United States Court of Appeals For the Seventh Circuit
Immigration — waiver of inadmissibility
Where the IJ and BIA overlooked material evidence related to an alien’s wife’s depression and improperly relied on a report to determine that he failed to show rehabilitation, his removal order must be vacated.
“The government argues that Lam’s testimony on cross-examination itself is enough to support the IJ’s exercise 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 record that there were two dealerships involved and that the IJ relied on improper evidence in making his discretionary determination that Lam failed to exhibit rehabilitation. 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 document as impeachment evidence, we have jurisdiction over Lam’s claim. We find that reliance on the document was improper. It is not clear to us whether the IJ’s discretionary determination would stand without reliance on the improper evidence, so we remand to the BIA for reconsideration.”
Petition for Review of an Order of the Board of Immigration Appeals, Williams, J.