### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3300
C ARLOS A VILA

- R AMIREZ , Petitioner ,

v.
E RIC H. H OLDER , J R ., Attorney General of the United States , Respondent

.

____________________

P etition for R eview of an Order of the Board of Immigration Appeals

. No. A 034

- 762

- 288

____________________
A RGUED A PRIL 22, 2014

— D ECIDED A UGUST 21, 2014

____________________

Before P OSNER , W ILLIAMS , and T INDER , Circuit Judges

. W ILLIAMS , Circuit Judge

. An immigration judge found Carlos Avila

- Ramirez “credible” and gav e “full weight to his testimony ” at a hearing requesting discretionary relief from removal. That testimony includ ed Avila

- Ramirez’s deni al that he h ad committed any underlying wrongdoing during the times he had been arrested or questioned since 1990 . H e was never convicted of any crimes resulting from th o se a r-2 No. 13

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rests , and the police reports the government introduced at the hearing were uncorroborated. Yet the immigra tion judge and Board of I mmigration Appeals relied on these unco rroborate d arrest reports to find that Avila

- Ramirez had failed to show “rehabilitation” after a 1990 conviction , and this failure was a significant factor in the decision to de ny him discretionary relief from removal under former § 212(c) of the Immigration and Nationality Act

. We conclude that in these circumstances , the BIA committed legal error by failing to follow its own binding precedent and giv ing substantial weight to an arrest report absent a conviction or corrobora ting evidence of the allegations contained therein

. So we grant the petition for revi ew. I. BACKGROUND
Carlos Avila

- Ramirez, a citizen of Guatemala, was la wfu l ly admitted to the United States as a permanent re sident in 1977 when he was about seven years old. He has r emain ed in the United States ever since. After three years of high school, h e joined the United States Ma rine Corps

. He later obtained his GED, then attended Solano Community College in California and received a certification to become an optical tech nician. Avila

- Ramirez has been consistently employed as an adult . Most recently, he worked for a cable company in Chicago , earning $77,000 in the year preceding his immigration hearing.
At the time of the June 2012 removal hearing , Avila

Ramirez had been engaged to his fiancée, Gloria Espinosa, for about ten years. T hey live together in Chicago and also live with their son , who was born in 2003

. Esp inosa suffers from lupus and Sjö gren’s s yndrome, both autoimmune di sorders, as well as fi brom yalgia. Although only thirty

- threeNo. 13

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years old at the time of Avila

- Ramirez’s hearing , these di seases had already render ed her unable to work. S he receives $1 , 296 in Social Security disability benefits for herself and her son , as well as $150 in food stamps for her son.
Avila

- Ramirez ’s income helps sup port Espi nosa and their

son

. In addition, because one of Esp i nosa’s ma in symptoms is fatigue, Avila

- Ramirez usual ly cleans the house and cooks

. Avila

- Ramirez and Espinosa both expressed their intent to marry

. Avila

- Ramirez also testified that if he were deported, Espinosa and their son would probably remain in the United States because of Espinosa’s medical needs.
Avila

- Ramirez’s mother, brother, sister, gra ndmother, and uncles also live in the United States. Avila

- Ramirez’s mother receives Supplemental Security Income and lives with her mother in Chicago , and h is sister lives about an hour away

. His b rother is in the United States A rmy and is stationed in Ce ntral America. Although his mother earns some income working at a drug store , A vila

- Ramirez helps sup port her fi nancially. He also takes her places because she does not drive

. S ince Avi la

- Ramirez lives the closest of the children to his mother, he i s also the one who would, for example, take her to the emer gency room when she i s ill. ( His mother su ffers from high blo od pressure and hypertension.)

But Avila

- Ramirez’s time in the United States was certai nly not unblemished. He was convicted in California in 1990 of inflicting corporal injury upon a spouse or cohabitant and sentenced to seventy

- nine days in jail. A s hort while later , h e received a bad conduct discharge from the military for wri ting bad checks and was sentenced to ninety day s’ incarcer ation

. H e testified before the immigration judge regarding the latter that he had written a check that hit the bank before his4 No. 13

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pay did, and that he paid the money owed after money was deposited in to his account. Most significantly, later in 1990, Avila

- Ramirez pl ed guilty in California state court to committing a lewd and la scivious act with a child under the age of fourteen. The victim was the daughter of his then

- girlfriend. He received a se ntence of six years’ imprison ment for this crime

. He also r elinquished p arental rights to his daughter, the victim’s half

sister, as a result of the charge. He was pa roled after three

and

- a

- half years in prison and moved to Chicago in 1993

. That 1990 conviction is the last time Avila

- Ramirez was convicted of a crime

. He has, however, been questioned or arrested multiple times since then. In 1995, Avila

- Ra mirez

was arrested for aggravated stalking and violation of a r estraining order. He denied any misconduct at the removal hearing, test ifying that his then

- girlfriend’s mother had fi led for the restraining order because she did not want the two of them to date, and that he was arrested for stalking after he knocked on the door. Later that year, Avila

- Ramirez was questioned regarding theft of labor services and use of a st olen c redit card. Avila

- Ramirez testified before the immigr ation judge that the charges were dropped because “[he] didn’t have anything to do with it.” In 2006, Avila

- Ramirez was arrested for predatory crim inal as sault of a child. He was never charged , never req uired
to ap pear in court after the arrest, and he denied any wrongdoing at the immigration hearing

. Avila

- Ramirez’s mother testified that her sister was the one who had made the accusation, and that her sister falsely accuses people b ecause she drinks. The next year , Avila

- Ramirez was arrested f or unlawful possession of a firearm. He testified to the i m-No. 13

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migration judge that he was pulled over for a traffic viol ation while giving a ride to Espinosa’s brother , who is in a gang. Avila

- Ramirez testified that he gave the police consent to search his car think ing he had nothing to hide, the police found a gun un derneath the seat, and that the gun belonged
to Espinosa’s brother but Avila

- Ramirez was charged b ecause the c ar was registered in his name. T he prosecutor did not proceed with a case

. The immigration judge noted that the police report state s that Avila

- Ramirez told the police he was carrying the gun for protection. The government intr oduced no evidence corroborating any of the allegations or arrest reports. After hearing all the testimony, t he immigration judge found Avila

- Ramire z credible and stated he gave Avila

Ramirez’s testimony “full weight.” Nonetheless, the imm igration judge concluded that Avila

- Ramirez’s repeated a rrests meant he had not shown rehabi litation and denied Av ila

- Ramirez’s request for § 212(c) relief

. While calling it a “very close” case, t he BIA affirmed, stat ing in part that “the Immigration Judge found that [Avila

- Ramirez’s] recent su bsequent arrests show a lack of rehabilitation. We di scern n o clear error in that finding.”
II. ANALYSIS
Avila

- Ramirez petitions our court for review. Because the BIA relied on the findings of the immigration judge and added its own analysis, we review the immigration judge’s decision as supplemented by th e BIA. See Milanouic v. Holder , 591 F.3d 566, 570 ( 7th Cir. 2010).
Avila

- Ramirez concedes that he is eligible for remov al and seeks discretionary relief from removal under former6 No. 13

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§ 212(c) of the I mmigration and Nationality Act. Through the 1996 passage o f the Antiterrorism and Effective Death Pena lty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) , Congress repealed § 212(c) and replaced it with a narrower form of discretio nary relief known as “cancellation of re moval.” See United States v. Zambrano

- Reyes , 724 F.3d 761, 762 ( 7th Cir. 2013 ). A lawful permanent resident cannot receive cancellation of removal if he has an aggravated felony conviction , 8 U.S.C. § 1229b ; Gonzales

- Gomez v. Achim , 441 F.3d 532, 533 ( 7th Cir. 2006) , and Avila

- Ramirez does not contest th e BIA’s determ ination that his 1990 conviction for committing a lewd and lascivious act with a child under the age of fourteen was for an aggravated felony , s ee 8 U.S.C. § 1101(a)(43)(A) (including sexual a buse of a minor in aggravated felony definition)

. But Avila

- Ramirez is still statutorily eligible for § 212(c) relief. The Supreme Court held that , despite AEDPA and IIRIRA, § 212(c) relief is still available for persons “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. ” I.N.S. v. St. Cyr , 533 U.S. 289, 326 (2001). Avila

- Ramirez’s guilty plea occurred in 1 990, at a time when he would have been eligible for § 212(c) relief. So he is stat utorily eligible for § 212(c) relief. The next potential barrier to our review comes in the form of the REAL ID Act , which limits our review of certain BIA decisions

. Invoki ng this statute, t he government mai ntains that we lack jurisdiction to consider Avi la

- Ramirez’s petition because it contends he is seeking review of a purely discretionary deci sion barred from our consideration by 8No. 13

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U.S.C. § 1252(a)(2)( B)

. It is true that w hether to grant § 212(c) relief is a matter of discretion. Matter of Marin , 16 I. & N. Dec. 581, 584 (BIA 1978). In deciding whether to grant such relief,
t he immigration judge is to “balance the adverse factors ev idencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf” to determine whether granting relief is in the best interests of the United States

. Id. Favorable consideration i nclude family ties within the United States, residence of long duration in the United States (especially when the residence began while the non

- citizen was of young age), evidence of hardship to the applicant and family if deported , service in the United States Armed F orces , a history of employment, the existence of property or business ties, evidence of value and serv ice to the community, proof of genuine rehabilit ation if a criminal record exists, and other evidence attesting to good character. Id. at 584

- 85. Adverse facto rs include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant viol ations of this country’s immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriou sness, and the presence of other evidence indicative of a r espondent’s bad character or undesirability. Id. at 584.
But d espite the bar in § 1252(a)(2)(B) on purely discr etionary determinations, we retain jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). “Legal questions include ‘challenges to the BIA’s interpretation of a statute, regulation, or constitutional provision, claims that the BIA misread its own precedent or applied the wrong legal standard, or claims that th e BIA failed to exercise discretion at all.’” Cruz

- Moyaho v. Holder , 703 F.3d 991, 997 (7th Cir. 2012) (citations omitted). By reg u-8 No. 13

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lation, the BIA is required when issuing a non

- precedential decision to follow its own binding precedent. 8 C.F.R. § 1003.1(g ) (“Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board ... shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of t he immigrati on laws of the United States.”). An argument that the BIA has exceeded the scope of review permissible under this regulation is a legal question for purposes of 8 U.S.C. § 1252(a)(2)(D) and ther efore subject to our review

. Rosiles

- Camarena v. H older , 735 F.3d 534, 536 ( 7th Cir. 2013). Avila

- Ramirez asserts in his brief: “The Board ignored its own binding precedent in vi olation of federal law when it denied [his] petition for relief.” More specifically, he maintains that the BIA’s reliance on o nl y uncorroborated arrest reports for which he denies any wrongdoing to determine whether he was “rehabilitat ed” ignored the BIA’s precedential decision in In re Catalina Arr eguin De Rodriguez , 21 I. & N. Dec. 38 (BIA 1995) , and misread Matter of Thomas , 21 I. & N. Dec. 20 (BIA 1995). This is a que stion of law that we have jurisdiction to review. See Rosiles

Camarena , 735 F.3d at 536. Rehabilitation can be an important factor in the § 212(c) analysis , as it was in this case

. The Supreme Court has stated that a grant of relief will depend, in part, on ‘ ’’ evidence of either rehabilita tion or recidivism, ’ ” Judalang v. Holder , 132 S. Ct. 476, 481 (2011) (quoting St. Cyr , 533 U.S. at 296 n.5 ), and the immigration judge repeated that quotation in his dec ision here. In making his § 212(c) determination, the imm igration judge found “significant favorable factors” in Avila

Ramirez’s case. He also recognized that Avila

- Ramirez and his family, in cluding his fiancée and son, would “face co n-No. 13

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siderable hardships” if Avila

- Ra mirez were forced to leave. But the immigration judge found that Avila

- Ramirez had a “lengthy arrest history” and convictions for serious crimes and had “not shown meaningful rehabilita tion since his r elease from incarceration .” Yet the immigration judge also found Avila

- Ramirez credible. A nd he did so in strong language, stating : Having reviewed [Avila

- Ramirez’s] testimony and documentary submissions, the Court finds his testimony to have been internally co nsistent and consistent with the documentary evi dence in the record. Thus, the Court finds the re spondent credible and will give full weight to his testimony.
Avila

- Ramirez testified at the hearing that he did not commit any unlawful conduct before each of the arrests. In particular, Avila

- Ramirez testified that his 1995 arrest for stalking and violating a restraining order occurred after his then

- girlfriend’s mother did not want her daughter to date him after learning about his 1990 conviction. He testified that his girlfriend’s mother obtained a restraining order after he disclosed the conviction , and the mother called the police and alleged he was stalking her daughter when he came to knock on the door one day. The stalking charge and restrai ning order were dropped, and the government did not int r oduce any evidence at the removal hearing that corroborated the allegations in the police report.
Avila

- Ramirez was also questioned in 1995 regarding credit card theft and “theft of labor services.” Avila

- Ramirez testified that he “didn’t have anything to do with [the char g-10 No. 13

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es]

. ” These charges were also dropped, and the government offered no evidence in support of the claims. Avila

- Ramirez was arrested in 2006 after his aunt accused him of having inappropriate contact with her granddaughter. He testified th at his aunt, who was aware of Avila

- Ramirez’s 1990 convi ction, had been drinking and made the accusation , but he stated that he had done nothing wrong. His mother also te stified that her sister falsely accuses people when she drinks. No charges were ev er b rought.
Avila

- Ramirez also denied that he had unlawfully po ssessed a firearm in 2007. He testified that he was driving E spinosa ’s brother when he was pulled over for a minor traffic infraction. Avila

- Ramirez consented to a search of his car b ecause, he testified, he didn’t have anything to hide. He test ified that the gun the police found in his car belonged to E spinosa ’s brother but that Avila

- Ramirez was charged because it was his car.
So Avila

- Ramirez denied committing any unlawful co nduct in the even ts leading to his arrests or questioning after 1990

. T he immigration judge found Avi la

- Ramirez credible and gave his testimony fu ll weight , and that testimony i ncluded denying the underlying conduct. But the judge, a ffirmed by the BIA, also found that the arrests and questio ning showed a lack of rehabilitation. The judge further stated that Avila

- Ramirez told the court he had rehabilitated hi mself, “but these repeated arrests” show otherwise. Finding Avila

- Ramirez’s testimony fully credible and also finding that his arrests evidenced a lack of rehabilitation are see mingly contradictory findings.
And t he agency found a lack of rehabilitation based on nothing more than uncorroborated police reports. Noneth e-No. 13

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less, the government maintains that the BIA did not f ail to follow its own prece dent. The only decision the agency re ferenced regarding rehabilitation, Matter of Thomas , 21 I. & N. Dec. 20 (BIA 1995), does not author ize its ruling here. In Ma tter of Thomas , the BIA held that the immigration judge could consider the appli cant’s co nvictions in the exercise of discr etion even though the convictions were not yet final. Id. at 25. The BIA explained: “Although the respondent’s convictions are not yet final, we find the fact that he has been so convic ted, wheth er by jury trial or upon his own plea of guilty, to constitute significant evidence that he has committed the crimes of which he has been found guilty.” Id. Avila

Ramirez , on the other hand, was not convicted after any of the arrests at issue. There is no “significant evidence” that he committed any crimes after 1990; he denied that he did the conduct alleged in police reports , and he was never co n vic ted after that date

. Thomas does include the language: “In examining the presence of adverse factors on an application for discretio nary relief, this Board has found it appropriate to consider e vidence of unfavorable conduct, including criminal conduct which has not culminated in a final conviction for purposes of the Act.” Id. at 23. But the cases the BIA cit ed in support of this proposition make sense , and none involved only unco rroborated police reports . Some , for example, involved guilty pleas or other admissions. Matter of Seda , 17 I. & N. Dec. 550 (BIA 1980) (guilty plea) ; White v. I

. N

. S

. , 17 F.3d 475 (1st Cir. 1994) (guilty plea); Paredes

- Urrestarazu v. I

. N

. S

. , 36 F.3d 801 (9th Cir. 1994) ( pre

- trial diversion where defendant initially testified that friend told him he had drugs for sale) ; Parcham v. I.N.S. , 769 F.2d 1001 ( 4th Cir. 1985) ( acknowledgment of participation in “violent demonstration” corroborated pen d-12 No. 13

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ing arson charges arising out of demonstration) . Others co ncerned convictions with a judicial recommendation against deporta tion. Matter of Gonzalez , 16 I. & N. Dec. 134 (BIA 1977) ; Oviawe v. I

. N

. S

. , 853 F.2d 1428 (7th Cir. 1988); Gia mbanco v. I

. N

. S

. , 531 F.2d 141 (3d Cir. 1976). Another case i nvolved a conviction that had been expunged. Villanueva

Franco v. I

. N

. S

. , 802 F.2d 327 (9th Cir. 1986). In short, a ll of the cases the BIA di scussed in Matter of Thomas involved some corroboration beyond a mere arrest report. Save one, that is, and it is the one most relevant to our circumstances. Matter of Thomas cited favorably to Sierra

- Reyes v. I

. N

. S

. , 585 F.2d 762, 764 n.3 (5 th Cir. 1978), which the BIA descri bed as “stating that police reports implicating respondent in criminal activ ity but which never resulted in prosecution due to a lack of sufficient evidence were not probative.” Matter of Thomas , 21 I. & N. Dec. at 24

- 25. T hat is what we have here : only unco rroborated police reports

. S oon after its decision in Matter of Thomas , the BIA co nsidered the weight that could be given to uncorroborated a rrest reports in a § 212(c) discretionary relief determination

. But n either the BIA nor the immigration judge cited or di scussed the BIA’s precedential decision in In re Catalina Arr eguin De Rodri guez , 21 I. & N. Dec. 38, 42 (BIA 1995)

. As a precedential decision, it is binding on the agency when it i ssues a non

- precedential decision such as the one in this case

. See 8 C.F.R. § 1003. 1(g). In Arreguin , the applicant in her te stimony before the immigration court denied any wrongd oing regarding the conduct described in an arrest report. Nonetheless, a n immigration judge denied the r equest for § 212(c) relief after considering the arrest report and finding it to be a negative factor

. T he BIA r eversed and explained :No. 13

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The Immigration Judge concluded that this i ncident was a negative factor to be considered in exercising discretion. Just as we will not go b ehind a record of conviction to determine the guilt or innocence of an alien, so we are hes itant to give substantial weight to an arrest r eport, absent a conviction or corroborating ev idence of the allegations contained therein. Here, th e applicant conceded that the arrest took place but admitted t o no wrongdoing. Considering that prosecution was declined and that there is no corroboration, from the appl icant or otherwise, we give the apprehension

re port little weight.
21 I. & N. Dec. at 42. The BIA then weighed the favorable and negative facts in the record and found § 212(c) relief warranted. Id. at 42

- 43.
The Sixth Circuit ruled that Arreguin meant an immigr ation judge erred by denying relief based on uncorroborated arrest reports. Bill eke

- Tolosa v. Ashcroft , 385 F.3d 708 , 713 ( 6th Cir. 2004). After finding the facts before it “ materially the same” to those in Arreguin , the court ruled that although the immigra tion judge was concerned that the petitioner “ had a history of sexually abusing young children, he was not co nvicted of any such crime, denied committing such a crime, and was confronted with no independent evidence sugges ting otherwise.” Id. at 712. The court held that the BIA’s “fai lure to follow its precedent ” in Arreguin w hen it relied on u ncorroborated arrest reports to deny discretionary relief was a legal error that sub jected the petitioner to substantial prej udice. Id. at 713. As a result, the court remanded the case to14 No. 13

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the BIA with instructions not to consider the repo rts. Id

. ; cf

. Padmore v. Holder , 609 F.3d 62, 69 (2d Cir. 2010) (noting co ncern with “the BIA’s apparent willingness to accept unpro ven and disputed allegations as true merely because they e xist in the record”).

Here too , as in Arreguin , Avila

- Ramirez a cknowledged that arrests and questioning took place after 1990 , but admi tted to no wrongdoing. Avila

- Ramirez was not prosecuted or convicted after these arrests , and t here was no corroboration introduced at the immigration hearing

. Yet the immigration judg e and the BIA gave the arrest reports significant weight. T hat significant weight was given is clear, as t he immigr ation judge found many factors in Avila

- Ramirez’s favor bu t concluded he had not shown meaningful rehabilitation since his release from incar ceration. That lack of rehabilitation finding can only be based on the uncorroborated arrests, as there is no other potentially negative factor in the record. Other points in the decision reinforce the weight placed on the uncorroborated arrests

. R egarding Avila

- Ramirez’s 1995 questioning for a financial crime, the immigration judge no ted that although the charge was dropped, it “cast doubt” on whether he had “learned from his mistak e the first time” of writing bad checks. The immigration judge also remarked that Avila

- Ramirez’s “repeated aggressive displays toward significant others [was] cause for concern

. ” B ut Avila

Ramirez only had one convic tion in this regard, in 1990; the “repeated” reference was to a 1995 arrest where Avila

Ramirez denied any wrong doing

. The BIA ’s failure to follow its own binding precedent was not harmless. Cf. Kadia v. Gonzales , 501 F.3d 817, 821 (7th Cir. 2007) (stating doctrine of harmless error applies to judicialNo. 13

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review of immigration decisions). In addition to the wei ght given the arrests in the immigration judge’s decision, t he BIA characterized Avila

- Ramirez’s case as a “very close” one even when considering the arrest reports and stated that Av i la

- Ramirez had “substantial equities

. ” The arrest reports seemed to be t he decisive factor in the BIA’s decision; a bsent the reports, there would be no basis in the record for the agency’s conclusion that Avila

- Ramirez had not shown reh abilitation. To be clear, t his is not to say that we read Arreguin to prohibit any considera tion of arrest reports in the weighing of discretionary factors. See A rreguin , 21 I. & N. Dec. at 42 (giving “little weight” to arrest report); Sorcia v. Holder , 643 F.3d 117, 126 ( 4th Cir. 2011) (stating that A rreguin “did not indicate that it was per se improper to consider an arrest r eport ” and declining to vacate decision where BIA gave “little weight” to arrest report ). Here, however, we find that the agency failed to follow its binding precedent in Arreguin, which it did not cite, when it gave signifi cant weight to u ncorroborated arrest reports in which Avila

- Ramirez denied any wrongdoing after finding him credible

. See Margulis v. Holder , 725 F.3d 785, 788 (7th Cir. 2013) (“The Board can reexamine, and if it wants overrule, a precedent, but it didn’t do that in this case. It ignored it. This is not permissible.”)

. As a result, we grant the petition for review and return Av ila

- Ramirez’s case to the BIA for additional consideration.
III. C ONCLUSION
The petition for review is G RANTED and this case is r etu rned to the BIA for further proceedings consistent with this opinion

.