Antonio Robledo-Soto v. Lynch, No. 16-2954 (7th Cir. 2017)
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Robledo‐Soto, a Mexican citizen facing deportation, sought to postpone his removal proceeding so that he could expunge a drunk‐driving conviction and then try to persuade the Department of Homeland Security (DHS) to exercise prosecutorial discretion and not prosecute his removal for entering the United States without authorization to do so, 8 U.S.C. 1182(a)(6)(A)(i). Robledo‐Soto succeeded in getting his drunk‐driving conviction expunged and he is the father of American citizen children, aged 13, 9, and 7). A process, “Deferred Action for Parents of Americans” (DAPA), is intended to allow such a person to request DHS to “defer action” in his case, however USCIS, the component of DHS that deals with applications for immigration relief, is not implementing DAPA nor accepting DAPA applications because of a preliminary injunction against its implementing DAPA upheld by the Fifth Circuit in 2015. The Supreme Court granted certiorari in that case, but deadlocked so that the Fifth Circuit’s decision stands. The Seventh Circuit dismissed a petition for review of DHS’s “non-response” to Robledo-Soto’s request as moot for lack of authority to prevent his removal.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 2954 ANTONIO ROBLEDO SOTO, Petitioner, v. LORETTA E. LYNCH, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A201 114 801 ____________________ SUBMITTED DECEMBER 9, 2016 — DECIDED JANUARY 10, 2017 ____________________ Before POSNER, KANNE, and SYKES, Circuit Judges. POSNER, Circuit Judge. Robledo Soto, the petitioner, a Mexican citizen facing removal (deportation) to Mexico, sought to postpone his removal proceeding so that he could expunge a drunk driving conviction and if he succeeded in doing that try to persuade the Department of Homeland Se curity to drop its efforts to seek his removal. The Depart ment’s Immigration and Customs Enforcement division (ICE) prosecutes removal cases (technically removal cases 2 No. 16 2954 are civil, realistically they are closer to being criminal); and if ICE decides not to prosecute, the alien goes scot free. Al though Robledo Soto’s drunk driving conviction had not been the basis for the Department’s seeking to remove him— the basis was that he’d entered the United States without be ing authorized to do so, see 8 U.S.C. § 1182(a)(6)(A)(i)—it did make him a priority for removal, and he hoped that if the conviction was expunged from his record he could con vince the Department to exercise its prosecutorial discretion not to seek his removal. For what is true is that in recogni tion of the limited resources of most government agencies, the agencies are authorized to decide “whether agency re sources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particu lar enforcement action requested best fits the agency’s over all policies, and, indeed, whether the agency has enough re sources to undertake the action at all.” Heckler v. Chaney, 470 U.S. 821, 831 (1985); see also Arizona v. United States, 132 S. Ct. 2492, 2499 (2012); Shoba Sivaprasad Wadhia, “The Histo ry of Prosecutorial Discretion in Immigration Law,” 64 Amer ican University Law Review 1285, 1291–93 (2015). Robledo Soto succeeded in getting his drunk driving conviction expunged, brightening his prospects for a favor able exercise of prosecutorial discretion—already bright, one might have thought (erroneously, as we’re about to see), be cause he’s the parent of three American citizen children (aged 13, 9, and 7), and there is a process (though as we’re about to see it has never been put into effect) called “De ferred Action for Parents of Americans” (DAPA) that is in tended to allow such a person to request the Department of Homeland Security to “defer action” in his case. See Memo randum from Jeh Charles Johnson, Secretary of the Depart No. 16 2954 3 ment of Homeland Security, to León Rodríguez, Director of U.S. Citizenship and Immigration Services (USCIS), Nov. 20, 2014, www.dhs.gov/sites/default/files/publications/14_1120_ memo_deferred_action.pdf. (visited Jan. 10, 2017, as were the other websites cited in this opinion). Secretary Johnson’s memo directing the creation of DAPA followed upon, and was doubtless inspired by, President Obama’s announce ment in late 2014 that he planned to use presidential execu tive powers to institute a variety of immigration reforms. The reader needs to understand that asking for a favor able exercise of prosecutorial discretion (i.e., DAPA relief) is different from requesting either withholding or cancellation of removal, which are oft invoked grounds for avoiding re moval. Withholding of removal requires a showing that the applicant is likely to face persecution if deported to his or her country of origin, 8 C.F.R. § 208.16, and Robledo Soto neither applied for withholding of removal nor has ever claimed to fear persecution in Mexico. And cancellation of removal requires the applicant to meet certain threshold re quirements, 8 U.S.C. § 1229b, one of which is proof of 10 years of continuous physical presence in the United States, § 1229b(b)(1)(A). Robledo Soto can prove only 9.5 years of such presence, so the immigration judge determined that he is ineligible for cancellation of removal. Robledo Soto acknowledges that he is ineligible for either withholding or cancellation of removal—the former because he failed to ask for it, the latter because he is ineligible for it. That leaves him with his quest for deferred action by the Department of Homeland Security, a quest that began with his entreaty for a continuance to expunge his criminal rec ord. The Supreme Court has defined and approved deferred 4 No. 16 2954 action as a lawful exercise of the Executive Branch’s “discre tion to abandon” a removal proceeding at any stage of the proceeding. Reno v. American Arab Anti Discrimination Com mittee, 525 U.S. 471, 483–84 (1999). But Robledo Soto faces a serious obstacle. USCIS, the component of the Department that deals with applications for immigration relief, has, be cause of a preliminary injunction against its implementing DAPA (which remember stands for “Deferred Action for Parents of Americans”) upheld in Texas v. United States, 809 F.3d 134, 170–78 (5th Cir. 2015), has decided neither to im plement DAPA nor accept applications for DAPA relief. As a result there is no “deferred action” process for Robledo Soto to invoke. Now it’s true the Supreme Court granted certiorari in Texas v. United States, but then deadlocked 4–4, see United States v. Texas, 136 S. Ct. 2271 (2016) (per curiam), and as a result the Fifth Circuit’s decision stands, though its sound ness has been questioned. See, e.g., Unconstitutionality of Obama’s Executive Actions on Immigration: Hearing Before the House Committee on the Judiciary, 114th Cong., 1st Sess. 61, 72–74 (2015) (statement of Stephen H. Legomsky, Former Chief Counsel of USCIS), https://judiciary.house.gov/wp content/uploads/2016/02/114 3_93526.pdf; Shoba Sivaprasad Wadhia, “The Aftermath of United States v. Texas: Rediscov ering Deferred Action,” Yale Journal on Regulation, Notice & Comment (Aug. 10, 2016), http://yalejreg.com/nc/the after math of united states v texas rediscovering deferred action by shoba sivaprasad wadhia/. So rather than court contempt of the Fifth Circuit’s injunction (which, as we said, stands because of the decision of the Supreme Court not to overrule it), DHS/USCIS has decided not to grant deferred action in cases such as Robledo Soto’s. No. 16 2954 5 Oddly, between the Fifth Circuit’s decision in Texas v. United States and the Supreme Court’s grant of certiorari, Robledo Soto’s lawyer wrote the Department of Homeland Security requesting U.S. Immigration and Customs En forcement (ICE) “to review [his client’s] case and administra tively close or terminate proceedings so that he can apply with [he means ‘to’] USCIS for deferred action for parents [of American citizen children].” But no one at present can apply to USCIS for such relief with any hope of success, because of its decision not to grant deferred action in cases such as this. And there is no indication that Robledo Soto’s lawyer al tered his request after learning (if he did learn) that USCIS could give his client no relief. It is conceivable that in the exercise of its prosecutorial discretion DHS could simply drop its removal proceeding against Robledo Soto. Remember that the reason that he re quested a continuance was to give him time to expunge his criminal record in the hope that the Department of Home land Security would as a result look more favorably on his plea for relief. Yet having succeeded in expunging his drunk driving conviction and having informed DHS of his newly clean record, he has not succeeded in dissuading the Department from seeking his removal, because the Depart ment is committed to the ruling by the Fifth Circuit in Texas v. United States. That leaves us with no authority to grant him any relief that will prevent his removal, and therefore his petition for review is moot, see Qureshi v. Gonzalez, 442 F.3d 985, 988 (7th Cir. 2006)—and so it must be, and it here by is, dismissed. 6 No. 16 2954 SYKES, Circuit Judge, with whom KANNE, Circuit Judge, joins, concurring in the judgment. Antonio Robledo Soto, a Mexican citizen, sought to postpone his removal proceed ings so that he could obtain documents to expunge a drunk driving conviction and thereby convince the Department of Homeland Security to cease its effort to remove him. The immigration judge concluded that there was no relief he could grant and entered an order of removal, a decision up held by the Board of Immigration Appeals. Robledo Soto petitioned for review, arguing that the im migration judge or the Board should have granted a contin uance to allow time for him to expunge his conviction and then ask DHS to favorably exercise its discretion not to re move him. While his case has been pending in this court, his expungement motion was granted. But DHS has determined that although the drunk driving conviction has now been expunged, it will not exercise its discretion to drop the case. In light of that determination, the Department of Justice ar gues that no meaningful relief can be ordered and the case is moot. See Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006). Robledo Soto agrees. Accepting that concession, the petition for review must be dismissed as moot.
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