Ulises Martinez LOPEZ, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
No. 14-3805.
United States Court of Appeals, Seventh Circuit.
Decided Jan. 12, 2016.
Argued Nov. 12, 2015.
Additionally, we consider the motive of the speaker as part of the context in which the speech was made. Kristofek, 712 F.3d at 985. Kubiak alleges that she was motivated by a concern for public safety, especially since a jury had previously returned a verdict in favor of the plaintiff in a suit against Zala for battery and excessive force. But the fact that Kubiak‘s complaints were all made internally suggests that she was primarily motivated by personal concerns. Cf. id. at 984-85 (noting that the plaintiff‘s “rather aggressive reaction” of going to the FBI with his suspicions, in addition to making internal complaints, suggested that he was not solely concerned with his personal interest but was also motivated by a desire to help the public); see also Bivens, 591 F.3d at 561 (“Although the fact that the speech was entirely internal does not itself render the speech unprotected, this fact does suggest that the grievance was personal in nature.” (internal citation omitted)). In any event, motive is not dispositive. Kristofek, 712 F.3d at 985. Even accepting Kubiak‘s allegations as true and drawing all reasonable inferences in her favor, as we are required to do in reviewing a dismissal based on
In sum, the content, form, and context of Kubiak‘s speech show that her speech did not address a matter of public concern. Because Kubiak did not sufficiently allege facts that plausibly suggest that she spoke as a private citizen on a matter of public concern, the district court correctly determined that her speech was not entitled to First Amendment protection. See Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951 (2006). Therefore, the district court properly dismissed Kubiak‘s complaint for failure to state a claim on which relief can be granted.
B. Conspiracy Claim
Kubiak also claims that Stratton and Biggane entered into a conspiracy to deprive her of her constitutional rights. Since Kubiak‘s speech was not constitutionally protected, the district court propеrly dismissed Kubiak‘s conspiracy claim.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
Andrea Gevas, Attorney, Mona M. Yousif, Attorney, OIL, Attorney, Department Of Justice, Washington, DC, Keren Zwick, Attorney, Chicago, IL, for Respondent.
Before BAUER, FLAUM, and MANION, Circuit Judges.
BAUER, Circuit Judge.
Petitioner, Ulises Martinez Lopez (“Petitioner“), filed a petition for review with this court seeking to vacate the order from the Board of Immigration Appeals (“BIA“) that upheld his removal from the United States due to his conviction of a particularly serious crime. For the reasons that follow, we affirm the BIA‘s decision.
I. BACKGROUND
In 1991, when he was twelve years old, Petitioner left his native country of Mexico and illegally entered the United States. He has not returned to Mexico since leaving, although his sister still lives in the same neighborhood in which he grew up.
In December 2009, Petitioner was arrested in Indiana and charged with four counts of dealing and possessing illegal drugs. In July 2010, Petitioner pled guilty to one count, with the state dismissing the remaining three counts. On August 12, 2010, Petitioner еntered his plea of guilty and was convicted of a Class A Felony for “Dealing in Cocaine over 3 grams.” He was sentenced to twenty years’ imprisonment, with ten years suspended, and ten years of probation.
While Petitioner was in prison, an officer with the United States Department of Homeland Security (“DHS“) interviewed him. Following the interview, the officer recommended that DHS remove Petitioner from the United States for being an alien convicted of an aggravated felony. On December 27, 2013, DHS issued a Final Administrative Removal Order stating that Petitioner was convicted of an aggravated felony under
Prior to his removal, Petitioner requested to meet with an asylum officer for a credible fear interview. DHS granted Petitioner‘s request. On March 26, 2014, an asylum officer found that Petitioner had a reasonable fear of persecution or torture if he returned to Mexico because Petitioner is homosexual and HIV-positive.
On July 1, 2014, Petitioner received a hearing beforе an Immigration Judge. During this hearing, Petitioner explained his fear of persecution or torture if he returns to Mexico due to his homosexuality and HIV-positive status. Petitioner described how young people beat him up when he lived in Mexico because he was gay, and that once when he was ten years old, Julio, a bully from his neighborhood, stabbed him with an ice pick. Petitioner also stated that the police did nothing when his mother complained about this incident. He stated that many people in Mexico were homоphobic, and that Julio still lived in his old neighborhood. He also explained that doctors in Mexico refuse to treat people who are HIV-positive. He claimed that doctors in Mexico do not help people who lack economic resources, and that he could not afford medical treatment.
Petitioner appealed the Immigration Judge‘s decision to the BIA. On December 11, 2014, the BIA entered an order dismissing Petitioner‘s appeal. While the BIA did not rule on whether Petitioner was convicted of an aggravated felony, it found that he nonetheless was convicted of a particularly serious crime and therefore was ineligible for asylum or withholding of removal. Further, the BIA found that the Petitioner could not receive deferral of removal under CAT because he had not shown that it was more likely than not that he would be tortured if he returned to Mexico. Petitioner now appeals the BIA‘s decision before this court.
II. DISCUSSION
Petitioner raises two issues on appeal. First, he contends that he wаs not convicted of a particularly serious crime and is therefore eligible for asylum and withholding of removal. Second, he argues that he is entitled to deferral of removal under CAT. We examine each claim in turn.
A. Whether Petitioner was Convicted of a Particularly Serious Crime
An alien convicted of a “particularly serious crime” is not eligible for either asylum,
We have jurisdiction to determine whether an alien committed an aggravated felony. See Eke v. Mukasey, 512 F.3d 372, 378 (7th Cir.2008) (“we retain jurisdiction to determine whether we have jurisdiction—that is, to determine whether an alien‘s criminal conviction is indeed an ‘aggravated felony‘“) (citation omitted). Furthermore, we review de novo whether an alien committed an aggravated felony. Id. (citation omitted). Since we review de novo whether an alien was convicted of an aggravated felony, it is irrelevant to our analysis that the BIA‘s opinion addressed the issue without definitively ruling on the matter. So, we will examine whether Petitioner‘s Indiana conviction for dealing over three grams of cocaine constitutes an aggravated felony.
1. Aggravated Felony Analysis
To determine whether an alien‘s conviction constitutes an aggravated felony, we apply the “categorical approach.” Eke, 512 F.3d at 378. That is, we examine the state statute under which the alien was convicted, and compare it to the “generic” corresponding aggravated felony under the Immigration and Nationality Act. See Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013).
Further, if the state statute forming the basis of the conviction is a divisible statute that “proscribes multiple types of conduct, some of which would constitute an aggravated felony and some of which would not,” then the court applies the “modified categorical approach.” Familia Rosario v. Holder, 655 F.3d 739, 743 (7th Cir.2011). Under the modified categorical approach, courts can “cоnsult a limited class of documents ... to determine which alternative formed the basis of the defendant‘s prior conviction.” Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Such documents include the terms of a plea agreement, the charging document, the transcript of colloquy between the judge and the defendant regarding the defendant confirming the factual basis for the plea deal, or “some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
Here, the generic corresponding aggravatеd felony under the Immigration and Nationality Act is: “illicit trafficking in a controlled substance ... including a drug trafficking crime.”
Both the generic corresponding aggravated felony under the Immigration and Nationality Act and the Indiana statute criminalize manufacturing and delivering illegal drugs. However, the Indiana statute is broader in scope because it also criminalizes financing the manufacture or delivery of illegal drugs. As a result, the modified categorical approach is appropriate, and we must examine the permissible documents to determine which alternative formed the basis of Petitioner‘s conviction under the Indiana statute. See Shepard, 544 U.S. at 26. Here, the appropriate documents are Petitioner‘s plea agreement and the charging document.
First, the plea agreement states that Petitioner pleads guilty to “Count 1: dealing in cocaine greater than 3 grams.” But, the plea agreement does not specify which portion of the Indiana statute Count 1 encompassed, so we next examine the charging document.
Under Indiana law, the charging document can be either an information or an indictment filed by the prosecutor with the appropriate court.
[affiant], being duly sworn on his oath or having affirmed, says that [defendant], on the ___ day of ___ 20___ at the county of ___ in the state of Indiana (HERE SET FORTH THE OFFENSE CHARGED). Id.
In this case, the prosecutor filed an information with the appropriate court charging the Petitioner with dealing cocaine in violation of
I, Detective Brian Elmore of the United Drug Task Force, who being duly sworn or having affirmed says that on or about 12/09/2009, at Kohl‘s Department Store in Plainfield in Hendricks County, State of Indiana, Ulises Martines [sic] did knowingly deliver cocaine, said drug having a weight of more than three (3) grams, to wit 28.4 grams (emphasis added).
By examining the charging document, it is evident that Petitioner was convicted under
Petitioner claims that we cannot examine the information filed by the prosecutor because it constitutes a police report, which courts cannot examine under the modified categorical approach. See Shepard, 544 U.S. at 16. To support this claim, Petitioner relies exclusively on our earlier opinion in United States v. Lewis, 405 F.3d 511 (7th Cir. 2005). In Lewis, a district court improperly applied the categorical approach by emphasizing the defendant‘s conduct underlying the case to determine whether the defendant was convicted of a “crime of violence,” rather than focusing on the elements of the Indiana statute at issue. Id. at 514. Specifically, the judge examined affidavits that were attached to the information that detailed the underlying conduct оf the defendant‘s armed jewelry store robbery. Id. We held that the affidavits attached to the information were a sworn police report, rather than a charging document, and thus could not be examined. Id. at 515. We explained: “The list in Shepard is designed to identify documents that illuminate what crime the defendant committed.... Using additional materials such as affidavits to ascertain how this person violated a statute departs from the categorical approach that Shep-
By contrast, here we are examining the information document itself, rather than an attached affidavit. Also, the information here does not state how Petitioner committed the crime of dealing cocaine. Rather, it explains what crime Petitioner committed; it specifies whether he manufactured, delivered, or financed the manufacture or delivery of cocaine. Specifically, the information states that the Petitioner was charged with “knowingly deliver[ing] cocaine.” It does not delve into the details of the Petitioner‘s conduct underlying the charges, but instead provides thе requisite basic information regarding the date, time, and place of the offense as required under Indiana law.
Furthermore, in this case there was a “Probable Cause Affidavit” that was attached to the information. The Probable Cause Affidavit describes in extensive detail the underlying conduct of how the Petitioner violated the Indiana statute. As in Lewis, this attached affidavit to the information constitutes a sworn police report, which is not part of the charging document.2 See Lewis, 405 F.3d at 515. As a result, while it is proper for this court to considеr the information under the modified categorical approach, we cannot and do not examine the Probable Cause Affidavit attached to the information.
Therefore, by applying the modified categorical approach, we find that the Petitioner was convicted of an aggravated felony. Since he was convicted of an aggravated felony, he is ineligible for asylum because his crime is per se a particularly serious crime.
2. Petitioner‘s Chenery Challenge
Petitioner argues that the Chenery doctrine requires this court to only uphold the BIA‘s determination based solely on the agency‘s analysis. See SEC v. Chenery, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). However, Petitioner claims that the BIA applied the wrong legal standard when it analyzed whether he was convicted of a particularly serious crime. The BIA stated in its opinion that “it is not necessary to determine whether the conviction constitutes an aggravated felony.” Instead, the BIA analyzed whether the Petitioner‘s conviction constituted a particularly serious crime under the alternative case-by-case analysis. This analysis involves examining the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction to determine whether a conviction that is not an aggravated felony nonetheless constitutes a particularly serious crime. See In re N-A-M-, 24 I. & N. Dec. 336, 341-42 (BIA 2007). However, the BIA‘s opinion went on to cite the presumption that aggravated felonies involving drug trafficking are particularly serious crimes. The BIA then listed the factors that must be established in order to overcome this presumption, as determined in In re Y-L-, In re A-G-, & In re R-S-R-, 23 I. & N. Dec. 270, 274, 276-77 (BIA 2002). After citing the pre-
Even if Petitioner is correct, his argument fails because the “futility doctrine” is a recognized exception to the Chenery doctrine. See Osmani v. INS, 14 F.3d 13, 15 (7th Cir.1994). Although “[o]rdinarily we are not permitted to affirm the order of an administrative agency on a ground that the agency did not rely upon in making the order.... [t]here is an exception for the case where it is clear what the agency‘s decision has to be.” Id. (citations omitted); see also Sahara Coal Co. v. Office оf Workers’ Comp. Programs, 946 F.2d 554, 558 (7th Cir.1991) (“The harmless-error doctrine is available in judicial review of administrative action; it is an exception to the Chenery principle. If the outcome of a remand is foreordained, we need not order one.“) (citations omitted). Thus, if remand would be futile because it is clear what the decision has to be, we may affirm the case without remanding it back to the BIA.
In this case, we have determined that Petitioner was convicted of an aggravated felony. Therefore, remanding this casе to the BIA would be futile because a person convicted of an aggravated felony (and who has been sentenced to more than five years’ imprisonment) has committed a particularly serious crime for purposes of asylum and withholding of removal. See
B. Whether Petitioner was Entitled to Deferral of Removal Under CAT
Although we have dеtermined that Petitioner is ineligible for asylum or withholding of removal, we still have jurisdiction to determine whether Petitioner is entitled to deferral of removal under CAT. See Issaq v. Holder, 617 F.3d 962, 970 (7th Cir.2010); see also
“We review the denial of CAT protection under the highly deferential substantial evidence test.” Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir.2004) (citations omitted). We review the entire record as a whole and reverse “only if the record evidence compels a contrary conclusion.” Lenjinac v. Holder, 780 F.3d 852, 855 (7th Cir.2015) (emphasis added) (citations omitted). In order to receive CAT protection, the Petitioner has the burden to demonstrate that “it is more likely than nоt that [the Petitioner] would be tortured if removed to [Mexico].”
Here, the BIA agreed with the Immigration Judge that the Petitioner did not
Petitioner argues that the substantial evidence in the record indicates that it is more likely than not that he would be tortured if removed to Mexico. He claims that Julio, the bully who stabbed him with the ice pick when Petitioner was ten years old, still lives in his former neighborhood. He also cites news articles detailing atrocities committed against gay men throughout Mexico. In addition, he repeatedly relies on a 2008 report from the Commission of Human Rights of the Federal District that found that over the past 10 years, 80% of homophobic murders in Mexico City have gone unpunished, and that a poll conducted in 2011 found that the police were identified as the group most intоlerant of the gay community. Further, Petitioner argues that even if places in Mexico, such as Mexico City, are more tolerant of openly gay men, he cannot relocate there because his sister lives in Acapulco. He also argues that his HIV-positive diagnosis makes relocation unreasonable.
While Petitioner may face violence if he returns to Mexico, we do not find that the record compels us to the conclusion that torture is more likely than not to occur. The fact that Julio still lives in his old neighbоrhood does not mean that twenty-five years later he still seeks to harm the Petitioner, nor that such harm would be with the government‘s acquiescence. See
In addition, while the numerous articles and studies cited by the Petitioner indicate that gay men have been victims of violence in Mexico, these do not suggest that the Petitioner is more likely than not to face such violence. See Rashiah, 388 F.3d at 1133 (“Though the country report supports the contention that torture occurs in Sri Lanka, it does not demonstrate that it is more likely than not that petitioner will be tortured if he returns.“) (emphasis in original). Moreover, the fact that Petitioner‘s sister lives in Acapulco does not mean that he cannot move to an area of Mexico more accepting of homosexuals, espeсially since he has lived the last twenty-five years without his sister. See
Therefore, we find that the Petitioner did not satisfy his burden to show that it is more likely than not that he would be tortured by the government or with the government‘s acquiescence if he returned to Mexico. The substantial evidence in the record supports the BIA‘s decision and
III. CONCLUSION
For the foregoing reasons, Petitioner‘s petition is DENIED and the BIA‘s decision is AFFIRMED.
BAUER, Circuit Judge