Carlos Avila-Ramirez v. Eric Holder, Jr.
764 F.3d 717
| 7th Cir. | 2014Background
- Avila-Ramirez, a Guatemala-born permanent resident since 1977, has long US residence and family ties.
- He pled guilty in 1990 to lewd and lascivious acts with a child under 14, received six years, and moved to Chicago in 1993 after parole.
- Post-1990 arrests or questioning occurred (1995 stalking/restraining order, 1995 alleged theft of labor services/credit card misuse, 2006 predatory criminal assault accusation, 2007 firearm possession); none led to convictions after 1990.
- At a 2012 removal hearing, Avila-Ramirez was found credible; government introduced uncorroborated arrest reports; no corroboration was offered for the allegations.
- Immigration Judge denied § 212(c) relief, citing lack of rehabilitation based on uncorroborated arrest reports; BIA affirmed.
- The court reviews the legality of the BIA’s reliance on uncorroborated arrest reports and whether it followed binding precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA erred by weighing uncorroborated arrest reports | Avila-Ramirez argues Arreguin governs and uncorroborated reports cannot support lack of rehabilitation. | Avila-Ramirez (the government) contends Thomas supports considering adverse factors, including non-final conduct. | Legal error; BIA misapplied precedent by giving weight to uncorroborated arrests. |
| Whether the court has jurisdiction to review discretionary relief under REAL ID Act | He contends court may review legal questions and statutory interpretation regarding BIA precedent. | Government asserts discretionary nature bars review under §1252(a)(2)(B). | Court retains jurisdiction to review legal questions; review permitted. |
| Whether Avila-Ramirez is statutorily eligible for § 212(c) relief | St Cyr preserves § 212(c) relief for plea-era convictions if relief would have been available then. | Conviction in 1990 was an aggravated felony; but eligibility for § 212(c) relief remains under St Cyr. | Statutorily eligible for § 212(c) relief despite aggravated felony conviction. |
| Whether the BIA followed its own precedents on rehabilitation and arrest reports | Arreguin/ Rodriguez require little weight to arrest reports absent conviction or corroboration. | Thomas and related authorities support considering adverse factors; BIA cited Thomas selectively. | BIA failed to follow binding Arreguin precedent; violation requires remand. |
Key Cases Cited
- In re Catalina Arreguín De Rodríguez, 21 I. & N. Dec. 38 (BIA 1995) (arrest reports given little weight absent conviction or corroboration)
- Matter of Thomas, 21 I. & N. Dec. 20 (BIA 1995) (adverse factors may include non-final criminal conduct, with limits)
- Sierra-Reyes v. I.N.S., 585 F.2d 762 (5th Cir. 1978) (police reports implicating respondent not probative where not prosecuted)
- Arreguin v. Holder, 643 F.3d 117 (4th Cir. 2011) (Arreguin discusses arrest reports and weight; not per se improper to consider)
- United States v. St. Cyr, 533 U.S. 289 (Supreme Court 2001) (© 212(c) relief preserved for plea-era eligibility)
- Milanouic v. Holder, 591 F.3d 566 (7th Cir. 2010) (review standard for BIA decisions supplemented by IJ)
- Zambrano-Reyes, 724 F.3d 761 (7th Cir. 2013) (AEDPA/IIRIRA effect on discretionary relief)
- Margulis v. Holder, 725 F.3d 785 (7th Cir. 2013) (prejudice from failure to follow precedent in BIA decisions)