Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Delgado-Arteaga v. Sessions

United States Court of Appeals, Seventh Circuit

March 23, 2017

Jesus Delgado-Arteaga, Petitioner,
v.
Jeff Sessions, Attorney General of the United States, Respondent.

          Argued November 29, 2016

         Petition for Review of an Order of the Board of Immigration Appeals, No. A089-281-390

          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.RR. § 1208.16(c). Delgado challenges aspects of the expedited removal process under 8 U.S.C. § 1228(b) and a corresponding regulation, 8 C.RR. § 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.RR. § 238.1 (setting forth procedures). DHS No. 16-1816 3 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." Y-L-, 231. & 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.