May 17, 2017
for Review of an Order of the Board of Immigration Appeals.
No. A 205 153 425.
Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
Herrera-Ramirez is fighting deportation from the United
States. She is a citizen of Mexico, but she has been living
in this country without the right to do so since she was six
years old. She is married and has four U.S.-citizen children.
She found herself facing removal after a violent incident on
December 30, 2011, in which she was involved with a drive-by
shooting near a Milwaukee bar where she had been with her
friends. State criminal proceedings followed, and in time she
came to the attention of U.S. Immigration and Customs
Service, known as ICE, which instituted removal proceedings
against her. First an Immigration Judge (IJ) and then the
Board of Immigration Appeals (BIA) found that her offense was
a "particularly serious crime" for immigration
purposes, and thus that she was ineligible for withholding of
removal (the only possible relief). She has filed a petition
for review from that determination, but we conclude we lack
jurisdiction over it because there is no legal issue before
us, and so we dismiss on that basis.
underlying facts of Herrera-Ramirez's offense are
straightforward. She was at the bar in Milwaukee with her
friends when the friends got into a fight with some other
patrons. Herrera-Ramirez ushered her friends out of the bar
and into her car; she intended to drive away. One of the
friends, however, told her to drive past the other patrons
who were still standing outside the bar. She did so, and the
passenger rolled down the car window and shot two of the
bystanders. Herrera-Ramirez claimed that she initially had no
idea that the passenger had a gun or what he was planning to
do. After the shooting, Herrera-Ramirez drove off and dropped
her friends off somewhere. She did not contact the police,
but the police found her, arrested her, and found the gun in
her car. She was charged with, and convicted for,
first-degree reckless injury in violation of Wis.Stat. §
94O.23(1)(a). The court sentenced her to 11 months in prison.
She came to the attention of ICE a short time after the
shooting, and that led to the order of removal she is
petition for review of a decision of the BIA, we have
jurisdiction over final orders, but our authority is not
unlimited. As relevant here, we may not second-guess the
Board's decision that the crime of which a petitioner has
been convicted is a "particularly serious" one, see
8 U.S.C. § l252(a)(2)(B)(ii), unless the petitioner has
raised a question of law, see id. §
1252(a)(2)(D). We must therefore decide whether
Herrera-Ramirez has raised a legal question, or if she is
disputing only the Board's discretionary characterization
of her offense.
Herrera-Ramirez sees it, the critical issue is whether the
Board correctly interpreted the term "particularly
serious crime." She emphasizes the fact that she was
charged as a party to the crime of first-degree reckless
injury, not as the principal offender. That much is true, but
it does not help her. Under Wisconsin law, all parties to a
crime are principals for liability purposes, even if they did
not directly commit the crime. Wis.Stat. § 939.05(1).
The law defines as a party to a crime any person who (a)
directly commits the crime, (b) intentionally aids and abets
the commission of the crime, or (c) is a party to a
conspiracy to commit the crime or advises another to commit
it. Wis.Stat. § 939.05(2). At Herrera-Ramirez's
criminal trial, therefore, the jury needed only to find that
she did one of those three things in order to convict her. In
Holland v. State, 280 N.W.2d 288 (Wis. 1979), the
Supreme Court of Wisconsin noted that "the party to a
crime statute does not create three separate and distinct
offenses." Id. at 293. See also State v.
Zelenka, 387 N.W.2d 55, 60 (Wis. 1986); State v.
Charbarneau, 264 N.W.2d 227, 229 (Wis. 1978). In short,
nothing about the fact that Herrera-Ramirez was charged as a
party to a crime prevented the Board from regarding her level
of culpability as significant under the immigration laws. We
note that even the shooter was charged as a party to a crime.
also contends that she was just a minor player in the
unfolding violence-nothing more than an inadvertent aider and
abettor who had no idea that the passenger was going to shoot
at the bystanders. But this is not a legal argument; at best
it is a characterization of the facts. (And some of the facts
are unfavorable to Herrera-Ramirez, including that she told
police she realized her passenger had a gun before the
shooting, and that she thought that the passenger meant only
to rob the men standing outside the bar, not to shoot them.)
of law prevents the Board from regarding
Herrera-Ramirez's offense as "particularly
serious." Pertinent regulations allow the Board to
examine "the nature of the conviction, the type of
sentence imposed, and the circumstances underlying facts of
the conviction" in the course of determining whether a
crime meets that standard. Estrada-Martinez v.
Lynch, 809 F.3d 886, 889 (7th Cir. 2016) (quoting In
re N-A-M, 24 I. & N. Dec. 336, 342 (BIA 2007)). The
Board also is entitled to, and did, give weight to the
elements of the offense and the nature of the crime.
N-A-M, 24 I. & N. Dec. at 342. At worst, it did
not give as much weight to Herrera-Ramirez's supposedly
peripheral role in the offense as she would have liked. But
that was a discretionary decision beyond our authority to
also accuses the Board of totally ignoring her argument that
the evidence did not support a finding that her offense was
especially serious, and she points out that such a claim
describes a legal error. Delgado-Arteaga v.
Sessions, 856 F.3d 1109, 1116-17 (7th Cir. 2017). The
problem with this point is that the Board did identify the
evidence supporting its determination. It noted the following
facts about the offense: (1) it required that she have caused
great bodily harm under circumstances showing utter disregard
for human life, (2) it was a crime against a person, and (3)
it involved driving a car while another person shot a gun. It
also quoted the IJ's conclusion that the offense
"was a dangerous crime against [sic] involving
driving a motor vehicle through the city streets while people
in the car shot out a window." Herrera-Ramirez's
argument that the Board ignored the fact that her sentence
was seemingly light and she was released early for good
behavior is similarly unfounded. It acknowledged these facts
at the beginning of its opinion, even though it did not
repeat them later during the discussion of what made the
offense particularly serious.
conclude by noting that Herrera-Ramirez would face additional
problems even if she had somehow surmounted the
jurisdictional barrier. She failed to present her argument
based on Wisconsin's "party-to-the-crime"
statute to the Board, and so there is a serious question
whether she properly exhausted her remedies. See 8 U.S.C.
§ 1252(d)(1). The fact that she complained more
generally about the "particularly serious" label
would not be enough if it did not alert the Board to the
specific issue she had in mind. Finally, even if exhaustion
did not block her case, she would still have to persuade us
that the Board abused its discretion when it refused to place
very much weight on her role in the offense. That, too, is a
not resolve those issues, however, because we lack
jurisdiction over this petition for ...