Jimenez-Aguilar v. Barr, 19-1917

• Decision Date: 06 October 2020
• Docket Number: No. 19-1917,19-1917
• Parties: Jose Alfredo JIMENEZ-AGUILAR, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

977 F.3d 603

Jose Alfredo JIMENEZ-AGUILAR, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

No. 19-1917

United States Court of Appeals, Seventh Circuit.

Argued July 31, 2020

Decided October 6, 2020

Jose Alfredo Jimenez-Aguilar, pro se, Carla Iveth Espinoza, Attorney, Chicago Immigration Advocates, Chicago, IL, for Petitioner.

Oil OIL, Attorney, Ann M. Welhaf, Attorney, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Easterbrook and Rovner, Circuit Judges.^*

Per Curiam.

Jose Alfredo Jimenez-Aguilar is a citizen of Honduras. In 2003, when he was 14 years old, he entered the United States by stealth ("without inspection") and has remained. Today he is married and has two children. But he has never received permission to be in this country, and he came to the attention of immigration officials in 2014 after he was arrested for domestic assault.

Placed in removal proceedings, Jimenez-Aguilar sought cancellation of removal on the ground that his return to Honduras would cause "exceptional and extremely unusual hardship" to his spouse and children, all of whom are citizens of the United States. See 8 U.S.C. § 1229b(b)(1)(D). Several years passed while he sought modification of two criminal convictions that made such relief unavailable. After one conviction was vacated and the other reduced in grade, and he was found eligible, an immigration judge denied his request on the merits. The IJ found that Jimenez-Aguilar had not shown a potential for "exceptional and extremely unusual hardship." That decision is not subject to judicial review, see 8 U.S.C. § 1252(a)(2)(B)(i) ; Mireles v. Gonzales , 433 F.3d 965, 968 (7th Cir. 2006), and we do not discuss it further.

On administrative appeal, the Board of Immigration Appeals rejected Jimenez-Aguilar's contention that his counsel rendered ineffective assistance by discouraging him from making a claim for asylum. The Board also rejected his argument that the IJ should have notified him that asylum or withholding were potential benefits. A regulation requires an IJ to provide such notice when "an alien expresses fear of persecution or harm upon return" to his native land. 8 C.F.R. § 1240.11(c)(1) (emphasis added). Jimenez-Aguilar alerted the IJ to a potential for "harm" as that word is used colloquially: he testified that he fears vicious criminal gangs and described how two of his cousins and an uncle had been killed by gang members. He also told the IJ that his mother had applied for asylum because of gang violence in Honduras—and she has recently received it. The Board held, however, that the regulation was irrelevant because Jimenez-Aguilar "had a reasonable opportunity to apply for asylum" without the need for a warning.

That is not, however, what the regulation says. It does not ask whether an alien had a "reasonable opportunity" to seek asylum in the absence of advice from the IJ. It requires the IJ to give specified advice in defined circumstances—and advice from the IJ might have alerted Jimenez-Aguilar that he was entitled to seek more than one kind of relief.

But that conclusion is not enough to entitle Jimenez-Aguilar to a new hearing. The question remains whether a potential for gang violence is "harm" as the regulation uses that word. Colloquial usage cannot be enough. If it were, an IJ would need to alert an alien to the possibility of asylum if the alien feared falling off a bike or being in a hurricane's path. The regulation speaks of "persecution or harm" (emphasis added), which implies that the harm need not itself qualify the alien for asylum. But for the requirement to make sense in a removal proceeding, the feared harm must relate to the statutes and rules that deal with permission to remain in the United States.

What sort of relation suffices? The parties’ briefs did not address that question. This led us to call for a new round of briefs to discuss the meaning of "harm." We anticipated that the Board's brief would tell us how that word had been interpreted in administrative decisions and request deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc ., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). That did not happen. Instead the Board's brief catalogs how the courts of appeals have understood the regulation. As far as the Board's brief shows, the Board has never considered the meaning of the word "harm." At oral argument, the agency's lawyer confirmed that he had not been able to find a single decision expressing the Board's understanding of that word. Our own search was equally fruitless.

This regulation comes up often in removal proceedings. Its meaning has been litigated in many courts of appeals. Yet the Board has remained silent. That is hardly satisfactory. The Board must have a view about what this regulation means; how else can it and the cadre of immigration judges responsibly handle the thousands of proceedings in which aliens may be eligible for asylum or withholding of removal? Still, given the Board's silence, we must interpret the regulation's language as best we can.

The problem in this regulation is the contrast between the undefined term "harm" and the word "persecution," which has been extensively discussed by Board and courts alike. Persecution means a risk greater than "mere harassment," including " ‘the use of significant physical force against a person's body,’ ‘the infliction of comparable physical harm without direct application of force,’ [or] ‘nonphysical harm of equal gravity.’ " N.Y.C.C. v. Barr , 930 F.3d 884, 888 (7th Cir. 2019) (emphasis in original; citations omitted). To show persecution the alien must demonstrate that the injury would occur "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42) ; 8 C.F.R. § 1208.13(b)(1). In other words, "[g]eneral conditions of hardship that affect entire populations ... are not persecution." Ahmed v. Gonzales , 467 F.3d 669, 673 (7th Cir. 2006). And the risk must be created, abetted, or tolerated by the government; private violence differs from persecution. See 8 U.S.C. § 1101(a)(42)(A) ; Hor v. Gonzales , 400 F.3d 482, 485–86 (7th Cir. 2005) ; Balogun v. Ashcroft , 374 F.3d 492, 499 n.8 (7th Cir. 2004).

Jimenez-Aguilar insists that "harm" means any "physical or mental damage." Yet, as we have already mentioned, that understanding would include injuries from volcanoes, playing soccer, reckless driving, and many other things unrelated to immigration law. "The definition of words in isolation ... is not necessarily controlling in statutory construction"; instead, "[a] word is known by the company it keeps." Dolan v. Postal Service , 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) (citation omitted). "Harm" for the purposes of the regulation must mean the sort of physical or mental distress that (with additional details prompted by the IJ's warning) could render one eligible for asylum or withholding of removal.

The context of the regulation shows that it refers to "harm" as it bears on these forms of relief. After all, the regulation's operative language—"[a]dvise ... that he or she may apply for asylum ... or withholding of removal", 8 C.F.R. § 1240.11(c)(1)(i) —refers to two forms of relief that have precise requirements.

There would be no point to telling an alien that he might apply for asylum or withholding of removal if the sort of harm he fears has nothing to do with either form of relief.

Jimenez-Aguilar contends that "harm" must be read broadly to prevent the term from being subsumed into "persecution." But we need not read "harm" that way to avoid surplusage. This is because § 1240.11(c)(1) requires immigration judges to advise aliens about two forms of relief: they may apply for "asylum in the United States or withholding of removal " (emphasis added). One of the ways that an alien becomes eligible for withholding of removal is if she can show evidence of "past torture" or "gross, flagrant or mass violations of human rights within the country of removal." 8 C.F.R. § 1208.16(c)(3)(i) & (iii). "Torture" or "violations of human rights", for the purposes of the regulation constitute "harm" but are distinct from "persecution" because neither requires that the person harmed belong to a specific identity group. See Valencia v. Mukasey , 548 F.3d 1261, 1262 (9th Cir. 2008) ("At a minimum ... the alien must express a fear of persecution or torture in the country to which the alien would be returned") (emphasis added). "Harm" therefore includes these sorts of dangers that would make a person eligible for withholding of removal but do not qualify as "persecution" for the purpose of asylum. "Harm" also includes the sorts of loss that could support asylum if elaborated in response to a warning—if, say, the warning prompted an...