Aguilar-Mejia v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2673

G UILLERMO A GUILAR-M EJIA,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A071-312-010

A RGUED JANUARY 19, 2010—D ECIDED A UGUST 6, 2010

Before B AUER and W OOD , Circuit Judges, and K ENNELLY,

District Judge. Œ

W OOD , Circuit Judge. Guillermo Aguilar-Mejia, also

known as Williams Oswaldo Aguilar-Mejia, is fighting

removal from the United States. He came to this country

Œ

Hon. Matthew F. Kennelly, District Judge for the Northern

District of Illinois, sitting by designation.

2 No. 09-2673

in the late 1980s, and was removed to Mexico in 1995.

He returned shortly thereafter and has remained here

ever since. Life is hard for Aguilar-Mejia. He was diag-

nosed with HIV/AIDS and, later, with a debilitating

viral disease that causes the brain’s white matter to de-

teriorate. Thankfully, Aguilar-Mejia has found the sup-

port of various organizations and persons in the Chicago

area that have provided him with the medical, economic,

and psychological support he needs. After a 2008 arrest,

however, the Department of Homeland Security sought

to have him removed based on, among other grounds,

a previous conviction for drug possession.

Aguilar-Mejia did not challenge the charges before

the Immigration Judge (“IJ”), but he argued that he quali-

fied for withholding of removal and protection under

the Convention Against Torture (“CAT”). Aguilar-Mejia

focused on the threat of persecution against perceived

homosexuals and persons suffering from AIDS. An IJ

in Chicago found Aguilar-Mejia removable and denied

his application for withholding of removal because he

failed to establish a pattern or practice of persecution

against those groups in the designated countries. The IJ

also denied the CAT claim. Aguilar-Mejia appealed to

the Board of Immigration Appeals (“BIA”), but the BIA

affirmed the IJ. Now he has filed a petition for review

with this court. Aguilar-Mejia faces a troubling predica-

ment, but our review is tightly constrained. Because

we conclude that we lack jurisdiction over Aguilar-

Mejia’s factual and legal claims, we dismiss the petition

for review.

No. 09-2673 3

I

Aguilar-Mejia was born in Colombia and raised in

Guatemala. He was abused by his mother and stepfather.

In 1988 or 1989, Aguilar-Mejia left Guatemala and trav-

eled through Mexico to the United States, eventually

settling in Chicago. In 1995, Aguilar-Mejia was con-

victed of possession of a controlled substance and re-

moved to Mexico. Sometime thereafter he reentered

the United States. He was arrested again in 1999, but

stayed in the country.

In the years that followed, Aguilar-Mejia began to

experience various symptoms that he was not able to

understand for a time. In 2005, the unfortunate truth

emerged: he was infected with HIV and had developed

AIDS. Later, he was diagnosed with Progressive Multi-

focal Leukoencephalopathy (“PML”), a rare and often

fatal viral disease characterized by progressive damage

of the brain’s white matter. This is a life-threatening

disease, as the description from the National Institute

of Neurological Disorders and Stroke makes clear:

Progressive multifocal leukoencephalopathy (PML)

is caused by the reactivation of a common virus in

the central nervous system of immune-compromised

individuals. . . . PML is most common among indi-

viduals with acquired immune deficiency syndrome

(AIDS). Studies estimate that prior to effective

antiretroviral therapy, as many as 5 percent of people

with AIDS eventually developed PML. For them,

the disease was most often rapidly fatal.

4 No. 09-2673

With current HIV therapy, which effectively restores

immune system function, as many as half of all

HIV-PML patients survive, although they some-

times have an inflammatory reaction in the regions

affected by PML. The symptoms of PML are the

result of an infection that causes the loss of white

matter (which is made up of myelin, a substance

th[at] surrounds and protects nerve fibers) in

multiple areas of the brain. Without the protection

of myelin, nerve signals can’t travel successfully

from the brain to the rest of the body. Typical symp-

toms associated with PML are diverse, since they

are related to the location and amount of damage

in the brain, and evolve over the course of several

days to several weeks. The most prominent symp-

toms are clumsiness; progressive weakness; and

visual, speech, and sometimes, personality changes.

The progression of deficits leads to life-threatening

disability and death over weeks to months.

See http://www.ninds.nih.gov/disorders/pml/pml.htm

(last visited Aug. 3, 2010).

Aguilar-Mejia has many of the symptoms that the

Institute described. He has had problems with his

memory, has been diagnosed with clinical depression,

has experienced various other health problems including

a severe stroke followed by a five-day coma, and has

attempted suicide at least once. The record in this case

is uneven because Aguilar-Mejia’s memory problems

make it difficult to determine all of the relevant facts.

In 2008, Aguilar-Mejia was arrested for possession of

false identification and drinking alcohol in public. Aguilar-

No. 09-2673 5

Mejia tried to excuse his conduct by saying that he

needed the ID in order to obtain an apartment. Following

that arrest, the government sought to remove him to

Guatemala, Colombia, or Mexico. It offered four bases

for the proposed action: seeking admission within

10 years of previous removal, 8 U.S.C. § 1182(a)(9)(A)(ii);

entering the United States without inspection, id.

§ 1182(a)(6)(A)(i); commission of a crime involving

moral turpitude, id. § 1182(a)(2)(A)(i)(I); and commission

of a controlled-substance offense, id. § 1182(a)(2)(A)(i)(II).

Aguilar-Mejia did not challenge these charges; in fact,

he conceded removability based on the crime of moral

turpitude and the controlled-substance offense. Instead,

Aguilar-Mejia requested withholding of removal and

protection under the CAT. His arguments focused exclu-

sively on his fear of future persecution based on his

membership in two groups: perceived homosexuals

and persons with AIDS. Aguilar-Mejia presented a volu-

minous written record, called five witnesses, and testi-

fied himself. The evidence established Aguilar-Mejia’s

diagnoses of HIV/AIDS and PML, his dire and deteri-

orating condition, the extensive medical treatment he

required to stave off death, the severe difficulty of ac-

cessing that treatment in the countries to which the

government was proposing to remove him, and the

societal stigma and mistreatment of people belonging to

the social groups he had identified. At all times, Aguilar-

Mejia (through counsel) argued that there was a pattern

or practice of persecution directed at the social groups

he had identified; he did not assert that there was any

reason that he would be singled out for persecution

6 No. 09-2673

more than others in his groups. When the IJ asked Aguilar-

Mejia’s counsel directly whether his claim was limited

to the “pattern-or-practice” theory, counsel answered in

the affirmative.

On February 13, 2009, the IJ issued an oral decision

denying relief. The IJ first found that Aguilar-Mejia was

removable on all four charges. Aguilar-Mejia does not

challenge any of these grounds for removal in his petition.

The IJ next turned to Aguilar-Mejia’s request for with-

holding of removal. Because Aguilar-Mejia did not

present evidence of past persecution, the IJ looked only

to future persecution based on the “pattern or practice” of

persecution of persons perceived to be homosexuals

and persons with AIDS in the countries designated for

removal. The IJ determined that Aguilar-Mejia qualified

as a member of both groups, and that these groups con-

stituted “social groups” for purposes of the withholding-

of-removal regulations. The IJ was sympathetic to Aguilar-

Mejia’s case, but in the end he decided that there

was not enough evidence of a pattern or practice of perse-

cution to warrant withholding of removal. Although the

IJ acknowledged the difficulty Aguilar-Mejia may face

in obtaining the necessary medications upon removal,

he decided that these circumstances did not establish

the threat of persecution required for withholding of

removal. The IJ also found that the CAT was inapplicable

because Aguilar-Mejia did not establish that the gov-

ernments of the target countries would commit or ac-

quiesce to the commission of torture against members

of either social group. The IJ noted that Aguilar-Mejia

No. 09-2673 7

was not eligible for asylum, because he did not file his

application within one year of entry into the United

States. (There was no evidence of changed country condi-

tions in the proposed recipient countries.)

Aguilar-Mejia appealed to the BIA, again arguing the

pattern-or-practice theory for withholding of removal.

The BIA agreed with the IJ. Aguilar-Mejia has now filed

a petition for review, with the help of the National Im-

migrant Justice Center (“NIJC”) as amicus curiae. He

asks this court to reject the IJ’s and BIA’s decisions on

withholding of removal, either based on the sufficiency

of the evidence or a claim of legal error. Aguilar-Mejia

did not raise any issues particular to the CAT or asylum

on appeal to the BIA, nor does he raise those issues in

this court. We conclude that we lack jurisdiction to

review the sufficiency of the evidence under the

statute, and that Aguilar-Mejia failed to preserve the

claim of legal error he raises in this court.

II

An applicant for withholding of removal must estab-

lish that “his or her life or freedom would be threatened

in the proposed country of removal on account of race,

religion, nationality, membership in a particular social

group, or political opinion.” 8 C.F.R. § 1208.16(b). Past

persecution creates a rebuttable presumption of the

threat of future persecution. Id. § 1208.16(b)(1). If the

applicant cannot show past persecution, then he or she

may present other evidence supporting an inference of

future persecution. Id. § 1208.16(b)(2).

8 No. 09-2673

Aguilar-Mejia’s request for withholding of removal is

based on a future-persecution claim. According to the

regulation, an applicant “may demonstrate that his or her

life or freedom would be threatened in the future in a

country if he or she can establish that it is more likely

than not that he or she would be persecuted on account

of . . . membership in a particular social group . . . upon

removal to that country.” Id. This provision calls for an

individualized assessment of the evidence that could

establish that a petitioner may suffer future persecu-

tion. The regulations go on to say, however, that the

agency “shall not require the applicant to provide evi-

dence that he or she would be singled out individually”

if he or she will, more likely than not, be associated with

a group that is the object of a pattern or practice of perse-

cution. Id. Both of these methods of establishing future

persecution are relevant to Aguilar-Mejia’s petition for

review.

Before assessing Aguilar-Mejia’s assertion that he is

entitled to relief because he faces future persecution,

we must establish the boundaries of our jurisdiction.

Congress has stripped courts of appeals of their juris-

diction to review most issues related to removal

orders for aliens convicted of certain crimes, including

controlled-substance offenses and aggravated felonies, as

well as removal orders based on discretionary decisions

of the Attorney General. 8 U.S.C. § 1252(a)(2)(B), (C). See,

e.g., Calcano-Martinez v. INS, 533 U.S. 348, 351 (2001);

Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (ap-

plying the jurisdiction-stripping statute to an alien re-

moved for commission of an aggravated felony whether

No. 09-2673 9

or not the agency made a discretionary decision). Our

review in these circumstances is limited to “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). See

Mireles v. Gonzales, 433 F.3d 965, 969 (7th Cir. 2006) (exer-

cising jurisdiction to address petitioner’s “constitutional

claims or questions of law,” and recognizing the lack

of jurisdiction over other claims); Hamid v. Gonzales,

417 F.3d 642, 645-47 (7th Cir. 2005) (same).

Aguilar-Mejia was found removable for, among other

reasons, his prior conviction for possession of a con-

trolled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). He

conceded this charge; this concession means that our

jurisdiction is limited to those portions of the petition

that raise constitutional claims or questions of law.

Returning to the two methods of establishing future

persecution, Aguilar-Mejia devotes a large portion of

his brief to evidence supporting the proposition that

there is a pattern or practice of persecution against his

social groups in the countries to which he might be re-

moved. Aguilar-Mejia may well be correct, but the prob-

lem is that this is a fact-based argument, and we have

no jurisdiction to entertain it. Section 1252(a)(2)(D) autho-

rizes review only over constitutional claims or questions

of law.

With respect to the other method of establishing perse-

cution, Aguilar-Mejia has raised a legitimate legal issue:

he argues that the agency made an error of law when

it looked only at the threat to his social group and failed

to make a finding on the individualized threat of future

10 No. 09-2673

persecution. In essence, this is a point about the agency’s

duty to consider issues that were not highlighted by

either party, and so it is worth a brief discussion. As

stated above, the regulation governing withholding of

removal provides that a petitioner may establish future

persecution either through the individual method or

the pattern-or-practice method. 8 C.F.R. § 1208.16(b)(2).

In Banks v. Gonzales, 453 F.3d 449 (7th Cir. 2006), we

held that the asylum regulations—which mirror the

withholding-of-removal regulations in all respects rele-

vant to this issue—require the agency to make a

finding on the pattern-or-practice theory whether or not

the petitioner draws the rule to the agency’s attention.

See 8 C.F.R. § 1208.13(b)(2)(iii) (“[T]he asylum officer or

immigration judge shall not require the applicant to

provide evidence that there is a reasonable possibility

that he or she would be singled out individually for

persecution if: (A) [t]he applicant establishes that there

is a pattern or practice in his or her country . . . of persecu-

tion of a group of persons similarly situated to the ap-

plicant . . . .”). Failing to heed the command of the regula-

tions is a legal error and grounds for the court of appeals

to grant the petition and remand the case for further

proceedings. See Banks, 453 F.3d at 452-55.

Banks argued that the agency focused only on the

individual threat of persecution and ignored the pat-

tern-or-practice theory. Aguilar-Mejia makes the op-

posite argument; he argues that the agency focused only

on the pattern-or-practice theory and ignored the indi-

vidual threat of persecution. Banks found that the ap-

No. 09-2673 11

plicable regulations required the agency to address pat-

tern-or-practice evidence, id. at 452-53, and Aguilar-Mejia

asks us to hold that the removal regulations command

the agency to address individualized evidence, again

regardless whether the petitioner asks for this relief.

Even if the argument that the regulations require the

evaluation of individual evidence is weaker than the

Banks case, the case for some individualized assessment

is not wholly without merit. The relevant paragraph’s

chapeau provides that “[t]he evidence shall be evaluated

as follows,” 8 C.F.R. § 1208.16(b) (emphasis added), and

Aguilar-Mejia has a point when he argues that it would

be odd to require the agency to evaluate generalizable

(pattern or practice) evidence but then to allow the

agency to ignore evidence specific to the petitioner

before it.

Even though this argument, advanced by both

Aguilar-Mejia and the NIJC, may rest on a serious ques-

tion of law, however, it runs up against another ob-

stacle. According to 8 U.S.C. § 1252(d)(1), the court of

appeals may review a final order of removal only if

the alien has exhausted the administrative remedies.

What it takes to exhaust those remedies sufficiently

will vary, depending on the circumstances. In Banks, for

example, we noted that “[a] litigant’s failure to remind

an IJ of some rule assuredly does not entitle the IJ to

contradict that rule,” 453 F.3d at 452, but we still required

the applicant to preserve the issue. See id. at 453 (“Banks

and her lawyer preserved the contention (the claim for

asylum on account of the Taylor government’s treat-

12 No. 09-2673

ment of its enemies); they did not need to cite each

source of authority supporting their position.”).

Here, Aguilar-Mejia did nothing of the sort. Throughout

his oral and written advocacy, Aguilar-Mejia’s counsel

exclusively argued the pattern-or-practice theory. After

hearing the evidence, the IJ summarized what he under-

stood to be Aguilar-Mejia’s argument: “that there’s a

pattern and practice of persecution against people with

AIDS or perceived homosexuality, therefore, members

of a particular social group.” The IJ sought confirmation

from Aguilar-Mejia’s counsel: “Is that your argument?”

Counsel replied: “That is exactly our argument, Your

Honor.” At oral argument before this court, Aguilar-

Mejia suggested that the IJ should have inferred the

individual-persecution argument from his presentation

of individualized evidence. But even if we were to

accept this argument with respect to the IJ, Aguilar-Mejia

also failed to preserve the argument on appeal to the

BIA; his brief to the BIA stated flatly “there is one

issue on appeal before the Board: Whether the immigra-

tion judge erred in determining that Respondent

had not met his burden of proof of establishing a

pattern and practice of persecution against members

of his recognized particular social group” under 8

C.F.R. § 1208.16(b)(2)(i). Issues not raised to the BIA

are not available for our review.

In short, Aguilar-Mejia did not preserve the individual-

persecution issue. We cannot say that the agency made

a legal error by failing to consider an argument when

it went out of its way to confirm that Aguilar-Mejia was

arguing only a different theory of the case.

No. 09-2673 13

Although we must deny Aguilar-Mejia’s petition, we

close by noting that we are aware of the exceptional

humanitarian concerns raised in this case. PML is an

extremely serious disease; Aguilar-Mejia’s condition is

severe, and could rapidly deteriorate if he loses his

access to the antiretroviral therapy discussed by the

National Institute of Neurological Disorders and Stroke,

supra. (Even with state-of-the-art therapy, his chances

of survival over the next year may be only 50-50.)

Because he is not only HIV-positive but also suffers

from full-blown AIDS, Aguilar-Mejia also needs medica-

tion that is likely not to be available to him if he is re-

moved. Missing his medication for even a brief period

could be a literal death sentence. As the IJ noted, “almost

all of [Aguilar-Mejia’s] witnesses testified that . . . the

treatment [for AIDS] is not easily accessed and not

readily available” in the countries designated for re-

moval. For these reasons, we respectfully encourage

the Attorney General, if asked by Aguilar-Mejia, to con-

sider “deferred action,” “humanitarian parole,” or any

other discretionary remedy that may be granted on hu-

manitarian grounds. See, e.g., Recommendation from the

CIS Ombudsman to the Director, USCIS, Apr. 6, 2007,

http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_

32_O_Deferred_Action_04-06-07.pdf (last visited Aug. 3,

2010) (describing the deferred action); Reno v. Ameri-

can-Arab Anti-Discrimination Comm., 525 U.S. 471, 484-85

(1999) (quoting 6 C. G ORDON, S. M AILMAN, & S. Y ALE-

L OEHR, IMMIGRATION L AW AND P ROCEDURE § 72.03[2][a]

(1998)) (same); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999)

(discussing humanitarian parole).

14 No. 09-2673

* * *

Aguilar-Mejia’s petition for review is D ISMISSED for

lack of jurisdiction.

8-6-10