Francisco Lopez Gamero v. William P. Barr, 929 F.3d 464

Background

Francisco Lopez Gamero, a Mexican citizen and U.S. lawful permanent resident, was convicted in Illinois of possession with intent to deliver cocaine and cannabis and faced removal as having committed an aggravated felony for “illicit trafficking in a controlled substance” under 8 U.S.C. § 1101(a)(43)(B).
The immigration judge held Lopez Gamero removable, found him ineligible for most relief, and denied deferral of removal under the Convention Against Torture (CAT) after a merits hearing; the IJ found testimony credible but speculative and gave little weight to an expert’s opinion.
The Board of Immigration Appeals (BIA) affirmed both the aggravated-felony classification and the denial of CAT relief, adopting the view that state felonies that mirror federal Controlled Substances Act (CSA) felonies qualify under § 1101(a)(43)(B).
Lopez Gamero moved to reopen with new evidence that his brother‑in‑law and nephew had been kidnapped and ransomed by cartel members; the BIA denied reopening as the new evidence was unlikely to change the outcome and lacked a sufficient connection to threats against him.
The Seventh Circuit reviewed the BIA’s decisions under the substantial‑evidence standard for factual findings, de novo for legal questions (with Chevron deference to reasonable BIA statutory interpretations), and for abuse of discretion on the motion to reopen.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Illinois possession‑with‑intent convictions qualify as “illicit trafficking” aggravated felonies under § 1101(a)(43)(B)	Lopez Gamero: “Illicit trafficking” requires a commercial transaction/remuneration, so his convictions (which don’t require proof of remuneration) do not qualify	Government/BIA: §1101(a)(43)(B) includes any felony equivalent to a CSA felony; most CSA felonies do not require remuneration and are covered	Held: Affirmed BIA; convictions qualify as aggravated felonies. BIA’s interpretation is reasonable and consistent with Lopez v. Gonzales.
Whether the BIA’s denial of CAT deferral was supported by substantial evidence	Lopez Gamero: Evidence (family incidents, expert testimony, local cartel activity) shows substantial risk of torture if returned	BIA: Evidence was speculative, uncorroborated, and insufficient to show substantial risk of torture	Held: Affirmed BIA; record does not compel finding of substantial risk—decision supported by substantial evidence.
Whether the BIA misapplied the legal standard or abused discretion in denying reopening based on new evidence	Lopez Gamero: New kidnapping evidence is material and previously unavailable, so reopening should have been granted; BIA demanded improper “nexus”	BIA: Motion failed to show the new evidence would likely change the outcome or sufficiently connect the violence to threats against Lopez Gamero	Held: Affirmed BIA; BIA permissibly required a showing that reopening would likely change the result and did not abuse discretion.
Whether the BIA ignored or failed to credit material evidence (expert, witness statements, property ownership)	Lopez Gamero: BIA overlooked or misweighed material evidence and misstated standards	BIA: Considered the evidence and reasonably found it speculative or unpersuasive; any minor misstatements were immaterial	Held: Affirmed BIA; fact‑weighing and credibility findings stand under substantial‑evidence review.

Key Cases Cited

Darif v. Holder, 739 F.3d 329 (7th Cir. 2014) (review scope when BIA issues its own decision)
Weiping Chen v. Holder, 744 F.3d 527 (7th Cir. 2014) (substantial‑evidence standard for agency factual findings)
Cruz‑Moyaho v. Holder, 703 F.3d 991 (7th Cir. 2012) (Chevron deference to BIA statutory interpretation when ambiguous)
Victor v. Holder, 616 F.3d 705 (7th Cir. 2010) (standard for abuse of discretion review of motions to reopen)
Lopez v. Gonzales, 549 U.S. 47 (2006) (treatment of state drug offenses relative to federal CSA felonies in §1101(a)(43)(B))
Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002) (discussion of BIA’s split reading of §1101(a)(43)(B))
Perez‑Montes v. Sessions, 880 F.3d 849 (7th Cir. 2018) (framing CAT burden as showing substantial risk)
Abdoulaye v. Holder, 721 F.3d 485 (7th Cir. 2013) (record must compel contrary conclusion to defeat substantial‑evidence support)
Gutierrez v. Lynch, 834 F.3d 800 (7th Cir. 2016) (insufficient random family violence over years to show substantial risk)
Silais v. Sessions, 855 F.3d 736 (7th Cir. 2017) (agency’s credibility and evidentiary weight findings not lightly disturbed)
Lozano‑Zuniga v. Lynch, 832 F.3d 822 (7th Cir. 2016) (describing the high evidentiary bar for CAT relief)