Marin v. Garland

41 F.4th 947

Raul GARCIA MARIN, Petitioner,

v.Merrick B. GARLAND, Attorney General of the United States, Respondent.

No. 20-3393

United States Court of Appeals, Seventh Circuit.

Argued September 22, 2021

Decided July 29, 2022

Nickolas Pappas, Attorney, Pappas Law Offices, PC, Chicago, IL, for Petitioner.

Robbin K. Blaya, Daniel Eric Goldman, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Sykes, Chief Judge, and Flaum and Brennan, Circuit Judges.

Sykes, Chief Judge.

Raul Garcia Marin, a native and citizen of Mexico, has a long history of illegal entry and removal from the United States. His most recent removal order was issued in 1997; he was removed the next year. But he repeatedly reentered and returned to Mexico in the years that followed and has lived in this country continuously and illegally since 2004. In 2019 the Department of Homeland Security ("DHS") located him in prison and reinstated the 1997 removal order.

Garcia Marin then applied for deferral of removal under the Convention Against Torture. After an asylum officer issued a favorable "reasonable fear" determination, he was placed in "withholding only" proceedings before an immigration judge. The judge granted deferral of removal, but the Board of Immigration Appeals ("BIA" or "the Board") reversed and ordered him removed pursuant to the reinstated 1997 order.

Garcia Marin petitioned for review but did not seek a stay of removal from this court. His request for an administrative stay from DHS was denied, and he was removed from the United States while his case has been before us. Because he seeks only deferral of removal in a withholding-only proceeding, his removal moots his claim for relief. We therefore dismiss the petition for review.

I. Background

Garcia Marin entered the United States illegally as a child in 1988 and was removed that same year. He illegally reentered sometime thereafter, was ordered removed in 1997, and was removed to Mexico in 1998. He illegally reentered, returned to Mexico, and reentered again—most recently in 2004. He remained in the United States after that reentry, accumulating a criminal record that includes convictions for residential burglary, domestic battery, illegal firearm possession, and four convictions for drunk driving.

In 2019 DHS located Garcia Marin in an Illinois prison and reinstated the 1997 order of removal. Because Garcia Marin has been convicted of residential burglary, an aggravated felony, he is inadmissible for 20 years. 8 U.S.C. § 1182(a)(9)(A)(i). The aggravated felony conviction also bars him from seeking withholding of removal under the Immigration and Nationality Act or the Convention Against Torture. Id. § 1231(b)(3)(B).

Garcia Marin sought deferral of removal under the Convention—the only form of relief potentially available to him. An asylum officer determined that he had a reasonable fear of torture and placed him in withholding-only proceedings before an immigration judge. A "withholding only" proceeding is a procedural track initiated by a reasonable-fear interview in which the applicant may seek only withholding or deferral of removal (deferral being the more limited form of relief available to those who are ineligible for withholding) under the Immigration and Nationality Act or the Convention Against Torture. 8 C.F.R. § 1208.31(e).

To obtain deferral of removal under the Convention, Garcia Marin had the burden to establish that it is more likely than not that he would be tortured by or with the acquiescence of government officials if removed to Mexico. Id. §§ 1208.16(c)(4), 1208.18(a)(1); Rodriguez-Molinero v. Lynch , 808 F.3d 1134, 1135, 1138–39 (7th Cir. 2015). He argued that he would likely be subject to torture in Mexico by the Sinaloa cartel with the acquiescence of public officials.

The immigration judge heard his testimony, found him credible, and concluded that he had satisfied his burden. She first noted that Garcia Marin would be at risk of torture from the Sinaloa cartel because of his cooperation with DHS in a planned drug-sting operation targeting the organization. This risk was underscored, she ruled, by a threatening call that he had received from a high-ranking cartel member. She then recognized the wide reach of the Sinaloa cartel in Mexico and the extensive history of corrupt cooperation between the cartel and government officers. Accordingly, she determined that Garcia Marin would face a significant risk of torture with the acquiescence of Mexican officials and granted deferral of removal.

The BIA reversed. It rejected the immigration judge's conclusions that Garcia Marin faced a significant risk of torture, noting that he had no involvement with the Sinaloa cartel and that the planned sting operation did not actually occur. The Board also determined that certain facts, such as the threatening call from the cartel member, were insufficient to establish a significant likelihood of torture. On this basis the Board found that Garcia Marin had not met his burden of proof under the Convention, vacated the immigration judge's decision, and ordered him removed to Mexico pursuant to the reinstated 1997 order.

Garcia Marin petitioned for review, relying on Rodriguez-Molinero and arguing that the Board misapplied the clear-error standard. He sought a discretionary stay of removal from DHS under 8 C.F.R. § 241.6 while he litigated his petition. But he did not move for a stay in this court. As a result, when DHS denied his stay request, he was removed to Mexico. The Attorney General moved to dismiss the petition as moot, and Garcia Marin filed a response in opposition. We issued an order indicating that we would take the motion with the case and directed the parties to address the jurisdictional question in their briefs.

II. Discussion

We begin, as we must, with the question of mootness. Federal courts have jurisdiction to resolve only live cases and controversies. See U.S. CONST. art. III, § 2, cl. 1. A live case or controversy must exist throughout the course of the litigation. Arizonans for Off. Eng. v. Arizona , 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Mootness doctrine implements this rule by limiting our jurisdiction to disputes in which we may grant effectual relief to a party with a personal interest in the action. See Uzuegbunam v. Preczewski , ––– U.S. ––––, 141 S. Ct. 792, 796, 209 L.Ed.2d 94 (2021). Accordingly, if developments make it impossible for us to grant relief in a case, then we must dismiss it as moot. Meza Morales v. Barr , 973 F.3d 656, 660 (7th Cir. 2020). In the context of removal, we have applied this rule to hold that an alien's removal while his petition for review is pending moots the case unless the order at issue carries collateral legal consequences. Peralta-Cabrera v. Gonzales , 501 F.3d 837, 842–43 (7th Cir. 2007).

Garcia Marin's 1997 removal order is...