### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1689

A LEKSEY A RKADYEVICH R UDERMAN

,

Petitioner

,

v.

M ATTHEW G. W HITAKER

, Acting Attorney General of the United States,

Respondent

.

____________________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A076

‐ 054

‐ 163

____________________

A RGUED F EBRUARY 20, 2018

— D ECIDED J ANUARY 29, 2019

____________________

Before W OOD

, Chief Judge, and E ASTERBROOK and B ARRETT

,

Circuit Judges

.

B ARRETT

, Circuit Judge

. Aleksey Arkadyevich Ruderman is

seeking to avoid removal to Belarus, his native country. An

immigration judge ruled that Ruderman was inadmissible

under the Immigration and Nationality Act, 8 U.S.C.

§ 1182(a)(2)(B), and thus subject to removal. The judge also2 No. 17

‐ 1689

held that Ruderman was not eligible for a waiver of inadmis

‐ sibility and adjustment of status, cancellation of removal, asy

‐

lum, withholding of removal, or protection under the Con

‐

vention Against Torture. The Board of Immigration Appeals

agreed. In particular, it held that Ruderman had not raised

any meaningful challenge to his inadmissibility determina

‐

tion and that even if the immigration judge had applied the

wrong legal standard to determine that Ruderman was ineli

‐ gible for a waiver of inadmissibility, her alternative discre

‐ tionary denial made the error harmless.

Ruderman petitions us for review of those holdings, along

with others reached by the immigration judge and a ffi rmed

by the Board. While we largely agree with the Board’s analy

‐

sis, we hold that it was fl awed with respect to one issue: the

question whether Ruderman is statutorily inadmissible. We

therefore grant Ruderman’s petition and remand for the

Board to revisit that question and, if necessary, to decide

whether Ruderman is eligible for a waiver.

I.

Ruderman moved to the United States when he was nine

‐

teen to escape discrimination and violence directed at him on

account of his Jewish heritage. He moved from his native land

of Belarus, a former Soviet republic that declared independ

‐

ence during his childhood. In Belarus, Ruderman and his fam

‐ ily were targeted for abuse by Neo

‐ Nazis and pro

‐ Russia ad

‐

vocates who would shout profanities at them, perform the

Nazi salute, leave anti

‐ Jewish propaganda in their mailbox,

and throw bo tt les and stones at their home.

Ruderman received even worse treatment at school. His

(sometimes much older) classmates would bully and beat himNo. 17

‐ 1689 3

and the handful of other Jewish students. The head of the

school and the police were alerted but did nothing to address

the situation. One particularly severe a tt ack resulted in

stitches and a permanent scar, while another resulted in two

broken wrists that have bothered him ever since.

After a tt ackers broke Ruderman’s wrists, his parents sent

him to a private school where he would be safer. His time

there was cut short, however, by his father’s death. Arkady

Ruderman, a documentary fi lmmaker, died while fi lming a

piece on government corruption in Tajikistan—another for

‐

mer Soviet republic. Although government o ffi cials reported

that he was killed in a car accident, Arkady had previously

been detained and ba tt ered by the KGB, and eyewitnesses

said that they saw bullet holes in his dead body. Those reports

could not be con fi rmed because the police ordered that

Arkady’s casket remain closed at his funeral—and then at

‐

tended the event to make sure that it did.

Without Arkady’s income, Ruderman’s family could no

longer a ff ord his private school tuition, so Ruderman enrolled

at a di ff erent public school where he was subjected to familiar

anti

‐ Semitic verbal abuse. He became so afraid that in the

ninth grade he stopped a tt ending classes entirely and later

transferred to a technical school. There, in spite of continued

verbal abuse, he performed well and graduated with high

grades. Once out of school, however, he found that his Jewish

heritage made it di ffi cult for him to get a job.

Fed up with the abuse and intolerance, Ruderman fl ed to

the United States in 2001 under a provision known as the

Lautenberg Amendment, which lowers barriers to immigra

‐

tion for certain former soviet nationals. See Pub. L. No. 101

‐

167, tit. V, §§ 599D–E, 103 Stat. 1195, 1261–64 (1989) (codi fi ed4 No. 17

‐ 1689

as amended at 8 U.S.C. § 1157 note, § 1255 note). His life in

America got o ff to a rocky start; shortly after arriving he was

convicted of driving under the in fl uence of alcohol and sen

‐

tenced to court supervision. But over the next several years,

he found work as a cab driver and a security o ffi cer, met his

future wife Elena, and moved into an apartment with her and

her two children in Milwaukee.

In 2008, Ruderman struck and killed a pedestrian with his

vehicle while driving drunk. He accepted responsibility,

pleaded guilty to homicide by negligent operation of a vehi

‐

cle, and was convicted and sentenced to fi ve years in prison.

Following his release in 2013, he worked at a transportation

company—until U.S. Customs and Immigration Services de

‐

nied his adjustment

‐ of

‐ status application, causing his work

permit to expire.

In January of 2016, the government detained Ruderman

and began removal proceedings. The immigration judge ulti

‐ mately concluded that Ruderman was statutorily inadmissi

‐

ble because of his two convictions. The judge also denied

Ruderman’s applications for a waiver of inadmissibility, ad

‐ justment of status under the Lautenberg Amendment, cancel

‐

lation of removal, asylum, withholding of removal, and pro

‐

tection under the Convention Against Torture.

Ruderman appealed the immigration judge’s decision in

an extensive pro se brief and later in a second brief fi led by

pro bono counsel. The counseled brief supplemented certain

arguments that Ruderman had made in his initial brief but

conceded others. Signi fi cantly, the later brief conceded that

“[Ruderman’s] convictions for two crimes with an aggregate

prison sentence of fi ve years make him ‘inadmissible.’” That

concession contradicted Ruderman’s pro se argument that theNo. 17

‐ 1689 5

inadmissibility statute applies only when two or more convic

‐

tions each result in a sentence to con fi nement, and so Ruder

‐

man’s sole sentence to con fi nement—which imposed fi ve

years in prison—did not make him inadmissible.

The Board dismissed Ruderman’s appeal. First, it noted in

passing that Ruderman “ha[d] not raised any meaningful

challenges” to his inadmissibility, and thus the issue was

“waived.” Second, the Board adopted and a ffi rmed the immi

‐ gration judge’s denial of Ruderman’s applications for cancel

‐

lation of removal, withholding of removal, and protection un

‐

der the Convention Against Torture. Finally, the Board af

‐

fi rmed the denial of Ruderman’s request for a waiver of inad

‐ missibility and adjustment of status under the Lautenberg

Amendment. The Board bypassed Ruderman’s argument that

the immigration judge had applied the wrong standard to de

‐

termine whether Ruderman was eligible for a waiver of inad

‐ missibility and instead a ffi rmed the judge’s conclusion that,

even if Ruderman were eligible to be considered for a waiver,

she would exercise her discretion to deny him relief.

II.

Ruderman petitions us for review of the Board’s decision.

He takes issue with the Board’s conclusion that he waived his

opportunity to challenge his inadmissibility, and he argues

that the application of the wrong standard for determining his

eligibility for a waiver of inadmissibility contaminated the im

‐ migration judge’s discretionary denial of a waiver. He also

claims that the judge erred by holding—and the Board erred

by a ffi rming—both that his negligent homicide was “particu

‐ larly serious” and that he failed to show a “substantial risk”

that he would be tortured in Belarus.6 No. 17

‐ 1689

Because the Board provided its own analysis and also af

‐

fi rmed the immigration judge’s decision, we review both de

‐

cisions. Sobaleva v. Holder

, 760 F.3d 592, 596 (7th Cir. 2014).

A.

Ruderman argued in his pro se brief that he is not inad

‐

missible under § 212(a)(2)(B) of the Immigration and Nation

‐ ality Act, 8 U.S.C. § 1182(a)(2)(B), because he has only ever re

‐

ceived one sentence to con fi nement. The Act states that an im

‐ migrant is inadmissible to receive a visa or to be admi tt ed to

the United States if he is convicted of “2 or more of

‐

fenses

... for which the aggregate sentences to con fi nement

were 5 years or more.” Id. Ruderman interprets “sentences to

con fi nement” to require more than one custodial sentence. He

supports this reading by pointing to the word “aggregate,”

which he argues would be super fl uous if the statute could be

satis fi ed by a single sentence to con fi nement. Id. Because his

fi rst conviction—for driving under the in fl uence—did not re

‐

sult in con fi nement, he concludes that he is not inadmissible.

His pro bono counsel, however, conceded Ruderman’s inad

‐ missibility in a later

‐ fi led brief.

The Board did not address Ruderman’s inadmissibility ar

‐

gument, instead concluding that he had failed to raise any

meaningful challenges to his inadmissibility and so had

waived the issue. It appears likely that the Board reached that

conclusion on the basis of Ruderman’s counsel’s concession,

because Ruderman did raise the argument in several places—

including his notice of appeal and pro se brief, both of which

remained on the record. But the Board’s opinion did not oth

‐

erwise indicate whether the counseled brief superseded the

pro se brief.No. 17

‐ 1689 7

A later

‐ in

‐ time concession waives an issue in federal

court—but we do not know whether that is true before the

Board as well. On this record it is unclear why the Board con

‐

cluded that Ruderman waived his challenge, and the Board’s

failure to explain inhibits our review of the issue. See SEC v.

Chenery Corp.

, 332 U.S. 194, 196 (1947) (“[A] reviewing court,

in dealing with a determination or judgment which an admin

‐

istrative agency alone is authorized to make, must judge the

propriety of such action solely by the grounds invoked by the

agency. If those grounds are inadequate or improper, the

court is powerless to a ffi rm the administrative action by sub

‐ stituting what it considers to be a more adequate or proper

basis.”). We grant Ruderman’s petition and remand this issue

to the Board to clarify why it did not address Ruderman’s in

‐ admissibility argument.

B.

If on remand the Board con fi rms that Ruderman is inad

‐

missible, his application for a waiver of inadmissibility should

be reviewed under the correct legal standard. The immigra

‐

tion judge concluded that Ruderman was statutorily ineligi

‐

ble for a waiver because he did not show that his removal

would cause “extreme hardship” to his U.S.

‐ citizen wife. 8

U.S.C. § 1182(h)(1)(B). When a waiver is sought in conjunction

with an application for a status adjustment under the Lauten

‐ berg Amendment, however, there is no threshold eligibility

requirement; a waiver may be granted simply “for humani

‐

tarian purposes, to assure family unity, or when it is other

‐

wise in the public interest.” 8 U.S.C. 1255 note; see also 8 C.F.R.

§ 1245.7(d). The immigration judge erred by not considering

Ruderman’s application under this less stringent standard.8 No. 17

‐ 1689

The Board concluded that this error was harmless because

the immigration judge held in the alternative that she would

exercise her discretion to deny Ruderman relief if he were el

‐ igible to be considered for it. The assumption seems to be that

the judge would have made the same discretionary denial of

a waiver under the Lautenberg Amendment as she made un

‐

der § 1182(h). But, as we have already noted, the former pro

‐

vides discretion to grant a waiver for humanitarian purposes,

to assure family unity, or when it is otherwise in the public

interest; the la tt er entails a potentially more complex consid

‐

eration of the ground for exclusion at issue, past immigration

violations or criminal history, evidence of rehabilitation, gen

‐

eral evidence of good or bad character, strength of family ties,

duration of residence in the United States, and evidence of

value to the community. See In re Mendez

‐ Moralez

, 21 I. & N.

Dec. 296, 301 (BIA 1996). Because these statutes, along with

the cases and regulations interpreting them, articulate distinct

factors to be considered in deciding whether to grant a discre

‐ tionary waiver of inadmissibility, the Board cannot simply

substitute one standard for another and assume that the out

‐

come would be the same. If the Board con fi rms Ruderman’s

inadmissibility on remand, it should consider his application

for a waiver under the proper framework.

C.

Ruderman’s other arguments go nowhere. First, he claims

that he is eligible for asylum and withholding of removal be

‐

cause he did not commit a “particularly serious crime.” 8

U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). Ruderman com

‐

mitted homicide by negligent operation of a vehicle, Wis. Stat.

§ 940.10(1); he argues that Congress did not intend for crimi

‐No. 17

‐ 1689 9

nal negligence like his to qualify as particularly serious. Gen

‐ erally, classification of a crime as “particularly serious” is

within the discretion of the Attorney General—exercised here

by the Board. Petrov v. Gonzales

, 464 F.3d 800, 802 (7th Cir.

2006). Our review of these classifications is confined to consti

‐

tutional and legal questions. 8 U.S.C. § 1252(a)(2); s ee also Es

‐

trada

‐ Martinez v. Lynch

, 809 F.3d 886, 892 (7th Cir. 2015). And

when those legal questions implicate ambiguous statutory

provisions, we give deference. See Chevron U.S.A., Inc. v. Nat.

Res. Def. Council, Inc.

, 467 U.S. 837, 842–44 (1984).

We considered the meaning of “particularly serious

crime” in some depth in Ali v. Achim

, 468 F.3d 462 (7th Cir.

2006). In that case, the petitioner argued that the Board could

not hold that his conviction for “substantial battery with a

dangerous weapon,” a nonaggravated felony, was a particu

‐ larly serious crime under § 1158(b)(2) and § 1231(b)(3) be

‐

cause it did not fall within the two categories of crimes iden

‐

tified as per se “particularly serious” in § 1158(b)(2): aggra

‐

vated felonies and other crimes that the Attorney General des

‐ ignates by regulation. Id. at 468–69. We disagreed, explaining

that the presence of these categories does not cabin the

Board’s discretion to determine that nonaggravated felonies

are particularly serious on a case

‐ by

‐ case basis. Id. at 469. In

the same way, the Board is not precluded from determining

that some crimes of negligence are particularly serious.

Nor does the Immigration and Nationality Act’s separate

definition of “serious criminal offense” undermine the

Board’s interpretation. The Act identifies “driving while in

‐

toxicated or under the influence of alcohol” as a serious crim

‐

inal offense if it “involves personal injury to another.” 8 U.S.C.

§ 1101(h)(3). Ruderman argues that “ particularly serious10 No. 17

‐ 1689

crime” must be interpreted to require more. Maybe so. But

even if he’s right, criminally negligent homicide entails more

than mere “personal injury,” so the argument is a dead end.

Finally, even if § 1158(b)(2)(A)(ii) and § 1231(b)(3)(B)(ii)

were ambiguous as to whether crimes of negligence could be

“particularly serious,” Ruderman has not shown that the

Board’s interpretation is too unreasonable to merit deference

under Chevron

. See Ali

, 468 F.3d at 470. Nor has he shown that

the Board’s interpretation is so likely to con fl ict with the Con

‐

stitution or international law that we need to consider

whether some other interpretation is warranted.

D.

Finally, Ruderman contends that the Board should have

granted him protection under the Convention Against Tor

‐

ture, 8 C.F.R. §§ 1208.16–18. The Convention forbids the re

‐

turn of “a person to another State where there are substantial

grounds for believing that he would be in danger of being

subjected to torture.” Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment art.

3(1), Dec. 10, 1984, S. Treaty Doc. No. 100

‐ 20 (1990), 1465

U.N.T.S. 85. Federal regulations de fi ne torture as requiring

“the consent or acquiescence of a public o ffi cial.” 8 C.F.R

§ 1208.18(a)(1). Immigration judges must withhold or defer

removal if an applicant demonstrates that “it is more likely

than not that he or she would be tortured if removed.” 8

C.F.R. § 1208.16(c)(2). We have explained that “more likely

than not” means that there is a “substantial risk” that the alien

will be tortured. Rodriguez

‐ Molinero v. Lynch

, 808 F.3d 1134,

1135–36 (7th Cir. 2015); see also Perez

‐ Montes v. Sessions

, 880

F.3d 849, 850 (7th Cir. 2018).No. 17

‐ 1689 11

Ruderman argues that the immigration judge both misun

‐

derstood and misapplied the “substantial risk” standard. But

there is no evidence of the former; the immigration judge

cited our decision in Rodriguez

‐ Molinero and proceeded to an

‐ alyze whether there was a substantial risk that Ruderman

would be subject to torture in fl icted by or with the consent of

a public o ffi cial if he returned to Belarus. See 8 C.F.R.

§ 1208.18(a)(1)–(2). And Ruderman fails to establish the la tt er.

We review the Board’s conclusion that there was no substan

‐

tial risk of torture under the “highly deferential substantial

evidence test,” which mandates denying the petition unless

“the record evidence compels a contrary conclusion.” Lopez v.

Lynch

, 810 F.3d 484, 492 (7th Cir. 2016) (citation omi tt ed).

The record evidence does not compel a contrary conclu

‐

sion. To be sure, certain fi ndings from the immigration judge

give us pause. For one, the judge concluded that there was no

substantial risk of torture for Jews in Belarus because, despite

“widespread anti

‐ Semitism in Belarus,” incidents targeting

Jews have been declining. While it is true that the raw number

of anti

‐ Jewish incidents in Belarus has declined, so has the

Jewish population. In this context, an absolute decrease in in

‐

cidents does not necessary equate to a relative increase in

safety for any individual. Nor does the evidence of Ruder

‐

man’s mother’s safe travel to and from Belarus mean that

Ruderman will be equally safe. His mother has a Christian

name that is not associated with her late husband, whereas

Ruderman’s patronymic clearly signals that he is both Jewish

and the son of a known political activist whom the KGB may

have tortured and killed. But on the other hand, there is evi

‐

dence that Ruderman became less susceptible to physical at

‐

tacks as he grew and became be tt er able to defend himself,

that no one in his family has been threatened in Belarus, and12 No. 17

‐ 1689

that he lived in Belarus for eight years following his father’s

death without any threat of torture on account of his relation

‐ ship to his father. Considering all the evidence, the record

does not compel the conclusion that there is a substantial risk

that Ruderman would be tortured if he returned to Belarus.

* * *

Ruderman’s petition for review is GRANTED.