” was a “conviction” under the text of §1101(a)(48)(A). The 7th Circuit declined to follow the holding of Lujan- Armendariz, "which elevated an abandoned administrative practice over a statutory text." 222 F.3d 728 (9th Cir. 2000).

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Two principal problems: How to classify diversionary dispositions such as “410 probation” that impose some restraint on liberty but withhold formal adjudication of guilt; second, how to classify convictions later expunged or covered by some other device for restoring the person’s civil rights. In Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), the Board held that the criteria of §1101(a)(48)(A) apply to all offenders, no matter how they would have been treated if they had been charged in federal court. The 7th Circuit adopted the Board’s "straightforward" application of §1101(a)(48)(A), which abolished, for purposes of immigration law, any distinction between the treatment of deferred dispositions in first and successive drug-possession offenses. The Board has declined to acquiesce in Lujan-Armendariz and will not apply it outside the ninth circuit.

In Gill, the Seventh Circuit determined that the definition of conviction under federal immigration law, not the Illinois First Offender standard, controls. The 7th Circuit determined that an administrative appellate tribunal, namely, the Board of Immigration Appeals, had the authority to conclude that its uniform interpretation of what constitutes a "conviction" under federal law was dispositive, regardless of what states may say to the contrary (Matter of Roldan , 22 I&N Dec. 512 (BIA, 1999).

http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3377.pdf

Another court has looked at this differently (Lujan-Armendariz v. Immigration & Naturalization Service, 222 F.3d 728 (9th Cir. 2000). In the latter decision, the Circuit Court of Appeals found that state equivalents to the Federal First Offender Act (like 410 probation) in regard to first time simple drug possession charges if expunged, may not be used as convictions under the Immigration and Nationality Act to establish inadmissibility or deportability. The Ninth Circuit also extended this rule to foreign equivalents to the First Offender Act (Dillingham v. Immigration & Naturalization Service, 267 F.3d 996 (9th Cir. 2001). Unfortunately, the Ninth Circuit's decision does not apply in Illinois, Indiana or Wisconsin. And, there is more. Under certain circumstances, a misdemeanor conviction under state law may amount to what is known as an "aggravated felony" (8 U.S.C. 1227(a)(2)(A)(iii) under federal immigration law (Guerrero-Perez v. INS, (7th Cir. 2001) 242 F.3d 727, rehearing den.(7th Cir. 2001) 256 F.3d 546). What this means is that certain misdemeanor convictions, like the First Offender conviction, can result in the removal from the United States of a lawful permanent resident or undocumented alien. (For example, Criminal Sexual Abuse, 720 ILCS 5/12-15(c) is a Class A misdemeanor. It is also an aggravated felony under federal immigration law. Since aliens who have committed aggravated felonies are unable as a matter of law to obtain cancellation of their removal hearings upon a conviction for such a crime, they may be deported). (Guerrero-Perez).

Gill v. Ashcroft, (7th Cir.) 2003 WL 21525603. July 8, 2003:
Download: http://callyourlawyers.com/pdfcaselaw/gil.pdf

Domestic Battery Conviction , Illinois and Removal, Deportation from the United States

Domestic violence and related convictions will cause immigration problems not only for individuals that have a pending application for permanent resident status (green card) with the local CIS office but also for individuals that are already permanent residents or those who seek to apply for United States citizenship through naturalization.

Several years ago, Congress amended the Immigration law to include a conviction for domestic violence as ground of deportability. A felony conviction for domestic violence can serve as a basis for deportation even if no jail time was imposed or actually served. 8 U.S.C. § 1227(a)(2)(E)(i). A misdemeanor domestic violence conviction is not necessarily a "crime of violence" for deportation purposes, unless the "offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another."

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003, 2003 U.S. App. LEXIS 24051

Sec. 12-3.2 Domestic Battery (720 ILCS 5/12-3.2) (from Ch. 38, par. 12-3.2)

(a) A person commits domestic battery if he intentionally or knowingly without legal justification by any means:

(1) Causes bodily harm to any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended;

(2) Makes physical contact of an insulting or provoking nature with any family or household member as defined in subsection (3) of Section 112A-3 of the Code of Criminal Procedure of 1963, as amended.

(b) Sentence. Domestic battery is a Class A Misdemeanor. Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery

Sec. 12-3.3 Aggravated domestic battery (720 ILCS 5/12-3.3)

(a) A person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery.

(b) Sentence. Aggravated domestic battery is a Class 2 felony. Any order of probation or conditional discharge entered following a conviction for an offense under this Section must include, in addition to any other condition of probation or conditional discharge, a condition that the offender serve a mandatory term of imprisonment of not less than 60 consecutive days. A person convicted of a second or subsequent violation of this Section must be sentenced to a mandatory term of imprisonment of not less than 3 years and not more than 7 years or an extended term of imprisonment of not less than 7 years and not more than 14 years. (Source: P.A. 91445, eff. 1‑1‑00.)

In Flores v. Ashcroft the Seventh Circuit held that a respondent convicted under the Indiana Battery statute was not deportable for a crime involving domestic violence because there was not a substantial risk that the offense involved the use of force. November 26, 2003. http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf

REMOVABLE OFFENSES

The term "conviction" under Immigration law: * * * The term "conviction" means with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed. * * * (8 U.S.C. 101(a)(48)(A)

Whether an aggravated felony or crime of moral turpitude, it is important to note that it is the “conviction” that counts. Dismissals, acquittals, adjudications (juvenile convictions) or no-paper charges do not count for immigration purposes. However, pleading guilty or even admitting to the facts supporting the elements of the offense may be considered as a conviction, even if the crimminal law does not recognize the conviction until the time a sentence has been entered (Judgment and Commitment Order). Sentences containing fines or probation constitute a conviction for immigration purposes. A deferred sentence counts only when there has been an admission of the facts beforehand. Convictions that are later set aside or expunged count as convictions if there has been an admission of the facts. In determining the length of the sentence, immigration authorities look to the term of the actual sentence, and not to the time that the offender is exposed to by statute.

Probationary sentences will trigger immigration consequenses if a term of incarceration is imposed but suspended. Probation will not trigger immigration consequences if the judge opts not to impose a sentence at all (known as an imposition of the sentence suspended, or an ISS sentence). In the case of an ISS sentence, if the candidate successfully completes probation, there are no immigration consequences because an actual sentence was never imposed. However, immigration consequences are triggered if the offender's probation is ever revoked, as the court will impose a sentence at the time of revocation. Thus, for immigration purposes it always best to request an ISS sentence for a probationary candidate.

Crimes of Moral Turpitude. Any alien who - (I) is convicted of a crime involving "moral turpitude" committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

Multiple Criminal Convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.

Felony aggravated domestic battery is a "crime involving moral turpitude" (CIMT), an aggravated felony (only if one year of jail or more is actually imposed), and constitutes a domestic violence ground for deportation.

A felony aggravated battery conviction would be enough for ICE to charge as CIMT within 10 years of non citizen obtaining green card and/or as Agg. Felon/crime of violence if jail sentence imposed was more than one year.

Aggravated Felony: Any alien who is convicted of an aggravated felony (Sec.1101(a)(43) at any time after admission is deportable. (worst provision; no bail or relief) (f) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment is at least one year; A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a) (Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;

Domestic Violence

8 U.S.C. § 1227(a)(2)(E)(i): Any alien admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens: . . . (2)(E)(i) Any alien who at any time after admission is convicted of a crime of domestic violence . . . . For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of Title 18) . . . by any individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.

"Crime of Violence" With respect to the first prong of the § 1227(a)(2)(E)(i) analysis, 18 U.S.C. § 16 defines a "crime of violence" as follows:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

A "crime of violence" under § 16(b) has two elements: (1) that the crime is a felony; and (2) that the crime, "by its nature," involves a substantial risk that physical force may be used. Under federal law, a crime is a "felony" if the maximum term of imprisonment authorized for the offense is "more than 1 year." See 18 U.S.C. § 3559(a)

The BIA states that an offense does not fall within the definition of a "crime of domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i) unless (1) the crime is a "crime of violence" as defined in 18 U.S.C. § 16, and (2) the person against whom the crime was committed was a "protected person" within the meaning of § 1227(a)(2)(E)(i). Applying its traditional categorical approach to criminal convictions, the Immigration Judge/BIA would hold that (1) a felony conviction constituted a "crime of violence" because the crime, as defined by Illinois case law, requires an intentional touching that caused bodily harm and was non-consensual and, therefore, involves a substantial risk that physical force may be used, and (2) victim /spouse was a "protected person" under Illinois criminal and civil law.

[DOMESTIC VIOLENCE: The offense of aggravated stalking pursuant to section 750.411i of the Michigan Compiled Laws Annotated is a crime involving moral turpitude Matter of AJAMI, Interim Decision #3405, 1999)

A single conviction for misdemeanor domestic battery is not an Aggravated felony- as a crime of violence, and is not necessarily CIMT, unless non citizen has two or more unrelated convictions for CIMT.

A misdemeanor domestic battery conviction- regardless of jail time imposed or served by non citizen –does not necessarily fall within domestic violence Ground of removability. Flores V. Ashcroft

A simple misdemeanor battery (not domestic battery) conviction, and jail sentence of up to 364 days, charged as "offensive touching" (not bodily harm), could be argued does not constitute CIMT and clearly does not constitute a domestic violence or aggravated felony grounds for removal. ________________________________________________________________________

An Immigration Judge in Arizona recently terminated a deportation proceeding based on domestic violence-related misdemeanor convictions after concluding that the convictions were not “crimes of violence” under the Immigration and Naturalization Act (INA).

The INA describes various types of criminal conduct that can render an alien deportable. This list, increased by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, includes convictions for domestic violence.

An alien charged with being deportable in an Arizona case was convicted of “misdemeanor assault / domestic violence”and of “misdemeanor Disorderly conduct / domestic violence”under state law. The Immigration and Naturalization Service (INS) then sought his deportation, charging that the defendant was deportable under the domestic violence provision of INA §237(a)(2)(E)(i). This section defines a “crime of domestic violence”as any “crime of violence”committed against a person in one of several listed relationships with the perpetrator, e.g., a current or former spouse.

“Crime of violence,”in turn, is defined by another federal provision (18 U.S.C. §16): (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The respondent in the Arizona case argued that he could not be deported under the INA domestic violence ground for deportation because neither of his misdemeanor convictions met the federal statute’s definition of “crime of violence.”According to the Board of Immigration Appeals, the federal definition the classification described in the INA’s deportation provisions supersedes the state law definition to avoid inconsistent results for aliens similarly situated.

Specifically, in the Arizona case respondent argued that subpart (b) of the federal definition of “crime of violence”did not apply to his case because the offenses to which the defendant pleaded guilty were Misdemeanors, not felonies.

The respondent also argued that subpart (a) did not apply to him because the domestic violence provision required the “use, attempted use, or threatened use of physical force”directed against a statutorily protected victim - elements not required for either of his misdemeanor State convictions.

Essentially, the Arizona domestic violence laws under which the respondent was convicted were broader in scope than the INA definition, because they could have allowed the prosecution of acts that did not involve attempted physical force or disorderly conduct directed to a victim. Evidence of misdemeanor domestic violence convictions under state law alone did not clearly and convincingly demonstrate that the respondent had actually committed the federally-defined domestic violence that renders a person deportable.

The Immigration Judge held that the INS failed to prove that the defendant actually committed domestic violence as defined by the INA (that is, he used or threatened physical force) in the incident for which he had been convicted under Arizona law. The judge thereafter terminated the defendant’s deportation proceedings and ordered immediate release from INS custody.

Misdemeanor Domestic Battery not a Crime of Violence, Flores v. Ashcroft, Seventh Circuit, November 2003

In Flores v. Ashcroft the Seventh Circuit held that a respondent
convicted under the Indiana Battery statute was not deportable for a
crime involving domestic violence because there was not a substantial
risk that the offense involved the use of force. November 26, 2003,
2003 U.S. App. LEXIS 24051

Download PDF case

PROCEDURAL POSTURE: Petitioner sought review of an order of the Board of Immigration Appeals (BIA) which ordered petitioner removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C.S. § 1227(a)(2)(E), because he committed a "crime of domestic violence" under 18 U.S.C.S. § 16 and had a spouse or other domestic partner as a victim.

Petitioner pleaded guilty in Indiana to battery, a misdemeanor, defined as any touching in a rude, insolent, or angry manner. Ind. Code § 35--42--2--1. The BIA determined that this offense qualified as a "crime of domestic violence" under 18 U.S.C.S. § 16 and ordered petitioner removed under § 237(a)(2)(E). Upon review, the court of appeals found that the issue was how the offense created by Ind. Code § 35--42--2--1 should be classified for purposes of § 237(a)(2)(E). Although the police report shows that petitioner attacked and beat his wife, the court of appeals reasoned that § 16 provided that the statute's elements rather than the petitioner's real activities were dispositive in misdemeanor cases such that petitioner's conviction could not properly be classified as a crime of violence. Specifically, the court of appeals found that the elements of petitioner's battery conviction could not properly be viewed as a "crime of violence" under § 16 involving a spouse or other domestic partner as a victim, and thus concluded that petitioner was not removable under § 237(a)(2)(E).

The order of removal was vacated, and the matter is remanded to the BIA for further proceedings. 1(a)(1)(A).

________________

JOSE ERNESTO FLORES, Petitioner, v. JOHN ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3160

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2003 U.S. App. LEXIS 24051

September 18, 2003, Argued November 26, 2003, Decided

PRIOR HISTORY: [*1] Petition for Review of an Order of the Board of Immigration Appeals.

DISPOSITION: Vacated and remanded.

JUDGES: Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges. EVANS, Circuit Judge, concurring.

OPINIONBY: EASTERBROOK

OPINION:

EASTERBROOK, Circuit Judge.

Jose Ernesto Flores was ordered removed under § 237(a)(2)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E), because he committed a "crime of domestic violence"- which means any offense that is a "crime of violence" under 18 U.S.C. § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as "domestic"; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and Flores denies that his offense qualifies. We have jurisdiction to determine whether Flores has committed a removable offense, see Gill v. Ashcroft, 335 F.3d 574 (7th Cir. 2003); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997), but if he has done so then we lack jurisdiction to review any other issues. See 8 U.S.C. § 1252(a)(2)(C); Calcano-Martinez v. INS, 533 U.S. 348, 150 L. Ed. 2d 392, 121 S. Ct. 2268 (2001).


Flores pleaded guilty in Indiana to battery, a misdemeanor, which in that state is any touching in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1. He received a one-year sentence because bodily injury ensued. Flores admitted at a removal hearing that the victim was his wife. Although he now contends that he was not given sufficient time before that admission to retain counsel, a removal proceeding is not a criminal prosecution, and the Constitution does not of its own force create a right to legal assistance at every stage. See Stroe v. INS, 256 F.3d 498 (7th Cir. 2001). The immigration judge's failure to grant Flores additional continuances before asking questions about the charges may have violated a regulation, but given § 1252(a)(2)(C) we lack authority to vindicate regulation-based arguments by criminal aliens. (Violation of a federal regulation differs from violation of the Constitution. See United States v. Caceres, 440 U.S. 741, 59 L. Ed. 2d 733, 99 S. Ct. 1465 (1979).) By the time the hearing proper arrived, Flores was represented by counsel, as he has been ever since. Lack of legal assistance earlier [*3] could matter only to the extent it affected the determination that he committed a crime of domestic battery- and that would be possible only if, with the assistance of counsel, Flores might have refused to make one of the concessions at the earlier, uncounseled proceedings: that (a) he is the "Jose Ernesto Flores " who pleaded guilty to the charge, and (b) the victim was his wife. Yet Flores has never (with or without counsel) denied either of these things. The issue at hand is entirely legal: how should the offense created by Ind. Code § 35-42-2-1 be classified for purposes of § 237(a)(2)(E)? It would be pointless to debate whether, some years ago, the immigration judge should have afforded Flores more time to hire a lawyer. We move to the main event.

Section 16 says that "The term 'crime of violence' means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. [*4] " Because the offense of which Flores was convicted is a misdemeanor, only § 16(a) matters. It is limited to crimes that have as an element the use of "physical force against the person ...of another". Indiana law provides: "(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: (1) a Class A misdemeanor if: (A) it results in bodily injury to any other person". Ind. Code § 35-42-2-1. Flores pleaded guilty to this "Class A" version of the misdemeanor offense. The parties treat bodily injury as an "element" because it increases the maximum punishment. There are two other elements: an intentional touching, plus a rude, insolent, or angry manner. Rudeness has nothing to do with force (though it increases the offense given by the touching). But both touching and injury have a logical relation to the "use of physical force" under § 16(a).

Flores observes that Indiana does not require much of either touching or injury. Any contact counts as a "touch"- and this includes indirect as well as direct contact, so a snowball, spitball, or paper airplane [*5] qualifies if it hits the target. Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 5 Ind. Dec. 451, 205 N.E.2d 823 (1965). Touching anything attached to someone else, such as the person's glasses, is treated the same as touching the body. Impson v. State, 721 N.E.2d 1275 (Ind. App. 2000). As for injury: a bruise suffices, as does any physical pain even without trauma. Lewis v. State, 438 N.E.2d 289 (Ind. 1982); Tucker v. State, 725 N.E.2d 894 (Ind. App. 2000). Indiana's courts reached this conclusion because "serious" bodily injury makes the offense a Class C felony. See Ind. Code § 35-42-2-1(a)(3). It follows, Indiana's judiciary concluded, that any physical hurt satisfies § 35-42-2-1(a)(1)(A). So if the paper airplane inflicts a paper cut, the snowball causes a yelp of pain, or a squeeze of the arm causes a bruise, the aggressor has committed a Class A misdemeanor (provided that the act was rude, angry, or insolent). It is hard to describe [*6] any of this as "violence."

Now Flores did not tickle his wife with a feather during a domestic quarrel, causing her to stumble and bruise her arm. That would not have led to a prosecution, let alone to a year's imprisonment. The police report shows that Flores attacked and beat his wife even though prior violence had led to an order barring him from having any contact with her. The contempt of court reflected in disobedience to this order, plus the ensuing injury, likely explains the prosecution and sentence. The immigration officials ask us to examine what Flores actually did, not just the elements of the crime to which he pleaded guilty. The problem with that approach lies in the language of § 16(a), which specifies that the offense of conviction must have "as an element" the use or threatened use of physical force. Section 16 adopts a charge-offense rather than a real-offense approach, as is common to recidivist statutes. See, e. g., Taylor v. United States, 495 U.S. 575, 109 L. Ed. 2d 607, 110 S. Ct. 2143 (1990). As we explained in United States v. Howze, 343 F.3d 919 (7th Cir. 2003), it may be necessary even in charge-offense systems to rely [*7] on some aspects of the defendant's actual behavior, in order to know what he has been convicted of: when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is necessary to look behind the statutory definition. See also United States v. Shannon, 110 F.3d 382, 384-85 (7th Cir. 1997) (en banc). Howze was itself an example of this. State law defined, as a single felony, theft from either a living person or an embalmed body. The former is (we held) a crime of violence under 18 U.S.C. § 924(e)(2)(B)(ii) and the latter not, because only the former poses a risk of a violent encounter between thief and victim. So in Howze we examined the charging papers to learn that the victim had been alive. Indiana's battery statute, by contrast, separates into distinct subsections the different ways to commit the offense. Particularly forceful touchings, or those that cause grave injuries, come under subsections other than Ind. Code § 35-42-2-1(a)(1)(A). Thus it is possible to focus on "the elements" of that crime, as § 16(a) requires, without encountering any ambiguity, and thus without [*8] looking outside the statutory definition. See also Bazan-Reyes v. United States, 256 F.3d 600, 606-12 (7th Cir. 2001) (drunk driving is not a crime of violence under the elements approach of § 16, even if injury or death ensues).

Although § 16(a) directs attention to the statutory elements, § 237(a)(2)(E) of the immigration laws departs from that model by making the "domestic" ingredient a real-offense characteristic. Thus it does not matter for purposes of federal law that the crime of battery in Indiana is the same whether the victim is one's wife or a drinking buddy injured in a barroom. The injury to a "domestic partner" is a requirement based entirely on federal law and may be proved without regard to the elements of the state crime. See Sutherland v. Reno , 228 F.3d 171, 177-78 (2d Cir. 2000). Substantial evidence, independent of Flores's admission, shows that the victim was his wife. When classifying the state offense of battery for purposes of § 16(a), however, the inquiry begins and ends with the elements of the crime.

According to the immigration officials, we should grant Chevron deference to the Board's decision that Ind. Code § 35-42-2-1(a)(1)(A) [*9] satisfies the federal definition. An earlier decision reached this conclusion, after extended analysis, with respect to a Connecticut law similar to Ind. Code § 35-42-2-1(a)(1)(A), see Matter of Martin, 23 I.&N. Dec. 491 (B. I.A. 2002), and in Flores's case the Board relied on Martin. Yet Chevron deference depends on delegation, see United States v. Mead Corp., 533 U.S. 218, 150 L. Ed. 2d 292, 121 S. Ct. 2164 (2001), and § 16(a) does not delegate any power to the immigration bureaucracy (formerly the Immigration and Naturalization Service, now the Bureau of Citizenship and Immigration Services), or to the Board of Immigration Appeals. Section 16 is a criminal statute, and just as courts do not defer to the Attorney General or United States Attorney when § 16 must be interpreted in a criminal prosecution, so there is no reason for deference when the same statute must be construed in a removal proceeding. Any delegation of interpretive authority runs to the Judicial Branch rather than the Executive Branch. Cf. Adams Fruit Co. v. Barrett, 494 U.S. 638, 108 L. Ed. 2d 585, 110 S. Ct. 1384 (1990). One [*10] law has one meaning, and a given state conviction a single classification, whether the subject arises in removal or in a recidivist prosecution in federal court. Although the agency's interpretation in Martin may have persuasive force, and we must give it careful consideration, it has no binding effect along Chevron's lines.

Martin is not persuasive. Besides starting with legislative history rather than the text of § 16- the Board saw great significance in a footnote to the Senate Report, though this footnote did not purport to disambiguate any statutory language and thus lacks weight on the Supreme Court's view of legislative history's significance- the Board made two logical errors. It relied on decisions such as United States v. Nason, 269 F.3d 10 (1st Cir. 2001); United States v. Ceron-Sanchez, 222 F.3d 1169 (9th Cir. 2000); and United States v. Smith, 171 F.3d 617 (8th Cir. 1999), which hold that state laws penalizing battery with intent to injure are crimes of violence under § 16 (or similar statutes, such as § 924(e)(2)). The Board concluded that this approach is equally applicable to laws such as Ind. Code § 35-42-2-1(a) (1)(A) [*11] . The first error is equating intent to cause injury (an element of the state laws at issue in those decisions) with any injury that happens to occur. It may well be that acts designed to injure deserve the appellation "violent" because the intent makes an actual injury more likely; it does not follow that accidental hurts should be treated the same way. Indiana's battery law does not make intent to injure an element of the offense; intent to touch must be established, but not intent to injure. The Board's second error was failure to appreciate the difference between felony and misdemeanor convictions. When the prior offense is a felony, then any criminal conduct that involves a "substantial risk" of physical force may be classified as a crime of violence under § 16(b) or § 924(e)(2)(B)(ii). (Howze involved a prior felony, which is why we looked to the risk of an altercation breaking out between thief and victim.) But when the conviction is for a misdemeanor, then physical force must be an element under § 16(a) or § 924(e)(2) (B)(i).

Section 16(a) refers to the "use of physical force". Every battery entails a touch, and it is impossible to touch someone without applying [*12] some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose [*13] that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.

To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature- the sort that is intended to cause bodily injury, or at a minimum likely to do so. We have already drawn just that line. See Solorzano-Patlan v. INS, 207 F.3d 869, 875 n. 10 (7th Cir. 2000); Xiong v. INS, 173 F.3d 601, 604-05 (7th Cir. 1999). Otherwise "physical force against" and "physical contact with" would end up meaning the same thing, even though these senses are distinct in law. This is not a quantitative line ("how many newtons makes a touching violent?") but a qualitative one. An offensive touching is on the "contact" side of this line, a punch on the "force" side; and even though we know that Flores's acts were on the "force" side of this legal line, the elements of his offense are on the [*14] "contact" side. Because § 16(a) tells us that the elements rather than the real activities are dispositive in misdemeanor cases, this conviction cannot properly be classified as a crime of violence, and the basis for Flores's removal has been knocked out- along with any obstacle to our jurisdiction.

The order of removal is vacated, and the matter is remanded to the Board.

CONCURBY: EVANS

CONCUR: EVANS, Circuit Judge, concurring. Although it's debatable whether expending dynes (to say nothing about newtons) pressing the keys of my wordprocessor to concur in this case is worth the effort, I do so because the result we reach, though correct on the law, is divorced from common sense. For one thing, people don't get charged criminally for expending a newton of force against victims. Flores actually beat his wife- after violating a restraining order based on at least one prior beating- and got a one-year prison sentence for doing so.

If it is permissible to look to Flores' "real conduct" to determine if the person he beat was his wife rather than some stranger, why does it not make perfectly good sense to allow an immigration judge to look at what he really did in other respects as well, rather [*15] than restrict the judge to a cramped glance at the "elements" of a cold statute? The more information upon which the judge acts, the better. A common-sense review here should lead one to conclude that Flores committed a "crime of domestic violence." Simply put, by any commonly understood meaning of that term, that's exactly what he did, and that should be the end of the story. We, and the IJ as well in this case, should be able to look at what really happened. We recently observed that critics of our system of law often see it as "not tethered very closely to common sense." United States v. Cranley, 2003 U.S. App. LEXIS 23573, (2003 WL 22718171, decided November 19, 2003). This case is a good example of why that observation hits the nail on the head. Nevertheless, Judge Easterbrook is correct in applying the law so I join his persuasive (as usual) and colorful- snowballs, spitballs, and paper airplanes et al.- opinion. However, I do not applaud the result we reach. And one final point: Whether doing what Flores actually did should cause him to be removed from the country is a question we are without jurisdiction to answer. For better or worse, that's a matter for the executive branch as [*16] it attempts to implement the will of Congress.

http://callyourlawyers.com/pdfcaselaw/flores_v_ashcroft_7th.pdf