### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

Ȭ 2336

J ULIO E STRADA

Ȭ H ERNANDEZ

,

Petitioner

,

v.

L ORETTA E. L YNCH

, Attorney General

of the United States,

Respondent

.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A091

Ȭ 335

Ȭ 563

____________________

A RGUED M ARCH 2, 2016

— D ECIDED M ARCH 17, 2016

R E

Ȭ I SSUED AS O PINION A PRIL 8, 2016

____________________

Before W OOD

, Chief Judge

, and B AUER and K ANNE

, Circuit

Judges

.

P ER C URIAM

.ȱ ȱ Julio Estrada

Ȭ Hernandez is a 34

Ȭ year

Ȭ old

Mexican citizen who has been removed from the United

States as an alien convicted of controlled

Ȭ substance offenses,

a firearm offense (an aggravated felony), and crimes involv

Ȭ2 No. 15

Ȭ 2336

ing moral turpitude. See 8 U.S.C. § 1227(a)(2). First an immi

Ȭ gration judge and then the Board of Immigration Appeals

rejected his efforts to avoid removal, and so he has now

turned to this court for relief. We find no reason to upset the

BIA’s decision, however, and so we deny his petition for re

Ȭ

view.ȱȱȱ

**I**

Estrada

Ȭ Hernandez and his mother entered the United

States unlawfully when he was a small child. They adjusted

their status to that of lawful permanent residents (LPRs) in

1989, when Estrada

Ȭ Hernandez was seven. His mother be

Ȭ

came a naturalized citizen when he was 16, but a quirk of

immigration law prevented her naturalization from confer

Ȭ ring citizenship on him automatically. His parents were mar

Ȭ

ried, though apparently not happily so. He could have be

Ȭ

come a citizen in one of two ways: either both of his parents

would have had to naturalize before he turned 18, or they

would have had to become legally separated. See Citizen

Ȭ ship through parents, https://www.uscis.gov/us

Ȭ citizenship/citizenship

Ȭ through

Ȭ parents (last visited Mar. 9,

2016). Neither of those things happened.

Over the next 15 years, Estrada

Ȭ Hernandez was convict

Ȭ

ed of several state crimes, including three controlled

Ȭ

substance violations, two retail theft convictions, and one

charge of felon

Ȭ in

Ȭ possession of a firearm. Eventually the

Department of Homeland Security’s Immigration and Cus

Ȭ

toms Enforcement (ICE) section became aware of his crimi

Ȭ

nal record and his LPR status. ICE instituted removal pro

Ȭ ceedings against him in January 2015, charging him with be

Ȭ ing removable as an alien who after admission to the Unit

Ȭ

ed States was convicted of three controlled

Ȭ substance crimes,ȱȱNo. 15

Ȭ 2336 3

8 U.S.C. § 1227(a)(2)(B)(i), and one aggravated felony convic

Ȭ

tion stemming from a firearm violation,

id. § 1227(a)(2)(A)(iii). Estrada

Ȭ Hernandez was later charged

with two additional grounds of removal—one for a firearm

violation, id. § 1227(a)(2)(C), arising out of the same convic

Ȭ

tion as the aggravated felony charge, and one based on con

Ȭ

victions for two or more crimes involving moral turpitude,

id. § 1227(a)(2)(A)(ii), stemming from two shoplifting inci

Ȭ

dents.

At Estrada

Ȭ Hernandez’s removal hearing, the IJ informed

him of his right to representation at no cost to the govern

Ȭ

ment and asked whether he wished to have the case contin

Ȭ

ued in order to secure counsel. Estrada

Ȭ Hernandez did not

respond; instead, he asked why he was being detained and

explained that he thought he had become a citizen when his

mother naturalized. The IJ explored the issue and deter

Ȭ

mined that Estrada

Ȭ Hernandez had never obtained citizen

Ȭ ship because his parents had remained legally married. The

following colloquy then took place:

IJ: Well, it does not appear to me, sir, you are a

citizen of the United States

... Do you want me to con

Ȭ

tinue your case to give you more time to get a lawyer?

Estrada

Ȭ Hernandez (E

Ȭ H): No.

IJ: Do you wish then to represent yourself?

E

Ȭ H: Yes, I mean what other choices do I have?

IJ: Well, I’m willing to continue the case to

give you time to contact the lawyers on that list that

you received or any other lawyer that you might wish

to contact.4 No. 15

Ȭ 2336

E

Ȭ H: I’ve tried to—I’m sorry.

IJ: Or any other lawyer that you might wish—

E

Ȭ H: I’ve already contacted them.

IJ: If you wish to represent yourself today, it’s

your right to do so. It includes your right to speak on

your own behalf and to present witnesses and evi

Ȭ

dence in court. You have the right to inspect evidence

that the Government presents against you and you

may object to such evidence by asking that the Court

not consider it. You have the right to question any

witness who testifies in your case and if this Court

rules against you, you would have the right to appeal

to a higher court which is known as the Board of Im

Ȭ migration Appeals. Do you understand these rights?

E

Ȭ H: Yes, sir.

The IJ then proceeded with the hearing, in the course of

which Estrada

Ȭ Hernandez admitted that he had been con

Ȭ

victed of three state controlled

Ȭ substance offenses (all in

Ȭ volving possession of cocaine), retail theft, and possessing a

firearm as a felon. Estrada

Ȭ Hernandez could not remember

the other theft that was the basis for the charge of removabil

Ȭ ity as an alien “convicted of two or more crimes involving

moral turpitude,” 8 U.S.C. § 1227(a)(2)(A)(ii), but the gov

Ȭ

ernment offered proof of that conviction by submitting court

documents from Cook County. The IJ asked Estrada

Ȭ

Hernandez whether he feared being harmed if he were re

Ȭ

turned to Mexico, even offering to continue the case to give

him more time to consider whether he wished to apply for

asylum. Estrada

Ȭ Hernandez once again declined the IJ’s offer

of a continuance. The IJ then pronounced that he was re

ȬNo. 15

Ȭ 2336 5

movable on all four grounds charged by the government and

entered an order of removal.ȱȱ

Only then did Estrada

Ȭ Hernandez finally obtain counsel.

He appealed to the Board of Immigration Appeals, arguing

that remand was warranted to allow him to withdraw the

admissions he had made while unrepresented. He asked the

Board to “issue a published decision requiring immigration

judges to enter a contested plea to all charges in the notice to

appear when a noncitizen is appearing in pro per regardless

of the reason why he appears without counsel.” Due process

requires such a rule, he asserted, because asking uncoun

Ȭ

seled aliens to admit or deny the allegations against them

has the effect of shifting the burden of proof, rather than re

Ȭ quiring the agency to prove charges by clear and convincing

evidence.ȱȱ

Estrada

Ȭ Hernandez also argued that he was not subject to

removal for the aggravated felony conviction because his ad

Ȭ justment of status does not qualify as an admission to the

United States and thus § 1227(a)(2)(A)(iii)—which provides

that “[a]ny alien who is convicted of an aggravated felony at

any time after admission is deportable” (emphasis added)—

does not apply to him. Finally he argued that the IJ erred in

finding that his conviction for possessing a firearm as a felon

qualified as an aggravated felony because the state crime

that was the predicate for that conviction—possessing co

Ȭ

caine, 720 ILCS 570/402(c)—is punishable by imprisonment

for “one year or more,” rather than a term of more than one

year, and therefore the state crime “does not squarely ‘fit in’

within the express statutory language of the federal defini

Ȭ

tion.”6 No. 15

Ȭ 2336

The Board rejected all of Estrada

Ȭ Hernandez’s arguments

and upheld the removal order. It concluded that Estra

Ȭ

da

Ȭ Hernandez was afforded due process because the IJ fully

complied with the statutory requirement to inform him of

his right to obtain counsel, 8 U.S.C. § 1229a(b)(4), and of

Ȭ

fered repeatedly to continue the case to allow Estrada

Ȭ

Hernandez to obtain representation. The Board dismissed

any suggestion that the IJ shifted the burden of proof regard

Ȭ ing the charges set forth in the Notice to Appear; the gov

Ȭ

ernment properly supported its charges with evidence of

each conviction. As for the question whether Estrada

Ȭ

Hernandez’s firearms conviction was an aggravated felony

for immigration purposes, the Board observed that this court

already had resolved the question in the government’s favor.

Negrete

Ȭ Rodriguez v. Mukasey

, 518 F.3d 497 (7th Cir. 2008). The

Board rejected Estrada

Ȭ Hernandez’s contention that he was

not removable under 8 U.S.C. § 1227(a)(2)(iii) because he was

never “admitted” at a border; it held that Abdelqadar v. Gon

Ȭ

zales

, 413 F.3d 668 (7th Cir. 2005), establishes that adjustment

of status qualifies as an admission for purposes of

§ 1227(a)(2)(A)(iii).

**II**

Estrada

Ȭ Hernandez pins his hopes in this petition on his

effort to persuade us that the alleged “denial of the right to

counsel,” which “includes the substantial interference with

that right,” amounted to “a denial of due process under the

Fifth Amendment.” He contends that the IJ “coerced and

discouraged him from pursuing legal representation” by in

Ȭ forming him that he did not derive citizenship through his

mother and then by accepting admissions he made in the ab

Ȭ

sence of counsel. And, he asserts, the IJ “excus[ed] the De

ȬNo. 15

Ȭ 2336 7

partment from carrying on its own burden of proof” by find

Ȭ ing him removable based on his own admissions.ȱȱ

The suggestion of coercion is baseless. The IJ repeatedly

offered to continue the case so that Estrada

Ȭ Hernandez could

try to contact a lawyer, but Estrada

Ȭ Hernandez explicitly de

Ȭ

clined those offers, confirmed his wish to proceed pro se

, and

stated that he already had contacted the pro bono attorneys

on the list he had been provided. Moreover, it would be im

Ȭ possible for Estrada

Ȭ Hernandez to show prejudice from

counsel’s absence, because the government presented evi

Ȭ

dence to support each conviction. Although 8 U.S.C. §

1229a(b)(4) confers a statutory right to hire one’s own lawyer

in an immigration hearing, that right is not derived from the

Sixth Amendment right to counsel in a criminal proceeding.

The latter right does not apply to removal proceedings,

which are regarded as civil in nature. See Magala v. Gonzales

,

434 F.3d 523, 525 (7th Cir. 2005); Stroe v. INS

, 256 F.3d 498,

500 (7th Cir. 2001); Leslie v. Att’y Gen. of the United States

, 611

F.3d 171, 180–81 (3d Cir. 2010). Due process protections do

apply in all civil proceedings, including removal hearings,

Stroe

, 256 F.3d at 500, but we presume that any removal pro

Ȭ ceeding satisfies due process when it is conducted in accord

Ȭ

ance with 8 U.S.C. § 1229a(b)(4). That statute requires only

that a noncitizen be given an opportunity to hire a lawyer.

Apouviepseakoda v. Gonzales

, 475 F.3d 881, 884–85 (7th Cir.

2007). The IJ made it clear to Estrada

Ȭ Hernandez that he had

this right.ȱȱ

Although Estrada

Ȭ Hernandez represented at one point

that the sole issue on appeal was his complaint about the

supposed denial of counsel, he raises two other arguments

as well, both of which the Board rejected. First, without ad

Ȭ8 No. 15

Ȭ 2336

dressing the Board’s contrary conclusion, he contends that

he is not removable under § 1227(a)(2)(A)(iii), which applies

only to aliens who have committed an aggravated felony af

Ȭ

ter admission. His theory is that his adjustment of status,

which occurred after he had entered the United States un

Ȭ lawfully, does not qualify as an “admission” under

8 U.S.C. § 1101(a)(13)(A). Ergo, he reasons, he committed no

felonies, aggravated or otherwise, after admission because

he was never “admitted.” He bases this argument on Abdel

Ȭ qadar v. Gonzales

, 413 F.3d 668 (7th Cir. 2005), which he calls

the “seminal case” holding that an alien who is not inspected

by an immigration officer at entry has never been admitted

and is not subject to removal under § 1227. Abdelqadar, Estra

Ȭ

da says, has been “consistently followed [in the Seventh Cir

Ȭ

cuit], as it must, by a series of published decisions with full

unconditional approval.”

That is not what Abdelqadar holds. Indeed, that case is

distinctly unhelpful for Estrada

Ȭ Hernandez. Citing Matter of

Rosas

Ȭ Ramirez, 22 I. & N. 616 (BIA 1999) (en banc), the Abdel

Ȭ qadar court endorsed the Board’s interpretation that, for an

alien who had entered the United States illegally, an adjust

Ȭ

ment of status is an “admission” for purpose of

§ 1227(a)(2)(A)(iii) because the adjustment of status is the

first point at which that individual is lawfully in the United

States. Abdelqadar

, 413 F.3d at 672–73. Otherwise, illegal en

Ȭ

trants would be exempt from removal and would, paradoxi

Ȭ cally, enjoy greater rights than lawful immigrants. Id. at 673;

see also Ocampo

Ȭ Duran v. Ashcroft

, 254 F.3d 1133, 1134–35

(9th Cir. 2001) (rejecting argument that alien who adjusted to

lawful status after illegal entry was never admitted for pur

Ȭ

poses of § 1227(a)(2)(A)(iii)). Estrada

Ȭ Hernandez mistakenly

relies on an inapposite passage from Abdelqadar

, in which weNo. 15

Ȭ 2336 9

rejected the Board’s view that the word “admission” in an

Ȭ

other part of the statute, § 1227(a)(2)(A)(i), referred to the

most recent, rather than the initial, entry. 413 F.3d at 673–74.

Indeed, we cautioned in Abdelqadar that “the whole point of

contextual reading is that context matters—and the context

of the word ‘admission’ in [one part of the statute] differs

substantially from its context in [another].” Id. at 674. See

Lemus

Ȭ Losa v. Holder

, 576 F.3d 752, 757 (7th Cir. 2009).

Estrada

Ȭ Hernandez argues finally that the Board erred by

concluding that his state conviction under 720 ILCS § 5/24

Ȭ

1.1(a) for being a felon in possession of a firearm qualifies as

an aggravated felony for purposes of removal. See

8 U.S.C. § 1227(a)(2)(A)(iii). The state crime does not

“squarely fit [ ] with the express statutory language of [the

analogous federal offense, 18 U.S.C. § 922(g)(1)],” he con

Ȭ

tends, because his predicate state felony conviction for pos

Ȭ

session of cocaine is punishable by imprisonment of not less

than one year, while federal law defines a felony as a crime

punishable by a sentence of more than one year. But as the

government correctly points out, the relevant inquiry is

whether the Illinois felon

Ȭ in

Ȭ possession offense (of which Es

Ȭ

trada

Ȭ Hernandez was convicted) qualifies as an aggravated

felony, and this court already has concluded that it does. See

Negrete

Ȭ Rodriguez v. Mukasey

, 518 F.3d 497, 500–02 (7th Cir.

2008).

Finally, it is worth noting that Estrada

Ȭ Hernandez chal

Ȭ lenges only the IJ’s finding that he is subject to removal

based on an aggravated felony conviction. He has not chal

Ȭ lenged the IJ’s ruling that he was also subject to removal

based on convictions for two or more crimes involving moral

turpitude, three controlled substance convictions, and a con

Ȭ10 No. 15

Ȭ 2336

viction for a firearm offense. Given our finding that the re

Ȭ

moval proceedings were not tainted by any due process vio

Ȭ

lation and the ample support the government furnished, we

DENY the petition for review.