The 7th Cir adhered to its previous holding in U.S. v. Pacheco-Diaz, (Pacheco I) 506 F.3d 545 (7th Cir. 2007), as reaffirmed by U.S. v. Pacheco-Diaz (Pacheco II), 513 F.3d 776 (7th Cir. 2008) (per curiam, with Judge Rovner dissenting from denial of rehearing), that a second or subsequent conviction for drug possession is an aggravated felony. The CtApp's analysis was:
1. The AggFel definition must be the same in the criminal and immigration contexts - at least, after Lopez v. Gonzales, 127 S. Ct. 625 (2006), where the SupCt's decision treats them similarly.
2. BIA decision in Carachuri doesn't require different result, since CtApp had already agreed with the Pauley concurrence.
3. The "elements" of recidivist and non-recidivist possession are the same - recidivism is just a sentencing element. So categorical approach doesn't work as well, and is "inconclusive" of whether crimes are AggFels.
4. Only federal imm law matters, not state ct labelling. So the fact that these sentences could have been enhanced per state law recidivism statute was irrelevant.
In order to determine if a state offense is “described” by a federal offense incorporated into § 101(a)(43), we necessarily have to view the state offense through the lens of federal law, since “it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers.” Lopez, 127 S. Ct. at 633.
5. Approach is consistent with Taylor, because courts don't have to look beyond the conviction docs to see what happened.
because the definition of the Illinois possession offenses under which petitioners were convicted are overbroad—i.e., conduct punishable under those Illinois statutes could constitute either a federal misdemeanor or federal felony, depending on whether those offenses occurred after a previous drug conviction became final— we must look at the records of the petitioners’ prior convictions to determine the federal consequences of the petitioners’ offenses.
6. Contrary decisions - see Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001) - elevate procedural protections re misdemeanor convictions to the status of an element.
7. Rejects the hypothetical that two federal misdemeanor convictions would be an AggFel under CtApp's hypothetical federal felony theory. Where conviction is federal, no need to analogize, can look to see what the conviction was for.
Analogizing makes sense when determining whether a state conviction qualifies as an aggravated felony. * * * * But analogizing makes little sense when dealing with a conviction for a federal offense, like § 844(a), that is specifically incorporated into the aggravated felony definition. Since those federal statutes are specifically referenced in the aggravated felony definition, there is no need to compare anything. A violation of one of those statutes either is, or is not, a felony, and thus is, or is not, an aggravated felony.
ROVNER, dissenting:
CtApp was obliged to look only at alleged AggFel conviction, and those docs don't show that crime was AggFel.
Petitioner was granted 212(c) relief for 1981 att murder conviction (convicted after jury trial, served 7 yrs), but later picked up two other (retail theft) convictions, put into proceedings after trip abroad. Applied for 212(c) again. BIA said he couldn't, because he served more than 5 years, and there was no retroactive effect of 1990 amendments, because he hadn't pled guilty.
1. Petitioner argued that the law of the case and collateral estoppel precluded the BIA from finding him ineligible for 212(c) on the basis of 5+ yrs served, because Board had earlier found him eligible. CtApp said that old conviction could be used in light of subsequent convictions. Prior grant of 212(c) relief didn't "expunge" the earlier conviction [but isn't that a straw man arg? - CR]
2. Although St Cyr precludes retroactive application, that rule is limited in several ways, and 7th cir requires either guilty plea or affirmative abandonment of rights in reliance on 212(c) - and requires actual reliance. [CtApp seems to say that both are required; but that would run contra to St Cyr, and seems a misstatement - CR]
Under the Supreme Court’s decision in St. Cyr, however, § 212(c) waivers remain available to aliens who pleaded guilty to an aggravated felony prior to the effective date of the repeal and who would have been eligible for relief under the law then in effect. See generally Valere v. Gonzales, 473 F.3d 757, 759-60 (7th Cir. 2007) (discussing the current status of § 212(c) waivers in great detail). But we have recognized certain qualifications. Velez-Lotero v. Achim, 414 F.3d 776, 781 (7th Cir. 2005), held that St. Cyr does not disturb the operation of the pre-IIRIRA statute and does not alter the rule that the 1990 version of § 212(c) applies to applications for relief submitted after its effective date. See In re Lettman, 22 I. & N. Dec. 365, 370-71 (BIA 1998) (holding that alien placed in removal proceedings after March 1, 1991, who has been convicted of an aggravated felony is subject to removal regardless of date of conviction). In addition, an alien seeking such relief is required to demonstrate “actual reliance.” See United States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir. 2008); Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir. 2000); LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998); Reyes-Hernandez v. INS, 89 F.3d 490, 492-93 (7th Cir. 1996). Thus, the rule is that “relief under § 212(c) is not available to any alien whose removal proceeding began after repeal except to those who affirmatively abandoned rights or admitted guilt in reliance on § 212(c) relief.” De Horta Garcia, 519 F.3d at 661; Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004). And furthermore we require a showing of specific facts demonstrating actual reliance. Jideonwo, 224 F.3d at 700; Reyes-Hernandez, 89 F.3d at 492. Esquivel not only failed to make a showing of reliance, he also failed to enter a plea of guilty to attempted murder—he was found guilty after a jury trial.
3. Re Petitioner's argument that BIA should have terminated to permit him to naturalize, CtApp characterizes that as a discretionary decision, and 1252(a)(2)(C) limits CtApp to questions of law - so no jurisdiction.
Petitioner's former counsel failed to file a brief, she filed a Lozada mtn to reopen, the Board denied for lack of prejudice (finding that case would turn out the same even if he had filed a brief).
In the 7th cir, per Kucana and progency, 1252(a)(2)(B)(ii) applies to mtns to reopen, since they're discretionary - so there's no jurisdiction over the mtn except to the extent that it raises a question of law or constitutional question.
1. While there is no statutory right to effective representation, if BIA has rule permitting reopening for IAC, failure to follow rule could be question of law.
No statute entitles the alien to effective assistance of counsel, Stroe v. INS, supra, 256 F.3d at 499-500 (7th Cir. 2001); Afanwi v. Mukasey, 526 F.3d 788, 796 (4th Cir. 2008), although he is allowed to have counsel at his own expense. 8 U.S.C. § 1362. The Sixth Amendment is inapplicable to removal proceedings. Gjeci v. Gonzales, 451 F.3d 416, 421 (7th Cir. 2006); Stroe v. INS, supra, 256 F.3d at 500; Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008); Afanwi v. Mukasey, supra, 526 F.3d at 796-97; Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007); cf. Coleman v. Thompson, 501 U.S. 722, 752-54 (1991); Wainwright v. Torna, 455 U.S. 586, 587-99 (1982). And no statute or constitutional provision entitles an alien who has been denied effective assistance of counsel in his (in this case her) removal proceeding to reopen the proceeding on the basis of that denial. Stroe v. INS, supra, 256 F.3d at 501; Rafiyev v. Mukasey, Nos. 07-1317, 07-2406, 2008 U.S. App. LEXIS 16537, at *19-20 (8th Cir. Aug. 5, 2008). Nevertheless, if the Board of Immigration Appeals adopted a rule entitling such an alien to reopen, its failure to follow the rule in a particular case would present a question of law. Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir. 2008); cf. Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir. 2008).
2. But because Lozada doesn't *require* reopening where ineffective assistance is shown, but only *permits* it, the Board's ultimate decision remains discretionary, and the only review is of a question of law or constitutional question.
3. CtApp suggests could be a constitutional claim raised where case was so complicated that without counsel, the alien couldn't present the case.
The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the alien to proceed without the assistance of a competent lawyer would deny him due process of law by preventing him from “reasonably presenting his case.” Henry v. INS, 8 F.3d 426, 440 (7th Cir. 1993); Kay v. Ashcroft, supra, 387 F.3d at 676; Hernandez v. Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008); Aris v. Mukasey, supra, 517 F.3d at 600; see also Monjaraz- Munoz v. INS, 327 F.3d 892, 897 (9th Cir. 2003). An alien resisting removal, which would deprive him of his liberty to remain in the United States, is entitled to due process, Reno v. Flores, 507 U.S. 292, 306 (1993); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903); Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir. 2008); Torres v. INS, 144 F.3d 472, 474 (7th Cir. 1998), which comprehends the right to present a defense. Leguizamo-Medina v. Gonzales, 493 F.3d 772, 775- 76 (7th Cir. 2007); Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539-40 (7th Cir. 2005).
4. CtApp backtracks from prior suggestion that discretionary relief means no due process rights whatsoever.
Yet some cases say that if the alien is seeking merely discretionary relief he has no entitlement to remain in the United States and therefore a denial of relief does not invade his liberty. E.g., Nativi-Gomez v. Ashcroft, supra, 344 F.3d at 807; Mejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999). The other cases that we have cited do not recognize the distinction, however, and to do so would be cutting things too fine. It is true that in Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006), we said that while “Cevilla has a liberty interest in remaining in the United States, . . . prevailing on the issue of continuous physical presence in the United States would not give her any right to remain here. It would merely give her an opportunity to establish extreme hardship, which is an appeal to the government’s discretion, rather than a substantive entitlement.” But there is a difference between an issue and a remedy. Having created a reopening remedy that can defeat removal, the government cannot be allowed to destroy the remedy and so ensure removal by creating procedural roadblocks that prevent the alien from invoking the procedure. That would be a deprivation of liberty without due process of law, and therefore judicially reviewable even if the petition for review did not present a question of law but merely a question of fact (such as whether a notice of hearing had been sent to the alien), because the statute governing judicial review of rulings by the Board of Immigration Appeals allows review of a discretionary ruling that is claimed to deny a constitutional right. 8 U.S.C. § 1252(a)(2)(D); Kucana v. Mukasey, supra, 533 F.3d at 538.
5. But no constitutional error argued here, so CtApp doesn't have any jurisdiction over finding of no prejudice, except to the extent it presents a question of law.
6. Petitioner argued that failure to file a brief creates a presumption of prejudice - but CtApp rejects that - at least here, where Board considered the claim on the merits notwithstanding counsel's failure to file a brief. Contra Granados-Oseguera v. Gonzales, 464 F.3d 993, 997 (9th Cir. 2006); Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004); Singh v. Ashcroft, 367 F.3d 1182, 1189 (9th Cir. 2004); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000).
An untimely mtn to reopen argued that country conditions changed in Georgia, and that he should get equitable tolling for prior atty's malfeasance. (Petitioner previously lost at CtApp on direct review, found to be an aggfel due to conviction for misdemeanor sexual abuse of minor).
CtApp found that "due diligence" for equitable tolling is a question of fact, not law, so CtApp refused to consider it - he hadn't raised any legal argument as to how the Board should have analyzed the claim. Question of changed country conditions is also a question of fact, barred by Kucana in the context of mtns to reopen.
Petitioner was on an H1B, but apparently started working at a second H1B petitioning company a few months before they filed the second H1B. Issue was whether IJ was entitled to believe I-213 where interviewing officer once wrote down March 2000 rather than March 2002, and where interviewing officer wasn't different from arresting officer. On 1st question, CtApp found substantive evidence supported the removal order. It found that IJ was entitled to view the single mistake as a typo - particularly the typo was nonsensical, but would in any event have rendered him removable. On 2nd question, CtApp found it not exhausted because it had never been raised below (noting that Petitioner had always been represented by counsel).
Seventh Circuit 
