Padilla applied retroactively to conviction which became final before March 31, 2010

UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ROSELVA CHAIDEZ, Defendant/Petitioner.  No. 03 CR 636-6  UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION  2010 U.S. Dist. LEXIS 81860  August 11, 2010, Decided August 11, 2010, Filed
 
PRIOR HISTORY: United States v. Chaidez, 2010 U.S. Department. Dist. LEXIS 69561 (N.D. Ill., July 8, 2010) 

JUDGES: Honorable JOAN B. GOTTSCHALL.MEMORANDUM OPINION AND ORDER 

I. BACKGROUND Chicago, IL.
 
Defendant/Petitioner Roselva Chaidez, a lawful permanent resident of the United States, filed a petition for writ of error coram nobis complaining that neither this Latricia Tatum, Homewood, IL. court nor her attorney informed her of the immigration  consequences of pleading guilty to federal charges of mail fraud. (Doc. 178.) Chaidez pled guilty on December 3, 2003 (Doc. 50), and the court sentenced her to four  years of probation (Doc. 65). On October 11, 2009, Chaidez filed her petition as a separate civil case. Chief Judge James Holderman dismissed the case and instructed Chaidez to refile her petition as part of the original criminal case before this court. (See Case No. 09 C 6372, Doc. 3.) Chaidez filed her petition as a motion on January 25, 2010. (Doc. 171.) She filed a corrected petition on March 23, 2010. (Doc. 178.) Just one week later, the Supreme Court issued its decision in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), holding that a habeas petitioner could bring a claim for ineffective assistance of counsel where he would not have pled guilty but for the failure of his attorney to advise him of the immigration consequences of the plea. 

In a previous opinion, this court explained that Chaidez would need to provide additional factual detail in order for the court to assess her claim under Padilla. United States v. Chaidez, No. 03 CR 636-6, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2 (N.D. Ill. July 8, 2010). Chaidez has now submitted an affidavit filling in some of the gaps. (See Doc. 188.) If it appears from the affidavit that Chaidez can make out her claim, the government has requested a hearing to establish what Chaidez knew about the possibility of deportation at the time her guilty plea. 

II. ANALYSIS
A. Retroactivity
The government in its supplemental response argued that Padilla could not be applied retroactively in Chaidez's collateral attack on her guilty plea. The court concluded that Chaidez did not seek retroactive application of Padilla. Rather, the court stated, it need only apply the well-established rule in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2. Upon further consideration, the court is convinced that the issue is not so straightforward, and more thorough analysis is required. Thus, as an initial matter, the court reconsiders sua sponte its ruling on retroactivity. Only a few courts have yet weighed in on the question of Padilla's retroactive application. Some courts have found that the decision may be applied to convictions which became final before March 31, 2010, the date the Padilla decision was announced, and so is applicable retroactively. See United States v. Hubenig, No. 6:03-mj-040, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625, at *8 (E.D. Cal. July 1, 2010); People v. Bennett, 903 N.Y.S.2d 696, 700 (N.Y. Crim. Ct. 2010). Other courts have reached the opposite conclusion. Gacko v. United States, No. 09-CV-4938 (ARR), 2010  U.S. Dist. LEXIS 50617, 2010 WL 2076020, at *3 (E.D.N.Y. May 20, 2010); People v. Kabre, No. 2002NY029321, 2010 N.Y. Misc. LEXIS 3275, 2010 WL 2872930, at *10 (N.Y. Crim. Ct. July 22, 2010).
 
The Supreme Court's landmark decision in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), limited the ability of courts to hear constitutional challenges to convictions on collateral review. 1 Teague clarified that a criminal defendant seeking to collaterally attack a conviction may not rely on a new constitutional rule of criminal procedure identified only after the date that the conviction became final. Id. at 310.A conviction becomes final after the judgment of conviction is rendered, the availability of direct appeal is exhausted, and the time for filing a petition for certiorari has elapsed.  Id. at 295. 

Neither the Supreme Court nor the Seventh Circuit has determined whether the retroactivity rule of Teague applies to a coram nobis petition. What precedent exists regarding coram nobis has generally cited to post-conviction cases. See Larry W. Yackle, Postconviction Remedies § 7:27 (Thomson Reuters 2010). Other circuits have applied Teague in coram nobis cases. See United States v. Mandanici, 205 F.3d 519, 527 (2d Cir. 2000); United States v. Swindall, 107 F.3d 831, 834 (11th Cir. 1997). And the Seventh Circuit has stated that, "A writ of error  coram nobis affords the same general relief as a  writ of habeas corpus." Howard v. United States,  962 F.2d 651, 653 (7th Cir. 1992). The court will  follow the Second and Eleventh Circuits and  apply Teague in this case. Although Teague was a plurality opinion, a  majority of the court quickly adopted the rule  announced in that case. See Penry v. Lynaugh,  492 U.S. 302, 313, 109 S. Ct. 2934, 106 L. Ed. 2d  256 (1989), overruled on other grounds by Atkins  v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).  The Teague analysis generally turns on whether a particular decision announced a new rule or merely applied an old rule in a new context. 3 When the Court overturns its own prior precedent, clearly a new rule is established. Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990). "[I]t is more difficult, however, to determine whether we announce a new rule when a decision extends the reasoning of our prior cases." Id.; accord Teague, 489 U.S. at 301. The Teague Court elaborated:  Generally . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent  existing at the time the defendant's conviction became final.
Id. (emphasis in original).
 
There are two exceptions to the Teague rule. First, "a new rule should be applied retroactively if it places 'certain kinds of primary private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971)). Padilla clearly does not fit within this exception because that decision dealt with an attorney's duty to inform the client about the consequences of a guilty plea; it did not contain any holding about the power of the court to impose a judgment of conviction based on a particular crime. Second, courts may retroactively apply "watershed rules of criminal procedure." Id. The Supreme Court has made clear that this is a narrow exception for rules that are "central to an accurate determination of innocence or guilty."  Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir. 2005) (noting that the Supreme Court has never applied the second Teague exception); see also United States v. Mandanici, 205 F.3d 519, 528-29 (2d Cir. 2000) (collecting Supreme Court cases rejecting application of second Teague  [exception).
 
The "dictated" language from Teague suggests a broad interpretation of what constitutes a new rule. Whenever uncertainty might exist about how a certain holding applies to a new context, then it could be said that the holding does not "dictate" the particular application. But the Supreme Court has not found that every novel application of an old precedent results in the announcement of a new rule. See, e.g., Stringer v. Black, 503 U.S. 222, 237, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992) (holding that cases invalidating use of vague aggravating factors in capital sentencing applied to Mississippi's capital sentencing law despite the fact that Mississippi used a different method of weighing aggravating and mitigating factors); Penry, 492 U.S. at 318-19 (holding that as-applied challenge to Texas death penalty statute did not seek application of new rule, despite earlier Supreme Court opinion rejecting facial challenge to the same statute). In Penry and Stringer, the Court determined that the results were "dictated" by law that existed at the time of the petitioner's conviction. Yet, neither of these decisions was unanimous. In each, Supreme Court Justices disagreed about the logical reach of the Court's earlier precedents.
 
In its habeas corpus jurisprudence, the Court has maintained a distinction between a court's statement of the law and its application of the law to a new set of facts. See Williams v. Taylor, 529 U.S. 362, 410-12, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Under Teague, a novel statement of law will be considered a new rule while a new application of the rule will not. Butler v. McKellar, 494 U.S. 407, 414-15, 110 S. Ct. 1212, 108 L. Ed. 2d 347 (1990); see also Thomas v. Gilmore, 144 F.3d 513, 516 (7th Cir. 1998) (holding that petitioner seeking per se rule that counsel must subpoena all institutional records in capital cases would be barred by Teague, "but that leaves open the possibility that his lawyer failed to come up to minimum professional standards by not subpoenaing the records in the particular circumstances of this case") (emphasis in original). This distinction is admittedly a murky one. The discovery of a new rule will depend entirely upon the level of generality at which the court defines the new holding. See Wright v. West, 505 U.S. 277, 311, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992)
(Souter, J., concurring).
 
The holding in Padilla is an extension of the rule in Strickland. Strickland held that a defendant could have his conviction reversed if he could show that his counsel's representation "fell below an objective standard of reasonableness," and that that deficiency prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 687-88, 694. 4 The question for this court is whether Padilla announced a new rule, as defined by Teague, or whether the Court merely applied Strickland to new facts. The Court in Padilla was asked to address only the first half of the Strickland analysis. The Court left open the question of whether petitioner had been prejudiced by his counsel's ineffective
assistance. Padilla, 130 S. Ct. 1483-84.
 
Padilla could be described as establishing a per se rule that counsel must inform a client of immigration consequences before an informed guilty plea may be entered. Alternatively, the case can be read as a straightforward application of Strickland: the petitioner's attorney "fell below an objective standard of reasonableness," because, as a factual matter, the professional standards at the time of the client's plea required counsel to inform of potential immigration consequences.
 
Both of these potential readings have some appeal. The government points out that the language of the opinion suggests the Justices recognized the novelty of its holding. Padilla, 130 S. Ct. at 1486 ("[W]e now hold that counsel must inform her client whether his plea carries a risk of deportation."); id. at 1488 (Alito, J., concurring) ("[T]his Court has never held that a criminal defense attorney's Sixth Amendment duties extend to providing advice about [collateral consequences of a conviction].") As one court recently observed in declaring that Padilla would not apply retroactively, the Supreme Court's decision effectively changed the law in nine circuits and the majority of states. Kabre, 2010 N.Y. Misc. LEXIS 3275, 2010 WL 2872930, at *4-5. Every circuit to have addressed the issue, including the Seventh Circuit, had concluded that deportation is a collateral consequence of a conviction and counsel is not ineffective for failing to warn the client about the potential immigration consequences of conviction. 2010 N.Y. Misc. LEXIS 3275, [WL] at (citing United States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States v. Santelises, 476 F.2d 787 (2d Cir. 1973); United States v. Del Rosario, 902 F.2d 55, 284  U.S. App. D.C. 90 (D.C. Cir. 1990); United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988); United States v. Banda, 1 F.3d 354 (5th Cir. 1993); United States v. George, 869 F.2d 333 (7th Cir. 1989); United States v. Fry, 322 F.3d 1198 (9th Cir. 2000); Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004); United States v. Campbell, 778 F.2d 764 (11th Cir. 1985)). These decisions are strong support for the proposition that Padilla announced a new rule. See Butler, 494 U.S. at 415.  

Before Padilla there was a split among the circuits on the question of whether counsel is ineffective in affirmatively providing incorrect information about immigration consequences. See Padilla, 130 S. Ct. at 1484. The Court held that an attorney can be ineffective both for misleading her client and for failing to provide any advice. Id. Chaidez does not aver that she was misled, but rather that her attorney provided no information about immigration consequences.
 
Nevertheless, as the Supreme Court stated in Williams, "[e]ven though we have characterized the new rule inquiry as whether 'reasonable jurists' could disagree as to whether a result is dictated by precedent, the standard for determining when a case establishes a new rule is 'objective,' and the mere existence of conflicting authority does not necessarily mean a rule is new." 529 U.S. at 410 (quoting Wright, 505 U.S. at 304). Padilla did not overturn any prior decision of the Supreme Court. Padilla, 130 S. Ct. at 1481 ("We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland."). Justice Stevens's majority opinion in Padilla relied primarily on citations to Strickland itself as well as secondary sources discussing prevailing professional norms at the time of Padilla's plea. Id. at 1482-83. And the Court noted its longstanding reliance on "[p]revailing norms of practice as reflected in American Bar Association standards and the like" to determine the extent of professional obligations in the Strickland analysis. Id. at 1482. The Court also noted that the extent of the advice counsel is required to give will be entirely fact-dependent. Id. at 1483. The law in Padilla's case was straightforward. But often the immigration consequences will be less clear, and counsel is not required to know every intricacy of immigration law. Id.
 
Further, the Court has noted that "the Strickland test provides concurring) (citations omitted); cf. Bousley v. United States, 523 U.S. 614, 619-20, 118 S. Ct. 1604, 140  L. Ed. 2d 828 (1998) (rejecting application of Teague to claim that guilty plea was not knowing and intelligent because, even though intervening Supreme Court authority provided the reason for questioning the validity of the plea, "[t]here is surely nothing new about this principle").  Justice Kennedy's analysis applies equally to Strickland claims. In Osagiede v. United States, 543 F.3d 399, 408 n.4 (7th Cir. 2008), the Seventh Circuit rejected the argument that Teague prevented a habeas petitioner from arguing that his counsel had been ineffective for failing to seek a remedy under Article 36 of the Vienna Convention. The court, quoting Justice Kennedy's concurrence in Wright, held that, although the petitioner cited no previous cases where Strickland claims had succeeded under this theory, an application of Strickland in this novel context did not create a new rule. Id. The court relied on the fact that "a reasonable Illinois lawyer would have known" that Article 36 created individual rights. Id. at 409-10.
 
Thus, the only question for this court is whether this is "the infrequent [Strickland] case that yields a result so novel that it forges a new rule." Id. at 408 n.4. It is a close question, but the court is convinced that Padilla did not announce a new rule for two reasons. First, the petitioner in Padilla brought a collateral challenge to his conviction. Thus, if Chaidez's claim is barred by Teague, Padilla's claim should have been barred as well. Prior to the decision in Teague, the Supreme Court would regularly announce new rules but not address the issue of retroactivity until subsequent cases. Teague, 489 U.S. at 302-03. This procedure led to "unequal treatment of those who were similarly situated." Id. at 303. The Teague Court declared that, going forward, the issue of retroactivity should be decided as a threshold question on collateral review, before addressing any constitutional claim. Id. at 305. Reaching out to decide constitutional questions on collateral review, even though the rule proposed by a petitioner could not be applied retroactively, would threaten "the integrity of judicial review" by "'assert[ing] that our constitutional function is not one of adjudication but in effect of legislation.'" Id. at 304 (quoting Mackey, 401 U.S. at 679). Although the government may waive  the issue of retroactivity, a court can raise it sua sponte. Thomas, 144 F.3d at 516. In Teague, the government did not argue retroactivity, but the Court felt compelled to decide the case on those grounds. In Padilla, despite three separate opinions, no member of the Court even mentioned Teague or any retroactivity issue. In fact, as two courts have noted, the majority opinion stated that "it had 'given serious consideration' to the argument that its ruling would open the 'floodgates' to new litigation challenging prior guilty pleas." Hubenig, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625, at *7 (quoting Padilla, 130 S. Ct. at 1484-85); accord Bennett, 903 N.Y.S.2d at 700. 

The Court stated:  It seems unlikely that our decision today will have significant effect on those convictions already obtained as the result of plea bargains. For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea.  Padilla, 130 S. Ct. at 1485 (emphasis added). "If the Court intended Padilla to be a new rule which would apply only prospectively, the entire 'floodgates' discussion would have been unnecessary." Hubenig, 2010  U.S. Dist. LEXIS 80179, 2010 WL 2650625, at 7.

Jose Padilla pled guilty to three drug-related charges; final judgment was entered on October 4, 2002. Padilla filed for post-conviction relief in state court on August 18, 2004. Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008). The Supreme Court of Kentucky eventually ruled that Padilla was not entitled to relief, id. at 485, and Padilla appealed that decision to the U.S. Supreme Court.
Second, application of Padilla in cases like this one continues to promote the finality of judgments, which is the purpose behind the rule in Teague, see Gilmore v. Taylor, 508 U.S. 333, 351, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (O'Connor, J., concurring), while balancing the need to provide meaningful review of constitutional errors resulting in uninformed guilty pleas. A post-conviction court applying Strickland is bound to consider whether counsel's assistance was effective with reference to professional standards as they existed at the time of the conviction. Conner v. McBride, 375 F.3d 643, 656 (7th Cir. 2004). Critical to the Court's decision in Padilla was the fact that professional legal standards had long required criminal attorneys to inform their clients of immigration consequences. 130 S. Ct. at 1482-83. 

The Supreme Court, itself, recognized as early as 2001 that immigration consequences of guilty pleas would be critically important to defendants and that "competent defense counsel, following the advice of numerous practice guides" would be expected to advise clients of the opportunity for discretionary relief from rules permitting deportation. INS v. St. Cyr, 533 U.S. 289, 323, 121 S. Ct. 2271, 150 L. Ed. 2d 347 & n.50 (2001). In Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), a habeas case, the Court held that counsel had been ineffective in failing to examine certain mitigating evidence. The majority rejected the contention of dissenters that the opinion created a "rigid, per se" rule that could not be considered on collateral attack. Id. at  389. That decision, like the one in Padilla, relied heavily on ABA professional standards in concluding that counsel's representation had fallen below an objective standard at the time of conviction. Id. at 387.
 
The Supreme Court has employed a "functional view of what constitutes a new rule." Saffle, 494 U.S. at 488. To make out a Strickland claim, a criminal defendant will generally be required to bring in evidence that has not been made part of the record. United States v. Fish, 34 F.3d 488, 491 n.1 (7th Cir. 1994). 

On direct review, an appellate court generally cannot consider this additional evidence. Id. Thus the court hearing the Strickland claim in a collateral attack on a federal conviction will serve a function similar to the appellate court, by being the first to reconsider the work done by the trial court. This function will be especially important in cases like this one. Chaidez pled guilty, allegedly relying on the ineffective advice of counsel. She received a sentence of four months probation and, rightly, saw no reason to seek a direct appeal. Only when the immigration consequences of her plea became clear years later, after the opportunity for appeal had long since past, did she seek to challenge the plea. Virtually all criminal defendants with Padilla claims are likely to have had little reason to appeal their own guilty pleas. If the Supreme Court had refused on retroactivity grounds to reach the constitutional claim in Padilla, no court would ever have been able to establish that counsel must advise about immigration consequences of a guilty plea. The likelihood of the issue arising on direct appeal would have been miniscule.
 
Accordingly, the court holds that Padilla did not announce a new rule for Teague purposes and affirms its earlier opinion that no retroactivity problem is raised by petitioner's claim.
 
B. Chaidez's Affidavit
The court now turns to a review of the affidavit submitted by Chaidez. In its previous opinion, the court explained that coram nobis relief is available only where petitioner can show: 1) there was an error "of the most fundamental character," 2) there are "sound reasons for the failure to seek earlier relief," and 3) the petitioner "continues to suffer from [her] conviction even though [s]he is out of custody." Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *2. As the court previously held, Chaidez can satisfy the first element of this test by showing that her defense attorney provided ineffective assistance. 2010 U.S. Dist. LEXIS 69561, [WL] at *2-3. Chaidez's affidavit states that her attorney "never informed me that as a non-U.S. Citizen, a lawful permanent resident was subject to removal or deportation from the United States for committing any aggravated felony without any form of relief available to me." (Aff. P 8.) Chaidez also states that had the attorney explained the immigration consequences, Chaidez would not have pled guilty. (Id. P 10.)
 
Next, the court held that Chaidez could establish the second element of the coram nobis standard by showing that she had a good reason for waiting until now to raise the issue. Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *4-5. The affidavit states that she "first became aware of my immigration troubles quite by accident in early 2009." (Aff. P 14.) Chaidez avers that she learned that she could be deported only after she attempted to apply for citizenship (id. PP 15-18), just a few months before she first sought relief from her conviction. 7  7 Chaidez's affidavit contains an apparent inconsistency. 

She states: 
Then on or about December 2009, I received a Notice to Appear before an immigration judge for removal proceedings. I immediately contacted my U.S. Probation Officer, Juan Tappia, who gave me the name of my current immigration lawyer, Gerardo Gutierrez.  (Aff. PP 18-19.) 

This suggests that Chaidez did not meet with her attorney until at least December; however, she first filed her petition through counsel in October 2009. Nevertheless, the affidavit also states that Chaidez first learned of the possibility of deportation in "early 2009," and the court relies on that factual averment in concluding that Chaidez may be able to satisfy the requirements of coram nobis.
 
Finally, the court held that Chaidez could establish the third element of the coram nobis standard because she pled guilty to a crime for which federal law permits the Attorney General to seek deportation. Chaidez, 2010 U.S. Dist. LEXIS 69561, 2010 WL 2740282, at *4. And, in fact, Chaidez alleges that the government has initiated removal proceedings against her. (Aff. P 18.) Now that Chaidez has established a legally sufficient claim for relief, she is entitled to an evidentiary hearing. 8 See United States v. Bejacmar, 217 Fed. Appx. 919, 921 (11th Cir. 2007) (quoting Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002)) (where coram nobis petitioner "alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim"); United States v. Liska, 409 F. Supp. 1405, 1406 (E.D. Wis. 1976)
("Where . . . the [coram nobis] petitioner has alleged in a sworn affidavit facts which, if true, might well entitle him to some form of relief, it would be improper to deny him a hearing on his claim."). Chaidez should be prepared to present evidence on all elements of her claim, and the government will
[*23] be permitted to cross examine petitioner and present any evidence contradicting the facts as alleged by Chaidez. Chaidez faces a heavy burden, because counsel is presumed effective. Fish, 34 F.3d at 491. Chaidez must show that counsel's performance "fell below an objective standard of reasonableness," and "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. 8 

At a court appearance on August 11, 2010, the government sought permission to file a response to Chaidez's affidavit. The court ordered the response by August 23, 2010. (Doc. 192.) If the government points to any deficiencies with the affidavit that are not noted by the court, the court may reconsider this section of the opinion at that time.
 
III. CONCLUSION
For the reasons stated above, Chaidez is entitled to a hearing on her claim of ineffective assistance of counsel. /s/ JOAN B. GOTTSCHALL United States District Judge DATED: August 11, 2010

PEDROZA, CASILLAS-TOPETE, CORTEZ Canales 3 BIA cases

Matter of Hugo Heredia PEDROZA 25 I&N Dec. 312 (BIA 2010)

An alien’s conviction for a crime involving moral turpitude does not render him ineligible for cancellation of removal under section 240A(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), if his crime is punishable by imprisonment for a period of less than a year and qualifies for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Cortez, 25 I&N Dec. 301 (BIA 2010), followed.

 Matter of Jose CASILLAS-TOPETE 25 I&N Dec. 317 (BIA 2010)

An alien is removable under section 237(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as one who was inadmissible at the time of entry or adjustment of status pursuant to section 212(a)(2)(C) of the Act, 8 U.S.C. § 1182(a)(2)(C) (2006), where an appropriate immigration official knows or has reason to believe that the alien is a trafficker in controlled substances at the time of admission to the United States. Matter of Rocha, 20 I&N Dec. 944 (BIA 1995), modified.

Matter of Maria De Jesus CORTEZ Canales 25 I&N Dec. 301 (BIA 2010)
(1) An alien who has been convicted of a crime involving moral turpitude for which a sentence of a year or longer may be imposed has been convicted of an offense “described under” section 237(a)(2) of the Act, 8 U.S.C. § 1227(a)(2) (2006), and is therefore ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (2006), regardless of the alien’s eligibility for the petty offense exception under section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (2006). Matter of Almanza, 24 I&N Dec. 771 (BIA 2009), clarified. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007); and Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003), explained.

(2) In determining which offenses are “described under” sections 212(a)(2), 237(a)(2), and 237(a)(3) of the Act for purposes of section 240A(b)(1)(C) of the Act, only language specifically pertaining to the criminal offense, such as the offense itself and the sentence imposed or potentially imposed, should be considered.

(3) The respondent’s misdemeanor conviction for welfare fraud in violation of section 10980(c)(2) of the California Welfare and Institutions Code rendered her ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, because it was for a crime involving moral turpitude for which she could have been sentenced to a year in county jail and was therefore for an offense “described under” section 237(a)(2) of the Act.
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Padilla & prosecutors duty

Defense counsel should be aware that prosecutors also have a responsibility to consider deportation and other so-called “collateral” consequences in plea negotiations. Prosecutors are not charged merely with the obligation to seek the maximum punishment in all cases, but with the broader obligation to “see that justice is accomplished.” National District Attorneys Association, National Prosecution Standards § 1.1 (2d ed. 1991). Prosecutors are thus trained to take these collateral consequences into account during the course of plea bargaining. E.g. U.S. Dep’t of Justice, United States Attorneys Manual, Principles of Federal Prosecution, § 9- 27.420(A) (1997) (in determining whether to enter into a plea agreement, “the attorney for the government should weigh all relevant considerations, including . . . [t]he probable sentence or other consequences if the defendant is convicted”) (emphasis added). These prosecutor responsibilities can be cited whenever a prosecutor claims that he or she cannot consider immigration consequences because to do so would give an unfair advantage to noncitizen defendants.

Courts have stated that immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, e.g. the handbook for trial attorneys states that "the respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness." Handbook for Trial Attorneys §  1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992) (finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that "might sometimes trump the desire to pound an opponent into submission"); see also Reid v. INS, 949 F.2d 287 (9th Cir. 1991) (noting that government counsel has an interest only in the law being observed, not in victory or defeat). 

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ISSAQ v. HOLDER No. 09-2288 "particularly serious" felony, Withholding of Removal, Iraqi Assyrian Christian

An Iraqi citizen's petition for review of of BIA's denial of petitioner's application for withholding of removal and other findings is denied where: 1) a Report is not enough on its own to support a finding that any persecution petitioner, as an Assyrian Christian, would face would occur at the hands of government agents, or would otherwise be condoned by the government; 2) petitioner's residential burglary crime led to an aggregate of more than five years' imprisonment and was a "particularly serious" felony for purposes of section 1231(b)(3)(B); and 3) although the IJ erred in overlooking certain evidence in the Report, petitioner has not shown he was prejudiced by the error, and nothing in the record suggests that he was seeking a deferral of removal under the CAT.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.
August 17, 2010
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In 1997, Adnan Issaq, a citizen of Iraq, moved with his parents and three siblings from Syria to the United States, where they were admitted as refugees. Issaq and his family are Christians of Assyrian descent. His father, a native of Iraq, and his mother, a Syrian, were married in Syria but settled in Baghdad, Iraq, where Issaq was born in 1978. Fearing religious persecution, Issaq's parents took the family to Syria in 1991. There they remained through late 1997, until their application for refugee status was approved and they came to the United States. Once here, the family settled in DuPage County, Illinois, just west of Chicago. Issaq became a permanent resident of the United States in 2001.
Unfortunately, Issaq developed a drug habit, which led to other crimes and ultimately to the removal proceedings now before us. Issaq was charged with committing a number of residential burglaries near his home in late 2005. He pleaded guilty to one count, and in March 2007 an Illinois court sentenced him to 180 days in prison and two years of probation, including inpatient substance-abuse treatment. In May 2007, after Issaq had served his prison term, the DuPage County Jail released him to a rehabilitation program called the Treatment Alternatives for Safe Communities. Issaq soon blew the chance he had been given. Two months into the program, Treatment Alternatives expelled him for using drugs and for arranging with others to bring drugs into the treatment facility. Issaq's expulsion violated the terms of his probation, and a warrant issued for his arrest. He remained on the loose until December 2007, when a local police officer pulled his car over after a traffic violation. Issaq gave the officer his brother's driver's license and attempted to flee when he was asked to follow the officer to the police station. This led to new charges, to which Issaq pleaded guilty. The court sentenced him to five years' imprisonment as the penalty for violating his probation for the residential burglary, and it imposed an additional year, to run concurrently, for obstruction of justice in connection with the new conviction for the traffic violation.
I
When Issaq's problems with the law came to the attention of the Department of Homeland Security (“DHS”), it initiated proceedings in which it charged that Issaq was removable as an alien convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). At an October 2008 hearing before an Immigration Judge (“IJ”), Issaq conceded that residential burglary, a Class 1 felony in Illinois, 720 ILCS 5/19-3(b), is an “aggravated felony” within the meaning of the Immigration and Nationality Act (“INA”), see 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). A month later, Issaq applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In his application, Issaq asserted that because of his identity as an Assyrian Christian, he faced life-threatening persecution and torture at the hands of Muslim extremists if he were returned to Iraq.

The IJ held a hearing on Issaq's case on December 17, 2008. The judge began by confirming that Issaq was ineligible for asylum because his residential burglary offense was an aggravated felony. Next, the judge found that Issaq's crime was “particularly serious” (another term of art under the INA), and thus he was barred from withholding of removal by 8 U.S.C. § 1231(b)(3)(B)(ii). This left just one question: whether Issaq was entitled to relief in the form of withholding of removal under the CAT.
Issaq testified that he believed that he would be tortured in Iraq on account of his religion. His belief was based solely on his membership in the group of Assyrian Christians; he offered no reason why he in particular would be singled out. Cross-examination revealed that he was unaware of the fact that there are approximately a million Christians currently living in Iraq. Issaq's father, Isho Shamoon, testified that the entire extended family has now left Iraq. Shamoon shared the opinion that his son would be killed if he were returned. Radicals, he stated, had been asking about the family, and a former neighbor warned him that “they” were looking for Shamoon. This was enough to endanger the son as well, Shamoon thought. Issaq's mother, Leila Youkhana, also testified. She mentioned pressure on Christian women in Iraq to adopt Muslim dress, and she too predicted that Issaq would be killed if he were sent back.

The IJ found all of this testimony credible but insufficient to warrant relief under the CAT. Iraq, the judge observed, has undergone “vast changes” since 1991, when Issaq's family left the country. Given the number of Christians, and even Christians of Assyrian ethnicity, the court found no basis for the family's dire predictions of death or torture. Indeed, the court found no evidence apart from these opinions about the likelihood of torture. He acknowledged the fact that there is social friction and violence in Iraq today, but that alone was not enough to show that Issaq would be tortured by a public official, or that the government would condone his torture by others. Notably, however, the IJ had nothing to say about an International Religious Freedom Report that Issaq had tendered in support of his petition on the day of the hearing. See http://www.state.gov/g/drl/rls/irf/2008/108483.htm (last visited August 13, 2010). That Report catalogued several incidents in Iraq of abuse against Assyrian Christians. It also noted, under the heading “Abuses by Rebel or Foreign Forces or Terrorist Organizations” that [m]any individuals from various religious groups were targeted because of their religious identity or secular leanings. Acts committed against them included not only harassment and intimidation but also kidnapping and murder. The general lawlessness that permitted criminal gangs, terrorists, and insurgents to victimize citizens with impunity affected persons of all ethnicities and religious groups. The magnitude of sectarian attacks, while difficult to track, appeared to decline during the reporting period. While such incidents were progressively fewer, Shi‘a in Sunni-dominated neighborhoods, Sunnis in Shi‘a-dominated neighborhoods, and religious minorities in both Sunni- and Shi‘a-dominated neighborhoods reported receiving death threat letters demanding that they leave their homes, and in many cases individuals either complied or were killed. The IJ concluded by denying Issaq's request for relief under the CAT and ordering him removed to Iraq.

The Board of Immigration Appeals (“Board”) found that the IJ had “adequately and correctly addressed the issues presented.” In response to Issaq's objection to the finding that he was ineligible for withholding of removal, the Board noted that once a crime is determined to be particularly serious, there is no need for an additional finding that the person is a danger to the community. Even if he were not ineligible for withholding, the Board continued, he could not prevail on the merits because the record did not establish that his life or freedom would be threatened in Iraq on the ground of his race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A). Nor did Issaq prove that it was more likely than not that he would be tortured for any cognizable reason if removed to Iraq. See 8 C.F.R. § 1208.16(c). Finally, the Board rejected without explanation Issaq's complaint that the IJ erred by failing to consider the International Religious Freedom Report in his analysis. Overall, it thought, he had received a fair hearing and an acceptable explanation. Acting through a single member, the Board thus dismissed his appeal.
II

In his petition for review in this court, Issaq raises two arguments: first, that the Board erred when it characterized his crime as “particularly serious” and for that reason decided that he was ineligible for withholding of removal, and second, that it committed legal error when it determined that he could not qualify for relief under the CAT. Citing 8 U.S.C. § 1252(a)(2)(C), the government responds that this court lacks jurisdiction to adjudicate the petition. It acknowledges that we would be authorized to review the Board's decision if Issaq's petition raised a constitutional or other question of law, see 8 U.S.C. § 1252(a)(2)(D), but it asserts that his petition fails to do so.

A

We consider first Issaq's effort to qualify for withholding of removal. His initial problem arises because of the provision of the INA depriving the courts of jurisdiction to review any part of a removal order based on a finding that the alien is an aggravated felon:
Notwithstanding any other provision of law (statutory or nonstatutory) ․ and except as provided in subparagraph (D), no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ․ 1227(a)(2)(A)(iii) [which includes aggravated felonies] ․ of this title․
§ 1252(a)(2)(C). Notwithstanding the superficially absolute nature of this language (apart from the exception for subparagraph (D)), we have decided that it still permits us to decide whether the person before the court is the one who committed the crime, and whether the crime was properly characterized as an aggravated felony. E.g., Guerrero-Perez v. INS, 242 F.3d 727, 730 (7th Cir.2001).
More importantly for Issaq's petition, subparagraph (D) carves out an exception to the jurisdictional bar for “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). In applying this part of the statute, it is important to distinguish between legal claims that may be unlikely to prevail from claims that are so lacking in substance that they should not be adjudicated at all. In our view, Issaq's arguments fall in the former category, not the latter.

The first problem we must address, however, is whether Issaq's legal arguments are beside the point, because the Board offered an alternative, fact-based reason for denying relief. In its order, the Board said:

We further find that the respondent has not established his eligibility for withholding of removal even if he was not barred from consideration. He has not established that his life or freedom would be threatened in Iraq, a country he left 18 years ago, because of his race, religion, nationality, membership in a particular social group, or political opinion. Issaq's only argument about this part of the case is that the Board's decision rested on a flawed hearing before the IJ. He phrases this as a due process argument, although it would be better cast as an argument that he did not receive the fair hearing to which he is entitled under the statute. See Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir.2008). The key problem, as he sees it, was the IJ's failure to consider the International Religious Freedom Report.

Issaq has continued in his petition for review to pursue this argument. Although his brief does not make it clear whether he wishes to make this point with respect to both withholding and the CAT, or just the CAT, the Report is pertinent to both (setting aside the issue whether his crime was “particularly serious”), and so we will give him the benefit of the doubt and consider it for both theories. In our view, his contention that the record on which the IJ and Board relied was deficient is enough to support a legal argument with respect to the Board's alternate holding. It is troublesome that the IJ made no mention of the Report. The Board seems to have relied on a presumption of procedural regularity and to have assumed that the IJ read and took account of the Report, but we have no idea whether this is so. Normally, we require the Board to discuss the key evidence that the parties have presented. See, e .g., Gebreeyesus v. Gonzales, 482 F.3d 952, 954 (7th Cir.2007) (citing Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir.2004), and Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000)). But Issaq cannot obtain a remand on this ground unless he can show prejudice from any violation that occurred. See Bayo v. Napolitano, 593 F .3d 495, 506 (7th Cir.2010) (en banc ). The excerpt of the Report that we set out above indicates that the problem of violence is pervasive throughout Iraq; nothing suggests that every Assyrian Christian faces a better than even chance of being tortured or killed, nor is there anything in it to suggest that Issaq faces a particular risk. Although the question seems close to us, we conclude that the Report is not enough on its own to support a finding that any persecution Issaq would face would occur at the hands of government agents, or would otherwise be condoned by the government.
In case we are wrong about that, and the evidence including the Report would have supported withholding, we think it prudent to turn to Issaq's other argument for this relief. The INA states that “an alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B), final paragraph. It adds that the Attorney General is also entitled to determine that, “notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.” Id. The question Issaq is raising is how to interpret the phrase “aggregate term of imprisonment.” Whether an agency correctly interprets a statute is a question of law. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008). Issaq argues that the term refers only to the sentence that appears in the court's initial judgment. With that in mind, he points out that his initial sentence for the residential burglary was 180 days' imprisonment plus two years' probation; it was not until he violated the terms of his probation that the sentence was extended by another five years. Focusing exclusively on the initial sentence, he draws the conclusion that his crime was not a “particularly serious” one.

Issaq's position, however, disregards the use of the word “aggregate” in § 1231(b)(3)(B)'s final paragraph. If Congress had meant to look solely to the initial term of imprisonment, it would have used different language. Instead, it said “aggregate term,” a phrase that rules out such a narrow reading. We conclude that all periods of imprisonment associated with a particular conviction must be counted toward the five years specified in the statute. Issaq's residential burglary crime thus led to an aggregate of more than five years' imprisonment and was a “particularly serious” felony for purposes of § 1231(b)(3)(B). This makes it unnecessary for us to decide whether the Attorney General abused his discretion in characterizing the crime as “particularly serious” notwithstanding the length of the sentence.

The government complains that Issaq did not present his argument about the meaning of the statute to the Board, and thus (it says) our jurisdiction is barred on a different ground-failure to exhaust. It is true that an alien must exhaust “all administrative remedies available to the alien as of right,” 8 U.S.C. § 1252(d)(1), and that this includes the obligation first to present to the Board any arguments that lie within its power to address. Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir.2008). This is not, however, a jurisdictional rule in the strict sense that the Supreme Court has emphasized we must follow. See Marin-Rodriguez v. Holder, 2010 WL 2757321 (7th Cir. July 14, 2010) (No. 09-3105) (discussing Morrison v. Nat'l Austl. Bank Ltd., 130 S.Ct. 2869 (2010); Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237 (2010); and Union Pac. R.R. v. Bhd. of Locomotive Eng'rs, 130 S.Ct. 584 (2009). It is a case-processing rule that limits the arguments available to an alien in this court when those arguments have not been raised properly at the agency level. Korsunskiy v. Gonzales, 461 F.3d 847, 849-50 (7th Cir.2006).
Before the IJ and the Board, Issaq stressed his argument that disentitlement to withholding of removal should be conditioned on two findings, not just one: both the commission of a particularly serious crime and a finding that the person was a danger to the community. See § 1231(b)(3)(B)(ii) (no withholding when “the alien, having been convicted by final judgment of a particularly serious crime is a danger to the community of the United States”). In addition, however, he did raise the point about his initial term of imprisonment. We are not inclined to find failure to exhaust, particularly as there is some value in clarifying the scope of the statute.

B
Issaq also argued that he was entitled to relief under the CAT. Once again, the government argues that we have no jurisdiction to consider his argument, this time because Issaq was convicted of a “particularly serious” crime and also because of the Board's finding that his case fails on the facts. In the end, we agree with the government that his case has no merit, but we reach that conclusion by a somewhat different path.

Although petitions for withholding of removal and petitions for relief under the CAT are treated very similarly, the regulations governing the CAT add one additional form of relief for a petitioner:
Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal.
8 C.F.R. § 1208.16(c)(4) (emphasis added). Section 1208.17 provides more details about the deferral of removal process:

An alien who: has been ordered removed; has been found under § 1208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 1208.16(d)(2) or (d)(3) [which include commission of a particularly serious crime], shall be granted deferral of removal to the country where he or she is more likely than not to be tortured. 8 C.F.R. § 1208.17(a). Additional provisions of the regulation make it clear that deferral of removal is at least potentially a more restricted form of relief than withholding. For example, deferral does not confer on the alien any lawful or permanent immigration status; deferral will not necessarily result in the alien being released from the custody if the alien is subject to such custody; and deferral does not protect against removal to a different country from the one in which the alien is likely to be tortured. § 1208.17(b).

This court has struggled with the question whether judicial review of orders denying relief under the CAT based on the commission of an aggravated felony is jurisdictionally barred. Compare Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir.2006) (stating that an aggravated felony bars review except under the CAT), with Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir.2006) (holding that even a CAT claim is barred from review if it results in a final order of removal that rests on a finding that an aggravated felony was committed). In Petrov, we pointed out that Tunis addressed only the effect of § 1252(a)(2)(B), which prohibits review of decisions committed to the discretion of the Attorney General or the Secretary of Homeland Security, but that it was necessary also to take into account the effect of § 1252(a)(2)(C), which bars review of final orders of removal against certain criminal aliens.
The Supreme Court's decision in Negusie v. Holder, 129 S.Ct. 1159 (2009), underscores the need for precision in evaluating the many different kinds of claims that can arise under the immigration laws. There the Court was concerned with the so-called “persecutor bar” that applies to aliens who have persecuted others on a prohibited basis. See 8 U.S.C. § 1101(a)(42). The persecutor bar applies to those seeking asylum or withholding of removal, but “[i]t does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture․” 129 S.Ct. at 1162; see also id. at 1178 n.1 (Thomas, J., dissenting) (discussing the remedy of deferral of removal).

This raises the question whether a decision under the CAT to deny even deferral of removal falls within the jurisdiction-stripping provisions of either § 1252(a)(2)(B) or § 1252(a)(2)(C). In our view, the answer is no. Once an alien succeeds in proving the factual prerequisites for relief under the CAT, we understand Negusie to hold that some kind of remedy (complete with judicial review) is available, even for persons such as persecutors, whose claims for asylum or withholding of removal are barred and unreviewable. Consistently with Tunis, then, relief under the CAT is not barred by the ban on reviewing discretionary decisions imposed by § 1252(a)(2)(B). No one argued in Petrov that the remedy of deferral of removal requires a distinct analysis, and so we cannot take Petrov as the last word on that point. And indeed, if an alien is attempting to challenge only a final order of removal, as opposed to a deferral of removal, then there is nothing to criticize in the holding of Petrov. If, however, the alien also sought and might have been entitled to the inherently non-final remedy of deferral of removal, then § 1252(a)(2)(C) (which speaks only of a final order) appears to be inapplicable.

This possibility appears to be of little help for Issaq, because nothing in the record suggests that he was seeking a deferral of removal. He relied instead on the argument that his due process rights were violated by the IJ's failure to read and take into account the facts in the International Religious Freedom Report. As we noted earlier, to the extent that the IJ indeed overlooked this evidence, there is a potential problem. But it is not one that allows Issaq to prevail in the end, because he cannot show how he was prejudiced by the IJ's error. Even taking the Report into account, the link to governmental action is too weak, and the evidence showing that Issaq would be tortured or killed is too conclusory.
For these reasons, the petition for review is Denied.

I join in the judgment of the court, and its fine opinion with the exception of its jurisdictional discussion pertaining to claims for deferral of removal under the Convention Against Torture. I understand the court to take the view that, in spite of 8 U.S.C. § 1252(a)(2)(C), which bars review of final orders of removal against certain criminal aliens, this court does have jurisdiction to review claims regarding the denial of deferral of removal made by such aliens. Our jurisdiction extends, according to the majority opinion, not only to those petitions raising constitutional claims and questions of law, see id. § 1252(a)(2)(D), but also to claims by a covered alien that the Board's determination regarding the likelihood of torture upon repatriation is not supported by substantial evidence, see Maj. op. at 14-15.

As the court acknowledges, id. at 15, this question is not squarely presented in the case before us and, therefore, need not be decided at this time. Furthermore, I find the court's reliance on Negusie v. Holder, 129 S.Ct. 1159 (2009), Petrov v. Gonzales, 464 F.3d 800 (7th Cir.2006), and Tunis v. Gonzales, 447 F.3d 547 (7th Cir.2006), to be a relatively thin reed upon which to base the conclusion regarding our jurisdiction that the court reaches today.

Moreover, although one of our sister circuits has indeed reached the same result on an entirely different basis, see Lemus-Galvan v.. Mukasey, 518 F.3d 1081, 1083 (9th Cir.2008), the court neither discusses nor criticizes that approach. Nor does it discuss the opposing view. See Saintha v. Mukasey, 516 F.3d 243, 248-49 (4th Cir.2008) (dismissing, for lack of jurisdiction, a petition seeking review of a decision denying deferral of removal after concluding that § 1252(a)(2)(C) applied to the deferral claim and that the exception for constitutional claims or questions of law did not apply).
I think the better course is to follow the approach of some of our other sister circuits and reserve judgment until the issue is squarely presented and fully briefed and argued before us. See De La Rosa v. Holder, 598 F.3d 103, 107 (2d Cir.2010) (noting the Ninth Circuit position but expressly declining to decide the issue because the petition only presented a question of law concerning eligibility for deferral); Cherichel v. Holder, 591 F.3d 1002, 1009, 1017 (8th Cir.2010) (noting that the jurisdiction-stripping provision generally applies to CAT claims, but deciding the case under the question of law exception without any discussion of further exemptions to the criminal alien jurisdiction-stripping provision that would preserve review of such aliens' deferral claims).Tweet

Gutierrez-Berdin v. Holder 09-1465. Motion to suppress Form I-213; IJ bias and irreverence. 7th Circuit

Gutierrez-Berdin v. Holder  (Flaum)
Oral Argument | Full Text
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A Mexican citizen's petition for review of a removal order is denied in
part and dismissed in part where: 1) the IJ did not err in denying
petitioner's motion to suppress Form I-213; 2) petitioner's claim that
the IJ demonstrated bias and irreverence of a degree sufficient to
deprive him of due process guaranteed by the Fifth Amendment is without merit; 3) because petitioner did not provide any evidence of legal status, the IJ appropriately found petitioner to be a removable alien; and 4) the BIA did not err in denying petitioner's motion to reopen and reconsider his case.


Download Case (Argued: May 25, 2010 -- August 19, 2010)

Before FLAUM, ROVNER, and WOOD, Circuit Judges.

FLAUM, Circuit Judge. Petitioner is an alien who has been apprehended by agents of Immigration and Customs Enforcement (“ICE”) for illegal entry into the United States and placed in removal proceedings. He seeks to characterize certain aspects of these proceedings as constitutional defects that deprive him of his right to due process of law. We deny in part and dismiss in part his petition for review.

I. Background

On May 22, 2006, ICE agents arrested petitioner Cecilio Gutierrez-Berdin at his parents’ home in Aurora, Illinois, and served him with a Notice to Appear (“NTA”) in Immigration Court to commence removal proceedings. The NTA charged that petitioner was removable under 8 U.S.C. § 1182(a)(6)(A)(i) because he was an alien present in the United States without being admitted or paroled. The NTA bore the heading “U.S. Department of Justice, Immigration and Naturalization Service.” It was signed by Robin Buckley as the issuing officer in Chicago, Illinois. The NTA ordered the recipient to appear before an Immigration Judge at a time and date to be set in the future.

Following the arrest, ICE agents filled out a U.S. Department of Justice Record of Deportable/Inadmissible Alien, known as Form I-213, which explained that appellant, an associate member of the Aurora faction of the Surenos 13 gang, was rounded up as part of Operation Dismantle. Form I-213 further specified that Gutierrez-Berdin, a native and citizen of Mexico, entered the United States on foot on February 1, 1998, twenty miles west of El Paso, Texas. He had previously been apprehended on the border and voluntarily removed to Mexico on January 11, 1998. Form I-213 also stated that after agents arrested Gutierrez-Berdin at midnight on May 22, 2006, he resisted arrest and “was hostile and uncooperative with all officers . . . regarding the whereabout of” his uncle, Jose Verdin.

Petitioner requested a bond hearing before an Immigration Judge (“IJ”). As part of its response, on June 12, 2006, the government submitted a copy of the NTA to Immigration Judge George Katsivalas. Gutierrez-Berdin submitted his high school diploma and transcript; a picture of himself in a cap and gown; a letter from the pastor of Saint Nicholas Catholic Church stating that Gutierrez-Berdin attends mass every Sunday with his parents; a Certificate of Achievement dated October 20, 1999; and a certificate for completion of middle school at Simmons Middle School, dated June 7, 1999.

The IJ ordered Gutierrez-Berdin released upon posting an $8,000 bond. Per petitioner’s request, IJ Katsivalas also continued the case for additional attorney preparation. On November 17, 2006, Gutierrez-Berdin appeared before Immigration Judge O. John Brahos, represented by his current counsel. Petitioner advised the court that he would not be admitting any of the allegations against him and moved to suppress and exclude Form I-213, the NTA, and their contents on the ground that the government procured the evidence in violation of GutierrezBerdin’s Fourth and Fifth Amendment rights. Along with the motion, petitioner presented an affidavit where he swore that ICE agents lacked a warrant for his arrest. Petitioner also stated that during the arrest, the agents “mistreated me. They yelled at me and handcuffed my hands behind my back, and lifted them up, and pushed me out the door, it felt like my arms were going to break. I was very afraid. They had guns. They did not advise me of my rights.” The affidavit went on to state:

1. When they [the ICE agents] took me to Broadview [Staging Area and Detention Center], two officers demanded that I sign some papers, but I refused. A
2. man yelled at me and said “Sign the fucking papers. You don’t have any rights.” A woman yelled at me, and also swore at me and told me to sign the papers.
1. I was not charged with committing a crime.
2. I have never been arrested before the arrest I have described.
3. I am married to a United States citizen, and I am the father of a United States citizen child. I believe that my rights were violated. I was treated like an animal.

On petitioner’s motion, the IJ continued the case and held a substantive hearing on April 19, 2007. The government planned to present only the NTA, Form I-213, and testimony by Gutierrez-Berdin to make their case, but petitioner moved to suppress the form on the grounds that it was filed in violation of local timing rules and was procured through unconstitutional means. Immigration Judge Brahos denied petitioner’s motion to suppress, explaining that even if taken at face value, GutierrezBerdin’s self-serving affidavit “fails to describe misconduct egregious enough to justify suppression.” The IJ then went to find petitioner, who refused to answer any questions for fear of self-incrimination, a removable alien on the basis of the combination of a negative inference drawn from his silence with the uncontroverted contents of the presumptively reliable Form I-213.

¹ Brahos determined that the level of detail in the I-213 permitted the inference that Gutierrez-Berdin himself provided the information relating to his alienage, and that petitioner did not present enough evidence to show that the government obtained the information in the I-213 through coercion or duress.

The IJ then dismissed as meritless Gutierrez-Berdin’s objection that the form bears the heading of INS, which no longer exists, explaining that in 6 U.S.C. §§ 552(d) and 557, the statute transferring INS removal functions to the Department of Homeland Security (“DHS”) specifically provided that any reference to INS in regulations and delegations of authority should be read to mean DHS. Finally, although the IJ drew an adverse inference from Gutierrez-Berdin’s refusal to testify, he acknowledged that silence alone is not sufficient to establish a prima facie case of removability under Matter of Guevara, 20 I. & N. Dec. 238 (1991). 

¹ In a subsequent written order, dated May 3, 2007, IJ Brahos summarized the form as stating that the respondent is a native and citizen of Mexico; he was first apprehended by Border Patrol agents on January 11, 1988 and was voluntarily removed to Mexico; he re-entered the United States at or near El Paso, Texas on or about Feb. 1, 1998 without inspection; he was arrested at his residence by ICE agents on May 22, 2006; and at that time, he admitted that he was present in the United States illegally and lacked any “immigration papers.”

Petitioner was three years old in 1988, but the IJ’s reference to that year was a simple typographical error that does not affect the outcome of this case.

Finding that the government satisfied its burden of proof, the IJ then considered whether respondent could show that he was in the United States lawfully. Since Gutierrez-Berdin stayed silent and his affidavit said nothing about lawful admission, IJ Brahos found him removable as charged. He then went on to deny petitioner’s request for voluntary departure.

Petitioner filed a timely appeal from the order to the Board of Immigration Appeals (“BIA”). He requested that a three-member panel rule on the issues, but on February 6, 2009, the BIA issued a one-member decision wholly adopting and affirming the IJ’s decision. It denied Gutierrez-Berdin’s request for three-member review because petitioner’s arguments did not fall into any of the categories entitled to such a procedure under 8 C.F.R. § 1003.1(e)(6). The BIA found no evidence of bias or partiality in the IJ, concluded that he did not abuse his discretion in denying voluntary departure, and rejected petitioner’s attempts to portray the NTA as defective. Finally, the BIA held that removal to Mexico did not amount to cruel and unusual punishment prohibited by the Eighth Amendment. Subsequently, the BIA denied Gutierrez-Berdin’s timely motions to reconsider and reopen the matter. He now appeals from both orders.

II. Discussion

Where, as here, the Board of Immigration Appeals adopts the decision of the Immigration Judge as a whole, we review the original IJ decision. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 535-36 (7th Cir. 2005). This case implicates four separate standards of review. First, we scrutinize de novo the IJ’s determination that admission of Form I-213 did not violate petitioner’s due process rights because it is a question of law. Boci v. Gonzales, 473 F.3d 762, 768 (7th Cir. 2007). Second, we give great deference to the IJ’s factual findings, deeming them “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . .” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). That is, we reverse the agency’s decision “only if the record compels a different result, and not simply because we are convinced that we would have decided the case differently.” Hassan v. Holder, 571 F.3d 631, 641 (7th Cir. 2009). Third, we review the Board’s denial of a motion to reopen or reconsider for abuse of discretion. Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007). In doing so, we take into account the “strong public interest in bringing litigation to a close,” INS v. Abudu, 485 U.S. 94, 107 (1988), and thus disfavor reopening. See Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004). Accordingly, we uphold the decision of the BIA unless it was “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003). Finally, we lack jurisdiction to review discretionary decisions by the Department of Justice with respect to requests for voluntary departure. See 8 U.S.C. § 1229c(f); Sofinet v. INS, 196 F.3d 742, 748 (7th Cir. 1999).

Petitioner sets forth a litany of complains about the IJ’s decision, but these can be condensed into four main contentions: that the IJ erred in denying petitioner’s motion to suppress Form I-213; that the government did not adequately prove petitioner’s alienage; that some aspect of petitioner’s arrest and subsequent deportation hearings violated his right to due process of law; and that the BIA’s denial of petitioner’s motion to reopen violated his “right to due process as well as his right to equal protection.” The rest of his arguments are either redundant or not properly presented in this appeal.

A. Motion to Suppress

The IJ did not err in denying Gutierrez-Berdin’s motion to suppress Form I-213. Since the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but does not specify an enforcement mechanism for its violations, the Supreme Court has articulated the so-called exclusionary rule. Said rule, “when applicable, forbids the use of improperly obtained evidence at trial” and seeks “to safeguard Fourth Amendment rights generally through its deterrent effect.” Herring v. United States, 129 S. Ct. 695, 699 (2009) (citations omitted). Exclusion is a relatively narrow remedy, however. It “is used in only a subset of all constitutional violations—and excessive force in making an arrest or seizure is not a basis for the exclusion of evidence.” Evans v. Poskon, 603 F.3d 362, 364 (7th Cir. 2010).

More importantly, removal proceedings are civil, not criminal, and the exclusionary rule does not generally apply to them. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); Krasilych v. Holder, 583 F.3d 962, 967 (7th Cir. 2009). In Lopez-Mendoza, the Supreme Court left open the possibility that the exclusionary rule may apply where there have been “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” 468 U.S. at 1050-51; see also Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). Gutierrez-Berdin’s claims do not reach this level. Even taken at face value, petitioner’s self-serving affidavit alleges what can best be characterized as very minor physical abuse coupled with aggressive questioning. Questions and verbal demands that a person sign documents are not themselves searches and seizures that could violate the Fourth Amendment, Muehler v. Mena, 544 U.S. 93, 101 (2005); Martinez-Camargo, 282 F.3d at 493; United States v. Childs, 277 F.3d 947, 949 (7th Cir. 2002) (en banc). This observation is especially true here, where such entreaties proved unsuccessful because petitioner refused to comply. As for potential physical misconduct, handcuffing an alien who resisted arrest is certainly not the “egregious” behavior contemplated by Lopez-Mendoza.

Form I-213 is a presumptively reliable administrative document. Since petitioner did not demonstrate any inaccuracy in its contents, the IJ acted appropriately in considering it as evidence of alienage. See Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009) (“Absent any indication that a Form I-213 contains information that is manifestly incorrect or was obtained by duress, the BIA has found the Form to be inherently trustworthy and admissible as evidence. We have agreed with that position.”) (citing In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (B.I.A. 1999)); Rosendo-Ramirez v. INS, 32 F.3d 1085, 1089 (7th Cir. 1994).

Gutierrez-Berdin also argues that he was arrested without a warrant, but the record does not support this contention. Petitioner then claims that the NTA and accompanying warrant were issued by the now-defunct Immigration and Naturalization Service (“INS”), which was part of the Department of Justice, and thus could not authorize action by ICE agents, who fall under the umbrella of the Department of Homeland Security and actually carried out the arrest. The IJ correctly found this assertion to be vacuous based on both explicit statutory transfer of authority from the INS to the DHS, 6 U.S.C. §§ 552, 557, and our own caselaw. Sosnovskaia v. Gonzales, 421 F.3d 589, 591 n.2 (7th Cir. 2005); Diallo v. Ashcroft, 381 F.3d 687, 690 n.1 (7th Cir. 2004). In any event, warrantless arrests of suspected illegal aliens are permissible in some situations, see 8

C.F.R. § 287.3 (2010), and there is no evidence that the government violated procedures associated with such an arrest in a way prejudicial to the petitioner in this case. See Martinez-Camargo, 282 F.3d at 492 (“[T]he Supreme Court has held that where an administrative regulatory violation does not adversely affect a petitioner’s substantive rights an exclusionary remedy is not available.”). The fact that the NTA left the time and date of a deportation hearing to be determined at a future date did not render it defective because subsequent documents set out the requisite information. Dababneh

v. Gonzales, 471 F.3d 806, 809 (7th Cir. 2006).

Finally, to the extent that Gutierrez-Berdin’s affidavit could be read to mean that ICE agents did not adequately notify him of his rights, such an error would not make otherwise voluntary statements inadmissible. See Lopez-Mendoza, 468 U.S. at 1039. There is no evidence of coercion in the record or the motion to suppress, so the IJ did not offend the constitution by admitting Form I-213 into evidence. Appellant concludes by arguing that the IJ erred in admitting the form because it was part of the record during the bond hearing, but the relevant regulations do not prevent the IJ from considering the same pieces of evidence during both stages of adjudication. A breach of the applicable procedures would be harmless here anyway, because petitioner’s counsel had months to review the 2-page Form I-213.

B. Due Process Right to a Hearing

Gutierrez-Berdin next argues that IJ Brahos demonstrated bias and irreverence of a degree sufficient to deprive him of due process guaranteed by the Fifth Amendment. See Plyer v. Doe, 457 U.S. 202 (1982). We have long held that “if an applicant in an immigration court has not received a meaningful opportunity to be heard, she has been denied due process, and we must grant her petition and remand for further proceedings.” Floroiu v. Gonzales, 481 F.3d 970, 974 (7th Cir. 2007).

“To obtain relief, the petitioner must produce some evidence indicating that the denial of due process ‘actually had the potential for affecting the outcome’ of the proceedings.” Id.

Petitioner’s claim that the IJ was impermissibly partial to the government, essentially amounts to an ad hominem attack on the judge. That is, Gutierrez-Berdin cites two cases where we criticized IJ Brahos for his conduct in immigration proceedings and argues that his behavior in the present case was similarly problematic. Our review of the record shows this contention to be baseless.

Petitioner states that the fact that the IJ overruled all of petitioner’s objections demonstrates a disregard for the evidence on behalf of the judge. Petitioner also points to the following “offensive” comment by the IJ as an indicator of his pro-government bias:

But as as you recall, alienage is not suppressible. All right. So we have an alien before the Court and as you recall we—using as a euphemism, not tending at all to insult the respondent [sic]. Once the INS or the Department of Homeland Security, in the stream, locates a alien [sic] and they pick him out of the stream, they don’t throw him back into the stream.

Unsurprisingly, Gutierrez-Berdin does not attempt to explain which aspect of the remark he considers to be inappropriate. When the BIA reviewed this argument, it determined that IJ Brahos did not intentionally characterize Gutierrez-Berdin as a fish and that any unintentional connotation was not enough to render the hearing ineffective. We agree.

The two cases where we found the IJ’s behavior to be so inappropriate as to violate the Due Process Clause stand in stark contrast to the matter before us today. First, in Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008), IJ Brahos gave short shrift to arguments made by an HIV-positive petitioner that if he was deported to Nigeria, he would be imprisoned pursuant to a decree requiring all Nigerian citizens convicted of drug crimes abroad to serve five-year sentences (“Decree 33”). Bosede also introduced evidence that the death rate of HIV-positive individuals in Nigerian custody is high because of poor nutrition, bad living conditions, and trivial access to medical care; State Department reports in the record showed that these circumstances have led to the death of at least one HIV-positive person in prison and that all prisoners in Nigeria are severely mistreated. Finally, Bosede testified that when he independently traveled to Nigeria in 2003, the government discovered his infection status, detained him on arrival, and released him only on the condition that he stay in a hotel they specified. Fearing for his life, he ended up bribing an official to get out of the country undetected.

The predicate offenses for Bosede’s deportation were two instances of possession of sub-gram quantities of cocaine and one retail-theft conviction for drinking liquor at a grocery store prior to paying for it. Nonetheless, the IJ issued a removal order finding, without elaboration, that Bosede’s convictions were “particularly serious crimes” that rendered petitioner, a married father of two, ineligible for cancellation of removal. The IJ then went on to deny petitioner’s Convention Against Torture claim and state that he would order removal even without a statutory bar to contest. The IJ found irrelevant evidence showing that Nigerian prisons were “decrepit” to the point that an HIV-positive prisoner could face the possibility of death and the decree requiring imprisonment would likely lead to Bosede’s arrest upon arrival because petitioner did not prove he would “automatically be detained” following deportation. The IJ also relied on Bosede’s testimony that he was able to bribe his way out of Nigeria in 2003 to conclude that petitioner may have “other options available to avoid detention.”

We reversed, citing the IJ’s “cavalier attitude towards” petitioner’s claims and failure to adequately explain why he considered the two drug offenses to be particularly serious crimes. We also criticized IJ Brahos for disregarding undisputed evidence that Decree 33 would land petitioner in prison. Finally, we were “appalled that the IJ would rest his decision on the absurd proposition that Bosede could evade imprisonment, mistreatment, and possibly death by approaching his jailers and trying to buy his way out.” 512 F.3d at 951. Our shock stemmed from the fact that our prior decisions expressly labeled such logic inappropriate. See, e.g., Oyekunle v. Gonzales, 498 F.3d 715, 717 (7th Cir. 2007).

Immigration Judge Brahos’s conduct in the administrative phase of Castilho de Oliveira v. Holder, 564 F.3d 892 (7th Cir. 2009), also featured substantial shortcomings. There, the IJ considered an asylum application from a 20-year-old Brazilian man whose father was assassinated before he could become a whistle-blower about a political fundraising scheme. Following his father’s murder, Castilho de Oliveira spent most of his childhood in hiding, moving from place to place. A few years later, petitioner’s mother and younger sister escaped to the United States on a tourist visa and stayed illegally, leaving Castilho de Oliveira behind in the care of an aunt. As petitioner testified at his removal hearing, however, the men seeking to punish his father’s intransigence eventually located his aunt and warned her that Castilho de Oliveira would meet the same fate as his father. At that point, petitioner fled to America and requested asylum.

The IJ denied this relief on the grounds that Castilho de Oliveira’s account was not credible. Though petitioner submitted State Department reports that described the Brazilian criminal justice system as dysfunctional and the country’s criminal investigators as unwilling to pursue charges against powerful individuals, the IJ found that if petitioner’s father was actually murdered for political reasons, prosecutors would have put the perpetrators behind bars. The IJ also determined that because Castilho de Oliveira never reported the threats he received to the police, his testimony was not credible even though petitioner explained that he feared police would do nothing to help and could actually aggravate the situation.

The IJ’s ruling in Castilho de Oliveira suffered from other serious flaws. For example, IJ Brahos refused to accept copies of newspaper articles about the murder of petitioner’s father and the subsequent investigation into evidence on the grounds that these documents were not properly authenticated. We explained that “[t]here is no justification for such a requirement. Under the Federal Rules of Evidence, documents purporting to be newspaper articles are self-authenticating, and in immigration proceedings—where the rules of evidence do not apply—evidentiary standards are generally more lax. Absent evidence of forgery, alteration, or some other reason to doubt their authenticity, the IJ was not entitled to completely disregard the newspaper articles.” 564 F.3d at 897. Finally, we expressed shock at the IJ’s behavior during questioning:

Judge Brahos repeatedly stopped both Castilho de Oliveira and his expert witness to ask irrelevant—and in some cases entirely inappropriate—questions. For example, the IJ demanded to know the witnesses’ religious beliefs—and pursued this line of questioning at some length with each witness—even though Castilho de Oliveira’s claims were not based on religious persecution. The IJ questioned Castilho de Oliveira about whether his half-sister was “born out of wedlock,” an utterly irrelevant inquiry. The IJ derailed the expert’s testimony to discuss the totally inappropriate and irrelevant topic of whether Castilho de Oliveira might be infertile—or, as the judge indelicately put it, whether Castilho de Oliveira might “shoot blanks.”

564 F.3d at 899.

While we described comments of this nature as “wholly inappropriate,” we determined that they “did not ultimately have the effect of preventing Castilho de Oliveira from putting on his case.” Rather, they suggested “a larger problem of apparent bias on the part of the IJ,” which, combined with “the IJ’s ultimate failure to engage with the evidence in the record while resting his decision on speculation and irrelevancies—leaves the impression that the IJ entered the hearing with his mind already made up.” Id. at 899-900.

By contrast, in the present case, Immigration Judge Brahos conducted an orderly hearing bereft of any legal mistakes. He properly examined evidence and gave due credence to petitioner’s points of view. IJ Brahos’s metaphor about the flow of illegal immigration into this country does not come anywhere near the conduct that we deemed sufficient to cast doubt on the fairness of the hearing in either Bosede or Castilho de Oliveira. We thus conclude that the government did not violate petitioner’s due process rights.

C. Proof of Alienage

We have repeatedly held that there is no presumption of innocence in immigration proceedings. Chavez-Raya v. INS, 519 F.2d 397 (7th Cir. 1975). Moreover, since the “purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws,” “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.” Lopez-Mendoza, 468 U.Sat 1039. Accordingly, we have long found permissible negative inferences drawn by immigration judges from a person’s refusal to answer questions about their origin during a hearing. Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir. 2006); see also United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 157 (1923) (holding that there is no “presumption of citizenship comparable to the presumption of innocence in a criminal case. . . . To defeat deportation it is not always enough for the person arrested to stand mute at the hearing and put the Government upon its proof.”).

In light of this precedent, the somewhat sparse record before the IJ was nonetheless sufficient for the government to meet its burden of making a prima facie showing of alienage. Form I-213 explains that Gutierrez-Berdin is a citizen of Mexico, establishing foreign origin. Petitioner does not dispute this fact, or argue that any other part of the document is factually wrong. If Gutierrez-Berdin was present in the United States legally, he could have certainly stated as much without being concerned about self-incrimination, so his silence on the matter reasonably should lead to a negative inference. After the government presented evidence of alienage, the burden of proving lawful presence in the

Denial of Motion to Reopen and Reconsider

In a last-ditch effort to change the outcome of the appeal, Gutierrez-Berdin contends that the BIA erred when it denied his motion to reopen and reconsider his case. In this respect, we again find his arguments unpersuasive. His claim that the Board’s use of “we” in a single-member decision prejudiced him has no merit or support from legal authority. Petitioner’s argument that the agency erred by failing to consider Mexico’s problem with drug violence fares no better because he did not demonstrate that there was a reasonable possibility or clear probability that he personally would be persecuted on account of a protected characteristic. 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B); Pelinkovic v. Ashcroft, 366 F.3d 532, 539 (7th Cir. 2004) (“We note, as we have many times before, that crisis conditions common to all citizens of the affected country do not present a prima facie case warranting reopening of an asylum claim.”). The Board did not abuse its discretion in denying petitioner’s motion.

III. Conclusion

For the foregoing reasons, we DENY in part and DISMISS in part this petition for review.