Ulises Martinez Lopez v. Loretta E. Lynch, 810 F.3d 484

Petitioner Ulises Martinez Lopez, a Mexican national who entered the U.S. unlawfully as a child, was convicted in Indiana (Aug. 12, 2010) of a Class A felony: dealing in cocaine over 3 grams; sentenced to 20 years (10 suspended) and 10 years’ probation.
DHS issued a final removal order as an aggravated-felony conviction; Petitioner claimed credible fear based on being gay and HIV-positive and received a credible fear finding.
At removal proceedings the IJ found the conviction was a "particularly serious crime," barring asylum and withholding; Petitioner’s only possible relief was CAT deferral, which the IJ denied as not more likely than not.
The BIA dismissed Petitioner’s appeal, concluding he was convicted of a particularly serious crime (and denying CAT deferral) and Petitioner petitioned this court for review.
The Seventh Circuit applied the categorical/modified categorical approaches to determine whether the Indiana offense matched the INA aggravated-felony definition for drug trafficking and examined plea and charging documents (but not the probable-cause affidavit).
The court concluded the charging document showed Petitioner was convicted for "knowingly deliver[ing] cocaine," which matches the federal element of distribution; thus it affirmed that the conviction was an aggravated felony, upheld ineligibility for asylum/withholding, and affirmed denial of CAT deferral under substantial-evidence review.

Issue	Martinez Lopez's Argument	DHS's Argument	Held
Whether the Indiana conviction is an "aggravated felony"/"particularly serious crime"	Conviction not a particularly serious crime; BIA applied wrong standard and case should be remanded	Conviction matches federal drug-trafficking offense (delivery); aggravated felony makes him per se ineligible	Conviction was an aggravated felony under the modified categorical approach (charging doc shows "deliver"); therefore particularly serious crime; petition denied
Whether Petitioner is entitled to CAT deferral (torture more likely than not)	Country conditions, past assault, ongoing threat from bully, impunity and inability to relocate or obtain HIV care make torture more likely than not	Record does not compel likely torture; Mexico has protective law, LGBT communities/areas, available HIV care; relocation plausible	Substantial-evidence review: record does not compel finding of more likely than not; CAT deferral denied

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical approach for immigration consequences of state drug convictions)
Descamps v. United States, 133 S. Ct. 2276 (2013) (modified categorical approach limits permissible documents)
Shepard v. United States, 544 U.S. 13 (2005) (identifies charging documents permissible under the modified categorical approach)
Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008) (appellate jurisdiction and de novo review on whether a conviction is an aggravated felony)
United States v. Lewis, 405 F.3d 511 (7th Cir. 2005) (police affidavits attached to informations are not Shepard-authorized documents)
Issaq v. Holder, 617 F.3d 962 (7th Cir. 2010) (court retains jurisdiction to review CAT deferral even when aggravated-felony issues exist)
Rashiah v. Ashcroft, 388 F.3d 1126 (7th Cir. 2004) (substantial-evidence standard for CAT determinations)
Lenjinac v. Holder, 780 F.3d 852 (7th Cir. 2015) (review standard: reverse only if record compels contrary conclusion)
Khan v. Holder, 766 F.3d 689 (7th Cir. 2014) (CAT requires torture by government or with government acquiescence)
Osmani v. INS, 14 F.3d 13 (7th Cir. 1994) (futility/harmless-error exception to Chenery remand requirement)