Gustavo Dominguez-Pulido v. Loretta Lynch , 821 F.3d 837 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3557, 15-1298, & 15-2208
GUSTAVO DOMINGUEZ-PULIDO,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of an Order of the
Board of Immigration Appeals.
No. A206-014-523
_____________________
ARGUED MARCH 29, 2016 — DECIDED MAY 5, 2016
____________________
Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
FLAUM, Circuit Judge. Petitioner Gustavo Dominguez-Pu-
lido unlawfully entered the United States with his parents in
or around 1993 without inspection. Approximately fifteen
years after entering the United States, Dominguez-Pulido was
convicted of a felony offense under Illinois law. Dominguez-
Pulido was subsequently served with a Notice to Appear
(“NTA”). An Immigration Judge (“IJ”) concluded that he was
2 Nos. 14-3557, 15-1298, & 15-2208
removable as an alien present without admission and denied
various forms of relief from removal. The Board of Immigra-
tion Appeals (the “Board”) dismissed Dominguez-Pulido’s
appeal and denied his two motions to reopen proceedings.
Dominguez-Pulido seeks review of the three decisions en-
tered by the Board of Immigration Appeals. In light of
8 U.S.C. § 1252(a)(2)(C), which limits judicial review of final
orders for removal that involve a conviction for a crime in-
volving moral turpitude, our review is limited to questions of
law and constitutional claims, § 1252(a)(2)(D). We find no rea-
son to upset the decision of the Board of Immigration Ap-
peals, and so we deny Dominguez-Pulido’s consolidated pe-
titions for review.
I. Background
On September 22, 2008, Dominguez-Pulido was convicted
of burglary, a felony offense under Illinois law. 1 720 Ill. Comp.
Stat. 5/19-1. Dominguez-Pulido pleaded guilty to burglary of
a motor vehicle with intent to commit the offense of theft
therein.
On October 17, 2013, a Department of Homeland Security
(“DHS”) officer served Dominguez-Pulido with a NTA. The
NTA charged Dominguez-Pulido with removability as an al-
ien present in the United States without admission or parole
under 8 U.S.C. § 1182(a)(6)(A)(i), and as an alien convicted of
a crime involving moral turpitude under § 1182(a)(2)(A)(i)(I).
1 Dominguez-Pulido was convicted under 720 Ill. Comp. Stat. 5/19-
1(a), which provides that “[a] person commits burglary when without au-
thority he or she knowingly enters or without authority remains within a
building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or
any part thereof, with intent to commit therein a felony or theft.”
Nos. 14-3557, 15-1298, & 15-2208 3
Dominguez-Pulido appeared before an IJ at a hearing on
February 5, 2014. He refused to admit or deny the NTA’s fac-
tual allegations, including the charges of removability.
Dominguez-Pulido also submitted to the IJ a motion filed in
his post-conviction proceeding in the Circuit Court of Cook
County, Illinois, in which he sought to vacate his guilty plea.
In an affidavit attached to that motion, Dominguez-Pulido
averred that he would not have entered a guilty plea if he had
been aware of the immigration consequences.
Dominguez-Pulido next appeared before the IJ on March
10, 2014. The IJ determined, based upon the government’s
submission of a Record of Deportable/Inadmissible Alien, or
Form I-213, that Dominguez-Pulido was a native and citizen
of Mexico who entered the United States without inspection.
The IJ reserved ruling on the criminal charge of removability.
Dominguez-Pulido indicated that he feared being deported to
Mexico and intended to seek relief from removal by filing ap-
plications for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture
(“CAT”), as well as voluntary departure in the event that his
applications were denied.
Dominguez-Pulido filed his written applications for asy-
lum, withholding of removal, and protection under CAT on
April 16, 2014. In the applications, he listed his nationality as
“Mexican” and his place of birth as “Durango, Mexico.” He
averred that his parents were also born in Durango and that
he entered the United States without inspection. He claimed
that he feared criminal violence in Mexico and abuse by cor-
rupt policemen.
Dominguez-Pulido presented evidence and testimony in
support of his applications at a hearing on June 17, 2014. He
4 Nos. 14-3557, 15-1298, & 15-2208
testified that he feared returning to Mexico based on news re-
ports of violence and corruption, and described how two
friends, both of whom were U.S. citizens, were seriously in-
jured by criminals during visits to Mexico. He claimed that he
would likely become homeless in Mexico since he had no rel-
atives there and would have difficulty finding employment
since he was not educated in Mexico. He further testified that
criminals would likely kidnap him to obtain a ransom from
his relatives, and that his family’s lack of money would lead
to his eventual murder. In support of this testimony,
Dominguez-Pulido submitted a 2014 Travel Warning issued
by the U.S. State Department as well as the State Depart-
ment’s 2012 Human Rights Report for Mexico. Dominguez-
Pulido’s brother, Alberto Dominguez, testified that he be-
lieved Dominguez-Pulido would be kidnapped and killed if
he returned to Mexico.
The IJ sustained the charges of removability and denied
Dominguez-Pulido’s applications for relief. The IJ found that
the DHS met its burden of demonstrating Dominguez-Pu-
lido’s alienage and concluded that he was removable as an
alien present without admission. § 1182(a)(6)(A)(i). In addi-
tion, the IJ concluded that Dominguez-Pulido’s burglary con-
viction categorically qualified as a crime involving moral tur-
pitude. § 1182(a)(2)(A)(i)(I).
With regard to the applications for relief, the IJ found that
Dominguez-Pulido was barred from asylum because he failed
to timely file his application. See 8 U.S.C. § 1158(a)(2)(B), (D)
(one-year time limit on filing an application for asylum and
possible exceptions). The IJ also denied the application for
withholding of removal. The IJ found that Dominguez-Pulido
failed to demonstrate past persecution, and therefore there
Nos. 14-3557, 15-1298, & 15-2208 5
was no presumption of future persecution. Additionally, the
IJ denied the application for CAT protection because
Dominguez-Pulido failed to show a likelihood of torture by
or with the acquiescence of a Mexican public official.
Dominguez-Pulido appealed the IJ’s decision to the Board
of Immigration Appeals. The Board dismissed his appeal on
November 14, 2014, affirming the judgment of the IJ. On De-
cember 12, 2014, Dominguez-Pulido filed a motion to recon-
sider with the Board. The Board denied this motion, which it
also treated as a motion to reopen removal proceedings, on
February 5, 2015. The Board denied Dominguez-Pulido’s sec-
ond motion to reopen on May 28, 2015. Dominguez-Pulido
appeals.
II. Discussion
On appeal, Dominguez-Pulido argues that the Board erred
by upholding the IJ’s denial of his applications for asylum,
withholding of removal, and protection under CAT. He also
claims violations of his constitutional rights under the Eighth
Amendment and the Due Process Clause. Upon review, we
examine both the decision of the IJ as well as the analysis of
the Board in affirming the IJ’s decision. Sobaleva v. Holder, 760
F.3d 592, 596 (7th Cir. 2014). We review legal conclusions de
novo and factual conclusions to determine whether they are
supported by substantial evidence. Id.
A. Jurisdiction to Review the Final Order of Removal
Respondent argues that our jurisdiction to review
Dominguez-Pulido’s claims is limited by § 1252(a)(2)(C),
which provides: “Notwithstanding any other provision of
law (statutory or nonstatutory) … no court shall have juris-
diction to review any final order of removal against an alien
6 Nos. 14-3557, 15-1298, & 15-2208
who is removable by reason of having committed a criminal
offense covered in section 1182(a)(2) … .” Section 1182(a)(2)
states that an individual is removable if he was convicted of a
crime involving moral turpitude. § 1182(a)(2)(A)(i)(I).
Dominguez-Pulido’s response is that § 1252(a)(2)(C) does not
apply to his case. He says that the IJ and the Board erred by
finding that: (1) the government had established his alienage;
and (2) he was convicted of a crime involving moral turpi-
tude. If Dominguez-Pulido is correct, then we have jurisdic-
tion to review the removal order against him.
Consequently, a threshold question is whether
§ 1252(a)(2)(C) applies. We therefore must determine whether
the IJ and the Board properly concluded that Dominguez-Pu-
lido is a citizen of Mexico who was convicted of a crime in-
volving moral turpitude, thus triggering the application of
§ 1252(a)(2)(C).
Dominguez-Pulido first argues that the government did
not meet its burden of establishing alienage because the only
evidence provided was the Form I-213, which listed him as a
citizen of Mexico. Dominguez-Pulido also claims that the IJ
improperly relied on the affidavit attached to his post-convic-
tion petition as a concession of alienage; the IJ stated that these
documents convinced him that Dominguez-Pulido was not a
citizen of the United States because if he were, his conviction
would not result in deportation or the consequences com-
plained of in his affidavit and petition. Notably, Dominguez-
Pulido does not assert that he is not an alien or point to any
evidence that he is not an alien. Although the IJ did not spe-
cifically rely on the Form I-213, the Board took administrative
notice of the form and found that the IJ had properly admitted
it into the record.
Nos. 14-3557, 15-1298, & 15-2208 7
Dominguez-Pulido further argues that the Form I-213 was
unreliable and that the IJ should have given him the oppor-
tunity to cross-examine the DHS officers who prepared it.
However, there is no automatic right to cross-examine an of-
ficer who prepared a Form I-213, and we regard the form as
inherently trustworthy absent “any indication that [it] con-
tains information that is manifestly incorrect or was obtained
by duress … .” Barradas v. Holder, 582 F.3d 754, 763 (7th Cir.
2009).
In the case at hand, there is no indication that the Form I-
213 was carelessly or maliciously drafted, with the exception
of one clerical error (a single reference to “she” instead of
“he”). Limited redactions of sensitive information, such as
Dominguez-Pulido’s “FBI number,” also do not demonstrate
that the form is manifestly incorrect. Moreover, Dominguez-
Pulido does not allege that the information on the form is it-
self inaccurate; he merely attacks the form on the basis that is
was neither certified nor testified to, without pointing to any
case law establishing a certification requirement. Accord-
ingly, the IJ and the Board properly found that Dominguez-
Pulido is an alien.
Dominguez-Pulido next argues that the IJ and the Board
erred by finding that he was convicted of a “crime involving
moral turpitude.” Specifically, he claims that the phrase
“crime involving moral turpitude” makes the statute void for
vagueness. But the United States Supreme Court has ob-
served that this phrase has been part of the immigration laws
dating back to 1891 and “[n]o case has been decided holding
that the phrase is vague, nor are we able to find any trace of
judicial expression which hints that the phrase is so meaning-
less as to be a deprivation of due process.” Jordan v. De George,
8 Nos. 14-3557, 15-1298, & 15-2208
341 U.S. 223, 230 (1951). In Jordan, the Supreme Court looked
to “the manner in which the term ‘moral turpitude’ has been
applied by judicial decision” and found that courts have in-
variably held that “a crime in which fraud is an ingredient in-
volves moral turpitude.” Id. at 227; see also Abdelqadar v. Gon-
zales, 413 F.3d 668, 670 (7th Cir. 2005). Similarly, the Board has
long held that burglary with the intent to commit theft is a
crime involving moral turpitude. See, e.g., Matter of De La
Nues, 18 I. & N. Dec. 140, 145 (BIA 1981).
Dominguez-Pulido contends that, even if the statute is
constitutionally valid, his conviction involves a divisible stat-
ute—a statute that proscribes multiple types of conduct, some
of which involve moral turpitude and some of which do not.
But again, it is well-established that a burglary of this type
constitutes a crime involving moral turpitude. See id.
Even so, Dominguez-Pulido contends that the IJ erred by
looking to the indictment to determine whether or not his con-
viction was for a crime involving moral turpitude. He claims
that the IJ should have looked instead to the certified state-
ment of conviction. We agree with the Board that Dominguez-
Pulido’s argument is unpersuasive. Under the “modified cat-
egorical approach,” which applies when the state statute
forming the basis of the conviction is divisible, a court may
consult the charging document. Descamps v. United States, 133
S. Ct. 2276, 2281 (2013); Lopez v. Lynch, 810 F.3d 484, 489 (7th
Cir. 2016).
Relatedly, we cannot accept Dominguez-Pulido’s claim
that the reopening of proceedings is warranted given the At-
torney General’s decision to vacate Matter of Silva-Trevino, 24
I. & N. Dec. 687 (A.G. 2008). Matter of Silva-Trevino, 26 I. & N.
Dec. 550 (A.G. 2015). In its November 14, 2014 decision, the
Nos. 14-3557, 15-1298, & 15-2208 9
Board determined that the IJ properly applied the modified
categorical approach pursuant to Matter of Silva-Trevino, 24 I.
& N. Dec. 687 (A.G. 2008). Six months later, in considering
Dominguez-Pulido’s second motion to reopen proceedings,
the Board further concluded that any material change in the
law based on the Attorney General’s decision to vacate Matter
of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), was immate-
rial to Dominguez-Pulido’s case because the Board had previ-
ously found on an independent basis that Dominguez-Pu-
lido’s statute of conviction was categorically a crime involv-
ing moral turpitude. See De La Nues, 18 I. & N. Dec. at 145
(“Burglary and theft or larceny, whether grand or petty, are
crimes involving moral turpitude.”).
In sum, the IJ and the Board properly concluded that
Dominguez-Pulido is a citizen of Mexico who was convicted
of a crime involving moral turpitude. Thus, § 1252(a)(2)(C)
applies and limits the scope of our review.
B. Legal Questions and Constitutional Claims
The limiting language of § 1252(a)(2)(C) bars our consid-
eration of factual questions raised by Dominguez-Pulido.
However, we retain jurisdiction to review de novo colorable
legal questions and constitutional claims pursuant to
§ 1252(a)(2)(D). 2 Cruz-Moyaho v. Holder, 703 F.3d 991, 997–98
(7th Cir. 2012).
2 Section 1252(a)(2)(D) states:
Nothing in subparagraph (B) or (C), or in any other pro-
vision of this chapter (other than this section) which limits
or eliminates judicial review, shall be construed as pre-
cluding review of constitutional claims or questions of
10 Nos. 14-3557, 15-1298, & 15-2208
1. Applications for Asylum, Withholding of Removal, and
Protection Under CAT
Dominguez-Pulido claims that the IJ and the Board erred
by denying his applications for asylum, withholding of re-
moval, and CAT protection. He first contends that the IJ erro-
neously denied his asylum application as untimely rather
than reaching the merits. This is not a colorable legal argu-
ment because, in reviewing the IJ’s decision, the Board as-
sumed that the application was timely and, in fact, reached
the merits. The Board found that Dominguez-Pulido’s failure
to establish a clear probability of persecution on account of
belonging to a particular social group was fatal to both his
asylum and withholding of removal applications. Since we re-
view both the decision of the IJ and the analysis of the Board
in affirming the IJ’s decision, we reject Dominguez-Pulido’s
assertion that his asylum claim was not evaluated on the mer-
its. Therefore, the matter of timeliness considered by the IJ is
beside the point and we do not have jurisdiction over this ar-
gument.
Dominguez-Pulido’s second argument, by contrast, pre-
sents a colorable legal question appropriate for de novo re-
view. He claims, as he did below, that his fear of persecution
bears a nexus to his membership in a particular social group—
a group made up of individuals deported from the United
States who have money or who are perceived to have money,
and who have family members in the United States who could
pay ransom. He contends that this nexus qualifies him as a
refugee and compels a grant of asylum.
law raised upon a petition for review filed with an appro-
priate court of appeals in accordance with this section.
Nos. 14-3557, 15-1298, & 15-2208 11
Asylum requires the petitioner to demonstrate, at a mini-
mum, that he has a legitimate fear of persecution. Shou Wei Jin
v. Holder, 572 F.3d 392, 394–95 (7th Cir. 2009). The Attorney
General has
discretionary authority to grant asylum to an al-
ien who qualifies as a “refugee” because he or
she “is unable or unwilling to avail himself or
herself of the protection of [his or her native
country] because of persecution or a well-
founded fear of persecution on account of race,
religion, nationality, membership in a particular
social group, or political opinion.”
Id. (alteration in original) (citing 8 U.S.C. § 1101(a)(42)). The
petitioner can meet his or her burden by proving either past
persecution or a well-founded fear of future persecution.
Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 671 (7th Cir. 2005).
A petitioner must present credible and specific evidence that
he or she will suffer persecution upon return to his or her na-
tive country. Id. at 672.
As the Board has explained, “‘[t]he phrase persecution on
account of membership in a particular social group’ [has
been] interpreted to mean ‘persecution that is directed toward
an individual who is a member of a group of persons all of
whom share a common, immutable characteristic.’” Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 230–31 (BIA 2014) (quoting Mat-
ter of Acosta, 19 I. &. N Dec. 211, 233 (BIA 1985), overruled on
other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
1987)). “The common characteristic that defines the group
must be one that the members of the group either cannot
change, or should not be required to change because it is fun-
damental to their individual identities or consciences.” Id. at
12 Nos. 14-3557, 15-1298, & 15-2208
231 (citation and internal quotation marks omitted). Although
the Board has made adjustments to its definition of “particu-
lar social group” over the years, “the common immutable
characteristic requirement set forth [in Matter of Acosta] has
been, and continues to be, an essential component of the anal-
ysis.” Id.; see also Tapiero de Orejuela, 423 F.3d at 672.
In addition to identifying past or feared persecution on ac-
count of membership in a particular social group, the appli-
cant for asylum must establish a “nexus” between any past or
feared harm and that membership. See M-E-V-G-, 26 I. & N.
Dec. at 242. In other words, the petitioner must show that he
or she “is persecuted ‘on account of’ membership in a partic-
ular social group.” Id.
We agree with the IJ and the Board that Dominguez-Pu-
lido has failed to establish a nexus between his fear of perse-
cution and a ground for protection. See id. Dominguez-Pu-
lido’s proposed social group is not cognizable as a ground for
protection because its primary characteristic is wealth or per-
ceived wealth, specifically the ability to pay a ransom. See
Tapiero de Orejuela, 423 F.3d at 672 (noting that wealth, stand-
ing alone, is not an immutable characteristic of a cognizable
social group). Moreover, Dominguez-Pulido’s attempt to nar-
row his proposed group by adding the trait of “being de-
ported from the U.S.” does not render his group cognizable.
See Matter of W-G-R-, 26 I. & N. Dec. 208, 223 (BIA 2014) (“De-
portees are too broad and diverse a group to satisfy the par-
ticularity requirement for a particular social group … .”).
Thus, Dominguez-Pulido fails to show that he is entitled to
asylum.
With regard to his request for withholding of removal,
Dominguez-Pulido again claims that his fear of persecution
Nos. 14-3557, 15-1298, & 15-2208 13
bears a nexus with his membership in a particular social
group. The standard for withholding of removal requires the
petitioner to show a “clear probability” of persecution. Shou
Wei Jin, 572 F.3d at 395 (explaining that the standard for with-
holding of removal is higher than the standard for asylum).
Dominguez-Pulido contends that the IJ and the Board erred
by concluding that being a person who was deported from
the United States who has money or who is perceived to have
money, and who has family members in the United States
who could pay ransom, is not an immutable characteristic.
For the reasons outlined above, this argument misses the
mark and Dominguez-Pulido fails to meet his burden under
the more stringent standard for withholding of removal.
Further, Dominguez-Pulido argues that the IJ and the
Board erred by denying him CAT protection. The record in-
dicates that Dominguez-Pulido applied for both withholding
of removal and deferral of removal under Article III of CAT.
Withholding of removal under CAT is a final remedy subject
to the jurisdictional limitation under § 1252(a)(2)(C). Because
Dominguez-Pulido’s appeal of the Board’s denial of CAT pro-
tection amounts to a challenge to the factual conclusions un-
dergirding the decisions of both the IJ and the Board, we do
not have jurisdiction over this claim.
2. Eighth Amendment Claim
Dominguez-Pulido next contends that his removal from
the United States would violate the Eighth Amendment’s pro-
hibition on excessive fines. Specifically, he asserts that re-
moval is equivalent to a sentence of life in exile, which he
claims is disproportionate to his conduct. He also takes issue
with the Board’s response to this argument, which cited this
Court’s decision in Zamora-Mallari v. Mukasey, 514 F.3d 679
14 Nos. 14-3557, 15-1298, & 15-2208
(7th Cir. 2008). He says that Zamora-Mallari is based upon the
“cruel and unusual punishment” clause of the Eighth Amend-
ment rather than the “excessive fine” clause.
Dominguez-Pulido’s Eighth Amendment argument does
not constitute a colorable constitutional claim: We held explic-
itly in Zamora-Mallari that a removal order is “not a ‘fine,’ and
thus the Excessive Fine Clause of the Eighth Amendment
does not apply.” Id. at 695. Zamora-Mallari is indistinguishable
from the case at hand and therefore binding on our analysis.
Accordingly, we do not have jurisdiction over this claim.
3. Due Process Claim
Finally, Dominguez-Pulido contends that he did not re-
ceive a fundamentally fair proceeding before an impartial ad-
judicator. We conclude that he does not present a colorable
constitutional argument over which we have jurisdiction.
Dominguez-Pulido alleges that the IJ violated his due process
rights in various ways, including by failing to advise him that
he had the right to counsel at no expense to the government,
and by failing to advise him that he would have a “reasonable
opportunity to examine and object to the evidence against
him and to present evidence on his own behalf, and to cross-
examine witnesses presented by the government.” He further
alleges that his due process rights were violated because he
was arrested without probable cause or a warrant and was
not properly advised of his rights, and because he was in im-
migration custody during his hearing.
We have held that aliens present in the United States are
entitled to due process, including in deportation proceedings.
Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004). “Due
Nos. 14-3557, 15-1298, & 15-2208 15
process requires that an applicant receive a full and fair hear-
ing which provides a meaningful opportunity to be heard.”
Id. Although the Supreme Court “has never specifically de-
fined the requirements of due process in a deportation hear-
ing, Congress has set forth minimal procedural requirements
including, notably, the reasonable opportunity to examine the
evidence and to present witnesses, and a decision based on
reasonable, substantial, and probative evidence.” Podio v.
I.N.S., 153 F.3d 506, 509 (7th Cir. 1998).
Nonetheless, Dominguez-Pulido’s allegations present the
sort of “unfocused argument that we have deprecated.” Por-
tillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011). Alt-
hough he claims that the IJ failed to provide him with all pro-
cess required by statute and regulations, he does not contend
that any of the governing rules is unconstitutional. See id. As
we noted in Portillo-Rendon, “[i]t is appropriate to consider the
Constitution only if the statute and regulations are deficient.”
Id.
The record also leads us to conclude that Dominguez-Pu-
lido received a full and fair hearing. Dominguez-Pulido was
represented by counsel throughout his removal proceeding
and had the opportunity to challenge the charges by present-
ing testimony from himself and his brother, as well as exhibits
in support of his applications for relief. He does not claim that
he was prevented from presenting his case or that the IJ ex-
cluded significant testimony. Dominguez-Pulido had a mean-
ingful opportunity to be heard, and both the IJ and the Board
decided his case based on detailed analyses of the evidence.
Moreover, Dominguez-Pulido’s claims that he was arrested
without probable cause and was not advised of his rights are
wholly unsubstantiated. He does not explain why there was
16 Nos. 14-3557, 15-1298, & 15-2208
no probable cause for his arrest by immigration officers. In
addition, the Form I-213 shows that Dominguez-Pulido was
served with a “Notice of Rights” upon his apprehension by
immigration authorities.
Because Dominguez-Pulido fails to present a colorable
due process claim, we do not have jurisdiction.
III. Conclusion
For the foregoing reasons, we DENY the consolidated peti-
tions for review.