Jesus DELGADO-ARTEAGA, Petitioner, v. Jeff SESSIONS, Attorney General of the United States, Respondent.
No. 16-1816
United States Court of Appeals, Seventh Circuit.
March 23, 2017
Amended May 12, 2017
852 F.3d 635
BAUER, Circuit Judge.
Argued November 29, 2016. Amended May 12, 2017 *
relief “made available to them by statute.” Petitioners applied to adjust their status twice, and the USCIS adjudicated both sets of applications. Section 1255(a) requires no more. See, e.g., Succar, 394 F.3d at 26-30.
Petitioners maintain that the BIA‘s decision in In re Arrabally compels a different result, but they are mistaken. In re Arrabally addressed the definition of “departure” in an INA provision that bars the entry of any alien who “hаs been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien‘s departure.” See
Section 1245.2(a)(1)(ii), however, has no bearing on the admissibility of aliens returning from advance parole, nor does it affect a parolee‘s eligibility for adjustment of status. It was Sofokli‘s failure to file within
Because § 1245.2(a)(1)(ii) is not “arbitrary, capricious, or manifestly contrary to the statute,” we join the Eleventh Circuit and uphold the regulation as a valid exercise of the
IV. CONCLUSION
For these reasons, we DENY the petition for review.
Daniel W. Thomann, Attorney, Daniel Thompson, P.C., Chicago, IL, for Petitioner.
Anna E. Juarez, OIL, Attorneys, Department of Justice, Washington, DC, for Respondent.
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
Over seven years and three petitiоns later, these proceedings have come to a conclusion. Petitioner, Jesus Delgado-Arteaga (“Delgado“), petitions for review of an order of the Board of Immigration Appeals’ decision affirming the immigration judge‘s denial of withholding of removal,
I. BACKGROUND
Delgado, a native and citizen of Mexico, entered the United States without inspection three times, most recently in May 1999. In December 2009, he was cоnvicted in Illinois state court of felony possession of cocaine with intent to deliver in violation of
On March 3, 2015, the Department of Homeland Security initiated expedited removal proceedings pursuant to
On March 31, 2015, аn asylum officer interviewed Delgado with his attorney present. On April 15, 2015, the asylum officer found that Delgado was credible, but concluded that he did not establish a reasonable fear of persecution or torture in Mexico. Delgado requested that an IJ review the asylum officer‘s negative decision. After a review, the IJ found that Delgado had established a reasonable possibility that he would be persecuted or tortured in Mexico. Accordingly, on April 30, 2015, the IJ vacated the asylum officer‘s decision, and placed Delgado in “withholding-only” proceedings. See
On August 5, 2015, the IJ held a hearing on the merits. Both Delgado and his wife testified in support of his applications. He argued that he had not been convicted of an aggravated felony and that he should have been allowed to apply for asylum under
On September 23, 2015, the IJ denied both applications. First, the IJ found that Delgado‘s testimony and corroborating evidence was insufficient to meet his burden of proof under the REAL ID Act,
The IJ noted that the Attorney General has determined that drug trafficking aggravated felonies “presumptively сonstitute” particularly serious crimes absent “extraordinary and compelling circumstances.” Matter of Y-L-, 23 I. & N. Dec. 270, 274 (BIA 2002); see Bosede v. Mukasey, 512 F.3d 946, 949-51 (7th Cir. 2008). In order to rebut this presumption, the applicant must establish that his conviction involved “(1) a very small quantity, (2) a very modest payment, (3) only peripheral involvement, (4) the absence of any violence or threat of violence, (5) the absence of аny connection to organized crime or terrorism, and (6) the absence of any adverse or harmful effect on juveniles.” Bosede, 512 F.3d at 951 (citing Y-L-, 23 I. & N. Dec. at 276-77). If the applicant satisfies all six criteria, the applicant must also show “other, more unusual circumstances (e.g., the prospective distribution was solely for social purposes, rather than for profit).” Id. (quoting Y-L-, 23 I. & N. Dec. at 277).
The IJ held that Delgаdo‘s conviction was a “particularly serious crime” because Delgado failed to meet the factors as required under Matter of Y-L-. Specifically, the IJ found that Delgado failed to show that his conviction did not have an adverse effect on juveniles because Delgado lived with a nine-year-old child. The IJ also found that Delgado failed to estаblish a peripheral role in his drug-trafficking conviction. Lastly, even if Delgado met his burden under Matter of Y-L-, the IJ concluded that it would have denied the application because Delgado did not show it was more likely than not that he would face persecution in Mexico.
Delgado appealed to the Board, and requested review by a three-member panel. He challenged essentially every aspect of the IJ‘s decision. Additionally, he argued that the IJ incorrectly declined to consider an asylum application because
On March 14, 2016, a single-member Board adopted and affirmed the IJ‘s decision, and entered an order dismissing Delgado‘s appeal. The Board declined to con-sider Delgado‘s argument that
II. DISCUSSION
Generally, wе lack jurisdiction to review denials of discretionary relief, including asylum. See
First, Delgado contends that DHS lacks legаl authority to issue removal orders on behalf of the Attorney General pursuant to
A. No Jurisdiction to Review Challenges to the Expedited Removal Process
Delgado challenges DHS‘s FARO dated March 16, 2015, arguing that DHS lacked legal authority to order Delgado‘s removal under
We need not address these claims because Delgado‘s challenges to DHS‘s removal order were rendered moot when the IJ ordered that he be removed pursuant to DHS‘s FARO. Article III limits our review to “Cases” and “Controversies,” and an “actual controversy” must exist through all stages of review. Already, LLC v. Nike, Inc., 568 U.S. 85, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013). “[I]f an event occurs ... that makes it impossible for the court to grant ‘any effectual relief whаtever’ to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (citation omitted). A case becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (citation omitted).
Here, no live case or controversy exists because we cannot grant any effectual relief to Delgado. He asks that we overturn DHS‘s FARO and remand for further proceedings before an IJ. But this hypothetical remand would consist only of an IJ issuing a removal order; any remaining challenges are without merit or have been waived. Assuming that it were possible to grant such relief, it remains true that the IJ issued an order that ordered Delgado be removed pursuant to DHS‘s FARO. As а result, the case is moot and we lack jurisdiction to review this challenge.
Lastly, we note that the jurisdictional issue here is further highlighted when considering the Tenth Circuit‘s decision in Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033-35 (10th Cir. 2016). There, the
B. No Jurisdiction to Review Challenge to 8 C.F.R. § 1208.31(g)(2)(i)
Next, Delgado contends that
We lack jurisdiction to review this challenge because Delgado cannot meet the injury-in-fact element required for standing. To establish an injury in fact, Delgado must show that he “suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, ----- U.S. -----, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (citation and quotation marks omitted).
Delgado cannot claim he suffered an “invasion of a legally protected interest” when
C. Challenges to the Board‘s Decision and Procedures
1. Three-Member Panel
Delgado argues that the Board erred by not referring his case to a three-member panel. A single member may take “advantage of the streamlined procedures found in
2. Improper Fact-Finding
Next, Delgado contends that the Board violated
Delgado argues that the Board impermissibly found that Delgado failed to establish two additional requirements under Matter of Y-L-: the absence of organized crime involvement and “other, more unusual circumstances” (i.e., drugs were to be distributed solely for social purposes). See Y-L-, 23 I. & N. Dec. at 276-77. In response, the government does not dispute Delgado‘s argument, but claims that the Board‘s additional fact-finding was harmless error.
We agree with Delgado that the Board exceeded the permissible scope of review when it made the two findings at issue in the first instance. Nonetheless, Delgado fails to show that he was prejudiced by the Board‘s impermissible fact-finding. See Issaq v. Holder, 617 F.3d 962, 967 (7th Cir. 2010); Perez-Fuentes, 842 F.3d at 512 (noting that a petitioner must show that the alleged error “may have had the potential to change the outcome of the hearing” (citation omitted)). Here, the Board adopted the IJ‘s decision, and explicitly agreed with the IJ‘s finding that Delgado did not establish that he had only peripheral involvement in the drug-trafficking conviction. By adopting the IJ‘s decision, the Board also agreed with the IJ‘s finding that Delgado failed to show that his conviction did not have an adverse effect on a juvenile. Despite the Board‘s impermissible fact-finding, Delgado still fails to satisfy two factors under Matter of Y-L-. He did not show how he was prejudiced.
3. Arguments to the Board
Delgado argues that the Board overlooked and failed to consider his arguments on appeal. “A claim that the [Board] has completely ignored the evidence put forth by a petitioner is an allegation of legal error.” Perez-Fuentes, 842 F.3d at 512 (quoting Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)). This includes a claim that the Board “failed to exercise discretion at all by completely ignoring an argument.” Iglesias, 540 F.3d at 530-31. Although the Board “does not have to write an exegesis on every contention, it must consider the issues raised, and announce its decision in terms sufficient to enable a reviewing cоurt to perceive that it has heard and thought and not merely reacted.” Id. at 531. “We have frequently remanded cases when the BIA‘s or the IJ‘s failure to discuss potentially meritorious arguments or evidence calls into question whether it adequately considered th[ose] arguments.” Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007) (collecting cases).
Delgado lists, as we have done similarly here, several arguments that he claims werе ignored by the Board: (1) his request for a three-member panel in his appeal to the Board; (2) that the IJ failed to properly develop the record; (3) that the IJ conducted an incorrect “pattern or practice” analysis under
Delgado‘s claim, alone, that the Board “completely ignored” an argument, does not sufficiently “enable a reviewing court” to determine whether that argument is “potentially meritorious.” “[I]t is not the work of this Court to formulate arguments for the parties.” Kurzawa v. Jordan, 146 F.3d 435, 447-48 (7th Cir. 1998), nor will we attempt to do so here. “[F]ailure to adequately develоp and support these arguments results in waiver.” Lin, 630 F.3d at 543. Delgado‘s challenge is perfunctory; he simply lists these arguments one-by-one, without any explanation. Therefore, we will consider these arguments waived.
III. CONCLUSION
For the foregoing reasons, we DISMISS Delgado‘s petition for review in part for lack of jurisdiction and DENY the remainder of his petition for review.