Jesus Delgado-Arteaga v. Jeff Sessions
856 F.3d 1109
| 7th Cir. | 2017Background
- Delgado, a Mexican national, entered the U.S. without inspection and had a 2009 Illinois conviction for possession of cocaine with intent to deliver; DHS initiated expedited removal under 8 U.S.C. § 1228(b) in 2015 and issued a Final Administrative Removal Order (FARO).
- Delgado expressed fear of return; an asylum officer found no reasonable fear, but an Immigration Judge (IJ) later vacated that decision and placed him in withholding-only proceedings under 8 C.F.R. § 1208.31(g)(2)(i).
- At merits hearing, the IJ declined to revisit DHS’s aggravated-felony determination, excluded asylum (as discretionary and barred in withholding-only expedited proceedings), and considered only withholding of removal and CAT relief.
- The IJ denied withholding and CAT relief: found Delgado’s evidence insufficient under the REAL ID Act and alternatively held his Illinois drug conviction was an aggravated felony and presumptively a "particularly serious crime" under Matter of Y-L-, rebuttable only by satisfying multiple Y-L- factors.
- The Board affirmed (single-member), agreeing with the IJ that Delgado failed to prove peripheral involvement and other Y-L- factors; it declined to rule on Delgado’s ultra vires challenge to 8 C.F.R. § 1208.31(g)(2)(i) and denied reconsideration.
- Delgado petitioned for review; the Seventh Circuit dismissed some claims for lack of jurisdiction and denied the remainder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over DHS FARO/authority under §1228(b) | Delgado: DHS lacked authority to issue FARO; §1228(b) requires IJ-issued final orders | Government: DHS-issued FARO was superseded when IJ vacated FARO and issued final order | Dismissed for lack of jurisdiction as challenge was moot—no live controversy (IJ vacated FARO and issued final order) |
| Validity of 8 C.F.R. §1208.31(g)(2)(i) (precluding asylum application) | Delgado: Regulation is ultra vires; §1158 allows asylum applications regardless of expedited removal status | Government: Regulation valid; and denial of asylum is discretionary | Dismissed for lack of jurisdiction/standing—Delgado lacked injury in fact because asylum is discretionary and entails no protected liberty interest |
| Board’s refusal to refer appeal to three-member panel | Delgado: Single-member erred by not referring case | Government: Single-member has discretion under 8 C.F.R. §1003.1(e); referral is not mandatory | Denied—no procedural violation shown; single-member discretion upheld |
| Board fact-finding and failure to consider arguments | Delgado: Board impermissibly made factual findings (Y-L- factors) and ignored arguments | Government: Any extra findings were harmless; Board adopted IJ findings (esp. peripheral role) | Mixed—Court held Board exceeded scope by making two first-instance findings but found the error harmless; other listed arguments were perfunctorily presented and therefore waived |
Key Cases Cited
- Already, LLC v. Nike, Inc., 568 U.S. 85 (mootness requires live controversy)
- Church of Scientology of Cal. v. United States, 506 U.S. 9 (appellate relief unavailable if no effectual relief can be granted)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (standing requires concrete, particularized injury)
- Bosede v. Mukasey, 512 F.3d 946 (7th Cir.) (describing Y-L- factors and presumption for drug trafficking crimes)
- Perez-Fuentes v. Lynch, 842 F.3d 506 (7th Cir.) (jurisdiction over legal and constitutional claims under §1252(a)(2)(D))
- Ward v. Holder, 632 F.3d 395 (7th Cir.) (Board single-member discretion to not refer to three-member panel)
- Lin v. Holder, 630 F.3d 536 (7th Cir.) (arguments not adequately developed are waived)
- Iglesias v. Mukasey, 540 F.3d 528 (7th Cir.) (Board must address arguments sufficiently to permit meaningful review)
- Halim v. Holder, 755 F.3d 506 (7th Cir.) (review of both IJ and BIA where BIA adopts IJ decision)