Maricela Herrera-Ramirez v. Jefferson B. Sessions III
859 F.3d 486
| 7th Cir. | 2017Background
- Herrera-Ramirez, a Mexican national who entered the U.S. as a child, was convicted under Wisconsin law of first-degree reckless injury after a drive-by shooting in which a passenger shot two bystanders; she received an 11-month sentence.
- She was charged and convicted as a "party to a crime" under Wis. Stat. § 939.05, which treats all parties (principal, aider/abettor, conspirator) as principals for liability.
- ICE initiated removal proceedings; the IJ and then the BIA found her conviction to be a "particularly serious crime," rendering her ineligible for withholding of removal (the only relief available).
- Herrera-Ramirez argued on review that the BIA misinterpreted "particularly serious crime," emphasizing her peripheral role as a non-shooter and that she was convicted only as a party.
- The BIA relied on the offense elements, the circumstances (driving while a passenger fired a gun), and the nature of the crime in finding it particularly serious; it also noted her sentence and early release but gave them less weight.
- The Seventh Circuit dismissed the petition for review for lack of jurisdiction because Herrera-Ramirez raised no legal question for the court to decide—only factual/discretionary disagreements with the BIA's characterization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review BIA's "particularly serious crime" determination | Herrera-Ramirez: BIA misinterpreted the legal meaning of "particularly serious crime," raising a question of law | Government: §1252(a)(2)(B)(ii) bars review of discretionary characterization absent a legal question; here petitioner raises only factual/discretionary challenges | Court: No jurisdiction because petitioner did not present a legal question; dismissal for lack of jurisdiction |
| Whether being convicted as a "party to a crime" precludes treating offense as particularly serious | Herrera-Ramirez: Charge as a party shows she was only a minor participant, so BIA erred | Government: Wisconsin law treats all parties as principals; statute does not create separate offenses; culpability may still be assessed | Court: Charging as a party does not legally bar BIA from deeming the offense particularly serious |
| Whether the BIA ignored evidence (including light sentence/early release) supporting a contrary finding | Herrera-Ramirez: BIA failed to address or weigh evidence showing offense not particularly serious (a legal error) | Government: BIA identified and relied on specific facts and offense elements; it acknowledged sentence/early release though it gave them less weight | Court: BIA did not ignore the evidence; petitioner’s claim is factual/discretionary, not a reviewable legal error |
| Whether failure to raise specific statutory argument below bars review/exhaustion | Herrera-Ramirez: Generally challenged "particularly serious" label before BIA | Government: Did not specifically raise Wisconsin party-to-crime issue to the BIA, so exhaustion and §1252(d)(1) problems exist | Court: Not reached on merits, but noted exhaustion is a separate obstacle to relief even if jurisdiction existed |
Key Cases Cited
- Holland v. State, 280 N.W.2d 288 (Wis. 1979) (interpreting Wisconsin "party to a crime" statute and noting it does not create three distinct offenses)
- State v. Zelenka, 387 N.W.2d 55 (Wis. 1986) (discussing party liability under Wisconsin law)
- State v. Charbarneau, 264 N.W.2d 227 (Wis. 1978) (addressing party-to-a-crime principles)
- Estrada-Martinez v. Lynch, 809 F.3d 886 (7th Cir. 2016) (describing the BIA's factors for determining a "particularly serious crime")
- Delgado-Arteaga v. Sessions, 856 F.3d 1109 (7th Cir. 2017) (holding that a claim the BIA ignored evidentiary support can present a legal error reviewable on jurisdictional grounds)