Gamero v. Barr
| Decision Date | 03 July 2019 |
| Docket Number | Nos. 17-3198 & 18-1104,s. 17-3198 & 18-1104 |
| Citation | 929 F.3d 464 |
| Parties | Francisco Lopez GAMERO, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Carla Iveth Espinoza, Attorney, CHICAGO IMMIGRATION ADVOCATES, Chicago, IL, for Petitioner.
Suzanne Nicole Nardone, Attorney, Oil OIL, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before Flaum, Sykes, and Hamilton, Circuit Judges.
Francisco Lopez Gamero, a Mexican citizen and lawful permanent resident of the United States, faces removal because of two state drug convictions. An immigration judge found him removable as an alien convicted of the aggravated felony of "illicit trafficking in a controlled substance." 8 U.S.C. § 1101(a)(43)(B). He sought deferral of removal under the Convention Against Torture, but the judge denied that relief because the evidence he presented about the risk of torture from Mexican drug cartels was largely speculative. The Board of Immigration Appeals affirmed.
Lopez Gamero later moved to reopen the removal proceedings based on new evidence—most notably, evidence that his brother-in-law and nephew had been kidnapped and held for ransom in Lopez Gamero’s hometown. The Board denied the motion, ruling that the new evidence was unlikely to change the outcome.
Lopez Gamero seeks review of both decisions. He raises three arguments: (1) his drug convictions do not qualify as "illicit trafficking" under § 1101(a)(43)(B) because the crimes in question do not require proof of remuneration; (2) the agency’s decision to deny his application under the Convention Against Torture is not supported by substantial evidence; and (3) the agency applied the wrong legal standard and abused its discretion when it denied his motion to reopen. We deny the petitions for review.
Lopez Gamero entered the United States in 1973 and became a lawful permanent resident in 1989. Over the next decade and a half, he was convicted of three crimes in Cook County Circuit Court: (1) a domestic-violence offense in 1997, see 720 ILL. COMP. STAT. 5/12-3.2(a)(1) ; (2) possession of cocaine with intent to deliver in 2005, id. § 570/401(c)(2); and (3) possession of cannabis with intent to deliver, id. § 550/5(f), also in 2005.
On April 6, 2016, the Department of Homeland Security initiated removal proceedings against Lopez Gamero. An immigration judge found him removable as an alien convicted of illicit trafficking in a controlled substance, an aggravated felony listed in § 1101(a)(43)(B). The judge also determined that Lopez Gamero is ineligible for most forms of relief from removal—specifically, asylum, cancellation of removal, and withholding of removal. That left only one potentially viable path to relief: deferral of removal under the Convention Against Torture. The judge held a merits hearing on that claim.
Lopez Gamero testified that he fears torture at the hands of drug cartels if he is removed to Mexico. He bases this fear on a series of incidents that occurred in his hometown of General Carlos Real, Durango, Mexico. In October 2008 his cousin alerted him that suspicious men "were looking for him." He later heard warnings from acquaintances and family members that unknown individuals had been asking about him and surveilling his house in General Carlos Real. In 2009 Lopez Gamero’s father told him that he was approached by suspicious men in a pick-up truck asking about Lopez Gamero’s whereabouts. In 2011 Lopez Gamero’s wife and daughter received an anonymous phone call, and the caller knew they were planning to travel to Mexico. In September 2012 Lopez Gamero’s housekeeper at the home in Mexico told him that "several people ... dressed up like military" came to the house and forced their way in. Finally, in October 2013 Lopez Gamero’s wife and daughter were staying at a friend’s house in Mexico when the house was "shot at."
Lopez Gamero offered several reasons why cartel members might be looking for him. He thought they might be interested in him because of his connections to the United States and his controlled-substance convictions. He also said he might be a target because cartel members viewed him as wealthy given his home ownership.
Lopez Gamero’s wife and daughter testified about their experiences with the unknown caller and the shooting. Lopez Gamero also submitted certified statements from other residents of General Carlos Real generally asserting that his safety was at risk if he returned.
Dr. Nathan Jones, an expert witness on Mexican drug-cartel violence, testified about how the cartels operate, the pervasive cartel violence in General Carlos Real, and the risks that Lopez Gamero would face in other parts of the country. He testified that Lopez Gamero would face a high risk of harm if he returned to General Carlos Real, a moderate risk if he lived elsewhere but maintained contact with relatives, and a low but still significant risk if he lived elsewhere and severed communication with his family.
The immigration judge was not persuaded. He found Lopez Gamero credible but gave his testimony "little weight" because he had difficulty remembering dates and much of his information was secondhand or speculative. He reached the same conclusion for Lopez Gamero’s wife and daughter. The judge also declined to credit Dr. Jones’s opinion testimony, reasoning that it was "not supported by facts in the record and was highly speculative." The judge accordingly declined to order deferral of removal, explaining that the evidence was insufficient to establish that Lopez Gamero faced a substantial risk of torture if removed to Mexico.
Lopez Gamero appealed to the Board of Immigration Appeals, challenging the denial of deferral of removal and also the judge’s predicate legal conclusion that his drug convictions qualify as illicit trafficking under § 1101(a)(43)(B). On the latter issue, he argued that "illicit trafficking" offenses are limited to those that involve commercial transactions in drugs—i.e., exchanging drugs for remuneration.
The Board upheld the immigration judge’s decision. The Board first held that any felony punishable under the Controlled Substances Act () qualifies as illicit trafficking under § 1101(a)(43)(B) regardless of whether it involves remuneration. The Board also concluded that Lopez Gamero had not met his burden of proof for deferral of removal, agreeing with the immigration judge’s observation that his "entire case is speculative and lacking objective support."
Lopez Gamero moved to reconsider and reopen the proceedings. He argued that the Board ignored material evidence in the record, but he also submitted new evidence—namely, that his brother-in-law and nephew were kidnapped and severely beaten by members of a drug cartel and freed only after family members paid a ransom.1 The Board denied the motion, explaining that the immigration judge had considered the totality of the evidence and that Lopez Gamero had not demonstrated a "nexus" between his own circumstances and the kidnapping of his brother-in-law and nephew. The new evidence, the Board concluded, was not likely to change the outcome of the proceedings.
Lopez Gamero seeks review of both the removal order and the order denying his motion to reopen. Where, as here, the Board issues its own opinion rather than adopting or supplementing the immigration judge’s opinion, we review only the Board’s opinion. Darif v. Holder , 739 F.3d 329, 335 (7th Cir. 2014). Our standard of review is deferential; we will uphold the agency’s decision as long as it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Weiping Chen v. Holder , 744 F.3d 527, 532 (7th Cir. 2014). We decide questions of law independently, though we will defer to the Board’s interpretation of an immigration statute if the statutory language is ambiguous. Cruz-Moyaho v. Holder , 703 F.3d 991, 997 (7th Cir. 2012). Finally, we review the Board’s decision on a motion to reopen for abuse of discretion; relief is appropriate only if the decision "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." Victor v. Holder , 616 F.3d 705, 708 (7th Cir. 2010).
Lopez Gamero presses three arguments in these consolidated petitions. He first argues that his state drug convictions do not qualify as "illicit trafficking" under § 1101(a)(43)(B) because the Illinois offenses do not require remuneration—i.e., a commercial transaction in drugs. He also challenges the Board’s denial of his claim for deferral of removal under the Convention Against Torture. Finally, he argues that the agency applied the wrong legal standard and abused its discretion when it denied his motion to reopen.
The Immigration and Nationality Act provides that an alien who has been "convicted of an aggravated felony at any time after admission" is removable. 8 U.S.C. § 1227(a)(2)(A)(iii). The Act’s definition of "aggravated felony" lists many crimes. See generally id. § 1101(a)(43). At issue here is "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." § 1101(a)(43)(B). Under § 924(c) the term "drug trafficking crime" includes "any felony punishable under the Controlled Substances Act." 18 U.S.C. § 924(c).
The phrase "illicit trafficking in a controlled substance" is not further defined, but the Board reads it to include "any state, federal, or qualified foreign felony conviction involving the unlawful trading or dealing in a controlled substance as defined by Federal Law." In re L-G-H- , 26 I. & N. Dec. 365,...
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