Francisco Lopez Gamero v. William P. Barr ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-3198 & 18-1104
FRANCISCO LOPEZ GAMERO,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A090-289-114
____________________
ARGUED MAY 16, 2018 — DECIDED JULY 3, 2019
____________________
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Francisco Lopez Gamero, a Mexican
citizen and lawful permanent resident of the United States,
faces removal because of two state drug convictions. An
immigration judge found him removable as an alien convict-
ed of the aggravated felony of “illicit trafficking in a con-
trolled substance.” 8 U.S.C. § 1101(a)(43)(B). He sought
deferral of removal under the Convention Against Torture,
2 Nos. 17-3198 & 18-1104
but the judge denied that relief because the evidence he
presented about the risk of torture from Mexican drug
cartels was largely speculative. The Board of Immigration
Appeals affirmed.
Lopez Gamero later moved to reopen the removal pro-
ceedings based on new evidence—most notably, evidence
that his brother-in-law and nephew had been kidnapped
and held for ransom in Lopez Gamero’s hometown. The
Board denied the motion, ruling that the new evidence was
unlikely to change the outcome.
Lopez Gamero seeks review of both decisions. He raises
three arguments: (1) his drug convictions do not qualify as
“illicit trafficking” under § 1101(a)(43)(B) because the crimes
in question do not require proof of remuneration; (2) the
agency’s decision to deny his application under the Conven-
tion Against Torture is not supported by substantial evi-
dence; and (3) the agency applied the wrong legal standard
and abused its discretion when it denied his motion to
reopen. We deny the petitions for review.
I. Background
Lopez Gamero entered the United States in 1973 and be-
came a lawful permanent resident in 1989. Over the next
decade and a half, he was convicted of three crimes in Cook
County Circuit Court: (1) a domestic-violence offense in
1997, see 720 ILL. COMP. STAT. 5/12-3.2(a)(1); (2) possession of
cocaine with intent to deliver in 2005, id. § 570/401(c)(2); and
(3) possession of cannabis with intent to deliver, id.
§ 550/5(f), also in 2005.
On April 6, 2016, the Department of Homeland Security
initiated removal proceedings against Lopez Gamero. An
Nos. 17-3198 & 18-1104 3
immigration judge found him removable as an alien convict-
ed of illicit trafficking in a controlled substance, an aggravat-
ed felony listed in § 1101(a)(43)(B). The judge also
determined that Lopez Gamero is ineligible for most forms
of relief from removal—specifically, asylum, cancellation of
removal, and withholding of removal. That left only one
potentially viable path to relief: deferral of removal under
the Convention Against Torture. The judge held a merits
hearing on that claim.
Lopez Gamero testified that he fears torture at the hands
of drug cartels if he is removed to Mexico. He bases this fear
on a series of incidents that occurred in his hometown of
General Carlos Real, Durango, Mexico. In October 2008 his
cousin alerted him that suspicious men “were looking for
him.” He later heard warnings from acquaintances and
family members that unknown individuals had been asking
about him and surveilling his house in General Carlos Real.
In 2009 Lopez Gamero’s father told him that he was ap-
proached by suspicious men in a pick-up truck asking about
Lopez Gamero’s whereabouts. In 2011 Lopez Gamero’s wife
and daughter received an anonymous phone call, and the
caller knew they were planning to travel to Mexico. In
September 2012 Lopez Gamero’s housekeeper at the home in
Mexico told him that “several people … dressed up like
military” came to the house and forced their way in. Finally,
in October 2013 Lopez Gamero’s wife and daughter were
staying at a friend’s house in Mexico when the house was
“shot at.”
Lopez Gamero offered several reasons why cartel mem-
bers might be looking for him. He thought they might be
interested in him because of his connections to the United
4 Nos. 17-3198 & 18-1104
States and his controlled-substance convictions. He also said
he might be a target because cartel members viewed him as
wealthy given his home ownership.
Lopez Gamero’s wife and daughter testified about their
experiences with the unknown caller and the shooting.
Lopez Gamero also submitted certified statements from
other residents of General Carlos Real generally asserting
that his safety was at risk if he returned.
Dr. Nathan Jones, an expert witness on Mexican drug-
cartel violence, testified about how the cartels operate, the
pervasive cartel violence in General Carlos Real, and the
risks that Lopez Gamero would face in other parts of the
country. He testified that Lopez Gamero would face a high
risk of harm if he returned to General Carlos Real, a moder-
ate risk if he lived elsewhere but maintained contact with
relatives, and a low but still significant risk if he lived else-
where and severed communication with his family.
The immigration judge was not persuaded. He found
Lopez Gamero credible but gave his testimony “little
weight” because he had difficulty remembering dates and
much of his information was secondhand or speculative. He
reached the same conclusion for Lopez Gamero’s wife and
daughter. The judge also declined to credit Dr. Jones’s opin-
ion testimony, reasoning that it was “not supported by facts
in the record and was highly speculative.” The judge accord-
ingly declined to order deferral of removal, explaining that
the evidence was insufficient to establish that Lopez Gamero
faced a substantial risk of torture if removed to Mexico.
Lopez Gamero appealed to the Board of Immigration
Appeals, challenging the denial of deferral of removal and
Nos. 17-3198 & 18-1104 5
also the judge’s predicate legal conclusion that his drug
convictions qualify as illicit trafficking under
§ 1101(a)(43)(B). On the latter issue, he argued that “illicit
trafficking” offenses are limited to those that involve com-
mercial transactions in drugs—i.e., exchanging drugs for
remuneration.
The Board upheld the immigration judge’s decision. The
Board first held that any felony punishable under the Con-
trolled Substances Act (or a corresponding state drug felony)
qualifies as illicit trafficking under § 1101(a)(43)(B) regard-
less of whether it involves remuneration. The Board also
concluded that Lopez Gamero had not met his burden of
proof for deferral of removal, agreeing with the immigration
judge’s observation that his “entire case is speculative and
lacking objective support.”
Lopez Gamero moved to reconsider and reopen the pro-
ceedings. He argued that the Board ignored material evi-
dence in the record, but he also submitted new evidence—
namely, that his brother-in-law and nephew were kidnapped
and severely beaten by members of a drug cartel and freed
only after family members paid a ransom. 1 The Board
denied the motion, explaining that the immigration judge
had considered the totality of the evidence and that Lopez
1 Lopez Gamero later supplemented his motion with an affidavit from a
family member stating that a suspicious person came to the house and
asked for Lopez Gamero. The agency returned the supplemental filing,
stating that it was not submitted by “[Lopez Gamero] or [his] attorney
(with a EOIR-27 on file).” Lopez Gamero was not notified of this action
until after the Board denied his motion to reopen. He labels this an
“administrative error” but does not challenge the agency’s reason for
rejecting the filing.
6 Nos. 17-3198 & 18-1104
Gamero had not demonstrated a “nexus” between his own
circumstances and the kidnapping of his brother-in-law and
nephew. The new evidence, the Board concluded, was not
likely to change the outcome of the proceedings.
II. Discussion
Lopez Gamero seeks review of both the removal order
and the order denying his motion to reopen. Where, as here,
the Board issues its own opinion rather than adopting or
supplementing the immigration judge’s opinion, we review
only the Board’s opinion. Darif v. Holder, 739 F.3d 329, 335
(7th Cir. 2014). Our standard of review is deferential; we will
uphold the agency’s decision as long as it is “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” Weiping Chen v. Holder,
744 F.3d 527, 532 (7th Cir. 2014). We decide questions of law
independently, though we will defer to the Board’s interpre-
tation of an immigration statute if the statutory language is
ambiguous. Cruz-Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir.
2012). Finally, we review the Board’s decision on a motion to
reopen for abuse of discretion; relief is appropriate only if
the decision “was made without a rational explanation,
inexplicably departed from established policies, or rested on
an impermissible basis such as invidious discrimination
against a particular race or group.” Victor v. Holder, 616 F.3d
705, 708 (7th Cir. 2010).
Lopez Gamero presses three arguments in these consoli-
dated petitions. He first argues that his state drug convic-
tions do not qualify as “illicit trafficking” under
§ 1101(a)(43)(B) because the Illinois offenses do not require
remuneration—i.e., a commercial transaction in drugs. He
also challenges the Board’s denial of his claim for deferral of
Nos. 17-3198 & 18-1104 7
removal under the Convention Against Torture. Finally, he
argues that the agency applied the wrong legal standard and
abused its discretion when it denied his motion to reopen.
A. Illicit Trafficking
The Immigration and Nationality Act provides that an
alien who has been “convicted of an aggravated felony at
any time after admission” is removable. 8 U.S.C.
§ 1227(a)(2)(A)(iii). The Act’s definition of “aggravated
felony” lists many crimes. See generally id. § 1101(a)(43). At
issue here is “illicit trafficking in a controlled substance (as
defined in section 802 of Title 21), including a drug traffick-
ing crime (as defined in section 924(c) of Title 18).”
§ 1101(a)(43)(B). Under § 924(c) the term “drug trafficking
crime” includes “any felony punishable under the Con-
trolled Substances Act.” 18 U.S.C. § 924(c).
The phrase “illicit trafficking in a controlled substance” is
not further defined, but the Board reads it to include “any
state, federal, or qualified foreign felony conviction involv-
ing the unlawful trading or dealing in a controlled substance as
defined by Federal Law.” In re L-G-H-, 26 I. & N. Dec. 365,
368 (BIA 2014) (quotation marks omitted). That is, the Board
reads the term to require a commercial transaction or an
exchange of drugs for remuneration. Id. at 371. In addition,
the Supreme Court has said in dicta that the “commonsense
conception” of illicit trafficking includes “some sort of
commercial dealing.” Lopez v. Gonzales, 549 U.S. 47, 53 (2006).
This creates an interpretive dilemma. The statutory defi-
nition says that “illicit trafficking in a controlled substance”
includes any drug-trafficking crime as defined in § 924(c),
and the § 924(c) definition in turn sweeps in “any felony
8 Nos. 17-3198 & 18-1104
punishable under the Controlled Substances Act.” (Empha-
sis added.) But most felonies in the Controlled Substances
Act do not require a commercial transaction—i.e., an ex-
change of drugs for remuneration. See, e.g., 21 U.S.C.
§ 841(a)(1) (“[I]t shall be unlawful for any person knowingly
or intentionally[] to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute or dispense, a
controlled substance … .”).
To resolve this tension, the Board has effectively split
§ 1101(a)(43)(B) into two parts: it treats a drug conviction as
an aggravated felony if the offense satisfies the “commercial
transaction” understanding of “illicit trafficking” or if the
offense qualifies as a drug-trafficking crime as defined in
§ 924(c)—that is, if it is a felony under the Controlled Sub-
stances Act (or a state analog). See Gerbier v. Holmes, 280 F.3d
297, 304–06 (3d Cir. 2002) (detailing the Board’s adoption of
this approach). As the Board has explained, “the ‘drug
trafficking crime’ clause is not a subset [of the term ‘illicit
trafficking’] in the usual sense[] because that phrase includes
some offenses that do not involve a commercial aspect. Thus,
the ‘subset’ is both broader and narrower than ‘illicit traffick-
ing.’” In re L-G-H, 26 I. & N. Dec. at 374 n.6.
Here the Board ruled that Lopez Gamero’s Illinois con-
victions for possession of controlled substances (cocaine and
marijuana) with intent to deliver mirror the analog felonies
in the Controlled Substances Act. Compare 21 U.S.C.
§ 841(a)(1), (b)(1)(C), (b)(1)(D), with 720 ILL. COMP. STAT.
570/401(c)(2), 550/5(f). The Board accordingly held that his
convictions qualify as drug-trafficking crimes under § 924(c)
and, by extension, are properly classified as aggravated
felonies under § 1101(a)(43)(B).
Nos. 17-3198 & 18-1104 9
Lopez Gamero concedes that his Illinois convictions
match the analog drug felonies in the Controlled Substances
Act. He argues instead that his drug convictions do not
qualify as “illicit trafficking” offenses because they do not
involve remuneration. His argument proceeds in two steps.
First, he invokes the “commercial” aspect of the term “illicit
trafficking” mentioned in passing in the Supreme Court’s
dicta in Lopez and appearing more formally in the Board’s
decision in In re L-G-H. See Lopez, 549 U.S. at 53 (citing
BLACK’S LAW DICTIONARY 1534 (8th ed. 2004)); In re L-G-H,
26 I. & N. Dec. at 368. Second, he contends that the phrase
“drug trafficking crime” as used in § 1101(a)(43)(B) is a
subset of “illicit trafficking.” Putting the two parts of the
argument together, he maintains that a felony punishable
under the Controlled Substances Act (or a corresponding
state offense) qualifies as an aggravated felony only if it
involves remuneration.
We’re not persuaded. To begin, the Court’s dicta in Lopez
cannot bear the interpretive weight Lopez Gamero assigns to
it. As used in federal and state controlled-substances stat-
utes, “trafficking” is a broad term casting a wide net and
covering all manner of unlawful distribution of—and pos-
session with intent to distribute—controlled substances,
whether for value or otherwise. Few drug-trafficking felo-
nies require proof of remuneration; it’s improbable that
§ 1101(a)(43)(B) covers only these.
Moreover, the Lopez dicta must be read in context: the
Court’s reasoning actually forecloses Lopez Gamero’s inter-
pretation of § 1101(a)(43)(B). The conviction at issue there
was a South Dakota felony for aiding and abetting another’s
possession of cocaine, which “state law treated as the equiv-
10 Nos. 17-3198 & 18-1104
alent of possessing the drug.” 549 U.S. at 53. But “[m]ere
possession,” the Court observed, is not a felony under
federal law. Id. The Court explained that any drug felony as
defined in § 924(c)—that is, any felony punishable under the
Controlled Substances Act—“necessarily counts” as illicit
trafficking. Id. at 55. However, because the South Dakota
felony possession conviction would be a misdemeanor
under the Controlled Substances Act, it did not qualify. Id.
(“Unless a state offense is punishable as a federal felony[,] it
does not count.”).
So the Court’s holding rests on the assumption that a
conviction for a drug-related crime punishable as a felony
under the Controlled Substances Act counts as an aggravat-
ed felony under § 1101(a)(43)(B) regardless of whether the
crime entails remuneration. The Court made this point
explicit in a footnote:
Those state possession crimes that correspond
to felony violations of one of the three statutes
enumerated in § 924(c)(2), such as possession
of cocaine base and recidivist possession, see
21 U.S.C. § 844(a), clearly fall within the defini-
tions used by Congress in 8 U.S.C.
§ 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), re-
gardless of whether these [crimes] constitute “illicit
trafficking in a controlled substance” or “drug traf-
ficking” as those terms are used in ordinary speech.
549 U.S. at 55 n.6 (emphasis added).
Alternatively, if the term “illicit trafficking” is ambigu-
ous, the Board’s interpretation of the statute is reasonable.
See Cruz-Moyaho, 703 F.3d at 997 (applying Chevron deference
Nos. 17-3198 & 18-1104 11
to the Board’s interpretation of the Immigration and Nation-
ality Act). The Board reads § 1101(a)(43)(B) to include both
(1) illicit-trafficking crimes that involve remuneration and
(2) drug-trafficking crimes as defined in § 924(c)—that is,
any felony listed in the Controlled Substances Act (or a
corresponding state offense). This interpretation tracks the
Court’s reasoning in Lopez. See 549 U.S. at 55 n.6. According-
ly, the Board properly classified Lopez Gamero’s convictions
as aggravated felonies under § 1101(a)(43)(B).
B. Convention Against Torture
To qualify for deferral of removal under the Convention
Against Torture, the claimant must establish that it is more
likely than not that he will be tortured if removed. 8 C.F.R.
§§ 1208.16(c)(2), 1208.17(a). Because the risk of torture is
difficult to quantify, we’ve reframed the claimant’s burden as
a requirement to establish a “substantial risk” of torture if
removed. Perez-Montes v. Sessions, 880 F.3d 849, 850 (7th Cir.
2018). The implementing regulations broadly define “tor-
ture” as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted upon a person.”
8 C.F.R. § 1208.18(a)(1). The agency must consider all evi-
dence relevant to the possibility of future torture. Id.§ 1208.16(c)(3).
Lopez Gamero contends that the Board’s decision is not
supported by substantial evidence. That’s a hard argument
to win. The agency’s decision satisfies the substantial-
evidence standard unless the record as a whole compels the
conclusion that the claimant faces a substantial risk of tor-
ture if removed. See Abdoulaye v. Holder, 721 F.3d 485, 490
(7th Cir. 2013).
12 Nos. 17-3198 & 18-1104
Lopez Gamero’s evidence amounts to a handful of suspi-
cious incidents over a five-year span occurring at a home he
didn’t live in. He presented no corroborating evidence that
these incidents occurred, and he and his witnesses could
only speculate that a drug cartel was involved. His claim is
similar to the one at issue in Gutierrez v. Lynch, 834 F.3d 800,
806 (7th Cir. 2016), where the evidence consisted of “random
incidents of violence against [the claimant’s] family members
[that] happened years apart and are unrelated and not
connected in any way to the [claimant].” We hold here, as we
did in Gutierrez, that the Board’s decision satisfies the
substantial-evidence standard.
Lopez Gamero raises a handful of more specific chal-
lenges to the Board’s decision. The first is an assertion that
the Board failed to consider material evidence. The Board
stated that there was “no evidence” of the identity of the
harassers. The Board also said that his “entire case is specu-
lative and lacking in objective support.” As Lopez Gamero
sees it, the Board must have overlooked key pieces of evi-
dence or else it would not have made these statements. He
points to the following parts of the record: his testimony
describing the housekeeper’s account of the break-in, the
nature of the anonymous phone call, the evidence docu-
menting cartel activity in the area, and the statements from
his relatives and friends that “cartel members” were looking
for him. But the Board did not overlook this evidence; it
simply found it unpersuasive. See Silais v. Sessions, 855 F.3d
736, 743 (7th Cir. 2017) (“Silais’s argument that the agency
ignored or misconstrued [her expert’s] evidence amounts to
nothing more than frustration with the [immigration judge’s]
factual findings. Without more, we see no reason to disturb
them.”).
Nos. 17-3198 & 18-1104 13
Lopez Gamero also argues that the Board applied the
wrong legal standard when it characterized his burden of
proof as “high and specific.” That was a rough approxima-
tion of his burden. See, e.g., Lozano-Zuniga v. Lynch, 832 F.3d
822, 830 (7th Cir. 2016) (describing the petitioner’s burden as
a “high bar”). And any arguable confusion is resolved in the
very next sentence of the Board’s decision. There the Board
stated that Lopez Gamero must show a substantial risk of
torture. That’s a correct statement of the legal standard.
Finally, Lopez Gamero complains about the Board’s anal-
ysis of three specific items of evidence. He contends that the
Board improperly discounted his expert’s opinion. The
Board declined to credit the expert’s testimony because it
was “too speculative to be given much weight.” We see no
basis to second-guess that conclusion. The Board also stated
that Lopez Gamero’s continued home ownership in General
Carlos Real cut against his claim of fear. That’s one permissi-
ble way to view the evidence. Lastly, Lopez Gamero high-
lights a misstep by the immigration judge, who mistakenly
commented that Lopez Gamero forgot certain dates during
his testimony. The Board reasonably characterized this as a
“minor misstatement [that] was not material to the
[i]mmigration [j]udge’s decision.” In short, we find no reason
to disturb the Board’s determination that Lopez Gamero did
not satisfy his burden on his claim for deferral of removal.
C. Motion to Reopen
The Board has broad discretion over motions to reopen
removal proceedings. INS v. Doherty, 502 U.S. 314, 323 (1992).
It may, for example, deny a motion to reopen if: “(1) it is not
supported by previously unavailable and material evidence;
(2) it fails to establish the applicant’s prima facie eligibility
14 Nos. 17-3198 & 18-1104
for the underlying relief sought; or (3) the Board determines
discretionary relief is not appropriate in the petitioner’s
case.” Boika v. Holder, 727 F.3d 735, 738 (7th Cir. 2013). A
prima facie case requires “sufficient evidence to demon-
strate … a reasonable likelihood of success on the merits so
as to make it worthwhile to develop the issues further at a
full evidentiary hearing.” Id. at 742.
Lopez Gamero sought to reopen the proceedings based
on new evidence that his brother-in-law and nephew were
kidnapped and beaten by members of a drug cartel. The
Board denied the motion, explaining that Lopez Gamero did
not “satisfy [his] heavy burden to show that if the proceed-
ings were reopened or remanded, it would likely change the
outcome.” More specifically, the Board saw nothing in his
motion to link the kidnapping to his own circumstances.
Lopez Gamero first argues that the Board applied the
wrong legal standard. He points to 8 C.F.R. § 1003.2(c)(1),
which provides that “[a] motion to reopen proceedings shall
state the new facts that will be proven at a hearing.” The
regulation goes on to say that “[a] motion to reopen proceed-
ings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not availa-
ble and could not have been discovered or presented at the
former hearing.” Id. Lopez Gamero reads this language to
mean that the Board must reopen the proceedings if the new
evidence is material and was previously unavailable. That’s a
clear misinterpretation of the regulation, which establishes
necessary—not sufficient—conditions for reopening.
Relatedly, Lopez Gamero challenges the Board’s reliance
on In re Coelho, which places the burden on the claimant to
show that “if the proceedings were reopened and remanded,
Nos. 17-3198 & 18-1104 15
it would likely change the outcome.” 20 I. & N. Dec. 464,
472–73 (BIA 1992). Lopez Gamero maintains that this hold-
ing has been abrogated by 8 U.S.C. § 1229a(c)(7)(A)–(B). Not
so. Section 1229a(c)(7) provides only that an alien has a right
to file a motion to reopen if he meets the statutory require-
ments. As we’ve discussed, both Supreme Court precedent
and the applicable regulations vest the Board with broad
discretion over motions to reopen. See Doherty, 502 U.S. at
323; 8 C.F.R. § 1003.2(c)(1).
Lopez Gamero next argues that it was wrong as a legal
matter for the Board to require a “nexus” between the
kidnapping and his own circumstances. He explains that
“nexus” is a term of art in immigration law. For example, in
withholding-of-removal and asylum cases, an alien must
show that his family members were targeted because of their
familial relationship with the alien, see In re L-E-A-, 27 I. & N.
Dec. 40, 43–47 (BIA 2017), but this requirement does not
apply in applications for relief under the Convention
Against Torture. This argument misunderstands the Board’s
use of the word “nexus.” It was not a statement of the legal
standard. The Board used the term to explain why the new
evidence did not affect its analysis: Lopez Gamero had not
shown that the kidnapping was related to the threats against
him, so the new evidence was not likely to change the out-
come.
Lopez Gamero argues in the alternative that his new evi-
dence “directly refutes the basis” for the Board’s decision to
deny his claim for relief, so it was an abuse of discretion to
decline to reopen the proceedings. We’re not persuaded. The
Board had a reasonable explanation for denying the motion:
The violence against Lopez Gamero’s extended family is not
16 Nos. 17-3198 & 18-1104
sufficiently connected to threats against Lopez Gamero
personally.
III. Conclusion
In sum, the Board correctly classified Lopez Gamero’s
drug convictions as aggravated felonies under
§ 1101(a)(43)(B), and he is therefore removable based on
those convictions. The Board’s denial of his application for
relief under the Convention Against Torture is supported by
substantial evidence. Finally, the Board applied the proper
legal standard and did not abuse its discretion in denying
his motion to reopen. We DENY the petitions for review.