Ulises Martinez Lopez v. Loretta E. Lynch ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3805
ULISES MARTINEZ LOPEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A087-774-862
ARGUED NOVEMBER 12, 2015 — DECIDED JANUARY 12, 2016
Before BAUER, FLAUM, and MANION, Circuit Judges.
BAUER, Circuit Judge. Petitioner, Ulises Martinez Lopez
(“Petitioner”), filed a petition for review with this court seeking
to vacate the order from the Board of Immigration Appeals
(“BIA”) that upheld his removal from the United States due to
his conviction of a particularly serious crime. For the reasons
that follow, we affirm the BIA’s decision.
2 No. 14-3805
I. BACKGROUND
In 1991, when he was twelve years old, Petitioner left his
native country of Mexico and illegally entered the United
States. He has not returned to Mexico since leaving, although
his sister still lives in the same neighborhood in which he grew
up.
In December 2009, Petitioner was arrested in Indiana and
charged with four counts of dealing and possessing illegal
drugs. In July 2010, Petitioner pled guilty to one count, with
the state dismissing the remaining three counts. On August 12,
2010, Petitioner entered his plea of guilty and was convicted of
a Class A Felony for “Dealing in Cocaine over 3 grams.” He
was sentenced to twenty years’ imprisonment, with ten years
suspended, and ten years of probation.
While Petitioner was in prison, an officer with the United
States Department of Homeland Security (“DHS”) interviewed
him. Following the interview, the officer recommended that
DHS remove Petitioner from the United States for being an
alien convicted of an aggravated felony. On December 27, 2013,
DHS issued a Final Administrative Removal Order stating
that Petitioner was convicted of an aggravated felony under
8 U.S.C. § 1101(a)(43)(B). Therefore, pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii), DHS ordered Petitioner to be removed from
the United States to Mexico.
Prior to his removal, Petitioner requested to meet with an
asylum officer for a credible fear interview. DHS granted
Petitioner’s request. On March 26, 2014, an asylum officer
found that Petitioner had a reasonable fear of persecution or
No. 14-3805 3
torture if he returned to Mexico because Petitioner is homosex-
ual and HIV-positive.
On July 1, 2014, Petitioner received a hearing before an
Immigration Judge. During this hearing, Petitioner explained
his fear of persecution or torture if he returns to Mexico due to
his homosexuality and HIV-positive status. Petitioner de-
scribed how young people beat him up when he lived in
Mexico because he was gay, and that once when he was ten
years old, Julio, a bully from his neighborhood, stabbed him
with an ice pick. Petitioner also stated that the police did
nothing when his mother complained about this incident. He
stated that many people in Mexico were homophobic, and that
Julio still lived in his old neighborhood. He also explained
that doctors in Mexico refuse to treat people who are HIV-
positive. He claimed that doctors in Mexico do not help people
who lack economic resources, and that he could not afford
medical treatment.
At the end of the proceeding, the Immigration Judge orally
rendered his decision. He found that Petitioner was not eligible
for asylum or withholding of removal because he was con-
victed of a “particularly serious crime.” As a result, Petitioner’s
only possible relief was deferral of removal under the Conven-
tion Against Torture (“CAT”), 8 C.F.R. § 1208.16(c). However,
although the Immigration Judge found that there was a
possibility that Petitioner would face violence if he returned to
Mexico, it was not “more likely than not.” Thus, Petitioner was
ineligible for protection under CAT.
Petitioner appealed the Immigration Judge’s decision to the
BIA. On December 11, 2014, the BIA entered an order dismiss-
4 No. 14-3805
ing Petitioner’s appeal. While the BIA did not rule on whether
Petitioner was convicted of an aggravated felony, it found that
he nonetheless was convicted of a particularly serious crime
and therefore was ineligible for asylum or withholding of
removal. Further, the BIA found that the Petitioner could not
receive deferral of removal under CAT because he had not
shown that it was more likely than not that he would be
tortured if he returned to Mexico. Petitioner now appeals the
BIA’s decision before this court.
II. DISCUSSION
Petitioner raises two issues on appeal. First, he contends
that he was not convicted of a particularly serious crime and is
therefore eligible for asylum and withholding of removal.
Second, he argues that he is entitled to deferral of removal
under CAT. We examine each claim in turn.
A. Whether Petitioner was Convicted of a Particularly
Serious Crime
An alien convicted of a “particularly serious crime” is not
eligible for either asylum, 8 U.S.C. § 1158(b)(2)(A)(ii), or
withholding of removal, 8 U.S.C. § 1231(b)(3)(B)(ii). For
purposes of asylum, a conviction of an “aggravated felony”
constitutes a conviction for a particularly serious crime.
8 U.S.C. § 1158(b)(2)(B)(i). For purposes of withholding of
removal, a conviction of an “aggravated felony” for which the
alien received a sentence of at least five years’ imprisonment
constitutes a conviction for a particularly serious crime.
8 U.S.C. § 1231(b)(3)(B)(iv). Therefore, if Petitioner’s conviction
constitutes an aggravated felony, then he is ineligible for
No. 14-3805 5
asylum and withholding of removal (since he received a prison
sentence greater than five years).
We have jurisdiction to determine whether an alien
committed an aggravated felony. See Eke v. Mukasey, 512 F.3d
372, 378 (7th Cir. 2008) (“we retain jurisdiction to determine
whether we have jurisdiction—that is, to determine whether an
alien’s criminal conviction is indeed an ‘aggravated felony’”)
(citation omitted). Furthermore, we review de novo whether an
alien committed an aggravated felony. Id. (citation omitted).
Since we review de novo whether an alien was convicted of an
aggravated felony, it is irrelevant to our analysis that the BIA’s
opinion addressed the issue without definitively ruling on the
matter. So, we will examine whether Petitioner’s Indiana
conviction for dealing over three grams of cocaine constitutes
an aggravated felony.
1. Aggravated Felony Analysis
To determine whether an alien’s conviction constitutes an
aggravated felony, we apply the “categorical approach.” Eke,
512 F.3d at 378. That is, we examine the state statute under
which the alien was convicted, and compare it to the “generic”
corresponding aggravated felony under the Immigration and
Nationality Act. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
(2013). A state offense is a categorical match with a generic
federal offense only if the elements of the state offense mirror
the elements of the generic federal offense; the actual conduct
underlying the offense is irrelevant to the analysis. See United
States v. Zuniga-Galeana, 799 F.3d 801, 804 (7th Cir. 2015)
(citation omitted).
6 No. 14-3805
Further, if the state statute forming the basis of the convic-
tion is a divisible statute that “proscribes multiple types of
conduct, some of which would constitute an aggravated felony
and some of which would not,” then the court applies the
“modified categorical approach.” Familia Rosario v. Holder, 655
F.3d 739, 743 (7th Cir. 2011). Under the modified categorical
approach, courts can “consult a limited class of documents …
to determine which alternative formed the basis of the defen-
dant’s prior conviction.” Descamps v. United States, 133 S. Ct.
2276, 2281 (2013). Such documents include the terms of a plea
agreement, the charging document, the transcript of colloquy
between the judge and the defendant regarding the defendant
confirming the factual basis for the plea deal, or “some
comparable judicial record of this information.” Shepard v.
United States, 544 U.S. 13, 26 (2005).
Here, the generic corresponding aggravated felony under
the Immigration and Nationality Act is: “illicit trafficking in a
controlled substance … including a drug trafficking crime.”
8 U.S.C. § 1101(a)(43)(B). A “drug trafficking crime” includes
any felony punishable under the Controlled Substances Act,
18 U.S.C. § 924(c)(2), which in turn makes it unlawful
to knowingly or intentionally “manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1).
Furthermore, the term “distribute” is defined under the statute
as: “to deliver … a controlled substance.” 21 U.S.C. § 802(11)
(emphasis added). In this case, the Indiana statute forming
the basis of the Petitioner’s conviction states that a person is
guilty of dealing in cocaine if that individual “knowingly or
intentionally manufactures, finances the manufacture of,
No. 14-3805 7
delivers, or finances the delivery of cocaine;” or if the individ-
ual “possesses, with intent to manufacture, finance the manu-
facture of, deliver, or finance the delivery of cocaine.” Ind.
Code § 35-48-4-1(a)(1)-(2).
Both the generic corresponding aggravated felony under
the Immigration and Nationality Act and the Indiana statute
criminalize manufacturing and delivering illegal drugs. How-
ever, the Indiana statute is broader in scope because it also
criminalizes financing the manufacture or delivery of illegal
drugs. As a result, the modified categorical approach is
appropriate, and we must examine the permissible documents
to determine which alternative formed the basis of Petitioner’s
conviction under the Indiana statute. See Shepard, 544 U.S. at 26.
Here, the appropriate documents are Petitioner’s plea agree-
ment and the charging document.
First, the plea agreement states that Petitioner pleads guilty
to “Count 1: dealing in cocaine greater than 3 grams.” But, the
plea agreement does not specify which portion of the Indiana
statute Count 1 encompassed, so we next examine the charging
document.
Under Indiana law, the charging document can be either an
information or an indictment filed by the prosecutor with the
appropriate court. Ind. Code § 35-34-1-1(b). Indiana law
requires the charging document to contain “the name of the
offense [charged] in the words of the statute or any other
words conveying the same meaning,” as well as other informa-
tion such as the date, time, and place of the offense. Ind. Code
§ 35-34-1-2(a). In addition, Indiana provides a statutory
8 No. 14-3805
suggested format for prosecutors to follow when preparing an
information. Ind. Code § 35-34-1-2(e)-(f). It is as follows:
[affiant], being duly sworn on his oath or having
affirmed, says that [defendant], on the ___ day of ___
20__ at the county of ___ in the state of Indiana (HERE
SET FORTH THE OFFENSE CHARGED). Id.
In this case, the prosecutor filed an information with the
appropriate court charging the Petitioner with dealing cocaine
in violation of Indiana Code § 35-48-4-1.1 Furthermore, the
information conforms to the Indiana statutory format and
states:
I, Detective Brian Elmore of the United Drug Task
Force, who being duly sworn or having affirmed says
that on or about 12/09/2009, at Kohl’s Department Store
in Plainfield in Hendricks County, State of Indiana,
Ulises Martines [sic] did knowingly deliver cocaine, said
drug having a weight of more than three (3) grams, to
wit 28.4 grams (emphasis added).
1
The information technically states that Petitioner is charged with
violating “I.C. 35-48-4-1(b).” However, this is an error because Indiana
Code § 35-48-4-1(b) is not an offense, but rather states that a person can only
be convicted of possessing with intent to manufacture, finance the
manufacture of, deliver, or finance the delivery of cocaine if there is
evidence other than the weight of the drugs that the individual had that
intent. But, under Indiana law, any error in statutory citations within an
information is excusable “where the defendant was not otherwise misled
as to the nature of the charges against the defendant.” Ind. Code § 35-34-1-
2(a)(3). Since the information further clarifies the charges against the
Petitioner, we find this is harmless error.
No. 14-3805 9
By examining the charging document, it is evident that
Petitioner was convicted under Indiana Code § 35-48-4-
1(a)(1)(C), which criminalizes knowingly delivering cocaine.
Since the delivering cocaine element of the Indiana statute
mirrors the delivering a controlled substance element of the
generic corresponding aggravated felony under the
Immigration and Nationality Act, it is a categorical match. See
21 U.S.C. § 841(a)(1); 21 U.S.C. § 802(11). Therefore, Petitioner
was convicted of an aggravated felony.
Petitioner claims that we cannot examine the information
filed by the prosecutor because it constitutes a police report,
which courts cannot examine under the modified categorical
approach. See Shepard, 544 U.S. at 16. To support this claim,
Petitioner relies exclusively on our earlier opinion in United
States v. Lewis, 405 F.3d 511 (7th Cir. 2005). In Lewis, a district
court improperly applied the categorical approach by empha-
sizing the defendant’s conduct underlying the case to deter-
mine whether the defendant was convicted of a “crime of
violence,” rather than focusing on the elements of the Indiana
statute at issue. Id. at 514. Specifically, the judge examined
affidavits that were attached to the information that detailed
the underlying conduct of the defendant’s armed jewelry store
robbery. Id. We held that the affidavits attached to the informa-
tion were a sworn police report, rather than a charging
document, and thus could not be examined. Id. at 515. We
explained: “The list in Shepard is designed to identify docu-
ments that illuminate what crime the defendant
committed … . Using additional materials such as affidavits to
ascertain how this person violated a statute departs from the
10 No. 14-3805
categorical approach that Shepard and Taylor adopt.” Id.
(emphasis in original).
By contrast, here we are examining the information
document itself, rather than an attached affidavit. Also, the
information here does not state how Petitioner committed the
crime of dealing cocaine. Rather, it explains what crime Peti-
tioner committed; it specifies whether he manufactured,
delivered, or financed the manufacture or delivery of cocaine.
Specifically, the information states that the Petitioner was
charged with “knowingly deliver[ing] cocaine.” It does not
delve into the details of the Petitioner’s conduct underlying the
charges, but instead provides the requisite basic information
regarding the date, time, and place of the offense as required
under Indiana law.
Furthermore, in this case there was a “Probable Cause
Affidavit” that was attached to the information. The Probable
Cause Affidavit describes in extensive detail the underlying
conduct of how the Petitioner violated the Indiana statute. As
in Lewis, this attached affidavit to the information constitutes
a sworn police report, which is not part of the charging
document.2 See Lewis, 405 F.3d at 515. As a result, while it is
proper for this court to consider the information under the
modified categorical approach, we cannot and do not examine
the Probable Cause Affidavit attached to the information.
2
While it is Indiana’s practice to attach probable cause affidavits to an
information, the Indiana Supreme Court has clarified that the two
documents are considered separate. See Schweitzer v. State, 531 N.E.2d 1386,
1388 (Ind. 1989) (“The probable cause affidavit relates to the pretrial
detention of the defendant, not to the charging instrument.”).
No. 14-3805 11
Therefore, by applying the modified categorical approach,
we find that the Petitioner was convicted of an aggravated
felony. Since he was convicted of an aggravated felony, he is
ineligible for asylum because his crime is per se a particularly
serious crime. 8 U.S.C. § 1158(b)(2)(B)(i). In addition, because
he was convicted of an aggravated felony and sentenced to
more than five years’ imprisonment (in this case twenty years),
he is also ineligible for withholding of removal because that
too constitutes a particularly serious crime. 8 U.S.C.
§ 1231(b)(3)(B)(iv).
2. Petitioner’s Chenery Challenge
Petitioner argues that the Chenery doctrine requires this
court to only uphold the BIA’s determination based solely on
the agency’s analysis. See SEC v. Chenery, 318 U.S. 80 (1943).
However, Petitioner claims that the BIA applied the wrong
legal standard when it analyzed whether he was convicted of
a particularly serious crime. The BIA stated in its opinion that
“it is not necessary to determine whether the conviction
constitutes an aggravated felony.” Instead, the BIA analyzed
whether the Petitioner’s conviction constituted a particularly
serious crime under the alternative case-by-case analysis. This
analysis involves examining the nature of the conviction, the
type of sentence imposed, and the circumstances and underly-
ing facts of the conviction to determine whether a conviction
that is not an aggravated felony nonetheless constitutes a
particularly serious crime. See N-A-M-, 24 I. & N. Dec. 336,
341–42 (BIA 2007). However, the BIA’s opinion went on to cite
the presumption that aggravated felonies involving drug
trafficking are particularly serious crimes. The BIA then listed
12 No. 14-3805
the factors that must be established in order to overcome this
presumption, as determined in Y-L-, A-G-, & R-S-R-, 23 I. & N.
Dec. 270, 274, 276–77 (BIA 2002). After citing the presumption
and the factors needed to rebut it, the BIA then cited the correct
standard from N-A-M- for determining whether a non-aggra-
vated felony constitutes a particularly serious crime. But, the
BIA’s analysis combined both the correct standard from
N-A-M- and the incorrect standard from Y-L-. As a result,
Petitioner argues that we must remand the case.
Even if Petitioner is correct, his argument fails because the
“futility doctrine” is a recognized exception to the Chenery
doctrine. See Osmani v. INS, 14 F.3d 13, 15 (7th Cir. 1994).
Although “[o]rdinarily we are not permitted to affirm the
order of an administrative agency on a ground that the agency
did not rely upon in making the order … . [t]here is an excep-
tion for the case where it is clear what the agency’s decision has
to be.” Id. (citations omitted); see also Sahara Coal Co. v. Office of
Workers’ Comp. Programs, United States Dep’t of Labor, 946 F.2d
554, 558 (7th Cir. 1991) (“The harmless-error doctrine is
available in judicial review of administrative action; it is an
exception to the Chenery principle. If the outcome of a remand
is foreordained, we need not order one.”) (citations omitted).
Thus, if remand would be futile because it is clear what the
decision has to be, we may affirm the case without remanding
it back to the BIA.
In this case, we have determined that Petitioner was
convicted of an aggravated felony. Therefore, remanding this
case to the BIA would be futile because a person convicted
of an aggravated felony (and who has been sentenced to
No. 14-3805 13
more than five years’ imprisonment) has committed a particu-
larly serious crime for purposes of asylum and withholding
of removal. See 8 U.S.C. § 1158(b)(2)(B)(i); 8 U.S.C.
§ 1231(b)(3)(B)(iv). Since the BIA would have to find that
Petitioner is ineligible for asylum and withholding of removal,
and that would not change the outcome from the BIA’s
opinion, we will not remand the case.
B. Whether Petitioner was Entitled to Deferral of Re-
moval Under CAT
Although we have determined that Petitioner is ineligible
for asylum or withholding of removal, we still have jurisdic-
tion to determine whether Petitioner is entitled to deferral of
removal under CAT. See Issaq v. Holder, 617 F.3d 962, 970 (7th
Cir. 2010); see also 8 C.F.R. § 1208.16(c)(4).3
“We review the denial of CAT protection under the highly
deferential substantial evidence test.” Rashiah v. Ashcroft, 388
F.3d 1126, 1131 (7th Cir. 2004) (citations omitted). We review
the entire record as a whole and reverse “only if the record
evidence compels a contrary conclusion.” Lenjinac v. Holder, 780
F.3d 852, 855 (7th Cir. 2015) (emphasis added) (citations
omitted). In order to receive CAT protection, the Petitioner has
the burden to demonstrate that “it is more likely than not that
[the Petitioner] would be tortured if removed to [Mexico].”
3
The Respondent requests the court to reconsider Issaq’s holding
regarding whether 8 U.S.C. § 1252(a)(2)(C) precludes judicial review of
deferral of removal claims when an alien has been convicted of an
aggravated felony, in light of the Second Circuit’s holding in Ortiz-Franco
v. Holder, 782 F.3d 81, 89 (2d Cir. 2015). The Second Circuit’s opinion,
however, does not persuade us to overrule Issaq.
14 No. 14-3805
8 C.F.R. § 1208.16(c)(2). In addition, CAT protection requires
evidence that the Petitioner will be tortured by the govern-
ment, or with the government’s acquiescence. Khan v. Holder,
766 F.3d 689, 698 (7th Cir. 2014) (citations omitted).
Here, the BIA agreed with the Immigration Judge that the
Petitioner did not show that it is more likely than not that he
would be tortured if he was removed to Mexico. The BIA
found that the Immigration Judge properly examined all
relevant evidence in the record and that the record supported
the Immigration Judge’s decision. The BIA also noted that
there is a large “lesbian, gay, bisexual, and transgender (LGBT)
community in Mexico and many openly gay people have not
been harmed.” In addition, the BIA found that Mexican law
prohibits such harm. Finally, the BIA found that while there
have been incidents of violence towards LGBT individuals in
“some parts of Mexico,” there are other parts of the country
“more accepting of the LGBT community.”
Petitioner argues that the substantial evidence in the record
indicates that it is more likely than not that he would be
tortured if removed to Mexico. He claims that Julio, the bully
who stabbed him with the ice pick when Petitioner was ten
years old, still lives in his former neighborhood. He also cites
news articles detailing atrocities committed against gay men
throughout Mexico. In addition, he repeatedly relies on a 2008
report from the Commission of Human Rights of the Federal
District that found that over the past 10 years, 80% of homo-
phobic murders in Mexico City have gone unpunished, and
that a poll conducted in 2011 found that the police were
identified as the group most intolerant of the gay community.
Further, Petitioner argues that even if places in Mexico, such as
No. 14-3805 15
Mexico City, are more tolerant of openly gay men, he cannot
relocate there because his sister lives in Acapulco. He also
argues that his HIV-positive diagnosis makes relocation
unreasonable.
While Petitioner may face violence if he returns to Mexico,
we do not find that the record compels us to the conclusion that
torture is more likely than not to occur. The fact that Julio still
lives in his old neighborhood does not mean that twenty-five
years later he still seeks to harm the Petitioner, nor that such
harm would be with the government’s acquiescence. See
8 C.F.R. § 1208.18(a)(7) (“Acquiescence of a public official
requires that the public official, prior to the activity constitut-
ing torture, have awareness of such activity and thereafter
breach his or her legal responsibility to intervene to prevent
such activity.”).
In addition, while the numerous articles and studies cited
by the Petitioner indicate that gay men have been victims of
violence in Mexico, these do not suggest that the Petitioner is
more likely than not to face such violence. See Rashiah, 388 F.3d
at 1133 (“Though the country report supports the contention
that torture occurs in Sri Lanka, it does not demonstrate that it
is more likely than not that petitioner will be tortured if he
returns.”) (emphasis in original). Moreover, the fact that
Petitioner’s sister lives in Acapulco does not mean that he
cannot move to an area of Mexico more accepting of homosex-
uals, especially since he has lived the last twenty-five years
without his sister. See 8 C.F.R. § 1208.16(c)(3) (in determining
whether to grant CAT protection, courts should examine
whether the petitioner could relocate to another part of the
16 No. 14-3805
country where he is not likely to be tortured). The record also
reflects that medical treatment for HIV is free in Mexico, and
that there are 57 clinics for HIV treatment located throughout
the country.
Therefore, we find that the Petitioner did not satisfy his
burden to show that it is more likely than not that he would be
tortured by the government or with the government’s acquies-
cence if he returned to Mexico. The substantial evidence in the
record supports the BIA’s decision and does not call for a
contrary conclusion.4 As a result, the Petitioner is not entitled
to deferral of removal under CAT.
III. CONCLUSION
For the foregoing reasons, Petitioner’s petition is DENIED
and the BIA’s decision is AFFIRMED.
4
Petitioner also asks this court to remand for the opportunity to further
develop the record to determine his CAT claim. However, we find that the
roughly 850 page record is sufficient to rule on this issue.