### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3238

J OSÉ A NTONIO C ISNEROS

,

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. A073

‐ 393

‐ 696

____________________

A RGUED M AY 26, 2016

— D ECIDED A UGUST 25, 2016

____________________

Before W OOD

, Chief Judge

, and M ANION and H AMILTON

,

Circuit Judges

.

W OOD

, Chief Judge

. José Antonio Cisneros, who had been

a lawful permanent resident of the United States since 1996,

had the bad judgment to commit unarmed robbery in 2012.

This is an aggravated felony under 8 U.S.C.

§ 1227(a)(2)(A)(iii), and so one result of his conviction was the

loss of his legal permanent resident status. His conviction also2 No. 15

‐ 3238

made him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I)—

that is, unable to adjust his status back to that of a lawful per

‐

manent resident—because robbery is a crime of moral turpi

‐

tude. In order to regain eligibility for relief from removal

through adjustment of status, Cisneros needed to deal with

the problem of his inadmissibility. He therefore applied for a

waiver of inadmissibility under section 212(h) of the Immi

‐ gration and Nationality Act (INA), 8 U.S.C. § 1182(h)(1)(B),

which gives the Attorney General the discretionary power to

waive inadmissibility based on several grounds, including a

crime of moral turpitude, if the person is a spouse, parent, or

child of a U.S. citizen who would suffer “extreme hardship”

if removed.

The Attorney General has promulgated regulations imple

‐ menting this authority. The regulations state that with respect

to inadmissibility based on “violent or dangerous crimes,”

she “in general, will not favorably exercise discretion under

section 212(h)(2) of the Act

... to consent to an application or

reapplication for a visa, or admission to the United States, or

adjustment of status, with respect to immigrant aliens who

are inadmissible under section 212(a)(2) of the Act in cases in

‐ volving violent or dangerous crimes, except in extraordinary

circumstances.” 8 C.F.R. § 1212.7(d). The regulation identifies,

as one example of such extraordinary circumstances, “cases

in which an alien clearly demonstrates that the denial of the

application for adjustment of status or an immigrant visa or

admission as an immigrant would result in exceptional and

extremely unusual hardship.” Id

.

An immigration judge granted Cisneros’s application for

a waiver and adjustment of status, finding that his U.S.

‐ citizen

family would suffer “exceptional and extremely unusualNo. 15

‐ 3238 3

hardship” as a result of his removal. The Department of

Homeland Security appealed, and the Board of Immigration

Appeals (“the Board”) overturned that decision and revoked

the waiver. Cisneros now petitions for review from the

Board’s decision. Our authority, however, extends only to le

‐ gal or constitutional issues, not discretionary determinations.

Finding no cognizable error, we deny the petition for review.

I

Cisneros came to the United States in 1988 at age 17 and

stayed after the expiration of his visa. In 1995, he married U.S.

citizen Melissa Cisneros, and in 1996 his status was adjusted

to lawful permanent resident. They were divorced in 2002,

but remained on good terms. Cisneros’s oldest child, Maria

Esmeralda, was 24 years old at the time of the removal pro

‐ ceeding; Marissa, his first child with Melissa, was 17 years

old; and Marsea, their second daughter, was 15. Cisneros also

has two stepsons from Melissa’s previous marriage. Maria

had three children of her own, only two of whom are now

living. According to the testimony, Cisneros consistently sup

‐ ported the children financially and supported Melissa after

their divorce.

On a darker note, Cisneros has a history of alcoholism and

a criminal record that includes robbery, battery, a 1998 DUI,

and assorted convictions for driving without a license. He has

enrolled in rehabilitation programs several times, most re

‐ cently in 2008. The immigration judge described his testimony

about the 2012 conviction:

[H]e was depressed, his car was broken, so he

went on a bicycle and tried to look for a used

car, something that was inexpensive that maybe4 No. 15

‐ 3238

his family can lend him some money, or some

friends, in order to buy a new vehicle. As he was

riding his bicycle, he passed by a bank that he

had not entered before and told the teller to give

him all her money. She gave him all the money.

He then walked out of the bank and rode back

to his home.

The probable

‐ cause affidavit for Cisneros’s arrest adds

that his demand for money was on a written note that he

handed the teller that read, “Give me all the money.” Cisneros

represents that he got just $75.

The immigration judge heard testimony from Cisneros

and Melissa. Maria was unable to appear at the proceeding,

for the grim reason that her boyfriend at the time had beaten

her three

‐ year

‐ old daughter Anabel, Cisneros’s granddaugh

‐

ter, to death on December 23, 2014, and Maria herself was in

jail on felony neglect charges. The judge described Cisneros’s

history with alcoholism and his attempts to get better, as well

as his close relationships with his children, stepchildren,

grandchildren, and ex

‐ wife. She went through the details of

his prior convictions. She examined the circumstances that led

up to the 2012 robbery. She noted his current sobriety and

church attendance. She concluded, given his earning poten

‐

tial, the recent family tragedy, and the fact that all of the U.S.

citizen family members would remain in the United States

even if Cisneros was removed, that the “profound and far

reaching” “economic and emotional hardship” that would re

‐

sult from his removal warranted an exercise of discretion in

his favor. Cisneros’s removal, the immigration judge con

‐

cluded, “would result in exceptional and extremely unusualNo. 15

‐ 3238 5

hardship to his qualifying relatives, particularly his young

children.”

The Board disagreed. It held that 8 C.F.R. § 1212.7(d) ap

‐ plies to Cisneros’s conviction because, despite the absence of

any weapon or harm caused to anyone, “the potential for a

physical altercation in committing” robbery renders it a dan

‐

gerous crime. The Board found that Cisneros’s younger

daughters—the oldest, Maria, was not a child within the

meaning of the Act and therefore not a qualifying family

member—would “suffer the emotional and financial hard

‐ ship of separation from their father,” but it would not be ex

‐ ceptional or extremely unusual. The children would soon be

old enough to visit him on their own, the Board added. The

Board also explained that hardship is only one factor, and

even if Cisneros demonstrated exceptional and extremely un

‐

usual hardship to his qualifying relatives, his “negative fac

‐

tors

... far outweigh the positive.”

II

Unless a constitutional claim or question of law is present,

we have no authority to review either the Attorney General’s

discretionary grant or denial of a section 212(h) waiver,

8 U.S.C. § 1182(h)(2), or a final order finding a person remov

‐

able because of the commission of an aggravated felony under

8 U.S.C. § 1227(a)(2)(A)(iii). Vaca

‐ Tellez v. Mukasey

, 540 F.3d

665, 668 (7th Cir. 2008).

Our review of the Board’s constitutional and legal deter

‐

minations is de novo

. Surganova v. Holder

, 612 F.3d 901, 903 (7th

Cir. 2010). We give deference to the Board’s interpretation of

immigration statutes

. Cano

‐ Oyarzabal v. Holder

, 774 F.3d 914,

916 (7th Cir. 2014) (citing Chevron U.S.A. Inc. v. Nat. Res. Def.6 No. 15

‐ 3238

Council, Inc.

, 467 U.S. 837 (1984)). If a statute is unambiguous,

we implement its plain meaning. If it is unclear, we defer to

the Board’s interpretation so long as its interpretation is rea

‐

sonable. Hamlin v. Holder

, 755 F.3d 506, 511 (7th Cir. 2014).

Cisneros’s petition for review presents four arguments: (1)

that section 1212.7(d) is an invalid regulation in conflict with

congressional intent and the relevant statute, (2) that even if

the regulation is valid, the Board applied it improperly, (3)

that his crime was not violent or dangerous, and (4) that the

Board committed legal error by failing to consider certain ma

‐

terial facts in its hardship analysis.

A

We begin with his argument about the validity of the reg

‐

ulation. He contends that it impermissibly narrows the statu

‐

tory language. Section 212(h)(1)(B) allows the Attorney Gen

‐

eral to waive inadmissibility if removal would result in “ex

‐

treme hardship” to a citizen or lawful resident spouse, parent,

or child. Yet the regulation, section 1212.7(d), significantly

narrows the scope for discretion with respect to violent or

dangerous crimes. We must decide whether the regulation

has permissibly cabined the executive branch’s own author

‐ ity, or if instead it is an impermissible refusal to exercise the

discretion that Congress has required the executive to exer

‐

cise. We note that Cisneros has not waived this argument by

failing to ask the Board to set aside the Attorney General’s

regulation. Such an action would lie beyond the Board’s

power. See Matter of Anselmo

, 20 I. & N. Dec. 25, 30 (BIA 1989)

(“Neither this Board nor an immigration judge has authority

to consider a challenge to the Attorney General’s determina

‐

tion[.]”). He thus had no duty to present this argument to the

Board. Isaaq v. Holder

, 617 F.3d 962, 968 (7th Cir. 2010).No. 15

‐ 3238 7

Section 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B), sets out the

“extreme hardship” waiver. Section 212(h)(2) states that once

the terms of 212(h)(1)(A) or (B) or (C) are met and the Attor

‐

ney General has, using the “discretion

... pursuant to such

terms, conditions and procedures as he may by regulations

prescribe,” consented to the petitioner’s application, waiver

can occur. The Attorney General argues that section 1212.7(d)

is just that: a “term,” “procedure,” or “condition” prescribed

by regulation in order to implement the authority granted by

the statute. Congress expressly left it up to the Attorney Gen

‐

eral to promulgate regulations to guide the discretion granted

in the statute, and she has done so. Chevron

, 467 U.S. at 843–

44 (“If Congress has explicitly left a gap for the agency to fill,

there is an express delegation of authority to the agency to

elucidate a specific provision of the statute by regulation.”).

Cisneros responds that there is no gap to fill—rather, section

1212.7(d)’s “exceptional and extremely unusual hardship”

language conflicts with and replaces section 1182(h)(2), and

therefore is invalid.

The Attorney General has the better of this debate. The

plain language of the statute grants the Attorney General dis

‐

cretion over inadmissibility waivers and the authority to reg

‐

ulate that discretion. She has chosen to decline, as a matter of

policy, to exercise her discretion in favor of a petitioner who

has committed a “violent or dangerous” crime, unless that

person can demonstrate a hardship even greater than that

which those who commit non

‐ violent, non

‐ dangerous crimes

must show. Granting Cisneros’s point that “extreme hard

‐ ship” is a lower threshold than “exceptional and extremely

unusual hardship,” the fact remains that the statute permits

the Attorney General to fine

‐ tune her discretion in this way.

Indeed, in Lopez v. Davis

, 531 U.S. 230 (2001), the Supreme8 No. 15

‐ 3238

Court came to much the same conclusion with respect to a

regulation promulgated by the Bureau of Prisons on the sub

‐ ject of early release. The statute there denied early release to

inmates convicted of violent offenses, but the regulation

added an additional category of ineligible inmates—those

whose current offense is a felony involving a firearm. Id

. at

238. The statute merely described eligibility for early release,

not an entitlement to it, and so the Bureau was within its

rights to identify another group for whom release was inap

‐ propriate. The Attorney General’s regulation in our case does

the same thing, and so the same result should follow.

The regulation in our case does not render it impossible

for persons who have committed violent or dangerous crimes

to obtain relief. It just imposes a higher bar. We are not sure,

nor could the government enlighten us, about how many peo

‐ ple might fail the stricter regulatory test yet qualify for the

more lenient statutory test. In the end, however, this does not

matter. This is a regulation formally promulgated through

statutory authority, and so it qualifies for Chevron deference.

In accordance with Chevron ’s two

‐ part test, we first ask

whether Congress “directly spoke[] to the precise question at

issue,” and if not, we ask whether the Attorney General’s con

‐

struction of the statute is permissible. Yi Di Wang v. Holder

,

759 F.3d 670, 673 (7th Cir. 2014) (quoting Chevron

, 467 U.S. at

842–43 & n.9).

Congress spoke directly to the question how a petitioner

can show he is eligible for a discretionary inadmissibility

waiver: by demonstrating extreme hardship to a qualifying

family member. 8 U.S.C. § 1182(h)(1)(B). Just as in Lopez

, Con

‐

gress did not constrain the Attorney General’s authority to

draw lines within the set of people identified by the statute.No. 15

‐ 3238 9

Cisneros quibbles about the source of the “exceptional and

extremely unusual” phrase, which comes from a case involv

‐ ing a refugee waiver, not a section 1182(h) waiver. In re Jean

,

23 I. & N. Dec. 373 (U.S. Att’y Gen. 2002), but we see no sig

‐

nificance in the source of the language the Attorney General

chose to adopt. We approved of the heightened In re Jean

standard for refugee waivers in Ali v. Achim

, 468 F.3d 462 (7th

Cir. 2006), finding that it did not conflict with section 1159(c)

because section 1159(c) does not require, but only allows,

waiver in the listed circumstances. Nothing in section 212(h)

compels a different result.

This regulation differs from the one at issue in Succar v.

Ashcroft

, 394 F.3d 8 (1st Cir. 2005), where the First Circuit

found invalid a rule categorically barring people on parole

from inadmissibility waivers. The First Circuit noted that

“[t]he Supreme Court itself has ruled that the two questions

of discretion as to the ultimate relief and discretion as to eli

‐ gibility exclusions are distinct.” Id

. at 23 (citing INS v. Cardoza

‐

Fonseca

, 480 U.S. 421, 433–34 (1987)). Even if no petitioner who

meets “extreme hardship” but not “exceptional and ex

‐ tremely unusual hardship” is ever granted a waiver under

section 1212.7(d), the regulation is nonetheless not a categori

‐

cal bar of the kind in Succar

. It does not render people con

‐

victed of violent or dangerous crimes ineligible; it raises the

threshold for obtaining the ultimate relief.

Our conclusion is in accord with five of our sister circuits.

See Perez Pimentel v. Mukasey

, 530 F.3d 321, 325 (5th Cir. 2008)

(“Congress has not spoken to the standards the Attorney Gen

‐

eral may employ under § 1182(h)(2), and the regulation is di

‐

rected only to the Attorney General’s discretion under that

subsection”); Samuels v. Chertoff

, 550 F.3d 252, 257 (2d Cir.10 No. 15

‐ 3238

2008) (“Because proof of ‘extreme hardship’ constitutes only

a threshold showing, Section 1212.7(d) is not inconsistent

with Section 212(h)”); Mejia v. Gonzales

, 499 F.3d 991, 996 (9th

Cir. 2007) (“The Attorney General has not changed or altered

the statutory ‘extreme hardship’ standard. Instead, he has

promulgated a regulation to guide [immigration judges] in

the way they exercise their relatively unfettered grant of dis

‐

cretion after the statutory requirements are met.”); Talavera v.

U.S. Att’y Gen.

, 628 F. App’x 997, 999 (11th Cir. 2015) (non

‐ precedential holding that the Attorney General was empow

‐

ered to “issue regulation 1212.7(d) to provide guidance about

how to weigh an alien’s criminal offense against any hard

‐ ships caused by his removal”); Idowu v. U.S. Att’y Gen.

, 512 F.

App’x 222, 226 (3d Cir. 2013) (nonprecedential, citing Samuels

and Mejia ). We see no reason to create a conflict with them.

B

Cisneros next urges that even if the regulation is valid, the

Board improperly applied it in his case. He points to the fol

‐ lowing sentence from the Board’s decision: “the respondent

has not demonstrated the kind of extraordinary circum

‐

stances that would render him eligible for a waiver under

212(h) of the Act.” Therefore, he claims, the agency decision

does not warrant deference because it did not focus on the

right question. See Mata

‐ Guerrero v. Holder

, 627 F.3d 256, 259

(7th Cir. 2010) (“ Chevron deference

... assumes that an agency

has taken a careful look at the general legal issue and has

adopted a reasonably consistent approach to it.”).

The government responds that Cisneros takes the sentence

out of context. The full sentence reads: “As the respondent has

not demonstrated the kind of extraordinary circumstances

that would render him eligible for a waiver under 212(h) ofNo. 15

‐ 3238 11

the Act in light of his conviction, he does not merit a favorable

discretionary determination.” The Board’s decision continues

by noting that “the hardship presented is but one factor to

consider in making a discretionary determination,” and con

‐

cludes that “the respondent does not merit the relief he seeks

in the exercise of discretion

... Although the respondent has

several notable equities, the negative factors in his case far

outweigh the positive.”

The Board’s decision shows that it followed the regulation

and asked whether, given Cisneros’s eligibility for relief, a fa

‐

vorable exercise of discretion was merited. Finding no “ex

‐ ceptional and extremely unusual” hardship, it said no. The

Board did not consider Cisneros “ineligible” because of his

violent or dangerous crime and did not commit any error in

applying section 1212.7(d).

C

Cisneros next argues that his crime should not have been

classified as “violent or dangerous.” If this was wrong, then it

would have been error to apply section 1212.7(d) to him. His

argument is that the Board improperly applied a categorical

approach to determine that his crime fell in that category; it

should instead have analyzed the facts and circumstances un

‐ derlying his robbery conviction. See Taylor v. United States

,

495 U.S. 575 (1990) (establishing a categorical approach to

classify state crimes); Shepard v. United States

, 544 U.S. 13

(2005) (clarifying the modified categorical approach); see also

Descamps v. United States, 133 S. Ct. 2276 (2013) (describing

modified categorical approach).

The categorical approach is a method often used to deter

‐

mine whether a prior conviction should be used, usually for12 No. 15

‐ 3238

purposes of sentencing enhancement. Critically, the court

looks only at the elements of the crime, not at the particular

way in which it was committed. Section 1212.7(d) does not

explicitly state whether a facts

‐ and

‐ circumstances approach

or a categorical approach (or a modified categorical approach)

is appropriate for determining whether a crime is “violent or

dangerous” for purposes of the regulation. Cisneros draws

support for his argument that a facts

‐ and

‐ circumstances ap

‐ proach is required from In re Jean

, where the Attorney General

described the crime in some detail. 23 I. & N. Dec. at 383. But

in the end, the Attorney General there concluded that it made

no difference whether the crime was a violent one, because

the applicant was unfit in any event for discretionary relief.

Id

.

Neither does our decision in Ali clarify whether the cate

‐ gorical approach is required. 468 F.3d 462. Ali did not address

the appropriate way for immigration judges and the Board to

determine whether a crime was “violent or dangerous.” Cis

‐

neros claims that we rejected the categorical approach in that

case, but he conflates our rejection of a categorical bar on cer

‐

tain petitioners with a categorical approach to analyzing the

crime of conviction.

The Ninth Circuit requires the Board to “mak[e] a deter

‐

mination based on the facts underlying [the] conviction that

[the] crime was violent or dangerous” before applying the

heightened regulatory standard. See Rivas

‐ Gomez v. Gonzales

,

225 F. App’x 680, 683 (9th Cir. 2007) (nonprecedential); cf.

Torres

‐ Valdivias v. Lynch

, 786 F.3d 1147, 1152 (9th Cir. 2015)

(finding the Board had discretion not to apply a categorical

approach in determining whether a crime was “violent orNo. 15

‐ 3238 13

dangerous”). The Eleventh Circuit has stated that “ Jean re

‐ quired neither a ‘categorical’ nor a ‘fact

‐ based’ approach to

determining whether a refugee’s conviction renders him a ‘vi

‐

olent or dangerous individual,’” but rather only “an adequate

consideration of the nature of the refugee ʹ s crime.” Makir

‐

Marwil v. U.S. Att’y Gen.

, 681 F.3d 1227, 1235 (11th Cir. 2012).

The Eleventh Circuit seems to favor an elements approach for

very serious crimes and a facts

‐ and

‐ circumstances approach

for others. Id

. The Board has suggested, in dictum, that a

“facts” approach might be preferable to a categorical one for

“violent or dangerous” crime determinations. See Matter of

Dominguez

‐ Rodriguez

, 26 I. & N. Dec. 408, 413 n.9 (BIA 2014).

We see nothing in the statute that compels the Attorney

General to adopt one or the other of these methodologies. Be

‐

cause she created the regulation to guide her own discretion,

she retains the authority to decide how to interpret the term

“violent or dangerous” crime, as long as the interpretation is

permissible under the INA. Chevron

, 467 U.S. at 843; see also

Makir

‐ Marwil

, 681 F.3d at 1235 (“all Jean requires is an ade

‐

quate consideration of the nature of the refugee’s crime”).

We need not pursue this argument further, because the

Board does not seem to have applied a strict categorical ap

‐ proach here. It noted that Cisneros’s crime “did not involve a

weapon and did not cause harm to any individual,” but it con

‐

cluded that “the potential for a physical altercation in com

‐ mitting such a crime is itself sufficient to determine it is a dan

‐

gerous crime.” The Board thus did consider Cisneros’s spe

‐

cific acts and found that the crime met the regulation based

on those acts. It did not end its analysis simply by pointing to

robbery as the crime of conviction. Given that the Attorney

General created the category of crime at issue here, and given14 No. 15

‐ 3238

her broad discretion, we cannot say that the Board’s determi

‐

nation that Cisneros’s crime was “violent or dangerous” was

impermissible.

D

Last, Cisneros argues that the Board erred by failing to

consider certain material facts in its hardship analysis. He

takes issue with the fact that the Board did not mention his

infant granddaughter’s recent traumatic and horrific death,

nor the fact that his ex

‐ wife testified that she might be home

‐

less without his financial support. But the Board is not re

‐ quired to recite every fact that Cisneros raised as evidence of

extreme hardship to his family. While Cisneros tries to char

‐

acterize the issue as a legal error, it is really a challenge to the

Board’s exercise of discretion and thus one that we are not

permitted to review. See Papazoglou v. Holder

, 725 F.3d 790,

794 (7th Cir. 2013) (because the Board applied the correct legal

standards, the petitioner’s argument “ultimately constitute[d]

a disagreement with the Board ʹ s exercise of discretion in re

‐ fusing to grant the waiver.”). While the “wholesale failure to

consider evidence” would be an error of law, see Iglesias v.

Mukasey

, 540 F.3d 528, 531 (7th Cir. 2008) (citation and quota

‐

tion marks omitted), the Board did not ignore “wholesale”

Cisneros’s evidence of hardship.

III

Because the Board made no legal error in reversing the im

‐ migration judge’s grant of relief from removal, we D ENY the

petition for review.