Freddy Jose Arguelles v. U.S. Attorney General
661 F. App'x 694
| 11th Cir. | 2016

Background

  • Freddy Jose Arguelles, a Venezuelan ex-Air Force pilot, entered the U.S. in 2004 and was granted asylum, later adjusted to LPR; in 2012 he pleaded guilty to conspiracy to export defense articles (AECA) and was sentenced to 23 months.
  • DHS charged him removable under 8 U.S.C. § 1227(a)(4)(A) for engaging in activity to violate U.S. export laws; IJ and BIA found he was removable based on his guilty plea and stipulated facts.
  • Arguelles applied for adjustment of status, a waiver of inadmissibility, asylum, withholding of removal, and CAT protection; IJ denied all relief and BIA affirmed in July–December 2015 decisions.
  • The IJ and BIA concluded his conduct (conspiring to export Munitions List items) could be a "particularly serious crime," rendering him ineligible for asylum/withholding; they also denied CAT relief for lack of individualized risk of torture.
  • Arguelles moved to reopen with a newly discovered 2009 Venezuelan arrest warrant; BIA denied reopening as the new evidence was not likely to change the outcome.
  • Arguelles was removed to Venezuela in December 2015, immediately arrested, and remains imprisoned; a concurring opinion argued the CAT evidence was sufficient but acknowledged appellate deference limits reversal.

Issues

Issue Arguelles' Argument Government's Argument Held
Removability under §1227(a)(4)(A) (export-law activity) His conviction is regulatory and not the type of espionage/sabotage covered; categorical approach required He engaged in conspiracy to violate export laws and §1227(a)(4)(A) covers "any activity" including conspiracy; conviction not required Court: Substantial-evidence supports BIA/IJ that he engaged in prohibited export activity; removable affirmed
Adjustment of status & waiver (discretion) Conviction is not moral turpitude; extreme hardship to family warrants waiver/exercise of discretion Seriousness of offense, reluctance to admit role, and national-security harm weigh against adjustment; INA discretion bars judicial review of discretionary denial Court: No legal error shown; discretionary denial affirmed (jurisdiction limited on pure discretion)
Asylum/Withholding — "particularly serious crime" bar His offense is non-violent/regulatory and not an aggravated felony; cannot automatically bar withholding BIA discretion permits finding non-aggravated offenses to be "particularly serious" given facts (exporting military parts harms US security) Court: BIA/IJ reasonably found the conspiracy and facts could constitute a particularly serious crime; asylum/withholding denial affirmed
CAT relief and Motion to Reopen Country reports, expert testimony, witnesses, and a newly discovered 2009 arrest warrant show he would more likely than not be tortured if returned; reopening warranted Evidence is generalized, not particularized to Arguelles; 2009 warrant limited and unlikely to alter result; BIA discretion to deny reopening Court: Substantial-evidence/abuse-of-discretion review does not compel reversal; CAT and reopening denials affirmed

Key Cases Cited

  • Alvarado v. U.S. Att’y Gen., 610 F.3d 1311 (11th Cir.) (jurisdictional limits: courts retain review of colorable constitutional and legal questions)
  • Adefemi v. Ashcroft, 386 F.3d 1022 (11th Cir. 2004) (substantial-evidence review of BIA factual findings)
  • Cole v. U.S. Att’y Gen., 712 F.3d 517 (11th Cir. 2013) (Attorney General has discretion to deem non-aggravated offenses particularly serious crime)
  • Lapaix v. U.S. Att’y Gen., 605 F.3d 1138 (11th Cir. 2010) (case-by-case determination whether non-aggravated offense is particularly serious)
  • Usmani v. U.S. Att’y Gen., 483 F.3d 1147 (11th Cir. 2007) (adjustment of status is discretionary)
  • Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (review typically limited to BIA decision)
  • Zheng v. U.S. Att’y Gen., 451 F.3d 1287 (11th Cir. 2006) (de novo review for legal issues)
  • Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884 (11th Cir. 2007) (to reverse BIA fact findings record must compel reversal)
  • Carrizo v. U.S. Att’y Gen., 652 F.3d 1326 (11th Cir. 2011) (substantial-evidence test applied to IJ factual determinations)
  • Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (deference to immigration factfinding)
  • Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315 (11th Cir. 2007) (claimant must show individual, intentional singling out for harsh treatment under CAT)
  • Cadet v. Bulger, 377 F.3d 1173 (11th Cir. 2004) (burden on alien to show it is more likely than not he would be tortured)
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