Immigration – Sufficiency of Evidence

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7^th Circuit Court of Appeals

Case Name: Miguel Perez-Montes v. Jefferson B. Sessions III

Case No.: 17-2520

Officials: EASTERBROOK and SYKES, Circuit Judges, and REAGAN, District Judge.

Focus: Immigration – Sufficiency of Evidence

Miguel Perez-Montes, a citizen of Mexico, entered the United States in 1989 as a lawful permanent resident. In 2001 he joined the Army and later served two tours in Afghanistan. He received a general dis charge under honorable conditions. During all the years he could do so, he did not apply for citizenship. His eligibility ended in 2010, when he was convicted of a cocaine offense. That conviction led to removal proceedings and made Perez Montes ineligible for most forms of relief.

Perez-Montes does not contend that the administrative decision is unsupported by substantial evidence. Instead he makes a purely legal argument: that both the IJ and the BIA misunderstood the burden that an alien faces when seeking relief under the Convention. Regulations require an alien to show that torture is “more likely than not”. 8 C.F.R. §§ 1208.16(b)(1)(iii), (b)(2), (c)(2), (c)(4), 1208.17(a). Perez Montes contends that the Board and the IJ erred by asking, instead, whether he faced a “substantial risk” of torture in Mexico. That differs from the regulatory standard, he asserts, and saddled him with a greater burden.

No decision in this circuit holds the regulation invalid or creates a standard incompatible with it. If there is a difference, it is not one adverse to aliens. By reciting this circuit’s non-quantitative proxy for the regulatory language, the IJ and BIA did not commit a legal error. The petition for review is denied.

Denied

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.