Jesus Delgado-Arteaga v. Jeff Sessions , 856 F.3d 1109 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-1816
JESUS DELGADO-ARTEAGA,
Petitioner,
v.
JEFF SESSIONS, Attorney General of
the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089-281-390
ARGUED NOVEMBER 29, 2016 — DECIDED MARCH 23, 2017
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
2 No. 16-1816
removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention
Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges
aspects of the expedited removal process under 8 U.S.C.
§ 1228(b) and a corresponding regulation, 8 C.F.R.
§ 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 sen-
tenced to six months’ imprisonment with two years of proba-
tion.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.F.R. § 238.1 (setting forth procedures). DHS
1
In 2010, Delgado was subject to removal proceedings pursuant to
8 U.S.C. § 1229a, but those proceedings were terminated. He filed a petition
with this Court, objecting to the termination of the § 1229a proceedings.
Once DHS initiated proceedings under § 1228(b), Delgado filed a motion
for voluntary dismissal of his first petition, which this Court granted.
Delgado v. Lynch, 14-3127 (7th Cir. April 15, 2015). He filed a second petition
with this Court after he was issued the Final Administrative Removal
Order, but before he completed the reasonable fear interview. The
government filed a motion to dismiss the petition, which we granted
because the FARO was not “final” for purposes of our review. Delgado v.
Lynch, 15-1810 (7th Cir. Aug. 7, 2015).
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 applica-
tion 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
4 No. 16-1816
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 convic-
tion was an aggravated felony, the IJ concluded it was pre-
sumed 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 consti-
tute” particularly serious crimes absent “extraordinary and
compelling circumstances.” Y-L-, 23 I. & 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
No. 16-1816 5
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 estab-
lish 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 application because 8 C.F.R.
§ 1208.31(g)(2)(i) is ultra vires.
On March 14, 2016, a single-member Board adopted and
affirmed the IJ’s decision, and entered an order dismissing
Delgado’s appeal. The Board declined to consider Delgado’s
argument that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires, reasoning
that it lacked authority to make such a ruling. The Board
concluded that the IJ properly found that Delgado’s aggra-
vated felony conviction presumptively constituted a “particu-
larly serious crime.” The Board explicitly agreed with the IJ’s
finding that Delgado failed to establish that he had only
6 No. 16-1816
peripheral involvement in his drug-trafficking conviction. In
addition, the Board found that Delgado failed to establish two
other requirements under Matter of Y-L-: that his conviction
was not connected to any organized crime; and, that the drugs
were to be distributed solely for social purposes. A motion to
reconsider was denied. Thereafter, Delgado filed this petition
for review.
II. DISCUSSION
Generally, we lack jurisdiction to review denials of discre-
tionary relief, including asylum. See 8 U.S.C. § 1252(a)(2)(B);
Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016). “But,
under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review
constitutional claims and questions of law raised in a petition
for review.” Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir.
2016) (citation omitted). Where, as here, the Board adopts and
affirms the IJ’s decision and provides its own analysis, we
review both decisions. Halim v. Holder, 755 F.3d 506, 511 (7th
Cir. 2014).
First, Delgado contends that DHS lacks legal authority
to issue removal orders on behalf of the Attorney General
pursuant to 8 U.S.C. § 1228(b), and that § 1228(b) requires
removal orders be issued by IJs. Second, he argues that
he should have been permitted to apply for asylum
under 8 U.S.C. § 1158 because the regulation at 8 C.F.R.
§ 1208.31(g)(2)(i) is ultra vires. Lastly, he argues that the Board
committed various legal errors and failed to follow its proce-
dures when adjudicating his case, such as failing to refer the
case to a three-member panel, engaging in improper fact-
finding, and overlooking his arguments on appeal.
No. 16-1816 7
A. No Jurisdiction to Review Challenges to the Expe-
dited Removal Process
Delgado challenges DHS’s FARO dated March 16, 2015,
arguing that DHS lacked legal authority to order Delgado’s
removal under 8 U.S.C. § 1228(b), and that the plain language
of § 1228(b) requires that final orders of removal be issued by
IJs.
We need not address these claims because Delgado’s
challenges to DHS’s removal order were rendered moot when
the IJ vacated DHS’s FARO and, ultimately, ordered his
removal. Article III limits our review to “Cases” and “Contro-
versies,” and an “actual controversy” must exist through all
stages of review. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726
(2013). “[I]f an event occurs … that makes it impossible for the
court to grant ‘any effectual relief whatever’ to a prevailing
party, the appeal must be dismissed.” Church of Scientology of
Cal. v. United States, 506 U.S. 9, 12 (1992) (citation omitted). A
case becomes moot “when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.” Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006)
(citation omitted).
Here, no live case or controversy exists because we
cannot grant any effectual relief to Delgado. He asks that we
overturn DHS’s FARO and remand for further proceedings
before an IJ; in other words, Delgado asks that we overturn an
already vacated order. Assuming that it were possible to grant
such relief, it remains true that the IJ issued the final removal
order, not DHS. As a result, the case is moot and we lack
jurisdiction to review this challenge.
8 No. 16-1816
Lastly, we note that the jurisdictional problem here is
further highlighted when considering the Tenth Circuit’s
decision in Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033–35
(10th Cir. 2016). There, the petitioner brought an identical
challenge, but it failed on the merits. Despite the same argu-
ments, there is one critical factual difference: the petitioner
in Osuna-Gutierrez was ordered removed by DHS, whereas
Delgado was ordered removed by an IJ. This difference shows
how the issue presented by Delgado is no longer “live.” While
it is tempting to fall in line with the Tenth Circuit, this factual
difference precludes us from reaching the merits. Because there
is no case or controversy, we must dismiss Delgado’s challenge
for lack of jurisdiction.
B. No Jurisdiction to Review Challenge to 8 C.F.R.
§ 1208.31(g)(2)(i)
Next, Delgado contends that 8 C.F.R. § 1208.31(g)(2)(i) is
ultra vires because it impermissibly precluded him from
applying for asylum under 8 U.S.C. § 1158(a)(1). He claims that
§ 1158 permits all aliens to apply for asylum regardless of
whether the alien is subject to administrative removal under
§ 1228(b). In other words, Delgado claims that he was “in-
jured” when the regulation denied him the opportunity to
apply for asylum.
We lack jurisdiction to review this challenge because
Delgado cannot meet the injury-in-fact element required for
standing. To establish an injury in fact, Delgado must show
that he “suffered an invasion of a legally protected interest that
is concrete and particularized and actual or imminent, not
No. 16-1816 9
conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016) (citation and quotation marks omitted).
Delgado cannot claim he suffered an “invasion of a legally
protected interest” when 8 C.F.R. § 1208.31(g)(2)(i) precluded
him from applying for asylum. Asylum is a form of discretion-
ary relief in which “there is no liberty interest at stake.” Delgado
v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); see Ali v. Ashcroft,
395 F.3d 722, 732 (7th Cir. 2005) (noting “denial of such relief
does not implicate due process”). Because Delgado fails to
establish an injury in fact, he lacks standing to challenge
§ 1208.31(g)(2)(i). Therefore, we dismiss this challenge for lack
of jurisdiction.
C. Challenges to the Board’s Decision and Procedures
1. Three-Member Panel
Delgado argues that the Board erred by not referring his
case to a three-member panel. A single member may take
“advantage of the streamlined procedures found in 8 C.F.R.
§§ 1003.1(e)(4), (e)(5) for routine cases that can be processed
quickly.” Joseph v. Holder, 579 F.3d 827, 832 (7th Cir. 2009). The
regulations give a single member discretion to refer an appeal
to a three-member panel under six different circumstances, but
referral is not required. 8 C.F.R. § 1003.1(e)(6) (listing circum-
stances); see Ward v. Holder, 632 F.3d 395, 398–99 (7th Cir. 2011)
(noting “discretion … is left to the panel member assigned to
the case”). In Ward, we were unable to find that the Board
“violated the review procedures set forth in § 1003.1(e) when
a single member rendered a decision on petitioners’ appeal in
his discretion without referring it to a panel of three.” 632 F.3d
at 399. Like the single member in Ward, the single member here
10 No. 16-1816
had the discretion to refer the appeal to a three-member panel,
but did not do so. Delgado fails to demonstrate that the Board
violated the review procedures as set forth in 8 C.F.R.
§ 1003.1(e).
2. Improper Fact-Finding
Next, Delgado contends that the Board violated 8 C.F.R.
§ 1003.1(d)(3)(iv) by engaging in improper fact-finding when
it affirmed the IJ’s conclusion that Delgado was convicted of a
“particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii). “An
argument that the Board has exceeded the scope of review
permissible under [8 C.F.R. § 1003.1(d)(3)(iv)] is a legal one, for
the purpose of § 1252(a)(2)(D).” Rosiles-Camarena v. Holder, 735
F.3d 534, 536 (7th Cir. 2013). The regulation provides that
“[e]xcept for taking administrative notice of commonly known
facts …, the Board will not engage in factfinding in the course
of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see Estrada-
Martinez v. Lynch, 809 F.3d 886, 894 (7th Cir. 2015) (“The Board
must not find facts in the first instance … .”); Lin v. Holder, 630
F.3d 536, 545 (7th Cir. 2010) (“[T]he Board is not permitted to
engage in fact-finding on appeal.”).
Delgado argues that the Board impermissibly found that
Delgado failed to establish two additional requirements under
Matter of Y-L-: the absence of organized crime involvement and
“other, more unusual circumstances” (i.e., drugs were to be
distributed solely for social purposes). See Y-L-, 23 I. & N. Dec.
at 276–77. In response, the government does not dispute
Delgado’s argument, but claims that the Board’s additional
fact-finding was harmless error.
No. 16-1816 11
We agree with Delgado that the Board exceeded the
permissible scope of review when it made the two findings at
issue in the first instance. Nonetheless, Delgado fails to show
that he was prejudiced by the Board’s impermissible fact-
finding. See Issaq v. Holder, 617 F.3d 962, 967 (7th Cir. 2010);
Perez-Fuentes, 842 F.3d at 512 (noting that a petitioner must
show that the alleged error “may have had the potential to
change the outcome of the hearing” (citation omitted)). Here,
the Board adopted the IJ’s decision, and explicitly agreed with
the IJ’s finding that Delgado did not establish that he had only
peripheral involvement in the drug-trafficking conviction. By
adopting the IJ’s decision, the Board also agreed with the IJ’s
finding that Delgado failed to show that his conviction did not
have an adverse effect on a juvenile. Despite the Board’s
impermissible fact-finding, Delgado still fails to satisfy two
factors under Matter of Y-L-. He did not show how he was
prejudiced.
3. Arguments to the Board
Delgado argues that the Board overlooked and failed to
consider his arguments on appeal. “A claim that the [Board]
has completely ignored the evidence put forth by a petitioner
is an allegation of legal error.” Perez-Fuentes, 842 F.3d at 512
(quoting Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)).
This includes a claim that the Board “failed to exercise discre-
tion at all by completely ignoring an argument.” Iglesias, 540
F.3d at 530–31. Although the Board “does not have to write
an exegesis on every contention, it must consider the issues
raised, and announce its decision in terms sufficient to enable
a reviewing court to perceive that it has heard and thought and
12 No. 16-1816
not merely reacted.” Id. at 531. “We have frequently remanded
cases when the BIA’s or the IJ’s failure to discuss potentially
meritorious arguments or evidence calls into question whether
it adequately considered th[ose] arguments.” Kebe v. Gonzales,
473 F.3d 855, 857 (7th Cir. 2007) (collecting cases).
Delgado lists, as we have done similarly here, several
arguments that he claims were ignored by the Board: (1) his
request for a three-member panel in his appeal to the Board;
(2) that the IJ failed to properly develop the record; (3) that the
IJ conducted an incorrect “pattern or practice” analysis under
8 C.F.R. § 1208.16(b)(2)(i); and, (4) his argument concerning an
unpublished Board decision concerning Florida state law (the
Board addressed and rejected this last argument).
Delgado’s claim, alone, that the Board “completely ig-
nored” an argument, does not sufficiently “enable a reviewing
court” to determine whether that argument is “potentially
meritorious.” “[I]t is not the work of this Court to formulate
arguments for the parties.” Kurzawa v. Jordan, 146 F.3d 435,
447–48 (7th Cir. 1998), nor will we attempt to do so here.
“[F]ailure to adequately develop and support these arguments
results in waiver.” Lin, 630 F.3d at 543. Delgado’s challenge is
perfunctory; he simply lists these arguments one-by-one,
without any explanation. Therefore, we will consider these
arguments waived.
III. CONCLUSION
For the foregoing reasons, we DISMISS Delgado’s petition
for review in part for lack of jurisdiction and DENY the
remainder of his petition for review.