Delgado-Arteaga v. Sessions

• Decision Date: 23 March 2017
• Docket Number: No. 16-1816,16-1816
• Citation: 856 F.3d 1109
• Parties: Jesus DELGADO–ARTEAGA, Petitioner, v. Jeff SESSIONS, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

856 F.3d 1109

Jesus DELGADO–ARTEAGA, Petitioner,

v.Jeff SESSIONS, Attorney General of the United States, Respondent.

No. 16-1816

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2016

Decided March 23, 2017

Amended May 12, 2017^*

Daniel W. Thomann, Attorney, Daniel Thompson, P.C., Chicago, IL, for Petitioner.

Anna E. Juarez, OIL, Attorneys, Department of Justice, Washington, DC, for Respondent.

Before Bauer, Flaum, and Hamilton, Circuit Judges.

Bauer, Circuit Judge.

Over seven years and three petitions later, these proceedings have come to a conclusion. Petitioner, Jesus Delgado–Arteaga ("Delgado"), petitions for review of an order of the Board of Immigration Appeals' decision affirming the immigration judge's denial of withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges aspects of the expedited removal process under 8 U.S.C. § 1228(b) and a corresponding regulation, 8 C.F.R. § 1208.31(g)(2)(i). He also claims that the Board committed various legal errors. For the following reasons, we dismiss the petition for review in part for lack of jurisdiction and deny the remainder of his petition for review.

I. BACKGROUND

Delgado, a native and citizen of Mexico, entered the United States without inspection three times, most recently in May 1999. In December 2009, he was convicted in Illinois state court of felony possession of cocaine with intent to deliver in violation of 720 Ill. Comp. Stat. § 570/401(c)(2). He was sentenced to six months' imprisonment with two years of probation.¹

On March 3, 2015, the Department of Homeland Security initiated expedited removal proceedings pursuant to 8 U.S.C. § 1228(b). See 8 C.F.R. § 238.1 (setting forth procedures). DHS served Delgado a Notice of Intent, charging that Delgado was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). On March 16, 2015, DHS issued a Final Administrative Removal Order ("FARO"), finding Delgado deportable as charged and ordering that he be removed to Mexico. Delgado expressed a fear of returning to Mexico to a DHS officer who then referred him to the Chicago Asylum Office for a reasonable fear interview.

On March 31, 2015, an asylum officer interviewed Delgado with his attorney present. On April 15, 2015, the asylum officer found that Delgado was credible, but concluded that he did not establish a reasonable fear of persecution or torture in Mexico. Delgado requested that an IJ review the asylum officer's negative decision. After a review, the IJ found that Delgado had established a reasonable possibility that he would be persecuted or tortured in Mexico. Accordingly, on April 30, 2015, the IJ vacated the asylum officer's decision, and placed Delgado in "withholding-only" proceedings. See 8 C.F.R. § 1208.31(g)(2)(i). The IJ permitted Delgado to file an application for withholding of removal and relief under the CAT, which he filed on June 16, 2015. See id .

On August 5, 2015, the IJ held a hearing on the merits. Both Delgado and his wife testified in support of his applications. He argued that he had not been convicted of an aggravated felony and that he should have been allowed to apply for asylum under 8 U.S.C. § 1158. At the hearing, the IJ concluded that it was not authorized to review DHS's determination that Delgado was convicted of an aggravated felony. The IJ ruled that Delgado was not eligible for asylum on two grounds: he was not permitted to apply for it in "withholding-only" proceedings; and, he was in removal proceedings pursuant to 8 U.S.C. § 1228(b). Thus, the IJ considered only Delgado's applications for withholding of removal and relief under CAT.

On September 23, 2015, the IJ denied both applications. First, the IJ found that Delgado's testimony and corroborating evidence was insufficient to meet his burden of proof under the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). Alternatively, the IJ concluded that even if Delgado established his burden of proof, the IJ would have denied Delgado's application for withholding of removal because he had been convicted of a "particularly serious crime." The IJ found that 720 Ill. Comp. Stat. § 570/401(c)(2) was categorically a "drug trafficking crime," and thus, an illicit trafficking aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Because Delgado's conviction was an aggravated felony, the IJ concluded it was presumed to be a "particularly serious crime," 8 U.S.C. § 1231(b)(3)(B)(ii).

The IJ noted that the Attorney General has determined that drug trafficking aggravated felonies "presumptively constitute" particularly serious crimes absent "extraordinary and compelling circumstances." Matter of Y–L–, 23 I. & N. Dec. 270, 274 (BIA 2002) ; see Bosede v. Mukasey , 512 F.3d 946, 949–51 (7th Cir. 2008). In order to rebut this presumption, the applicant must establish that his conviction involved "(1) a very small quantity, (2) a very modest payment, (3) only peripheral involvement, (4) the absence of any violence or threat of violence, (5) the absence of any connection to organized crime or terrorism, and (6) the absence of any adverse or harmful effect on juveniles." Bosede , 512 F.3d at 951 (citing Y–L–, 23 I. & N. Dec. at 276–77 ). If the applicant satisfies all six criteria, the applicant must also show "other, more unusual circumstances (e.g. , the prospective distribution was solely for social purposes, rather than for profit)." Id. (quoting Y–L–, 23 I. & N. Dec. at 277 ).

The IJ held that Delgado's conviction was a "particularly serious crime" because Delgado failed to meet the factors as required under Matter of Y–L– . Specifically, the IJ found that Delgado failed to show that his conviction did not have an adverse effect on juveniles because Delgado lived with a nine-year-old child. The IJ also found that Delgado failed to establish a peripheral role in his drug-trafficking conviction. Lastly, even if Delgado met his burden under Matter of Y–L– , the IJ concluded that it would have denied the application because Delgado did not show it was more likely than not that he would face persecution in Mexico.

Delgado appealed to the Board, and requested review by a three-member panel. He challenged essentially every aspect of the IJ's decision. Additionally, he argued that the IJ incorrectly declined to consider an asylum application because 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires .

On March 14, 2016, a single-member Board adopted and affirmed the IJ's decision, and entered an order dismissing Delgado's appeal. The Board declined to consider Delgado's argument that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires , reasoning that it lacked authority to make such a ruling. The Board concluded that the IJ properly found that Delgado's aggravated felony conviction presumptively constituted a "particularly serious crime." The Board explicitly agreed with the IJ's finding that Delgado failed to establish that he had only peripheral involvement in his drug-trafficking conviction. In addition, the Board found that Delgado failed to establish two other requirements under Matter of Y–L– : that his conviction was not connected to any organized crime; and, that the drugs were to be distributed solely for social purposes. A motion to reconsider was denied. Thereafter, Delgado filed this petition for review.

II. DISCUSSION

Generally, we lack jurisdiction to review denials of discretionary relief, including asylum. See 8 U.S.C. § 1252(a)(2)(C) ; Aparicio–Brito v. Lynch , 824 F.3d 674, 686 (7th Cir. 2016). "But, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law raised in a petition for review." Perez–Fuentes v. Lynch , 842 F.3d 506, 510 (7th Cir. 2016) (citation omitted). Where, as here, the Board adopts and affirms the IJ's decision and provides its own analysis, we review both decisions. Halim v. Holder , 755 F.3d 506, 511 (7th Cir. 2014).

First, Delgado contends that DHS lacks legal authority to issue removal orders on behalf of the Attorney General pursuant to 8 U.S.C. § 1228(b), and that § 1228(b) requires removal orders be issued by IJs. Second, he argues that he should have been permitted to apply for asylum under 8 U.S.C. § 1158 because the regulation at 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires . Lastly, he argues that the Board committed various legal errors and failed to follow its procedures when adjudicating his case, such as failing to refer the case to a three-member panel, engaging in improper fact-finding, and overlooking his arguments on appeal.

A. No Jurisdiction to Review Challenges to the Expedited Removal Process

Delgado challenges DHS's FARO dated March 16, 2015, arguing that DHS lacked legal authority to order Delgado's removal under 8 U.S.C. § 1228(b), and that the plain language of § 1228(b) requires that final orders of removal be issued by IJs.

We need not address these claims because Delgado's challenges to DHS's removal order were rendered moot when the IJ ordered that he be removed pursuant to DHS's FARO. Article III limits our review to "Cases" and "Controversies," and an "actual controversy" must exist through all stages of review. Already, LLC v. Nike, Inc. , 568 U.S. 85, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013). "[I]f an event occurs ... that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed." Church of Scientology of Cal. v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (citation omitted). A case becomes moot "when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Qureshi v. Gonzales , 442 F.3d 985, 988 (7th Cir. 2006) (citation omitted).

Here, no live case or controversy exists because we cannot grant any effectual relief to Delgado. He asks that we overturn DHS's FARO and remand for...