Cisneros v. Lynch
834 F.3d 857
| 7th Cir. | 2016Background
- Cisneros, a lawful permanent resident since 1996, was convicted of unarmed robbery in 2012 (an aggravated felony) and became removable and inadmissible for adjustment of status as a crime of moral turpitude.
- He applied for an INA § 212(h) waiver (8 U.S.C. § 1182(h)(1)(B)) arguing that removal would cause "extreme hardship" to qualifying U.S.-citizen relatives (spouse, parent, or child).
- DHS appealed an IJ’s grant of the waiver; the Board of Immigration Appeals reversed, applying 8 C.F.R. § 1212.7(d), which generally disfavors waivers for "violent or dangerous" crimes absent "extraordinary" circumstances (i.e., "exceptional and extremely unusual hardship").
- The Board found Cisneros’s robbery qualified as a "dangerous" crime (potential for physical altercation), and that the hardships to his qualifying relatives were not "exceptional and extremely unusual," and that his negative factors outweighed positives.
- Cisneros petitioned for review in the Seventh Circuit, raising challenges to the validity and application of § 1212.7(d), the crime classification, and the Board’s hardship analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of 8 C.F.R. § 1212.7(d) (did the regulation improperly narrow statutory discretion?) | Regulation unlawfully replaces statutory "extreme hardship" standard with a higher "exceptional and extremely unusual" threshold. | Reg. is a lawful exercise of the Attorney General's delegable authority to prescribe terms/procedures guiding discretionary waivers. | Regulation valid under Chevron; Attorney General may lawfully impose a higher bar for violent/dangerous crimes. |
| Whether Board misapplied § 1212.7(d) | Board failed to address the correct legal question and did not adequately apply the regulation. | Board considered eligibility and discretion, explained hardship role, and weighed equities; its language was contextual. | No error; Board applied the regulation and exercised discretion properly. |
| Classification of the offense as "violent or dangerous" | Board should have used a facts-and-circumstances (not categorical) approach; robbery here was nonviolent (no weapon, no injury). | Board reasonably concluded robbery's potential for physical altercation renders it "dangerous" and considered specifics of the offense. | Board did not apply a rigid categorical rule and permissibly found the crime "dangerous." |
| Board's hardship analysis (failure to consider evidence) | Board ignored material evidence (granddaughter's death, ex-wife's housing risk) and thus erred as a matter of law. | Board considered hardship evidence; discretionary weighing of equities is unreviewable absent legal error or wholesale failure to consider evidence. | No legal error; the complaint challenges discretionary weighing, which is not reviewable. |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (agency deference framework)
- Lopez v. Davis, 531 U.S. 230 (agency may add eligibility constraints within delegated discretion)
- Taylor v. United States, 495 U.S. 575 (categorical approach for prior-conviction analysis)
- Shepard v. United States, 544 U.S. 13 (limits on sources for modified categorical approach)
- Descamps v. United States, 133 S. Ct. 2276 (clarified modified categorical approach)
- Vaca-Tellez v. Mukasey, 540 F.3d 665 (Seventh Circuit: discretionary waiver/relief is generally unreviewable)
- Ali v. Achim, 468 F.3d 462 (Seventh Circuit discussion of waiver standards)
- Succar v. Ashcroft, 394 F.3d 8 (First Circuit invalidated categorical ineligibility bars)