Ruderman v. Whitaker
| Decision Date | 29 January 2019 |
| Docket Number | No. 17-1689,17-1689 |
| Parties | Aleksey Arkadyevich RUDERMAN, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy M. Zimmerman, Attorney, GIBSON, DUNN & CRUTCHER LLP, Denver, CO, for Petitioner.
Oil OIL, Attorney, Erik R. Quick, Attorney, Timothy B. Stanton, Attorney, Briena L. Strippoli, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before Wood, Chief Judge, and Easterbrook and Barrett, Circuit Judges.
Aleksey Arkadyevich Ruderman is seeking to avoid removal to Belarus, his native country. An immigration judge ruled that Ruderman was inadmissible under the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B), and thus subject to removal. The judge also held that Ruderman was not eligible for a waiver of inadmissibility and adjustment of status, cancellation of removal, asylum, withholding of removal, or protection under the Convention Against Torture. The Board of Immigration Appeals agreed. In particular, it held that Ruderman had not raised any meaningful challenge to his inadmissibility determination and that even if the immigration judge had applied the wrong legal standard to determine that Ruderman was ineligible for a waiver of inadmissibility, her alternative discretionary denial made the error harmless.
Ruderman petitions us for review of those holdings, along with others reached by the immigration judge and affirmed by the Board. While we largely agree with the Board’s analysis, we hold that it was flawed with respect to one issue: the question whether Ruderman is statutorily inadmissible. We therefore grant Ruderman’s petition and remand for the Board to revisit that question and, if necessary, to decide whether Ruderman is eligible for a waiver.
Ruderman moved to the United States when he was nineteen to escape discrimination and violence directed at him on account of his Jewish heritage. He moved from his native land of Belarus, a former Soviet republic that declared independence during his childhood. In Belarus, Ruderman and his family were targeted for abuse by Neo-Nazis and pro-Russia advocates who would shout profanities at them, perform the Nazi salute, leave anti-Jewish propaganda in their mailbox, and throw bottles and stones at their home.
Ruderman received even worse treatment at school. His (sometimes much older) classmates would bully and beat him and the handful of other Jewish students. The head of the school and the police were alerted but did nothing to address the situation. One particularly severe attack resulted in stitches and a permanent scar, while another resulted in two broken wrists that have bothered him ever since.
After attackers broke Ruderman’s wrists, his parents sent him to a private school where he would be safer. His time there was cut short, however, by his father’s death. Arkady Ruderman, a documentary filmmaker, died while filming a piece on government corruption in Tajikistan—another former Soviet republic. Although government officials reported that he was killed in a car accident, Arkady had previously been detained and battered by the KGB, and eyewitnesses said that they saw bullet holes in his dead body. Those reports could not be confirmed because the police ordered that Arkady’s casket remain closed at his funeral—and then attended the event to make sure that it did.
Without Arkady’s income, Ruderman’s family could no longer afford his private school tuition, so Ruderman enrolled at a different public school where he was subjected to familiar anti-Semitic verbal abuse. He became so afraid that in the ninth grade he stopped attending classes entirely and later transferred to a technical school. There, in spite of continued verbal abuse, he performed well and graduated with high grades. Once out of school, however, he found that his Jewish heritage made it difficult for him to get a job.
Fed up with the abuse and intolerance, Ruderman fled to the United States in 2001 under a provision known as the Lautenberg Amendment, which lowers barriers to immigration for certain former soviet nationals. See Pub. L. No. 101-167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codified as amended at 8 U.S.C. § 1157 note, § 1255 note). His life in America got off to a rocky start; shortly after arriving he was convicted of driving under the influence of alcohol and sentenced to court supervision. But over the next several years, he found work as a cab driver and a security officer, met his future wife Elena, and moved into an apartment with her and her two children in Milwaukee.
In 2008, Ruderman struck and killed a pedestrian with his vehicle while driving drunk. He accepted responsibility, pleaded guilty to homicide by negligent operation of a vehicle, and was convicted and sentenced to five years in prison. Following his release in 2013, he worked at a transportation company—until U.S. Customs and Immigration Services denied his adjustment-of-status application, causing his work permit to expire.
In January of 2016, the government detained Ruderman and began removal proceedings. The immigration judge ultimately concluded that Ruderman was statutorily inadmissible because of his two convictions. The judge also denied Ruderman’s applications for a waiver of inadmissibility, adjustment of status under the Lautenberg Amendment, cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture.
Ruderman appealed the immigration judge’s decision in an extensive pro se brief and later in a second brief filed by pro bono counsel. The counseled brief supplemented certain arguments that Ruderman had made in his initial brief but conceded others. Significantly, the later brief conceded that "[Ruderman’s] convictions for two crimes with an aggregate prison sentence of five years make him ‘inadmissible.’ " That concession contradicted Ruderman’s pro se argument that the inadmissibility statute applies only when two or more convictions each result in a sentence to confinement, and so Ruderman’s sole sentence to confinement—which imposed five years in prison—did not make him inadmissible.
The Board dismissed Ruderman’s appeal. First, it noted in passing that Ruderman "ha[d] not raised any meaningful challenges" to his inadmissibility, and thus the issue was "waived." Second, the Board adopted and affirmed the immigration judge’s denial of Ruderman’s applications for cancellation of removal, withholding of removal, and protection under the Convention Against Torture. Finally, the Board affirmed the denial of Ruderman’s request for a waiver of inadmissibility and adjustment of status under the Lautenberg Amendment. The Board bypassed Ruderman’s argument that the immigration judge had applied the wrong standard to determine whether Ruderman was eligible for a waiver of inadmissibility and instead affirmed the judge’s conclusion that, even if Ruderman were eligible to be considered for a waiver, she would exercise her discretion to deny him relief.
Ruderman petitions us for review of the Board’s decision. He takes issue with the Board’s conclusion that he waived his opportunity to challenge his inadmissibility, and he argues that the application of the wrong standard for determining his eligibility for a waiver of inadmissibility contaminated the immigration judge’s discretionary denial of a waiver. He also claims that the judge erred by holding—and the Board erred by affirming—both that his negligent homicide was "particularly serious" and that he failed to show a "substantial risk" that he would be tortured in Belarus.
Because the Board provided its own analysis and also affirmed the immigration judge’s decision, we review both decisions. Sobaleva v. Holder , 760 F.3d 592, 596 (7th Cir. 2014).
Ruderman argued in his pro se brief that he is not inadmissible under § 212(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever received one sentence to confinement. The Act states that an immigrant is inadmissible to receive a visa or to be admitted to the United States if he is convicted of "2 or more offenses ... for which the aggregate sentences to confinement were 5 years or more." Id. Ruderman interprets "sentences to confinement" to require more than one custodial sentence. He supports this reading by pointing to the word "aggregate," which he argues would be superfluous if the statute could be satisfied by a single sentence to confinement. Id. Because his first conviction—for driving under the influence—did not result in confinement, he concludes that he is not inadmissible. His pro bono counsel, however, conceded Ruderman’s inadmissibility in a later-filed brief.
The Board did not address Ruderman’s inadmissibility argument, instead concluding that he had failed to raise any meaningful challenges to his inadmissibility and so had waived the issue. It appears likely that the Board reached that conclusion on the basis of Ruderman’s counsel’s concession, because Ruderman did raise the argument in several places—including his notice of appeal and pro se brief, both of which remained on the record. But the Board’s opinion did not otherwise indicate whether the counseled brief superseded the pro se brief.
A later-in-time concession waives an issue in federal court—but we do not know whether that is true before the Board as well. On this record it is unclear why the Board concluded that Ruderman waived his challenge, and the Board’s failure to explain inhibits our review of the issue. See SEC v. Chenery Corp. , 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) ( ...
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