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Lozano-Zuniga v. Lynch

United States Court of Appeals, Seventh Circuit

August 12, 2016

Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued February 19, 2016

         On Petition for Review of an Order of the Board of Immigration Appeals. A200-778-163

          Before Manion and ROVNER, Circuit Judges and Blakey, District Judge. [*]

          ROVNER, Circuit Judge

         Ismael Lozano-Zuniga is a native and citizen of Mexico. He arrived in the United States in April 2002, when he was fourteen years old, but was not admitted or paroled by an immigration officer. Lozano-Zuniga came to the attention of the Department of Homeland Security (Department) after an arrest and conviction for driving under the influence, and on September 17, 2010, the Department issued a notice to appear, charging Lozano-Zuniga with removability pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for having entered the country without being admitted or paroled.


         At the initial hearing in front of the immigration judge, Lozano-Zuniga conceded the charge of removability, but filed an application for withholding of removal and protection under the Convention Against Torture (CAT).

         At his March 2012 hearing, Zuniga testified that he came to the United States from Rio Grande, Zacatecas, Mexico in 2004 with his mother and sister to join his father and two older brothers. He also testified that prior to leaving Mexico, his mother received a telephone call asking for information about family members in the United States, in which the caller implied that he wanted money and would kidnap Lozano-Zuniga or his sister in order to get ransom money from relatives living in the United States. His mother did not report the incident to the police. She did not come to court to testify about the phone call or submit an affidavit. When asked about this by the immigration judge, Lozano-Zuniga responded that his mother is in this country illegally and feared coming to the immigration court. He noted that he thought the letter he submitted from a member of the Seventh Day Adventist church in Mexico, stating that members were subject to physical and verbal abuse, would suffice in lieu of her testimony.

         Lozano-Zuniga also testified that he fears that if he should return to Mexico, he would be targeted as a young Mexican male returning from the United States and forced to work for the Mexican gang, the Zetas, as part of their violent drug trafficking operations. Lozano-Zuniga testified that the Zetas control everything, that many police members and other authorities have been corrupted by them, and that their ranks and presence has swollen since he left in 2004. Lozano-Zuniga admitted that he had never been personally threatened by the Zetas, and that his grandmother lives without incident in his city of origin (Lozano-Zuniga testified that the Zetas are not interested in older women), but he claims that if he returned to his small hometown, his return would be obvious and he would stick out as a target for the Zetas who would force him into criminal service.

         While living in Mexico, Lozano-Zuniga testified, people criticized his Seventh Day Adventist religion and he believed the situation was getting much worse. According to his testimony, approximately two years before his hearing, a couple of members of the Seventh Day Adventist church had been killed. When asked by the immigration judge who killed them, he said "the only group localized in our area there is the group of the Zetas. So in my opinion, they are the ones responsible." (R. 130).

         Lozano-Zuniga has graduated from high school in the United States and is taking college courses in medicine. He continues his practice as a Seventh Day Adventist.

         On November 21, 2013, in a thorough opinion, the Immigration Judge found Lozano-Zuniga to be generally credible, but found that he did not establish a clear probability that he would face persecution or torture upon his removal to Mexico. Lozano-Zuniga appealed to the Board of Immigration Appeals (Board) who confirmed the decision of the immigration judge. Lozano-Zuniga filed a timely petition for review.


         "When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge's decision as supplemented by the Board." Cece v. Holder,733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review the findings of fact for substantial evidence and reverse only if the evidence compels a different result. Id. at 675-76. We review questions of law de novo, deferring to the Board's reasonable interpretation set forth in precedential opinions interpreting the statute. Id. at 668 (citing Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc.,467 U.S. 837, 842-43). The Court will affirm the agency decision as long as it is supported by reasonable, substantial, and probative evidence. Aparicio-Brito v. Lynch, No. 14-3062, 2016 WL 3068098, at *6 (7th Cir. May 31, 2016). The standard ...

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