Rosiles-Camarena v. Holder, No. 11-3086 (7th Cir. 2013)

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Camarena, a Mexican citizen, was admitted to the U.S. for permanent residence in 1977, at age 10. He did not become a citizen. After a felony conviction for indecent solicitation of a minor, his permanent-residence status was revoked, and he was ordered removed. Camarena is homosexual and HIV positive and claims that gays are persecuted in Mexico and that gays infected by HIV face extra risk. Although he is not eligible for asylum, he applied for withholding of removal under 8 U.S.C. 1231(b)(3), and relief under the Convention Against Torture. The immigration judge granted his application, finding, on the basis of statistics and expert testimony that Camarena probably would be killed or injured in Mexico as a result of his sexuality and disease. The BIA remanded; the IJ adhered to his position. The BIA then reversed and, after a remand, adhered to its position. The BIA accepted the IJ’s findings of historical fact but disagreed about the risk implied by those facts. The Seventh Circuit again remanded, for the BIA to consider, not whether aggregate data imply that Camarena is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 11- 3086 MIGUEL A. ROSILES- CAMARENA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. ____________________ Petition for Review of the Decision of the Board of Immigration Appeals ____________________ ARGUED MARCH 26, 2012 DECIDED AUGUST 21, 2013 ____________________ Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges. EASTERBROOK, Chief Judge. Miguel Rosiles- Camarena, a citizen of Mexico, was admitted to the United States for permanent residence in 1977, when he was ten years old. He did not use his opportunities to become a citizen. Following his felony conviction for indecent solicitation of a minor, his permanent- residence status was revoked, and he has been ordered removed to Mexico. No. 11- 3086 2 Rosiles- Camarena is homosexual and HIV positive. He contends that gays are persecuted in Mexico (at least outside of cosmopolitan Mexico City) and that gays infected by HIV face extra risk. Although he is not eligible for asylum (the deadline for seeking that relief expired long ago), he applied for withholding of removal under 8 U.S.C. §1231(b)(3), and relief under the Convention Against Torture, implemented by 8 C.F.R. §§ 1208.16 to .18. To be eligible for either benefit, an alien must show a clear probability that persecution (for withholding of removal) or torture (for the Convention) is more likely than not in the alien s native country. The immigration judge and the Board of Immigration Appeals disagree about whether Rosiles- Camarena satisfies these requirements. The IJ initially granted his application for relief under both the statute and the Convention, finding on the basis of statistics and expert testimony that Rosiles- Camarena probably would be killed or injured in Mexico as a result of his sexuality and disease. The BIA remanded, but the IJ adhered to his position on remand. The BIA then re- versed and, after a remand (by consent) from this court, ad- hered to its position. The most recent decision states that [t]he probability of future harm is a legal question that we review de novo and that, [i]n assessing the probability of harm de novo, we may give different weight to the evidence than did the Immigration Judge. The BIA proceeded to do just that. It accepted all of the IJ s findings of historical fact but disagreed with the IJ about the risk implied by those facts. For example: the IJ found that Rosiles- Camarena is at substantial risk because 148 persons were murdered in Mex- ico, between 1995 and 2006, because of their sexual orienta- 3 No. 11- 3086 tion. But the Board observed that this amounts to 12 or 13 killings a year in a population exceeding 110 million, at least 2% of which is homosexual, making it unlikely (a risk of no more than 1 in 100,000) that any given gay man would be killed any given year. Expert testimony establishing that at- tacks on homosexuals are frequent does not show the mag- nitude of risks, any more than expert testimony that auto accidents are frequent would imply that a given driver (even one in a high- risk group, such as men under 25) is more likely than not to be injured. The Board stated that the IJ did not commit clear error in crediting the statistics and the expert s testimony but added: as atrocious as it is to have 12 or 13 such killings per year, that fact does not show a clear probability that [Rosiles- Camarena] will be killed or otherwise persecuted. The Board treated the risk of future harm as a matter of legislative fact, and it took the view that decisions on mixed (or ultimate ) questions are open to plenary decision. Rosiles- Camarena contends that the Board made a legal error by engaging in this kind of review. He also contends that the Board s decision lacks substan- tial evidence in the record, but we lack jurisdiction to ad- dress that subject. He has been convicted of an aggravated felony, and as a result 8 U.S.C. §1252(a)(2)(C) forbids judicial review of the removal decision, except to the extent that the alien presents legal arguments (statutory or constitutional). See 8 U.S.C. §1252(a)(2)(D). A contention that the agency s decision is not supported by enough evidence is not a le- gal argument for this purpose. See JimÃ©nez Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008); Paez Restrepo v. Holder, 610 F.3d 962 (7th Cir. 2010). Section 1252(a)(2)(C) applies to applications for relief based on §1231(b)(3). See Moral- Salazar v. Holder, 708 F.3d 957 (7th Cir. 2013). Although Moral- No. 11- 3086 4 Salazar expresses a reservation for CAT claims, we need not explore in this litigation what sort of arguments under CAT §1252(a)(2)(C) allows us to consider. A regulation specifies the extent to which the Board may review or supplement factual decisions by immigration judges. It provides: (i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the find- ings of the immigration judge are clearly erroneous. (ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of im- migration judges de novo. ¦ (iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly re- solve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service. 8 C.F.R. §1003.1(d)(3). An argument that the Board has ex- ceeded the scope of review permissible under this regulation is a legal one, for the purpose of §1252(a)(2)(D). See Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir. 2008). Matter of V K , 24 I&N Dec. 500 (2008), on which the Board relied here, concludes that §1003.1(d)(3)(i) does not prevent it from disagreeing with an IJ s predictions about the likelihood of future harm. V K gives two principal rea- sons. First, clause (ii) authorizes the Board to review ques- 5 No. 11- 3086 tions of law, discretion, and judgment and if the probabil- ity of harm is an issue of fact, it is also one of law (to the extent the Board must choose how probable is probable enough? ) and of judgment (because evaluating the prob- ability of harm requires the application of judgment to his- torical facts). Second, the Board observed that the explana- tion issued with the adoption of §1003.1(d)(3) reveals that the resolution of a mixed question of law and fact is not itself a fact for the purpose of clause (i). The commentary stated that clause (ii) covers judgments as to whether the facts es- tablished by a particular alien amount to past persecution or a well founded fear of persecution. 67 Fed. Reg. 54,878, 54,890 (Aug. 26, 2002). The first circuit has held that the approach articulated in V K is within the Board s authority. See Rotinsulu, 515 F.3d at 73; Sicaju- Diaz v. Holder, 663 F.3d 1, 5 (1st Cir. 2011). The third circuit, by contrast, set aside V K on petition for re- view. Kaplun v. Attorney General, 602 F.3d 260, 269 71 (3d Cir. 2010) (CAT). In En Hui Huang v. Attorney General, 620 F.3d 372, 381 87 (3d Cir. 2010), it applied Kaplun to applica- tions for withholding of removal. Four other circuits have agreed with the third. See Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012); Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012); Zhou Hua Zhu v. Attorney General, 703 F.3d 1303 (11th Cir. 2013). The third circuit concluded that the Board is entitled to adopt an independent view about whether a potential harm identified by an IJ amounts to persecution or torture, but that an IJ s predictions (which it called the present probability of a future event ) such that a particular harm is likely should an alien return to his native land are facts under No. 11- 3086 6 clause (i), and the Board s role is limited to identifying clear error by the IJ. The Board s decision in our case adds some rationales in the course of explaining why it finds Kaplun and En Hui Huang unpersuasive. The Board s principal concern is that its legal views won t have much significance if all predic- tions are facts. It observed that predictive findings, partic- ularly regarding the level of harm that is likely to be inflict- ed, may preordain resolution of the legal question regarding whether such harm rises to the level of persecution or tor- ture. The Board added: any such predictive findings are likely to be based on written reports of country conditions over which a trier of fact has no particular expertise or ad- vantage, in contrast to issues of credibility, resolution of con- flicting testimony, or questions of historical fact. In other words, the Board thought that the category of predictions identified by the third circuit often concerns leg- islative rather than adjudicative facts. A sound prediction depends on country conditions, not (necessarily) on facts unique to the alien. For example, Rosiles- Camarena has lived in the United States since he was 10 and has visited Mexico only briefly. Many of the IJ s predictions concern conditions in Mexico. The Board thinks it unacceptable to have one IJ assert that conditions in Mexico are horrible, while another deems them fine, and to have both conclu- sions immune to effective review. Immigration judges display substantial disparity in eval- uating claims for asylum or withholding of removal. See Ja- ya Ramji- Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007). The Board thinks that it is entitled to 7 No. 11- 3086 curtail IJs divergent approaches and believes that it can do so by determining whether particular countries are, or are not, hostile to particular political or social groups. Indeed, we have urged the Board to make categorical decisions. E.g., Banks v. Gonzales, 453 F.3d 449, 453 55 (7th Cir. 2006); Xiu Ling Chen v. Gonzales, 489 F.3d 861, 862 (7th Cir. 2007); Chun Hua Zheng v. Holder, 666 F.3d 1064, 1068 (7th Cir. 2012). The Board fears that, under Kaplun and similar decisions, every IJ may maintain a personal view about the risks in each nation. Both the Board and the courts of appeals (reviewing it) would have their hands tied. Rosiles- Camarena would bene- fit from such a limit on review, but aliens whose claims are denied by other IJs would lose; neither the Board nor a court of appeals could conclude that country conditions are more hazardous than the IJ found. The Board has interpreted §1003.1(d)(3)(i) in a way that it believes makes clauses (i) and (ii) harmonious by relying on the longstanding distinctions between adjudicative and leg- islative facts, and between historical (case- specific) facts and those aspects of discretion or judgment that concern coun- try- wide conditions subjects on which the Board thinks that the United States should be able to speak with one voice, rather than through a cacophony of immigration judges. The problem is that the Board s arguments would be better as reasons to revise the regulation than as reasons to interpret it differently from the similar language that gov- erns relations between federal trial and appellate courts. Appellate courts are bound by Fed. R. Civ. P. 52(a)(6), which says that district judges findings of fact must not be set aside unless clearly erroneous. See also Anderson v. Bes- semer City, 470 U.S. 564 (1985). Rule 52(a)(6) may have been No. 11- 3086 8 the inspiration for §1003.1(d)(3)(i). The Rule does not allow plenary appellate review of district judges characterizations based on historical facts. A finding on an ultimate fact (a conclusion based on the application of legal rules to histori- cal facts) often is treated as one of fact. See, e.g., Pullman- Standard v. Swint, 456 U.S. 273 (1982) (whether the plaintiff is a victim of discrimination is a question of fact); Icicle Sea- foods, Inc. v. Worthington, 475 U.S. 709 (1986) (whether the plaintiff is a seaman is a question of fact). When a decision is person- specific, there is rarely a good reason for having three judges substitute their views for the assessment of the trial judge. See, e.g., Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 933 34 (7th Cir. 1989) (en banc); Mucha v. King, 792 F.2d 602, 605 06 (7th Cir. 1986). When a decision de- pends on the characteristics of non- litigants, however, and establishes a rule with broad scope, the appellate role can be more substantial. For example, in American Needle, Inc. v. Na- tional Football League, 560 U.S. 183 (2010), the Supreme Court gave no weight to a district judge s conclusion that the Na- tional Football League should be characterized as a single firm for the purpose of antitrust law. But even that sort of review, which concerns legal consequences, differs from an entitlement to make an independent appellate decision on facts just because they are legislative in nature. Kaplun observed that many predictions are facts, in the sense that they rest on subsidiary facts and can be true or false. It gave this example: It is likely that it will take less than 3 hours to drive the 100 miles to grandmother s house next week. 602 F.3d at 269. Likewise, a medical prediction about whether a victim of injury will recover is factual, even though it rests on the application of medical knowledge to subsidiary facts. Id. at 270. These illustrations show how per- 9 No. 11- 3086 son- specific circumstances (adjudicative facts) can give rise to predictions that also are sensibly treated as facts. That is as true when a prediction depends on country conditions as when it depends on what happened to a particular alien. We therefore agree with Kaplun and similar decisions. Perhaps the Board s view that it may make independent decisions about predictions is a consequence of giving itself too little leeway to find IJs predictions clearly erroneous. A federal court of appeals would be inclined to think it a clear error, correctible under Rule 52, for a district judge to say that a 1- in- 100,000 chance of death meets a more- likely- than- not burden of persuasion. But that s not what the Board did. Instead it claimed a right to substitute its judgment for that of the IJ without finding a clear error. That is a mistake under the regulation. A court is limited to the agency s stated grounds of decision and cannot enforce an order on a basis that the agency did not include among its reasons. Our task, having corrected a legal error, is to remand to the Board ra- ther than make our own decision. See, e.g., Gonzales v. Thom- as, 547 U.S. 183 (2006). To say that the regulation leaves the Board free to declare an IJ s findings clearly erroneous is not at all to say that it would be appropriate for the Board to do so in this case. For although we have mentioned so far only the statistical risk of death for homosexuals as a group, Rosiles- Camarena con- tends that he is at greater risk. He is not only gay and HIV positive but also out and planning to live openly with his partner. He contends, and the IJ found, that his family has disowned him and will not offer any support. He adds that, because he has lived in the United States most of his life and does not know contemporary Mexican customs, he will find No. 11- 3086 10 it hard to avoid attracting attention from persons who might do him harm. And he stresses that injuries (and deprivations of economic opportunities) short of death may amount to persecution. The question for the Board on remand is thus not whether aggregate data imply that Rosiles- Camarena is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted. That ques- tion is for the Board in the first instance; we do not express an opinion on it. The petition for review is granted, and the matter is re- manded to the Board for proceedings consistent with this opinion.

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