Gustavo Dominguez-Pulido v. Loretta Lynch
821 F.3d 837
7th Cir.2016Background
- Gustavo Dominguez-Pulido entered the U.S. without inspection circa 1993 and was convicted in Illinois (2008) of burglary of a motor vehicle with intent to commit theft (720 Ill. Comp. Stat. 5/19-1).
- DHS served a Notice to Appear (2013) charging removability as an alien present without admission and as an alien convicted of a crime involving moral turpitude (CIMT).
- An Immigration Judge (IJ) found Dominguez-Pulido removable, concluded his burglary conviction was a CIMT, and denied asylum (timeliness and merits), withholding of removal, and CAT protection.
- The Board of Immigration Appeals (BIA) affirmed the IJ, denied a motion to reconsider/reopen, and later denied a second motion to reopen; Dominguez-Pulido petitioned for review in the Seventh Circuit.
- The Seventh Circuit held §1252(a)(2)(C) bars review of factual determinations for aliens removable for §1182(a)(2) offenses but retains jurisdiction over colorable legal and constitutional claims (§1252(a)(2)(D)). The court found the record established alienage and that burglary with intent to steal is a CIMT, so §1252(a)(2)(C) applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: whether §1252(a)(2)(C) applies (alienage + CIMT) | Form I-213 unreliable; IJ improperly relied on petitioner’s post-conviction affidavit; petitioner not proven an alien | Form I-213 and affidavits support alienage; burglary conviction is a CIMT, so §1252(a)(2)(C) bars factual-review | Court found sufficient evidence of alienage and that burglary of vehicle with intent to steal is a CIMT; §1252(a)(2)(C) limits review |
| Use of charging document / divisible statute (modified categorical approach) | IJ should have relied on certified conviction record, not indictment/charging document; statute allegedly divisible | Modified categorical approach permits consulting charging document when statute is divisible | Court approved use of modified categorical approach and consultation of charging document per Descamps; independent precedent also deems this burglary a CIMT |
| Asylum/withholding: nexus and particular social group | Fear of kidnapping/persecution because he is a deportee perceived to have money / has U.S. relatives who could pay ransom —constitutes a particular social group | Proposed group is defined by wealth/perceived wealth and deportee status, which are not immutable or sufficiently particular | Court held proposed group is not cognizable (wealth not immutable; deportees lack particularity); petitioner failed to show nexus or meet withholding standard |
| Constitutional claims: Eighth Amendment and Due Process | Removal is equivalent to life exile and an excessive fine; IJ denied procedural protections and counsel warnings, arrest lacked probable cause | Removal is not an excessive fine; petitioner received a full and fair hearing, had counsel, and received notice of rights; alleged defects are unsubstantiated | Court held Excessive Fine claim not colorable (removal not a fine per precedent) and due process claims were not colorable or supported by the record; jurisdiction lacking over these factual/constitutional contentions |
Key Cases Cited
- Jordan v. De George, 341 U.S. 223 (1951) (rejects vagueness challenge to the phrase "moral turpitude" and discusses its judicial application)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explains modified categorical approach and when charging documents may be consulted)
- Barradas v. Holder, 582 F.3d 754 (7th Cir. 2009) (Form I-213 is generally trustworthy absent evidence it is manifestly incorrect)
- Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005) (criminal fraud offenses often constitute moral turpitude)
- Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008) (removal orders are not "fines" under the Eighth Amendment for Excessive Fine Clause purposes)
- Sobaleva v. Holder, 760 F.3d 592 (7th Cir. 2014) (review scope: examine IJ decision and BIA analysis)
- Cruz-Moyaho v. Holder, 703 F.3d 991 (7th Cir. 2012) (jurisdictional framework: §1252(a)(2)(D) preserves review of colorable legal and constitutional claims)
- Shou Wei Jin v. Holder, 572 F.3d 392 (7th Cir. 2009) (asylum burden: legitimate fear of persecution standard)
- Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (wealth alone does not create a cognizable particular social group)