November 29, 2016
Petition for Review of an Order of the Board of Immigration
Appeals No. A089-281-390
BAUER, FLAUM, and HAMILTON, Circuit Judges.
seven years and three petitions 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, 8
U.S.C. § 1231(b)(3), and relief under the Convention
Against Torture, 8 C.F.R. § 1208.16(c). Delgado
challenges aspects of the expedited removal process under 8
U.S.C. § 1228(b) and a corresponding regulation, 8
C.F.R. § 1208.31(g)(2)(i). He also claims that the Board
committed various legal errors. For the following reasons, we
dismiss the petition for review in part for lack of
jurisdiction and deny the remainder of his petition for
a native and citizen of Mexico, entered the United States
without inspection three times, most recently in May 1999. In
December 2009, he was convicted in Illinois state court of
felony possession of cocaine with intent to deliver in
violation of 720 Ill.Comp.Stat. § 570/401(c)(2). He was
sentenced to six months' imprisonment with two years of
March 3, 2015, the Department of Homeland Security initiated
expedited removal proceedings pursuant to 8 U.S.C. §
1228(b). See 8 C.RR. § 238.1 (setting forth
procedures). DHS served Delgado a Notice of Intent, charging
that Delgado was removable under 8 U.S.C. §
1227(a)(2)(A)(iii) as an alien convicted of an aggravated
felony as defined in 8 U.S.C. § 1101(a)(43)(B). On March
16, 2015, DHS issued a Final Administrative Removal Order
("FARO"), finding Delgado deportable as charged and
ordering that he be removed to Mexico. Delgado expressed a
fear of returning to Mexico to a DHS officer who then
referred him to the Chicago Asylum Office for a reasonable
March 31, 2015, an 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 8 C.F.R. § 1208.31(g)(2)(i).
The IJ permitted Delgado to file an application for
withholding of removal and relief under the CAT, which he
filed on June 16, 2015. See id.
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 8 U.S.C. § 1158. At the hearing,
the IJ concluded that it was not authorized to review
DHS's determination that Delgado was convicted of an
aggravated felony. The IJ ruled that Delgado was not eligible
for asylum on two grounds: he was not permitted to apply for
it in "withholding-only" proceedings; and, he was
in removal proceedings pursuant to 8 U.S.C. § 1228(b).
Thus, the IJ considered only Delgado's applications for
withholding of removal and relief under CAT.
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, 8 U.S.C. § 1158(b)(1)(B)(ii).
Alternatively, the IJ concluded that even if Delgado
established his burden of proof, the IJ would have denied
Delgado's application for withholding of removal because
he had been convicted of a "particularly serious
crime." The IJ found that 720 Ill.Comp.Stat. §
570/401(c) (2) was categorically a "drug trafficking
crime, " and thus, an illicit trafficking aggravated
felony as defined in 8 U.S.C. § 1101(a)(43)(B). Because
Delgado's conviction was an aggravated felony, the IJ
concluded it was presumed to be a "particularly serious
crime, " 8 U.S.C. § 1231(b)(3)(B)(ii).
noted that the Attorney General has determined that drug
trafficking aggravated felonies "presumptively
constitute" particularly serious crimes absent
"extraordinary and compelling circumstances."
Y-L-, 231. & 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 any 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).
held that Delgado'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 establish 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.
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 ...