Carlos Avila-Ramirez v. Eric Holder, Jr. , 764 F.3d 717 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3300
CARLOS AVILA-RAMIREZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A034-762-288
____________________
ARGUED APRIL 22, 2014 — DECIDED AUGUST 21, 2014
____________________
Before POSNER, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. An immigration judge found
Carlos Avila-Ramirez “credible” and gave “full weight to his
testimony” at a hearing requesting discretionary relief from
removal. That testimony included Avila-Ramirez’s denial
that he had committed any underlying wrongdoing during
the times he had been arrested or questioned since 1990. He
was never convicted of any crimes resulting from those ar-
2 No. 13-3300
rests, and the police reports the government introduced at
the hearing were uncorroborated. Yet the immigration judge
and Board of Immigration Appeals relied on these uncor-
roborated arrest reports to find that Avila-Ramirez had
failed to show “rehabilitation” after a 1990 conviction, and
this failure was a significant factor in the decision to deny
him discretionary relief from removal under former § 212(c)
of the Immigration and Nationality Act. We conclude that in
these circumstances, the BIA committed legal error by failing
to follow its own binding precedent and giving substantial
weight to an arrest report absent a conviction or corroborat-
ing evidence of the allegations contained therein. So we
grant the petition for review.
I. BACKGROUND
Carlos Avila-Ramirez, a citizen of Guatemala, was law-
fully admitted to the United States as a permanent resident
in 1977 when he was about seven years old. He has re-
mained in the United States ever since. After three years of
high school, he joined the United States Marine Corps. He
later obtained his GED, then attended Solano Community
College in California and received a certification to become
an optical technician. Avila-Ramirez has been consistently
employed as an adult. Most recently, he worked for a cable
company in Chicago, earning $77,000 in the year preceding
his immigration hearing.
At the time of the June 2012 removal hearing, Avila-
Ramirez had been engaged to his fiancée, Gloria Espinosa,
for about ten years. They live together in Chicago and also
live with their son, who was born in 2003. Espinosa suffers
from lupus and Sjögren’s syndrome, both autoimmune dis-
orders, as well as fibromyalgia. Although only thirty-three
No. 13-3300 3
years old at the time of Avila-Ramirez’s hearing, these dis-
eases had already rendered her unable to work. She receives
$1,296 in Social Security disability benefits for herself and
her son, as well as $150 in food stamps for her son.
Avila-Ramirez’s income helps support Espinosa and their
son. In addition, because one of Espinosa’s main symptoms
is fatigue, Avila-Ramirez usually cleans the house and cooks.
Avila-Ramirez and Espinosa both expressed their intent to
marry. Avila-Ramirez also testified that if he were deported,
Espinosa and their son would probably remain in the United
States because of Espinosa’s medical needs.
Avila-Ramirez’s mother, brother, sister, grandmother, and
uncles also live in the United States. Avila-Ramirez’s mother
receives Supplemental Security Income and lives with her
mother in Chicago, and his sister lives about an hour away.
His brother is in the United States Army and is stationed in
Central America. Although his mother earns some income
working at a drug store, Avila-Ramirez helps support her
financially. He also takes her places because she does not
drive. Since Avila-Ramirez lives the closest of the children to
his mother, he is also the one who would, for example, take
her to the emergency room when she is ill. (His mother suf-
fers from high blood pressure and hypertension.)
But Avila-Ramirez’s time in the United States was certain-
ly not unblemished. He was convicted in California in 1990
of inflicting corporal injury upon a spouse or cohabitant and
sentenced to seventy-nine days in jail. A short while later, he
received a bad conduct discharge from the military for writ-
ing bad checks and was sentenced to ninety days’ incarcera-
tion. He testified before the immigration judge regarding the
latter that he had written a check that hit the bank before his
4 No. 13-3300
pay did, and that he paid the money owed after money was
deposited into his account.
Most significantly, later in 1990, Avila-Ramirez pled
guilty in California state court to committing a lewd and las-
civious act with a child under the age of fourteen. The victim
was the daughter of his then-girlfriend. He received a sen-
tence of six years’ imprisonment for this crime. He also re-
linquished parental rights to his daughter, the victim’s half-
sister, as a result of the charge. He was paroled after three-
and-a-half years in prison and moved to Chicago in 1993.
That 1990 conviction is the last time Avila-Ramirez was
convicted of a crime. He has, however, been questioned or
arrested multiple times since then. In 1995, Avila-Ramirez
was arrested for aggravated stalking and violation of a re-
straining order. He denied any misconduct at the removal
hearing, testifying that his then-girlfriend’s mother had filed
for the restraining order because she did not want the two of
them to date, and that he was arrested for stalking after he
knocked on the door. Later that year, Avila-Ramirez was
questioned regarding theft of labor services and use of a sto-
len credit card. Avila-Ramirez testified before the immigra-
tion judge that the charges were dropped because “[he]
didn’t have anything to do with it.”
In 2006, Avila-Ramirez was arrested for predatory crimi-
nal assault of a child. He was never charged, never required
to appear in court after the arrest, and he denied any
wrongdoing at the immigration hearing. Avila-Ramirez’s
mother testified that her sister was the one who had made
the accusation, and that her sister falsely accuses people be-
cause she drinks. The next year, Avila-Ramirez was arrested
for unlawful possession of a firearm. He testified to the im-
No. 13-3300 5
migration judge that he was pulled over for a traffic viola-
tion while giving a ride to Espinosa’s brother, who is in a
gang. Avila-Ramirez testified that he gave the police consent
to search his car thinking he had nothing to hide, the police
found a gun underneath the seat, and that the gun belonged
to Espinosa’s brother but Avila-Ramirez was charged be-
cause the car was registered in his name. The prosecutor did
not proceed with a case. The immigration judge noted that
the police report states that Avila-Ramirez told the police he
was carrying the gun for protection. The government intro-
duced no evidence corroborating any of the allegations or
arrest reports.
After hearing all the testimony, the immigration judge
found Avila-Ramirez credible and stated he gave Avila-
Ramirez’s testimony “full weight.” Nonetheless, the immi-
gration judge concluded that Avila-Ramirez’s repeated ar-
rests meant he had not shown rehabilitation and denied Avi-
la-Ramirez’s request for § 212(c) relief. While calling it a
“very close” case, the BIA affirmed, stating in part that “the
Immigration Judge found that [Avila-Ramirez’s] recent sub-
sequent arrests show a lack of rehabilitation. We discern no
clear error in that finding.”
II. ANALYSIS
Avila-Ramirez petitions our court for review. Because the
BIA relied on the findings of the immigration judge and
added its own analysis, we review the immigration judge’s
decision as supplemented by the BIA. See Milanouic v. Holder,
591 F.3d 566, 570 (7th Cir. 2010).
Avila-Ramirez concedes that he is eligible for removal
and seeks discretionary relief from removal under former
6 No. 13-3300
§ 212(c) of the Immigration and Nationality Act. Through the
1996 passage of the Antiterrorism and Effective Death Penal-
ty Act (AEDPA) and the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), Congress repealed
§ 212(c) and replaced it with a narrower form of discretion-
ary relief known as “cancellation of removal.” See United
States v. Zambrano-Reyes, 724 F.3d 761, 762 (7th Cir. 2013). A
lawful permanent resident cannot receive cancellation of
removal if he has an aggravated felony conviction, 8 U.S.C.
§ 1229b; Gonzales-Gomez v. Achim, 441 F.3d 532, 533 (7th Cir.
2006), and Avila-Ramirez does not contest the BIA’s determi-
nation that his 1990 conviction for committing a lewd and
lascivious act with a child under the age of fourteen was for
an aggravated felony, see 8 U.S.C. § 1101(a)(43)(A) (including
sexual abuse of a minor in aggravated felony definition).
But Avila-Ramirez is still statutorily eligible for § 212(c)
relief. The Supreme Court held that, despite AEDPA and
IIRIRA, § 212(c) relief is still available for persons “whose
convictions were obtained through plea agreements and
who, notwithstanding those convictions, would have been
eligible for § 212(c) relief at the time of their plea under the
law then in effect.” I.N.S. v. St. Cyr, 533 U.S. 289, 326 (2001).
Avila-Ramirez’s guilty plea occurred in 1990, at a time when
he would have been eligible for § 212(c) relief. So he is statu-
torily eligible for § 212(c) relief.
The next potential barrier to our review comes in the
form of the REAL ID Act, which limits our review of certain
BIA decisions. Invoking this statute, the government main-
tains that we lack jurisdiction to consider Avila-Ramirez’s
petition because it contends he is seeking review of a purely
discretionary decision barred from our consideration by 8
No. 13-3300 7
U.S.C. § 1252(a)(2)(B). It is true that whether to grant § 212(c)
relief is a matter of discretion. Matter of Marin, 16 I. & N. Dec.
581, 584 (BIA 1978). In deciding whether to grant such relief,
the immigration judge is to “balance the adverse factors evi-
dencing an alien’s undesirability as a permanent resident
with the social and humane considerations presented in his
behalf” to determine whether granting relief is in the best
interests of the United States. Id. Favorable consideration in-
clude family ties within the United States, residence of long
duration in the United States (especially when the residence
began while the non-citizen was of young age), evidence of
hardship to the applicant and family if deported, service in
the United States Armed Forces, a history of employment,
the existence of property or business ties, evidence of value
and service to the community, proof of genuine rehabilita-
tion if a criminal record exists, and other evidence attesting
to good character. Id. at 584-85. Adverse factors include the
nature and underlying circumstances of the exclusion
ground at issue, the presence of additional significant viola-
tions of this country’s immigration laws, the existence of a
criminal record and, if so, its nature, recency, and serious-
ness, and the presence of other evidence indicative of a re-
spondent’s bad character or undesirability. Id. at 584.
But despite the bar in § 1252(a)(2)(B) on purely discre-
tionary determinations, we retain jurisdiction to review
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D). “Legal questions include ‘challenges to the
BIA’s interpretation of a statute, regulation, or constitutional
provision, claims that the BIA misread its own precedent or
applied the wrong legal standard, or claims that the BIA
failed to exercise discretion at all.’” Cruz-Moyaho v. Holder,
703 F.3d 991, 997 (7th Cir. 2012) (citations omitted). By regu-
8 No. 13-3300
lation, the BIA is required when issuing a non-precedential
decision to follow its own binding precedent. 8 C.F.R.
§ 1003.1(g) (“Except as Board decisions may be modified or
overruled by the Board or the Attorney General, decisions of
the Board … shall be binding on all officers and employees
of the Department of Homeland Security or immigration
judges in the administration of the immigration laws of the
United States.”). An argument that the BIA has exceeded the
scope of review permissible under this regulation is a legal
question for purposes of 8 U.S.C. § 1252(a)(2)(D) and there-
fore subject to our review. Rosiles-Camarena v. Holder, 735
F.3d 534, 536 (7th Cir. 2013). Avila-Ramirez asserts in his
brief: “The Board ignored its own binding precedent in vio-
lation of federal law when it denied [his] petition for relief.”
More specifically, he maintains that the BIA’s reliance on on-
ly uncorroborated arrest reports for which he denies any
wrongdoing to determine whether he was “rehabilitated”
ignored the BIA’s precedential decision in In re Catalina Arre-
guin De Rodriguez, 21 I. & N. Dec. 38 (BIA 1995), and misread
Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995). This is a ques-
tion of law that we have jurisdiction to review. See Rosiles-
Camarena, 735 F.3d at 536.
Rehabilitation can be an important factor in the § 212(c)
analysis, as it was in this case. The Supreme Court has stated
that a grant of relief will depend, in part, on ‘’’evidence of
either rehabilitation or recidivism,’” Judalang v. Holder, 132 S.
Ct. 476, 481 (2011) (quoting St. Cyr, 533 U.S. at 296 n.5), and
the immigration judge repeated that quotation in his deci-
sion here. In making his § 212(c) determination, the immi-
gration judge found “significant favorable factors” in Avila-
Ramirez’s case. He also recognized that Avila-Ramirez and
his family, including his fiancée and son, would “face con-
No. 13-3300 9
siderable hardships” if Avila-Ramirez were forced to leave.
But the immigration judge found that Avila-Ramirez had a
“lengthy arrest history” and convictions for serious crimes
and had “not shown meaningful rehabilitation since his re-
lease from incarceration.”
Yet the immigration judge also found Avila-Ramirez
credible. And he did so in strong language, stating:
Having reviewed [Avila-Ramirez’s] testimony
and documentary submissions, the Court finds
his testimony to have been internally con-
sistent and consistent with the documentary
evidence in the record. Thus, the Court finds
the respondent credible and will give full
weight to his testimony.
Avila-Ramirez testified at the hearing that he did not
commit any unlawful conduct before each of the arrests. In
particular, Avila-Ramirez testified that his 1995 arrest for
stalking and violating a restraining order occurred after his
then-girlfriend’s mother did not want her daughter to date
him after learning about his 1990 conviction. He testified
that his girlfriend’s mother obtained a restraining order after
he disclosed the conviction, and the mother called the police
and alleged he was stalking her daughter when he came to
knock on the door one day. The stalking charge and restrain-
ing order were dropped, and the government did not intro-
duce any evidence at the removal hearing that corroborated
the allegations in the police report.
Avila-Ramirez was also questioned in 1995 regarding
credit card theft and “theft of labor services.” Avila-Ramirez
testified that he “didn’t have anything to do with [the charg-
10 No. 13-3300
es].” These charges were also dropped, and the government
offered no evidence in support of the claims. Avila-Ramirez
was arrested in 2006 after his aunt accused him of having
inappropriate contact with her granddaughter. He testified
that his aunt, who was aware of Avila-Ramirez’s 1990 convic-
tion, had been drinking and made the accusation, but he
stated that he had done nothing wrong. His mother also tes-
tified that her sister falsely accuses people when she drinks.
No charges were ever brought.
Avila-Ramirez also denied that he had unlawfully pos-
sessed a firearm in 2007. He testified that he was driving Es-
pinosa’s brother when he was pulled over for a minor traffic
infraction. Avila-Ramirez consented to a search of his car be-
cause, he testified, he didn’t have anything to hide. He testi-
fied that the gun the police found in his car belonged to Es-
pinosa’s brother but that Avila-Ramirez was charged because
it was his car.
So Avila-Ramirez denied committing any unlawful con-
duct in the events leading to his arrests or questioning after
1990. The immigration judge found Avila-Ramirez credible
and gave his testimony full weight, and that testimony in-
cluded denying the underlying conduct. But the judge, af-
firmed by the BIA, also found that the arrests and question-
ing showed a lack of rehabilitation. The judge further stated
that Avila-Ramirez told the court he had rehabilitated him-
self, “but these repeated arrests” show otherwise. Finding
Avila-Ramirez’s testimony fully credible and also finding
that his arrests evidenced a lack of rehabilitation are seem-
ingly contradictory findings.
And the agency found a lack of rehabilitation based on
nothing more than uncorroborated police reports. Nonethe-
No. 13-3300 11
less, the government maintains that the BIA did not fail to
follow its own precedent. The only decision the agency ref-
erenced regarding rehabilitation, Matter of Thomas, 21 I. & N.
Dec. 20 (BIA 1995), does not authorize its ruling here. In Mat-
ter of Thomas, the BIA held that the immigration judge could
consider the applicant’s convictions in the exercise of discre-
tion even though the convictions were not yet final. Id. at 25.
The BIA explained: “Although the respondent’s convictions
are not yet final, we find the fact that he has been so convict-
ed, whether by jury trial or upon his own plea of guilty, to
constitute significant evidence that he has committed the
crimes of which he has been found guilty.” Id. Avila-
Ramirez, on the other hand, was not convicted after any of
the arrests at issue. There is no “significant evidence” that he
committed any crimes after 1990; he denied that he did the
conduct alleged in police reports, and he was never convict-
ed after that date.
Thomas does include the language: “In examining the
presence of adverse factors on an application for discretion-
ary relief, this Board has found it appropriate to consider ev-
idence of unfavorable conduct, including criminal conduct
which has not culminated in a final conviction for purposes
of the Act.” Id. at 23. But the cases the BIA cited in support of
this proposition make sense, and none involved only uncor-
roborated police reports. Some, for example, involved guilty
pleas or other admissions. Matter of Seda, 17 I. & N. Dec. 550(BIA 1980) (guilty plea); White v. I.N.S., 17 F.3d 475 (1st Cir.
1994) (guilty plea); Paredes-Urrestarazu v. I.N.S., 36 F.3d 801(9th Cir. 1994) (pre-trial diversion where defendant initially
testified that friend told him he had drugs for sale); Parcham
v. I.N.S., 769 F.2d 1001 (4th Cir. 1985) (acknowledgment of
participation in “violent demonstration” corroborated pend-
12 No. 13-3300
ing arson charges arising out of demonstration). Others con-
cerned convictions with a judicial recommendation against
deportation. Matter of Gonzalez, 16 I. & N. Dec. 134 (BIA
1977); Oviawe v. I.N.S., 853 F.2d 1428 (7th Cir. 1988); Giam-
banco v. I.N.S., 531 F.2d 141 (3d Cir. 1976). Another case in-
volved a conviction that had been expunged. Villanueva-
Franco v. I.N.S., 802 F.2d 327 (9th Cir. 1986). In short, all of the
cases the BIA discussed in Matter of Thomas involved some
corroboration beyond a mere arrest report. Save one, that is,
and it is the one most relevant to our circumstances. Matter of
Thomas cited favorably to Sierra-Reyes v. I.N.S., 585 F.2d 762,
764 n.3 (5th Cir. 1978), which the BIA described as “stating
that police reports implicating respondent in criminal activi-
ty but which never resulted in prosecution due to a lack of
sufficient evidence were not probative.” Matter of Thomas, 21
I. & N. Dec. at 24-25. That is what we have here: only uncor-
roborated police reports.
Soon after its decision in Matter of Thomas, the BIA con-
sidered the weight that could be given to uncorroborated ar-
rest reports in a § 212(c) discretionary relief determination.
But neither the BIA nor the immigration judge cited or dis-
cussed the BIA’s precedential decision in In re Catalina Arre-
guin De Rodriguez, 21 I. & N. Dec. 38, 42 (BIA 1995). As a
precedential decision, it is binding on the agency when it is-
sues a non-precedential decision such as the one in this case.
See 8 C.F.R. § 1003.1(g). In Arreguin, the applicant in her tes-
timony before the immigration court denied any wrongdo-
ing regarding the conduct described in an arrest report.
Nonetheless, an immigration judge denied the request for
§ 212(c) relief after considering the arrest report and finding
it to be a negative factor. The BIA reversed and explained:
No. 13-3300 13
The Immigration Judge concluded that this in-
cident was a negative factor to be considered in
exercising discretion. Just as we will not go be-
hind a record of conviction to determine the
guilt or innocence of an alien, so we are hesi-
tant to give substantial weight to an arrest re-
port, absent a conviction or corroborating evi-
dence of the allegations contained therein.
Here, the applicant conceded that the arrest
took place but admitted to no wrongdoing.
Considering that prosecution was declined and
that there is no corroboration, from the appli-
cant or otherwise, we give the apprehension
report little weight.
21 I. & N. Dec. at 42. The BIA then weighed the favorable
and negative facts in the record and found § 212(c) relief
warranted. Id. at 42-43.
The Sixth Circuit ruled that Arreguin meant an immigra-
tion judge erred by denying relief based on uncorroborated
arrest reports. Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 713 (6th
Cir. 2004). After finding the facts before it “materially the
same” to those in Arreguin, the court ruled that although the
immigration judge was concerned that the petitioner “had a
history of sexually abusing young children, he was not con-
victed of any such crime, denied committing such a crime,
and was confronted with no independent evidence suggest-
ing otherwise.” Id. at 712. The court held that the BIA’s “fail-
ure to follow its precedent” in Arreguin when it relied on un-
corroborated arrest reports to deny discretionary relief was a
legal error that subjected the petitioner to substantial preju-
dice. Id. at 713. As a result, the court remanded the case to
14 No. 13-3300
the BIA with instructions not to consider the reports. Id.; cf.
Padmore v. Holder, 609 F.3d 62, 69 (2d Cir. 2010) (noting con-
cern with “the BIA’s apparent willingness to accept unprov-
en and disputed allegations as true merely because they ex-
ist in the record”).
Here too, as in Arreguin, Avila-Ramirez acknowledged
that arrests and questioning took place after 1990, but admit-
ted to no wrongdoing. Avila-Ramirez was not prosecuted or
convicted after these arrests, and there was no corroboration
introduced at the immigration hearing. Yet the immigration
judge and the BIA gave the arrest reports significant weight.
That significant weight was given is clear, as the immigra-
tion judge found many factors in Avila-Ramirez’s favor but
concluded he had not shown meaningful rehabilitation since
his release from incarceration. That lack of rehabilitation
finding can only be based on the uncorroborated arrests, as
there is no other potentially negative factor in the record.
Other points in the decision reinforce the weight placed on
the uncorroborated arrests. Regarding Avila-Ramirez’s 1995
questioning for a financial crime, the immigration judge not-
ed that although the charge was dropped, it “cast doubt” on
whether he had “learned from his mistake the first time” of
writing bad checks. The immigration judge also remarked
that Avila-Ramirez’s “repeated aggressive displays toward
significant others [was] cause for concern.” But Avila-
Ramirez only had one conviction in this regard, in 1990; the
“repeated” reference was to a 1995 arrest where Avila-
Ramirez denied any wrongdoing.
The BIA’s failure to follow its own binding precedent was
not harmless. Cf. Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir.
2007) (stating doctrine of harmless error applies to judicial
No. 13-3300 15
review of immigration decisions). In addition to the weight
given the arrests in the immigration judge’s decision, the BIA
characterized Avila-Ramirez’s case as a “very close” one
even when considering the arrest reports and stated that
Avila-Ramirez had “substantial equities.” The arrest reports
seemed to be the decisive factor in the BIA’s decision; absent
the reports, there would be no basis in the record for the
agency’s conclusion that Avila-Ramirez had not shown reha-
bilitation.
To be clear, this is not to say that we read Arreguin to
prohibit any consideration of arrest reports in the weighing
of discretionary factors. See Arreguin, 21 I. & N. Dec. at 42
(giving “little weight” to arrest report); Sorcia v. Holder, 643
F.3d 117, 126 (4th Cir. 2011) (stating that Arreguin “did not
indicate that it was per se improper to consider an arrest re-
port” and declining to vacate decision where BIA gave “little
weight” to arrest report). Here, however, we find that the
agency failed to follow its binding precedent in Arreguin,
which it did not cite, when it gave significant weight to un-
corroborated arrest reports in which Avila-Ramirez denied
any wrongdoing after finding him credible. See Margulis v.
Holder, 725 F.3d 785, 788 (7th Cir. 2013) (“The Board can
reexamine, and if it wants overrule, a precedent, but it didn’t
do that in this case. It ignored it. This is not permissible.”).
As a result, we grant the petition for review and return Avi-
la-Ramirez’s case to the BIA for additional consideration.
III. CONCLUSION
The petition for review is GRANTED and this case is re-
turned to the BIA for further proceedings consistent with
this opinion.