Reliance on nonprecedential BIA decisions

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7^th Circuit Court of Appeals

Case Name: Dulce Zaragoza v. Merrick B. Garland

Case No.: 20-1591

Officials: Sykes, Chief Judge, and Flaum and St. Eve, Circuit Judges.

Focus: Reliance on nonprecedential BIA decisions

Dulce Zaragoza, a native and citizen of Mexico and a lawful permanent resident of the United States, pleaded guilty to the Indiana offense of criminal neglect of a dependent after locking her six-year-old son in a closet for six hours. She was sentenced to one year in jail suspended to time served plus 30 days, with the remainder of the sentence to be served on probation. After completing her sentence, she traveled abroad and presented herself for admission when she returned. The Department of Homeland Security (“DHS”) found her inadmissible based on the neglect conviction, which the agency classified as a “crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). She was placed in removal proceedings.

Zaragoza fought removal on several grounds, with her arguments expanding as the proceedings progressed. Before the immigration judge, she argued that the Indiana neglect offense does not qualify as a crime involving moral turpitude. The judge disagreed and entered a removal order, and Zaragoza appealed to the Board of Immigration Appeals (“BIA” or “the Board”). In the meantime, she petitioned the state court to modify her sentence. Her purpose was to bring herself within the so-called “petty offense” exception to inadmissibility, which is available to first-time offenders sentenced to six months or less. Id. § 1182(a)(2)(A)(ii)(II). The state court obliged and reduced her one-year sentence to 179 days. Zaragoza then argued before the BIA that Indiana’s neglect offense is not a crime involving moral turpitude, and regardless, the petty-offense exception applies. The BIA rejected both arguments.

This court agreed with the BIA’s resolution of all issues but one: applying Thomas in Zaragoza’s case is an impermissibly retroactive application of a new rule. It therefore remanded to the BIA for further proceedings consistent with this opinion.

Affirmed and Remanded

Decided 11/08/22

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