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Gamero v. Barr

United States Court of Appeals, Seventh Circuit

July 3, 2019

Francisco Lopez Gamero, Petitioner,
William P. Barr, Attorney General of the United States, Respondent.

          Argued May 16, 2018

          Petitions for Review of Orders of the Board of Immigration Appeals. No. A090-289-114

          Before Flaum, Sykes, and Hamilton, Circuit Judges.

          Sykes, Circuit Judge.

         Francisco Lopez Gamero, a Mexican citizen and lawful permanent resident of the United States, faces removal because of two state drug convictions. An immigration judge found him removable as an alien convicted of the aggravated felony of "illicit trafficking in a controlled substance." 8 U.S.C. § 1101(a)(43)(B). He sought deferral of removal under the Convention Against Torture, but the judge denied that relief because the evidence he presented about the risk of torture from Mexican drug cartels was largely speculative. The Board of Immigration Appeals affirmed.

         Lopez Gamero later moved to reopen the removal proceedings based on new evidence-most notably, evidence that his brother-in-law and nephew had been kidnapped and held for ransom in Lopez Gamero's hometown. The Board denied the motion, ruling that the new evidence was unlikely to change the outcome.

         Lopez Gamero seeks review of both decisions. He raises three arguments: (1) his drug convictions do not qualify as "illicit trafficking" under § 1101(a)(43)(B) because the crimes in question do not require proof of remuneration; (2) the agency's decision to deny his application under the Convention Against Torture is not supported by substantial evidence; and (3) the agency applied the wrong legal standard and abused its discretion when it denied his motion to reopen. We deny the petitions for review.

         I. Background

         Lopez Gamero entered the United States in 1973 and became a lawful permanent resident in 1989. Over the next decade and a half, he was convicted of three crimes in Cook County Circuit Court: (1) a domestic-violence offense in 1997, see 720 III. Come Stat. 5/12-3.2(a)(1); (2) possession of cocaine with intent to deliver in 2005, id. § 570/401 (c)(2); and (3) possession of cannabis with intent to deliver, id. § 550/5(f), also in 2005.

         On April 6, 2016, the Department of Homeland Security initiated removal proceedings against Lopez Gamero. An immigration judge found him removable as an alien convicted of illicit trafficking in a controlled substance, an aggravated felony listed in § 1101(a)(43)(B). The judge also determined that Lopez Gamero is ineligible for most forms of relief from removal-specifically, asylum, cancellation of removal, and with holding of removal. That left only one potentially viable path to relief: deferral of removal under the Convention Against Torture. The judge held a merits hearing on that claim.

         Lopez Gamero testified that he fears torture at the hands of drug cartels if he is removed to Mexico. He bases this fear on a series of incidents that occurred in his hometown of General Carlos Real, Durango, Mexico. In October 2008 his cousin alerted him that suspicious men "were looking for him." He later heard warnings from acquaintances and family members that unknown individuals had been asking about him and surveilling his house in General Carlos Real. In 2009 Lopez Gamero's father told him that he was approached by suspicious men in a pick-up truck asking about Lopez Gamero's whereabouts. In 2011 Lopez Gamero's wife and daughter received an anonymous phone call, and the caller knew they were planning to travel to Mexico. In September 2012 Lopez Gamero's housekeeper at the home in Mexico told him that "several people ... dressed up like military" came to the house and forced their way in. Finally, in October 2013 Lopez Gamero's wife and daughter were staying at a friend's house in Mexico when the house was "shot at."

         Lopez Gamero offered several reasons why cartel members might be looking for him. He thought they might be interested in him because of his connections to the United States and his controlled-substance convictions. He also said he might be a target because cartel members viewed him as wealthy given his home ownership.

         Lopez Gamero's wife and daughter testified about their experiences with the unknown caller and the shooting. Lopez Gamero also submitted certified statements from other residents of General Carlos Real generally asserting that his safety was at risk if he returned.

         Dr. Nathan Jones, an expert witness on Mexican drug-cartel violence, testified about how the cartels operate, the pervasive cartel violence in General Carlos Real, and the risks that Lopez Gamero would face in other parts of the country. He testified that Lopez Gamero would face a high risk of harm if he returned to General Carlos Real, a moderate risk if he lived elsewhere but maintained contact with relatives, and a low but still significant risk if he lived elsewhere and severed communication with his family.

         The immigration judge was not persuaded. He found Lopez Gamero credible but gave his testimony "little weight" because he had difficulty remembering dates and much of his information was secondhand or speculative. He reached the same conclusion for Lopez Gamero's wife and daughter. The judge also declined to credit Dr. Jones's opinion testimony, reasoning that it was "not supported by facts in the record and was highly speculative." The judge accordingly declined to order deferral of removal, explaining that the evidence was insufficient to establish that Lopez Gamero faced a substantial risk of torture if removed to Mexico.

         Lopez Gamero appealed to the Board of Immigration Appeals, challenging the denial of deferral of removal and also the judge's predicate legal conclusion that his drug convictions qualify as illicit trafficking under § 1101(a)(43)(B). On the latter issue, he argued that "illicit trafficking" offenses are limited to those ...

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