In the

United States Court of Appeals

For the Seventh Circuit

No. 16-1816

JESUS DELGADO-ARTEAGA,

Petitioner,

v.

JEFF SESSIONS, Attorney General of

the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A089-281-390

ARGUED NOVEMBER 29, 2016 — DECIDED MARCH 23, 2017

AMENDED MAY 12, 2017*

Before BAUER, FLAUM, and HAMILTON, Circuit Judges.

This amended opinion replaces and supersedes the opinion that was

*

issued by the panel on March 23, 2017, and reported at 852 F.3d 635.
2 No. 16-1816

BAUER, Circuit Judge. Over seven years and three petitions

later, these proceedings have come to a conclusion. Petitioner,

Jesus Delgado-Arteaga (“Delgado”), petitions for review of

an order of the Board of Immigration Appeals’ decision

affirming the immigration judge’s denial of withholding

of removal, 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture, 8 C.F.R. § 1208.16(c). Delgado challenges

aspects of the expedited removal process under 8 U.S.C.

§ 1228(b) and a corresponding regulation, 8 C.F.R.

§ 1208.31(g)(2)(i). He also claims that the Board committed

various legal errors. For the following reasons, we dismiss the

petition for review in part for lack of jurisdiction and deny the

remainder of his petition for review.

I. BACKGROUND

Delgado, a native and citizen of Mexico, entered the United

States without inspection three times, most recently in May

1999. In December 2009, he was convicted in Illinois state

court of felony possession of cocaine with intent to deliver in

violation of 720 Ill. Comp. Stat. § 570/401(c)(2). He was sentenced to six months’ imprisonment with two years of probation.1

In 2010, Delgado was subject to removal proceedings pursuant to 1

8 U.S.C. § 1229a, but those proceedings were terminated. He filed a petition

with this Court, objecting to the termination of the § 1229a proceedings.

Once DHS initiated proceedings under § 1228(b), Delgado filed a motion

for voluntary dismissal of his first petition, which this Court granted.

Delgado v. Lynch, 14-3127 (7th Cir. April 15, 2015). He filed a second petition

with this Court after he was issued the Final Administrative Removal

Order, but before he completed the reasonable fear interview. The

(continued...)
No. 16-1816 3

On March 3, 2015, the Department of Homeland Security

initiated expedited removal proceedings pursuant to 8 U.S.C.

§ 1228(b). See 8 C.F.R. § 238.1 (setting forth procedures). DHS

served Delgado a Notice of Intent, charging that Delgado was

removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien

convicted of an aggravated felony as defined in 8 U.S.C.

§ 1101(a)(43)(B). On March 16, 2015, DHS issued a Final

Administrative Removal Order (“FARO”), finding Delgado

deportable as charged and ordering that he be removed to

Mexico. Delgado expressed a fear of returning to Mexico to a

DHS officer who then referred him to the Chicago Asylum

Office for a reasonable fear interview.

On March 31, 2015, an asylum officer interviewed Delgado

with his attorney present. On April 15, 2015, the asylum officer

found that Delgado was credible, but concluded that he did not

establish a reasonable fear of persecution or torture in Mexico.

Delgado requested that an IJ review the asylum officer’s

negative decision. After a review, the IJ found that Delgado

had established a reasonable possibility that he would be

persecuted or tortured in Mexico. Accordingly, on April 30,

2015, the IJ vacated the asylum officer’s decision, and placed

Delgado in “withholding-only” proceedings. See 8 C.F.R.

§ 1208.31(g)(2)(i). The IJ permitted Delgado to file an application for withholding of removal and relief under the CAT,

which he filed on June 16, 2015. See id.

 (...continued) 1

government filed a motion to dismiss the petition, which we granted

because the FARO was not “final” for purposes of our review. Delgado v.

Lynch, 15-1810 (7th Cir. Aug. 7, 2015).
4 No. 16-1816

On August 5, 2015, the IJ held a hearing on the merits. Both

Delgado and his wife testified in support of his applications.

He argued that he had not been convicted of an aggravated

felony and that he should have been allowed to apply for

asylum under 8 U.S.C. § 1158. At the hearing, the IJ concluded

that it was not authorized to review DHS’s determination that

Delgado was convicted of an aggravated felony. The IJ ruled

that Delgado was not eligible for asylum on two grounds: he

was not permitted to apply for it in “withholding-only”

proceedings; and, he was in removal proceedings pursuant to

8 U.S.C. § 1228(b). Thus, the IJ considered only Delgado’s

applications for withholding of removal and relief under CAT.

On September 23, 2015, the IJ denied both applications.

First, the IJ found that Delgado’s testimony and corroborating

evidence was insufficient to meet his burden of proof under

the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(ii). Alternatively, the

IJ concluded that even if Delgado established his burden

of proof, the IJ would have denied Delgado’s application for

withholding of removal because he had been convicted of a

“particularly serious crime.” The IJ found that 720 Ill. Comp.

Stat. § 570/401(c)(2) was categorically a “drug trafficking

crime,” and thus, an illicit trafficking aggravated felony as

defined in 8 U.S.C. § 1101(a)(43)(B). Because Delgado’s conviction was an aggravated felony, the IJ concluded it was presumed to be a “particularly serious crime,” 8 U.S.C.

§ 1231(b)(3)(B)(ii).

The IJ noted that the Attorney General has determined that

drug trafficking aggravated felonies “presumptively constitute” particularly serious crimes absent “extraordinary and

compelling circumstances.” Y-L-, 23 I. & N. Dec. 270, 274 (BIA
No. 16-1816 5

2002); see Bosede v. Mukasey, 512 F.3d 946, 949–51 (7th Cir. 2008).

In order to rebut this presumption, the applicant must establish

that his conviction involved “(1) a very small quantity, (2) a

very modest payment, (3) only peripheral involvement, (4) the

absence of any violence or threat of violence, (5) the absence of

any connection to organized crime or terrorism, and (6) the

absence of any adverse or harmful effect on juveniles.” Bosede,

512 F.3d at 951 (citing Y-L-, 23 I. & N. Dec. at 276–77). If the

applicant satisfies all six criteria, the applicant must also show

“other, more unusual circumstances (e.g., the prospective

distribution was solely for social purposes, rather than for

profit).” Id. (quoting Y-L-, 23 I. & N. Dec. at 277).

The IJ held that Delgado’s conviction was a “particularly

serious crime” because Delgado failed to meet the factors as

required under Matter of Y-L-. Specifically, the IJ found that

Delgado failed to show that his conviction did not have an

adverse effect on juveniles because Delgado lived with a nineyear-old child. The IJ also found that Delgado failed to establish a peripheral role in his drug-trafficking conviction. Lastly,

even if Delgado met his burden under Matter of Y-L-, the IJ

concluded that it would have denied the application because

Delgado did not show it was more likely than not that he

would face persecution in Mexico.

Delgado appealed to the Board, and requested review by a

three-member panel. He challenged essentially every aspect of

the IJ’s decision. Additionally, he argued that the IJ incorrectly

declined to consider an asylum application because 8 C.F.R.

§ 1208.31(g)(2)(i) is ultra vires.
6 No. 16-1816

On March 14, 2016, a single-member Board adopted and

affirmed the IJ’s decision, and entered an order dismissing

Delgado’s appeal. The Board declined to consider Delgado’s

argument that 8 C.F.R. § 1208.31(g)(2)(i) is ultra vires, reasoning

that it lacked authority to make such a ruling. The Board

concluded that the IJ properly found that Delgado’s aggravated felony conviction presumptively constituted a “particularly serious crime.” The Board explicitly agreed with the IJ’s

finding that Delgado failed to establish that he had only

peripheral involvement in his drug-trafficking conviction. In

addition, the Board found that Delgado failed to establish two

other requirements under Matter of Y-L-: that his conviction

was not connected to any organized crime; and, that the drugs

were to be distributed solely for social purposes. A motion to

reconsider was denied. Thereafter, Delgado filed this petition

for review.

II. DISCUSSION

Generally, we lack jurisdiction to review denials of discretionary relief, including asylum. See 8 U.S.C. § 1252(a)(2)(C);

Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016). “But,

under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review

constitutional claims and questions of law raised in a petition

for review.” Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir.

2016) (citation omitted). Where, as here, the Board adopts and

affirms the IJ’s decision and provides its own analysis, we

review both decisions. Halim v. Holder, 755 F.3d 506, 511 (7th

Cir. 2014).

First, Delgado contends that DHS lacks legal authority

to issue removal orders on behalf of the Attorney General
No. 16-1816 7

pursuant to 8 U.S.C. § 1228(b), and that § 1228(b) requires

removal orders be issued by IJs. Second, he argues that

he should have been permitted to apply for asylum

under 8 U.S.C. § 1158 because the regulation at 8 C.F.R.

§ 1208.31(g)(2)(i) is ultra vires. Lastly, he argues that the Board

committed various legal errors and failed to follow its procedures when adjudicating his case, such as failing to refer the

case to a three-member panel, engaging in improper factfinding, and overlooking his arguments on appeal.

A. No Jurisdiction to Review Challenges to the Expedited Removal Process

Delgado challenges DHS’s FARO dated March 16, 2015,

arguing that DHS lacked legal authority to order Delgado’s

removal under 8 U.S.C. § 1228(b), and that the plain language

of § 1228(b) requires that final orders of removal be issued by

IJs.

We need not address these claims because Delgado’s

challenges to DHS’s removal order were rendered moot when

the IJ ordered that he be removed pursuant to DHS’s FARO.

Article III limits our review to “Cases” and “Controversies,”

and an “actual controversy” must exist through all stages of

review. Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). “[I]f

an event occurs ... that makes it impossible for the court to

grant ‘any effectual relief whatever’ to a prevailing party, the

appeal must be dismissed.” Church of Scientology of Cal. v.

United States, 506 U.S. 9, 12 (1992) (citation omitted). A case

becomes moot “when the issues presented are no longer ‘live’

orthe parties lack a legally cognizable interest in the outcome.”
8 No. 16-1816

Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (citation

omitted).

Here, no live case or controversy exists because we

cannot grant any effectual relief to Delgado. He asks that we

overturn DHS’s FARO and remand for further proceedings

before an IJ. But this hypothetical remand would consist only

of an IJ issuing a removal order; any remaining challenges are

without merit or have been waived. Assuming that it were

possible to grant such relief, it remains true that the IJ issued an

order that ordered Delgado be removed pursuant to DHS’s

FARO. As a result, the case is moot and we lack jurisdiction to

review this challenge.

Lastly, we note that the jurisdictional issue here is further

highlighted when considering the Tenth Circuit’s decision in

Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033–35 (10th Cir.

2016). There, the petitioner brought an identical challenge, but

it failed on the merits. Despite the same arguments, there are

critical factual differences. In Osuna-Gutierrez, the petitioner

was not placed in withholding-only proceedings, and, accordingly, the petitioner petitioned directly from DHS’s FARO

without any proceedings before an IJ. Id. Unlike the petitioner

in Osuna-Gutierrez, an IJ ordered that Delgado be removed

consistent andpursuant to DHS’s FARO. This difference shows

how the issue presented by Delgado is no longer “live.” While

it is tempting to fall in line with the Tenth Circuit, this factual

differenceprecludes us from reaching the merits. Because there

is no case or controversy, we must dismiss Delgado’s challenge

for lack of jurisdiction. 
No. 16-1816 9

B. No Jurisdiction to Review Challenge to 8 C.F.R.

§ 1208.31(g)(2)(i)

Next, Delgado contends that 8 C.F.R. § 1208.31(g)(2)(i)

is ultra vires because it impermissibly precluded him from

applying for asylum under 8 U.S.C. § 1158(a)(1). He claims that

§ 1158 permits all aliens to apply for asylum regardless of

whether the alien is subject to administrative removal under

§ 1228(b). In other words, Delgado claims that he was “injured” when the regulation denied him the opportunity to

apply for asylum.

We lack jurisdiction to review this challenge because

Delgado cannot meet the injury-in-fact element required for

standing. To establish an injury in fact, Delgado must show

that he “suffered an invasion of a legally protected interest that

is concrete and particularized and actual or imminent, not

conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1548 (2016) (citation and quotation marks omitted).

Delgado cannot claim he suffered an “invasion of a legally

protected interest” when 8 C.F.R. § 1208.31(g)(2)(i) precluded

him from applying for asylum. Asylum is a form of discretionary relief in which “there is no liberty interest at stake.” Delgado

v. Holder, 674 F.3d 759, 765 (7th Cir. 2012); see Ali v. Ashcroft,

395 F.3d 722, 732 (7th Cir. 2005) (noting “denial of such relief

does not implicate due process”). Because Delgado fails to

establish an injury in fact, he lacks standing to challenge

§ 1208.31(g)(2)(i). Therefore, we dismiss this challenge for lack

of jurisdiction.
10 No. 16-1816

C. Challenges to the Board’s Decision and Procedures

1. Three-Member Panel

Delgado argues that the Board erred by not referring his

case to a three-member panel. A single member may take

“advantage of the streamlined procedures found in 8 C.F.R.

§§ 1003.1(e)(4), (e)(5) for routine cases that can be processed

quickly.” Joseph v. Holder, 579 F.3d 827, 832 (7th Cir. 2009). The

regulations give a single member discretion to refer an appeal

to a three-member panel under six different circumstances, but

referral is not required. 8 C.F.R. § 1003.1(e)(6) (listing circumstances); see Ward v. Holder, 632 F.3d 395, 398–99 (7th Cir. 2011)

(noting “discretion ... is left to the panel member assigned to

the case”). In Ward, we were unable to find that the Board

“violated the review procedures set forth in § 1003.1(e) when

a single member rendered a decision on petitioners’ appeal in

his discretion without referring it to a panel of three.” 632 F.3d

at 399. Like the single member in Ward, the single member here

had the discretion to refer the appeal to a three-member panel,

but did not do so. Delgado fails to demonstrate that the Board

violated the review procedures as set forth in 8 C.F.R.

§ 1003.1(e).

2. Improper Fact-Finding 

Next, Delgado contends that the Board violated 8 C.F.R.

§ 1003.1(d)(3)(iv) by engaging in improper fact-finding when

it affirmed the IJ’s conclusion that Delgado was convicted of a

“particularly serious crime,” 8 U.S.C. § 1231(b)(3)(B)(ii). “An

argument that the Board has exceeded the scope of review

permissible under [8 C.F.R. § 1003.1(d)(3)(iv)] is a legal one, for

the purpose of § 1252(a)(2)(D).” Rosiles-Camarena v. Holder, 735
No. 16-1816 11

F.3d 534, 536 (7th Cir. 2013). The regulation provides that

“[e]xcept for taking administrative notice of commonly known

facts ..., the Board will not engage in factfinding in the course

of deciding appeals.” 8 C.F.R. § 1003.1(d)(3)(iv); see EstradaMartinez v. Lynch, 809 F.3d 886, 894 (7th Cir. 2015) (“The Board

must not find facts in the first instance ... .”); Lin v. Holder, 630

F.3d 536, 545 (7th Cir. 2010) (“[T]he Board is not permitted to

engage in fact-finding on appeal.”).

Delgado argues that the Board impermissibly found that

Delgado failed to establish two additional requirements under

Matter of Y-L-: the absence of organized crime involvement and

“other, more unusual circumstances” (i.e., drugs were to be

distributed solely for social purposes). See Y-L-, 23 I. & N. Dec.

at 276–77. In response, the government does not dispute

Delgado’s argument, but claims that the Board’s additional

fact-finding was harmless error. 

We agree with Delgado that the Board exceeded the

permissible scope of review when it made the two findings at

issue in the first instance. Nonetheless, Delgado fails to show

that he was prejudiced by the Board’s impermissible factfinding. See Issaq v. Holder, 617 F.3d 962, 967 (7th Cir. 2010);

Perez-Fuentes, 842 F.3d at 512 (noting that a petitioner must

show that the alleged error “may have had the potential to

change the outcome of the hearing” (citation omitted)). Here,

the Board adopted the IJ’s decision, and explicitly agreed with

the IJ’s finding that Delgado did not establish that he had only

peripheral involvement in the drug-trafficking conviction. By

adopting the IJ’s decision, the Board also agreed with the IJ’s

finding that Delgado failed to show that his conviction did not
12 No. 16-1816

have an adverse effect on a juvenile. Despite the Board’s

impermissible fact-finding, Delgado still fails to satisfy two

factors under Matter of Y-L-. He did not show how he was

prejudiced. 

3. Arguments to the Board

Delgado argues that the Board overlooked and failed to

consider his arguments on appeal. “A claim that the [Board]

has completely ignored the evidence put forth by a petitioner

is an allegation of legal error.” Perez-Fuentes, 842 F.3d at 512

(quoting Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)).

This includes a claim that the Board “failed to exercise discretion at all by completely ignoring an argument.” Iglesias, 540

F.3d at 530–31. Although the Board “does not have to write

an exegesis on every contention, it must consider the issues

raised, and announce its decision in terms sufficient to enable

a reviewing court to perceive that it has heard and thought and

not merely reacted.” Id. at 531. “We have frequently remanded

cases when the BIA’s or the IJ’s failure to discuss potentially

meritorious arguments or evidence calls into question whether

it adequately considered th[ose] arguments.” Kebe v. Gonzales,

473 F.3d 855, 857 (7th Cir. 2007) (collecting cases). 

Delgado lists, as we have done similarly here, several

arguments that he claims were ignored by the Board: (1) his

request for a three-member panel in his appeal to the Board;

(2) that the IJ failed to properly develop the record; (3) that the

IJ conducted an incorrect “pattern or practice” analysis under

8 C.F.R. § 1208.16(b)(2)(i); and, (4) his argument concerning an

unpublished Board decision concerning Florida state law (the

Board addressed and rejected this last argument).
No. 16-1816 13

Delgado’s claim, alone, that the Board “completely ignored” an argument, does not sufficiently “enable a reviewing

court” to determine whether that argument is “potentially

meritorious.” “[I]t is not the work of this Court to formulate

arguments for the parties.” Kurzawa v. Jordan, 146 F.3d 435,

447–48 (7th Cir. 1998), nor will we attempt to do so here.

“[F]ailure to adequately develop and support these arguments

results in waiver.” Lin, 630 F.3d at 543. Delgado’s challenge is

perfunctory; he simply lists these arguments one-by-one,

without any explanation. Therefore, we will consider these

arguments waived.

III. CONCLUSION 

For the foregoing reasons, we DISMISS Delgado’s petition

for review in part for lack of jurisdiction and DENY the

remainder of his petition for review.