Cheikh Lam v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2576

C HEIKH L AM,

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. A076-765-699

A RGUED JANUARY 6, 2012—D ECIDED O CTOBER 16, 2012

Before M ANION and W ILLIAMS, Circuit Judges, and

C ASTILLO, District Judge.Œ

W ILLIAMS, Circuit Judge. After being found inadmissible

due to a 2002 conviction for fraud, Cheikh Lam sought

Œ

The Honorable Ruben Castillo, United States District Court

for the Northern District of Illinois, Eastern Division, sitting

by designation.

2 No. 11-2576

a waiver of inadmissibility under section 212(h)(1)(B) of

the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1182(h)(1)(B). That section provides that a noncitizen

may obtain a waiver if he is the spouse, parent, son, or

daughter of a United States citizen or lawful permanent

resident who would suffer extreme hardship if the

noncitizen is removed. At a hearing, Lam and his

United States citizen wife presented evidence that his

wife suffered from depression and argued that she

would face extreme hardship if he were removed to

his native Senegal. Lam was also asked about the

events leading to his 2002 conviction. The Immigra-

tion Judge (“IJ”) found that Lam had not shown that

his wife would suffer hardship that reached the level

of “extreme,” and that he failed to show rehabilita-

tion because his testimony conflicted with a document

in the record related to an investigation of an incident

at a car dealership. Lam’s attorney failed to file a brief

on appeal, and the Board of Immigration Appeals

(“BIA”) dismissed the appeal.

After Lam obtained new counsel, the BIA reinstated

the appeal but dismissed it after briefing, finding that

the IJ did not err in his hardship and credibility deter-

minations. Because we find that the IJ and BIA over-

looked material evidence related to Lam’s wife’s depres-

sion and improperly relied on a report to determine

that Lam failed to show rehabilitation, we grant Lam’s

petition for review, vacate his removal order, and

remand to the agency for reconsideration.

No. 11-2576 3

I. BACKGROUND

Cheikh Lam, a native and citizen of Senegal, first

entered the United States on a visitor’s visa in 1994. In

1995, he adjusted his immigration status to that of full-

time student, and in 2000, he again adjusted his status

to become a lawful permanent resident (“LPR”) based

on his marriage to a United States citizen. His wife,

Ms. Sophia Lin, is a naturalized citizen of Taiwanese

descent, and the couple has two young United States

citizen children.

In January 2002, Lam pled guilty to violating 18 U.S.C.

§ 1028(a)(7). The indictment charged Lam with having

“knowingly used . . . the name and social security

number of an individual . . . with the intent to commit . . .

forgery” and stated that the conduct took place in

Oak Park, Illinois. Lam was sentenced to three years of

probation and ordered to pay a $2,000 fine.

In December 2004, Lam returned to Chicago from

a trip abroad, and immigration officials at O’Hare Inter-

national Airport, made aware of his conviction, de-

ferred his inspection. In March 2005, the Department of

Homeland Security (“DHS”) formally paroled Lam into

the United States, and served him with a Notice to

Appear, thereby placing him in removal proceedings.

Lam was designated as an LPR seeking admission to the

United States and was charged with inadmissibility

for commission of a crime involving moral turpitude

under section 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C.

§ 1182(a)(2)(A)(i)(I).

Lam hired Guy Croteau to represent him before the IJ.

A master calendar hearing was held in May 2005, and

4 No. 11-2576

the IJ granted Lam a continuance and set a deadline

of September 20, 2005, by which a pre-hearing state-

ment with evidence of Lam’s eligibility for relief from

removal had to be filed with the court. No statement

was ever filed. On October 4, 2005, Lam, through

counsel, contested that his conviction was for a crime

involving moral turpitude. Lam’s counsel also informed

the court that despite not having filed a statement with

the court, Lam would seek relief under INA § 212(h)(1)(B),

8 U.S.C. § 1182(h)(1)(B), under which a noncitizen may

obtain a waiver if he is the spouse, parent, son, or

daughter of a United States citizen or LPR who would

suffer “extreme hardship” if the noncitizen is removed.

After a number of continuances, the next hearing

took place in April 2007. At that hearing, Croteau

informed the court that his client would not appear

because Croteau failed to review with Lam a change in

the hearing date. The IJ noted that Croteau appeared

to have committed “a serious dereliction of duty” by

failing to communicate the correct hearing date to his

client. Nevertheless, the IJ waived Lam’s appearance

for the hearing and found that the charge of inadmissi-

bility was established because Lam’s conviction con-

stituted a crime involving moral turpitude. The IJ re-

marked that Lam appeared prima facie eligible for a

§ 212(h) waiver and carried the case over for con-

sideration of that form of relief.

At a hearing in June 2008, Lam was present, but

his counsel was not. Lam was informed after calling

No. 11-2576 5

Croteau’s office that his counsel had been hospitalized.1

At a final hearing in September 2008, the IJ heard testi-

mony on Lam’s § 212(h) waiver application. Lam

testified that he and his naturalized wife had two

United States citizen children, then two years old and

two weeks old. He stated that he had supported his

family but that when he lost his permanent residency

card, he was unable to work. He also said that the

family began to rely on his wife’s salary as an adjunct

professor, but at the time of the hearing nobody in the

family worked because his wife had just given birth.

Lam said that the bank had begun foreclosure pro-

ceedings on the family home. He also stated that if he

were removed, neither his wife nor his children would

live with him in Senegal because of discrimination

there against people of Taiwanese descent. He testified

that his wife had undergone psychiatric counseling and

was depressed. Lam stated that he volunteers in the

community and assists in a soup kitchen.

Lam’s wife, Ms. Lin, testified that she had been in

denial about her depression and that because of Lam’s

removal proceedings, “everything snowballed into post-

partum depression.” She testified that the family

faced financial difficulties because her husband could

not obtain employment with his current status and that

1

The IJ continued the case for two weeks and instructed

Croteau’s office to provide a doctor’s letter regarding his

absence. At the next hearing date, Croteau failed to provide

a doctor’s note. On August 7, 2008, he eventually provided

medical records regarding his absence.

6 No. 11-2576

she only had a part-time, adjunct position at an art col-

lege. She denied knowing the details of Lam’s crim-

inal conviction.

Lam testified about both the events leading to the

conviction and a prior arrest, but the record is not

entirely clear as to when he is referring to which inci-

dent. (We discuss Lam’s testimony in greater detail

below). The IJ found the testimony “not credible and

not plausible” based on a document in the record that

purported to be a United States Secret Service investiga-

tion of his conduct. Relying on the document, the IJ

found that Lam had not shown rehabilitation. The IJ

also found that Ms. Lin had not shown “credible evi-

dence” that she would face ethnic discrimination in

Senegal and stated that her “stress” did not render

her hardship extreme. The IJ therefore denied Lam

relief under INA § 212(h).

Lam sought to appeal the decision of the IJ. In

October 2008, Croteau, Lam’s attorney, filed a Notice

of Appeal with the BIA indicating that a brief would

be filed. After receiving one extension, Croteau failed to

file any brief on Lam’s behalf. The BIA then summarily

dismissed Lam’s appeal. Lam then filed a Request for

Investigation with the Illinois Attorney Registration

Disciplinary Commission (“ARDC”). (ARDC complaints

alleging misconduct had already been filed against

Croteau in at least five other cases.)

After obtaining new counsel, Lam filed a Motion to

Reopen and Remand with the BIA in March 2010, alleging

ineffective assistance by his previous counsel. The BIA

No. 11-2576 7

granted the motion and reinstated the prior appeal.

Lam’s new counsel submitted a brief along with

additional evidence that Lam’s previous counsel failed

to provide, including country condition reports and

medical records relating to Ms. Lin’s depression. Lam

alleged that the IJ erred in finding that his qualifying

relatives would not suffer “extreme” hardship, and that

the IJ improperly relied on the record in finding a lack

of rehabilitation. He also argued that the failures of

his previous counsel prejudiced his previous relief ap-

plication.

A three-member panel of the BIA dismissed Lam’s

appeal, finding that the IJ did not clearly err in its

adverse credibility determination or in finding that

Lam failed to show rehabilitation based on his incon-

sistent testimony, which was “unrelated to any actions

of previous counsel.” It also found that the new

evidence of hardship submitted on appeal did not

warrant further proceedings or remand. This petition

for review followed.

II. ANALYSIS

A. This Court Has Jurisdiction to Examine Errors

of Law

We begin our analysis with the question of jurisdic-

tion. Section 242(a)(2)(B) of the INA generally deprives

courts of jurisdiction to review discretionary denials

of immigration relief. 8 U.S.C. § 1252(a)(2)(B); see also

Ali v. Achim, 468 F.3d 462, 465 (7th Cir. 2006). We may

review the discretionary decision to deny a waiver of

8 No. 11-2576

inadmissibility only where the petition for review raises

“constitutional claims or questions of law.” 8 U.S.C.

§ 1252(a)(2)(D); see also Khan v. Mukasey, 517 F.3d 513,

517 (7th Cir. 2008). As such, we lack jurisdiction to

review the Attorney General’s exercise of discretion

when denying a waiver of inadmissibility, but we re-

tain jurisdiction to examine whether an error of law oc-

curred. See Khan, 517 F.3d at 517 (citing Ali, 468 F.3d at

465). That error could be a misinterpretation of a stat-

ute, regulation, or constitutional provision, but it could

also include a misreading of the BIA’s own precedent,

the BIA’s use of the wrong legal standard, “or simply

a failure to exercise discretion or to consider factors

acknowledged to be material to such an exercise.” Huang

v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008) (citations

omitted). That error could also be overlooking a peti-

tioner’s evidence. Escobar v. Holder, 657 F.3d 537, 544

(7th Cir. 2011) (“Even though our review is deferential,

the [Board] may not simply overlook evidence in the

record that supports the applicant’s case.” (internal

quotations and citation omitted)); Iglesias v. Mukasey, 540

F.3d 528, 531 (7th Cir. 2008) (“[A] claim that the BIA

has completely ignored the evidence put forth by a peti-

tioner is an allegation of legal error.”).

B. The Immigration Judge and Bureau of Immigration

Appeals Overlooked Key Evidence

The grant of a waiver of inadmissibility requires both

a finding of extreme hardship for a qualifying relative and

No. 11-2576 9

the favorable exercise of discretion. See INA § 212(h);

8 U.S.C. § 1182(h). Here, the IJ denied the waiver on

both grounds, finding that the hardship suffered by

Lam’s family would not be “extreme,” and that Lam

did not warrant a discretionary waiver because of his

lack of rehabilitation. For us to have jurisdiction over

the claim, Lam must show a colorable claim that legal

error occurred with respect to both findings.

Lam argues that the IJ and BIA overlooked key

evidence related to the extreme hardship claim. Ms. Lin

testified that she “was already depressed before [she]

had the children,” and that after the birth of her first

child, she “saw a spike in the problem after [her]

first pregnancy” and suffered from “severe” postpartum

depression. She also testified that she “cannot care for

two children on [her] own, psychologically.” She stated

that her doctor had recommended medication, but at

the time of the hearing, she had just given birth and

was reluctant and was “being cautious about medica-

tion at [that] point.” Lam submitted a letter from his

wife’s psychologist, who stated that Ms. Lin suffered

from “severe” postpartum depression and that she

was “truly psychologically unable to care fully” for their

children. Her psychologist also stated that Lam’s

removal would place Ms. Lin “in extreme psychological

distress.”

In finding that the hardship Ms. Lin would suffer

was not “extreme,” the IJ only stated that the family is

“currently stressed” and that Ms. Lin faces “psychological

stress” because of the removal proceeding. The IJ did not

mention or discuss Ms. Lin’s depression. By only briefly

10 No. 11-2576

referencing her “stress,” and even so, only “stress” related

to the removal proceeding, the IJ ignored evidence

that was material to the finding of extreme hardship.

As we have previously held, “failure to exercise discre-

tion or to consider factors acknowledged to be material

to such an exercise—such as the wholesale failure to

consider evidence—[is] an error of law. . . .” Iglesias,

540 F.3d at 531 (internal quotation marks and citations

omitted); see also Champion v. Holder, 626 F.3d 952,

956 (7th Cir. 2010) (finding jurisdiction and remanding

to the BIA where the IJ and BIA “virtually ignored”

and “failed to consider” evidence related to hardship

for cancellation of removal).

The government argues that the BIA considered such

evidence, but the BIA only referenced Ms. Lin’s depres-

sion when discussing Lam’s ineffective assistance

of counsel argument. Even then, the BIA only mentioned

in passing Ms. Lin’s “depression following the birth of

her child.” Ms. Lin, however, testified to depression

prior to her pregnancies, throughout her second preg-

nancy, and after the (then recent) birth of her second

child. We do not find such a passing reference in the

ineffective assistance context to be consideration of

this critical component of the “extreme hardship” analy-

sis. Where the IJ and BIA overlook such evidence, an

error of law occurs and the proper remedy is a remand

for reconsideration. Champion, 626 F.3d at 956-57; see

also Kone v. Holder, 620 F.3d 760, 763-64 (7th Cir. 2010);

Huang, 534 F.3d at 620 (stating that a failure to consider

factors acknowledged to be material to an exercise of

discretion amounts to legal error).

No. 11-2576 11

C. The Immigration Judge Relied on Improper Evi-

dence

We turn next to the IJ’s discretionary denial of the

§ 212(h) waiver. The IJ found that Lam failed to show

rehabilitation because he was not “forthright and cred-

ible in his testimony about the activities which cul-

minated in his conviction.” At the hearing, Lam’s counsel

asked him about his 2002 federal fraud conviction.

Lam testified that a friend named “Oliver” had paid

him $200 to pick up an Isuzu at Oak Park Suzuki. Ac-

cording to Lam, Oliver had given the dealership a fake

name. When Lam went to retrieve the car, he signed

Oliver’s name on the vehicle registration card and was

subsequently arrested by the Oak Park Police.

At the hearing, Lam’s counsel introduced into evi-

dence a four-page document that appears to be the

second of two reports from the Chicago field office of the

United States Secret Service summarizing an investiga-

tion that followed Lam’s arrest by authorities in Oak

Park, Illinois. That document states that Lam contacted

Gateway Chevrolet-Oldsmobile in April 2001 about the

purchase of a car. On April 3, 2001, Ken Mizdrak, a sales-

man at the dealership, met with Lam’s co-signer, an

“Aaron Meyer.” A week after Lam purchased a 1997

Lexus ES300, he began having difficulty with the en-

gine. Mizdrak offered to replace the vehicle with an

Isuzu Vehicross and met with Meyer to get the neces-

sary paperwork signed. Although the document notes

that federal authorities arrested Lam for fraud on June 4,

2001, it does not indicate what the act of fraud was. A

12 No. 11-2576

separate arrest report in the record shows that local

police arrested Lam on May 11, 2001, in Oak Park on a

forgery charge.

The government did not submit at the hearing (or on

appeal) the full record of conviction from Lam’s guilty

plea, so there is no plea agreement or colloquy that

might shed light on the facts leading to Lam’s conviction.

The indictment only states that on May 11, 2001, in

Oak Park, Illinois, Lam “knowingly used, without lawful

authority, a means of identification of another person . . .

with the intent to commit, and to aid and abet, an

unlawful activity that constituted a felony under the

laws of the State of Illinois, namely forgery.” The

judgment does not provide the factual basis of the

plea either. At oral argument, the government did not

have any further insight to offer about the actual events

that led to Lam’s conviction and conceded that on the

basis of the current record, the underlying facts of

Lam’s conviction are unknown.

We have held that an IJ may rely on hearsay evidence

“so long as it’s probative and its use is not funda-

mentally unfair.” Ogbolumani v. Napolitano, 557 F.3d 729,

734 (7th Cir. 2009) (citing Olowo v. Ashcroft, 368 F.3d

692, 699 (7th Cir. 2004)). Here, the lack of probative

value of the Secret Service document is clear on its

face: it has to do with events at a Gateway Chevrolet-

Oldsmobile dealership—a dealership that Lam acknowl-

edged in his testimony (and the government does not

contest) is located on North Milwaukee Avenue in the

Jefferson Park neighborhood of Chicago, approximately

No. 11-2576 13

nine miles north of Oak Park and under the jurisdiction

of the Chicago Police Department. Given that the indict-

ment states that the events underlying the federal

charge occurred in Oak Park, Illinois, the Secret Service

document was not a proper source on which to rely to

find discrepancies in Lam’s testimony regarding his

federal conviction.

The government argues that Lam’s testimony on cross-

examination itself is enough to support the IJ’s exer-

cise of discretion and strip us of jurisdiction. But the

only thing that Lam’s testimony reveals is his

(and possibly the government’s) confusion regarding the

Gateway dealership incident. It is clear from the rec-

ord that there were two dealerships involved and that

the IJ relied on improper evidence in making his discre-

tionary determination that Lam failed to exhibit rehabil-

itation. Because Lam is not disagreeing with the weight

that the IJ and Board placed on the evidence, see Huang,

534 F.3d at 621, but on mischaracterization of the docu-

ment as impeachment evidence, we have jurisdiction

over Lam’s claim. We find that reliance on the docu-

ment was improper. It is not clear to us whether the IJ’s

discretionary determination would stand without re-

liance on the improper evidence, so we remand to the

BIA for reconsideration.

III. CONCLUSION

For the reasons set forth above, we G RANT Lam’s

petition for review, V ACATE the order of removal, and

14 No. 11-2576

R EMAND to the agency for reconsideration of Lam’s

application for a waiver of inadmissibility.

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