Cheikh Lam v. Eric Holder, Jr.
698 F.3d 529
| 7th Cir. | 2012Background
- Lam, a Senegalese native and LPR, sought INA 212(h) relief after a 2002 fraud conviction; he and his U.S. citizen wife alleged extreme hardship to family if removed.
- Lam initially faced inadmissibility under 212(a)(2)(A)(i)(I) for a crime involving moral turpitude; he was denied 212(h) relief by the IJ for lack of hardship and rehabilitation.
- BIA dismissed Lam’s direct appeal, then later reinstated and dismissed after briefing; the petition for review followed.
- Lam obtained new counsel; the BIA reinstated the appeal and considered new evidence (country reports, medical records) alleging extreme hardship and ineffective assistance.
- Court held that the IJ/BIA erred by overlooking material hardship evidence (wife’s depression) and by relying on improper evidence to conclude lack of rehabilitation; remanded for reconsideration.
- Final disposition: court vacated removal order and remanded to agency for reconsideration of the 212(h) waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ/BIA erred by ignoring key hardship evidence | Lam | Lam failed to show extreme hardship | Remand for reconsideration due to overlooked evidence |
| Whether the IJ relied on improper evidence to assess rehabilitation | Lam’s testimony and new evidence show rehabilitation | Discretionary factors supported denial | Remand because reliance on improper document affected credibility/rehabilitation finding |
| Whether the court has jurisdiction to review legal errors in discretionary denial of relief | Lam raises legal error in misreading evidence | Review limited to legal questions; discretionary denial not reviewable | Court retains jurisdiction to review legal errors; remand for reconsideration on the evidentiary issues |
Key Cases Cited
- Iglesias v. Mukasey, 540 F.3d 528 (7th Cir. 2008) (failure to consider material evidence is error of law)
- Champion v. Holder, 626 F.3d 952 (7th Cir. 2010) (remand where IJ/BIA virtually ignored evidence of hardship)
- Huang v. Mukasey, 534 F.3d 618 (7th Cir. 2008) (failure to consider material discretionary factors is legal error)
- Kone v. Holder, 620 F.3d 760 (7th Cir. 2010) (remand where discretionary findings rely on ignored evidence)
- Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009) (propriety of using hearsay evidence if probative and not unfair)