Jose Jimenez-Aguilar v. William Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1917
JOSE ALFREDO JIMENEZ-AGUILAR,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A206-156-831
____________________
ARGUED JULY 31, 2020 — DECIDED OCTOBER 6, 2020
____________________
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 re-
mained. Today he is married and has two children. But he
*Circuit Judge Barrett, a member of the panel that heard oral argu-
ment, did not participate in the decision. The case is being decided by a
quorum. See 28 U.S.C. §46(d).
2 No. 19-1917
has never received permission to be in this country, and he
came to the afention 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 citi-
zens of the United States. See 8 U.S.C. §1229b(b)(1)(D). Sev-
eral years passed while he sought modification of two crimi-
nal 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 re-
quest on the merits. The IJ found that Jimenez-Aguilar had
not shown a potential for “exceptional and extremely unu-
sual hardship.” That decision is not subject to judicial re-
view, 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 Ap-
peals 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 ar-
gument 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 de-
scribed 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—
No. 19-1917 3
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” (em-
phasis 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 in-
terpreted in administrative decisions and request deference
under Chevron U.S.A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984). That did not happen. Instead the
Board’s brief catalogs how the courts of appeals have under-
stood the regulation. As far as the Board’s brief shows, the
4 No. 19-1917
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 regula-
tion’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 per-
son’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 omifed). To show per-
secution 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 popula-
tions … are not persecution.” Ahmed v. Gonzales, 467 F.3d
669, 673 (7th Cir. 2006). And the risk must be created,
abefed, or tolerated by the government; private violence
No. 19-1917 5
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. Ash-
croft, 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, play-
ing soccer, reckless driving, and many other things unrelat-
ed 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 (2006) (citation omifed).
“Harm” for the purposes of the regulation must mean the
sort of physical or mental distress that (with additional de-
tails 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 tell-
ing 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 “per-
secution.” But we need not read “harm” that way to avoid
surplusage. This is because §1240.11(c)(1) requires immigra-
tion 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 be-
6 No. 19-1917
comes eligible for withholding of removal is if she can show
evidence of “past torture” or “gross, flagrant or mass viola-
tions 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 in-
cludes the sorts of loss that could support asylum if elaborat-
ed in response to a warning—if, say, the warning prompted
an alien to offer evidence that private violence was being
abefed or tolerated by governmental officials.
At least two circuits have concluded that an immigration
judge need not always provide notice of a right to apply for
asylum or other removal protections whenever “harm” in
some broad sense is possible. In Valencia the Ninth Circuit
held that the record must suggest a “plausible basis” for asy-
lum in order to trigger the IJ’s duty. Likewise, the Fifth Cir-
cuit determined that those facing removal are not entitled in
all cases to notice of their right to apply for asylum, in part
because this might produce frivolous claims, which would
burden both the government and those with legitimate
claims. Ramirez-Osorio v. INS, 745 F.2d 937, 946 (5th Cir.
1984) (“[F]rivolous claims not only add administrative bur-
dens but also imperil the identification of non-frivolous
claims.”). Valencia echoed this concern, adding that IJs
No. 19-1917 7
should not prompt aliens to submit applications that were
bound to be “deemed so meritless as to be ‘frivolous’” be-
cause such an application may render them “permanently
ineligible for benefits under the Immigration and Nationality
Act.” 548 F.3d at 1264.
A broadly defined duty to inform also would require
immigration judges to present potentially contradictory in-
formation to aliens appearing before them—many of whom
lack the aid of counsel. Jimenez-Aguilar’s definition of
“harm” would require an IJ to alert an alien to an ability to
apply for asylum despite a lack of a plausible basis for relief,
and having done so the IJ would also be required by
§1240.11(c)(1)(iii) to alert the alien to the consequences of fil-
ing a frivolous asylum application. Such a practice risks con-
fusing unrepresented people.
Though we define “harm” in the context of threats that
could qualify an alien for asylum or withholding of removal,
we reject the government’s contention that an alien’s eligibil-
ity must be “apparent” in order to trigger the IJ’s duty to no-
tify. The government correctly points out that a different
subsection of the regulation ties the immigration judge’s du-
ty to inform an alien about potential benefits to his “appar-
ent eligibility” for those benefits. 8 C.F.R. §1240.11(a)(2). But
that subsection concerns applications to be “lawfully ad-
mifed for permanent residence”, while the subsection at is-
sue here is not similarly limited. Compare §1240.11(a) (“Cre-
ation of the status of an alien lawfully admifed for perma-
nent residence.”), with §1240.11(c) (“Applications for asylum
and withholding of removal.”). A more restrictive standard
for those seeking permanent residence makes sense, since
those persons would have access to benefits that are not
8 No. 19-1917
available to those seeking asylum or withholding of removal.
Because §1240.11(c)(1) does not state that eligibility must be
“apparent,” we will not import that requirement from an-
other subsection.
In sum, Jimenez-Aguilar needed only to express fear of
persecution or harm of the type that could render him eligi-
ble for asylum or withholding of removal. But he did not
need to express his fear in a way that would make his eligi-
bility for such relief “apparent.”
Jimenez-Aguilar does not contend that he faces danger
on account of his race, religion, nationality, or political opin-
ion. Rather, he told the immigration judge that he fears gang
violence because his mother received death threats from
gangs as a result of her position on a community council that
created a neighborhood watch group. His mother testified
by affidavit that gangs have threatened and killed members
of her community council and their relatives. She expressed
fear that her son “is in danger” and that the gang members
could “kill him.”
We have held that an alien’s “nuclear family” qualifies as
a “particular social group” for the purposes of asylum.
W.G.A. v. Sessions, 900 F.3d 957, 965 (7th Cir. 2018). The
Aforney General recently issued an opinion stating that
membership in a nuclear family group does not necessarily
qualify an applicant as a member of a “particular social
group.” MaNer of L-E-A-, 27 I. & N. Dec. 581, 594 (A.G. 2019).
Neither party has asked us to reconsider W.G.A. in light of L-
E-A-, so we apply W.G.A. here. If Jimenez-Aguilar had ex-
pressed only a fear of generalized violence in Honduras, as
the Board believed, the IJ would not have needed to notify
him about the possibility of asylum. But Jimenez-Aguilar
No. 19-1917 9
told the IJ that he feared persecution at the hands of gangs in
Honduras because of his relationship to his mother, who had
received asylum based on these threats. The IJ accordingly
should have given the regulatory advice, which could have
led to further evidence on topics such as whether the gov-
ernment is complicit in private violence.
Jimenez-Aguilar asserts that he was unaware that he
might be eligible for asylum or withholding of removal and
seeks remand so he may apply for both forms of relief. This
is enough to show that the immigration judge’s error preju-
diced him.
The petition for review is granted and the proceeding is
remanded for a new removal hearing. Other issues that
might arise at such a hearing—such as whether Jimenez-
Aguilar is disqualified from relief by his long delay in apply-
ing, see 8 U.S.C. §1158(a)(2)(B)—must be considered by the IJ
and the Board before they are ripe for judicial review.