In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2673
G UILLERMO A GUILAR-M EJIA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A071-312-010
A RGUED JANUARY 19, 2010—D ECIDED A UGUST 6, 2010
Before B AUER and W OOD , Circuit Judges, and K ENNELLY,
District Judge.
W OOD , Circuit Judge. Guillermo Aguilar-Mejia, also
known as Williams Oswaldo Aguilar-Mejia, is fighting
removal from the United States. He came to this country
Hon. Matthew F. Kennelly, District Judge for the Northern
District of Illinois, sitting by designation.
2 No. 09-2673
in the late 1980s, and was removed to Mexico in 1995.
He returned shortly thereafter and has remained here
ever since. Life is hard for Aguilar-Mejia. He was diag-
nosed with HIV/AIDS and, later, with a debilitating
viral disease that causes the brain’s white matter to de-
teriorate. Thankfully, Aguilar-Mejia has found the sup-
port of various organizations and persons in the Chicago
area that have provided him with the medical, economic,
and psychological support he needs. After a 2008 arrest,
however, the Department of Homeland Security sought
to have him removed based on, among other grounds,
a previous conviction for drug possession.
Aguilar-Mejia did not challenge the charges before
the Immigration Judge (“IJ”), but he argued that he quali-
fied for withholding of removal and protection under
the Convention Against Torture (“CAT”). Aguilar-Mejia
focused on the threat of persecution against perceived
homosexuals and persons suffering from AIDS. An IJ
in Chicago found Aguilar-Mejia removable and denied
his application for withholding of removal because he
failed to establish a pattern or practice of persecution
against those groups in the designated countries. The IJ
also denied the CAT claim. Aguilar-Mejia appealed to
the Board of Immigration Appeals (“BIA”), but the BIA
affirmed the IJ. Now he has filed a petition for review
with this court. Aguilar-Mejia faces a troubling predica-
ment, but our review is tightly constrained. Because
we conclude that we lack jurisdiction over Aguilar-
Mejia’s factual and legal claims, we dismiss the petition
for review.
No. 09-2673 3
I
Aguilar-Mejia was born in Colombia and raised in
Guatemala. He was abused by his mother and stepfather.
In 1988 or 1989, Aguilar-Mejia left Guatemala and trav-
eled through Mexico to the United States, eventually
settling in Chicago. In 1995, Aguilar-Mejia was con-
victed of possession of a controlled substance and re-
moved to Mexico. Sometime thereafter he reentered
the United States. He was arrested again in 1999, but
stayed in the country.
In the years that followed, Aguilar-Mejia began to
experience various symptoms that he was not able to
understand for a time. In 2005, the unfortunate truth
emerged: he was infected with HIV and had developed
AIDS. Later, he was diagnosed with Progressive Multi-
focal Leukoencephalopathy (“PML”), a rare and often
fatal viral disease characterized by progressive damage
of the brain’s white matter. This is a life-threatening
disease, as the description from the National Institute
of Neurological Disorders and Stroke makes clear:
Progressive multifocal leukoencephalopathy (PML)
is caused by the reactivation of a common virus in
the central nervous system of immune-compromised
individuals. . . . PML is most common among indi-
viduals with acquired immune deficiency syndrome
(AIDS). Studies estimate that prior to effective
antiretroviral therapy, as many as 5 percent of people
with AIDS eventually developed PML. For them,
the disease was most often rapidly fatal.
4 No. 09-2673
With current HIV therapy, which effectively restores
immune system function, as many as half of all
HIV-PML patients survive, although they some-
times have an inflammatory reaction in the regions
affected by PML. The symptoms of PML are the
result of an infection that causes the loss of white
matter (which is made up of myelin, a substance
th[at] surrounds and protects nerve fibers) in
multiple areas of the brain. Without the protection
of myelin, nerve signals can’t travel successfully
from the brain to the rest of the body. Typical symp-
toms associated with PML are diverse, since they
are related to the location and amount of damage
in the brain, and evolve over the course of several
days to several weeks. The most prominent symp-
toms are clumsiness; progressive weakness; and
visual, speech, and sometimes, personality changes.
The progression of deficits leads to life-threatening
disability and death over weeks to months.
See http://www.ninds.nih.gov/disorders/pml/pml.htm
(last visited Aug. 3, 2010).
Aguilar-Mejia has many of the symptoms that the
Institute described. He has had problems with his
memory, has been diagnosed with clinical depression,
has experienced various other health problems including
a severe stroke followed by a five-day coma, and has
attempted suicide at least once. The record in this case
is uneven because Aguilar-Mejia’s memory problems
make it difficult to determine all of the relevant facts.
In 2008, Aguilar-Mejia was arrested for possession of
false identification and drinking alcohol in public. Aguilar-
No. 09-2673 5
Mejia tried to excuse his conduct by saying that he
needed the ID in order to obtain an apartment. Following
that arrest, the government sought to remove him to
Guatemala, Colombia, or Mexico. It offered four bases
for the proposed action: seeking admission within
10 years of previous removal, 8 U.S.C. § 1182(a)(9)(A)(ii);
entering the United States without inspection, id.
§ 1182(a)(6)(A)(i); commission of a crime involving
moral turpitude, id. § 1182(a)(2)(A)(i)(I); and commission
of a controlled-substance offense, id. § 1182(a)(2)(A)(i)(II).
Aguilar-Mejia did not challenge these charges; in fact,
he conceded removability based on the crime of moral
turpitude and the controlled-substance offense. Instead,
Aguilar-Mejia requested withholding of removal and
protection under the CAT. His arguments focused exclu-
sively on his fear of future persecution based on his
membership in two groups: perceived homosexuals
and persons with AIDS. Aguilar-Mejia presented a volu-
minous written record, called five witnesses, and testi-
fied himself. The evidence established Aguilar-Mejia’s
diagnoses of HIV/AIDS and PML, his dire and deteri-
orating condition, the extensive medical treatment he
required to stave off death, the severe difficulty of ac-
cessing that treatment in the countries to which the
government was proposing to remove him, and the
societal stigma and mistreatment of people belonging to
the social groups he had identified. At all times, Aguilar-
Mejia (through counsel) argued that there was a pattern
or practice of persecution directed at the social groups
he had identified; he did not assert that there was any
reason that he would be singled out for persecution
6 No. 09-2673
more than others in his groups. When the IJ asked Aguilar-
Mejia’s counsel directly whether his claim was limited
to the “pattern-or-practice” theory, counsel answered in
the affirmative.
On February 13, 2009, the IJ issued an oral decision
denying relief. The IJ first found that Aguilar-Mejia was
removable on all four charges. Aguilar-Mejia does not
challenge any of these grounds for removal in his petition.
The IJ next turned to Aguilar-Mejia’s request for with-
holding of removal. Because Aguilar-Mejia did not
present evidence of past persecution, the IJ looked only
to future persecution based on the “pattern or practice” of
persecution of persons perceived to be homosexuals
and persons with AIDS in the countries designated for
removal. The IJ determined that Aguilar-Mejia qualified
as a member of both groups, and that these groups con-
stituted “social groups” for purposes of the withholding-
of-removal regulations. The IJ was sympathetic to Aguilar-
Mejia’s case, but in the end he decided that there
was not enough evidence of a pattern or practice of perse-
cution to warrant withholding of removal. Although the
IJ acknowledged the difficulty Aguilar-Mejia may face
in obtaining the necessary medications upon removal,
he decided that these circumstances did not establish
the threat of persecution required for withholding of
removal. The IJ also found that the CAT was inapplicable
because Aguilar-Mejia did not establish that the gov-
ernments of the target countries would commit or ac-
quiesce to the commission of torture against members
of either social group. The IJ noted that Aguilar-Mejia
No. 09-2673 7
was not eligible for asylum, because he did not file his
application within one year of entry into the United
States. (There was no evidence of changed country condi-
tions in the proposed recipient countries.)
Aguilar-Mejia appealed to the BIA, again arguing the
pattern-or-practice theory for withholding of removal.
The BIA agreed with the IJ. Aguilar-Mejia has now filed
a petition for review, with the help of the National Im-
migrant Justice Center (“NIJC”) as amicus curiae. He
asks this court to reject the IJ’s and BIA’s decisions on
withholding of removal, either based on the sufficiency
of the evidence or a claim of legal error. Aguilar-Mejia
did not raise any issues particular to the CAT or asylum
on appeal to the BIA, nor does he raise those issues in
this court. We conclude that we lack jurisdiction to
review the sufficiency of the evidence under the
statute, and that Aguilar-Mejia failed to preserve the
claim of legal error he raises in this court.
II
An applicant for withholding of removal must estab-
lish that “his or her life or freedom would be threatened
in the proposed country of removal on account of race,
religion, nationality, membership in a particular social
group, or political opinion.” 8 C.F.R. § 1208.16(b). Past
persecution creates a rebuttable presumption of the
threat of future persecution. Id. § 1208.16(b)(1). If the
applicant cannot show past persecution, then he or she
may present other evidence supporting an inference of
future persecution. Id. § 1208.16(b)(2).
8 No. 09-2673
Aguilar-Mejia’s request for withholding of removal is
based on a future-persecution claim. According to the
regulation, an applicant “may demonstrate that his or her
life or freedom would be threatened in the future in a
country if he or she can establish that it is more likely
than not that he or she would be persecuted on account
of . . . membership in a particular social group . . . upon
removal to that country.” Id. This provision calls for an
individualized assessment of the evidence that could
establish that a petitioner may suffer future persecu-
tion. The regulations go on to say, however, that the
agency “shall not require the applicant to provide evi-
dence that he or she would be singled out individually”
if he or she will, more likely than not, be associated with
a group that is the object of a pattern or practice of perse-
cution. Id. Both of these methods of establishing future
persecution are relevant to Aguilar-Mejia’s petition for
review.
Before assessing Aguilar-Mejia’s assertion that he is
entitled to relief because he faces future persecution,
we must establish the boundaries of our jurisdiction.
Congress has stripped courts of appeals of their juris-
diction to review most issues related to removal
orders for aliens convicted of certain crimes, including
controlled-substance offenses and aggravated felonies, as
well as removal orders based on discretionary decisions
of the Attorney General. 8 U.S.C. § 1252(a)(2)(B), (C). See,
e.g., Calcano-Martinez v. INS, 533 U.S. 348, 351 (2001);
Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (ap-
plying the jurisdiction-stripping statute to an alien re-
moved for commission of an aggravated felony whether
No. 09-2673 9
or not the agency made a discretionary decision). Our
review in these circumstances is limited to “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). See
Mireles v. Gonzales, 433 F.3d 965, 969 (7th Cir. 2006) (exer-
cising jurisdiction to address petitioner’s “constitutional
claims or questions of law,” and recognizing the lack
of jurisdiction over other claims); Hamid v. Gonzales,
417 F.3d 642, 645-47 (7th Cir. 2005) (same).
Aguilar-Mejia was found removable for, among other
reasons, his prior conviction for possession of a con-
trolled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). He
conceded this charge; this concession means that our
jurisdiction is limited to those portions of the petition
that raise constitutional claims or questions of law.
Returning to the two methods of establishing future
persecution, Aguilar-Mejia devotes a large portion of
his brief to evidence supporting the proposition that
there is a pattern or practice of persecution against his
social groups in the countries to which he might be re-
moved. Aguilar-Mejia may well be correct, but the prob-
lem is that this is a fact-based argument, and we have
no jurisdiction to entertain it. Section 1252(a)(2)(D) autho-
rizes review only over constitutional claims or questions
of law.
With respect to the other method of establishing perse-
cution, Aguilar-Mejia has raised a legitimate legal issue:
he argues that the agency made an error of law when
it looked only at the threat to his social group and failed
to make a finding on the individualized threat of future
10 No. 09-2673
persecution. In essence, this is a point about the agency’s
duty to consider issues that were not highlighted by
either party, and so it is worth a brief discussion. As
stated above, the regulation governing withholding of
removal provides that a petitioner may establish future
persecution either through the individual method or
the pattern-or-practice method. 8 C.F.R. § 1208.16(b)(2).
In Banks v. Gonzales, 453 F.3d 449 (7th Cir. 2006), we
held that the asylum regulations—which mirror the
withholding-of-removal regulations in all respects rele-
vant to this issue—require the agency to make a
finding on the pattern-or-practice theory whether or not
the petitioner draws the rule to the agency’s attention.
See 8 C.F.R. § 1208.13(b)(2)(iii) (“[T]he asylum officer or
immigration judge shall not require the applicant to
provide evidence that there is a reasonable possibility
that he or she would be singled out individually for
persecution if: (A) [t]he applicant establishes that there
is a pattern or practice in his or her country . . . of persecu-
tion of a group of persons similarly situated to the ap-
plicant . . . .”). Failing to heed the command of the regula-
tions is a legal error and grounds for the court of appeals
to grant the petition and remand the case for further
proceedings. See Banks, 453 F.3d at 452-55.
Banks argued that the agency focused only on the
individual threat of persecution and ignored the pat-
tern-or-practice theory. Aguilar-Mejia makes the op-
posite argument; he argues that the agency focused only
on the pattern-or-practice theory and ignored the indi-
vidual threat of persecution. Banks found that the ap-
No. 09-2673 11
plicable regulations required the agency to address pat-
tern-or-practice evidence, id. at 452-53, and Aguilar-Mejia
asks us to hold that the removal regulations command
the agency to address individualized evidence, again
regardless whether the petitioner asks for this relief.
Even if the argument that the regulations require the
evaluation of individual evidence is weaker than the
Banks case, the case for some individualized assessment
is not wholly without merit. The relevant paragraph’s
chapeau provides that “[t]he evidence shall be evaluated
as follows,” 8 C.F.R. § 1208.16(b) (emphasis added), and
Aguilar-Mejia has a point when he argues that it would
be odd to require the agency to evaluate generalizable
(pattern or practice) evidence but then to allow the
agency to ignore evidence specific to the petitioner
before it.
Even though this argument, advanced by both
Aguilar-Mejia and the NIJC, may rest on a serious ques-
tion of law, however, it runs up against another ob-
stacle. According to 8 U.S.C. § 1252(d)(1), the court of
appeals may review a final order of removal only if
the alien has exhausted the administrative remedies.
What it takes to exhaust those remedies sufficiently
will vary, depending on the circumstances. In Banks, for
example, we noted that “[a] litigant’s failure to remind
an IJ of some rule assuredly does not entitle the IJ to
contradict that rule,” 453 F.3d at 452, but we still required
the applicant to preserve the issue. See id. at 453 (“Banks
and her lawyer preserved the contention (the claim for
asylum on account of the Taylor government’s treat-
12 No. 09-2673
ment of its enemies); they did not need to cite each
source of authority supporting their position.”).
Here, Aguilar-Mejia did nothing of the sort. Throughout
his oral and written advocacy, Aguilar-Mejia’s counsel
exclusively argued the pattern-or-practice theory. After
hearing the evidence, the IJ summarized what he under-
stood to be Aguilar-Mejia’s argument: “that there’s a
pattern and practice of persecution against people with
AIDS or perceived homosexuality, therefore, members
of a particular social group.” The IJ sought confirmation
from Aguilar-Mejia’s counsel: “Is that your argument?”
Counsel replied: “That is exactly our argument, Your
Honor.” At oral argument before this court, Aguilar-
Mejia suggested that the IJ should have inferred the
individual-persecution argument from his presentation
of individualized evidence. But even if we were to
accept this argument with respect to the IJ, Aguilar-Mejia
also failed to preserve the argument on appeal to the
BIA; his brief to the BIA stated flatly “there is one
issue on appeal before the Board: Whether the immigra-
tion judge erred in determining that Respondent
had not met his burden of proof of establishing a
pattern and practice of persecution against members
of his recognized particular social group” under 8
C.F.R. § 1208.16(b)(2)(i). Issues not raised to the BIA
are not available for our review.
In short, Aguilar-Mejia did not preserve the individual-
persecution issue. We cannot say that the agency made
a legal error by failing to consider an argument when
it went out of its way to confirm that Aguilar-Mejia was
arguing only a different theory of the case.
No. 09-2673 13
Although we must deny Aguilar-Mejia’s petition, we
close by noting that we are aware of the exceptional
humanitarian concerns raised in this case. PML is an
extremely serious disease; Aguilar-Mejia’s condition is
severe, and could rapidly deteriorate if he loses his
access to the antiretroviral therapy discussed by the
National Institute of Neurological Disorders and Stroke,
supra. (Even with state-of-the-art therapy, his chances
of survival over the next year may be only 50-50.)
Because he is not only HIV-positive but also suffers
from full-blown AIDS, Aguilar-Mejia also needs medica-
tion that is likely not to be available to him if he is re-
moved. Missing his medication for even a brief period
could be a literal death sentence. As the IJ noted, “almost
all of [Aguilar-Mejia’s] witnesses testified that . . . the
treatment [for AIDS] is not easily accessed and not
readily available” in the countries designated for re-
moval. For these reasons, we respectfully encourage
the Attorney General, if asked by Aguilar-Mejia, to con-
sider “deferred action,” “humanitarian parole,” or any
other discretionary remedy that may be granted on hu-
manitarian grounds. See, e.g., Recommendation from the
CIS Ombudsman to the Director, USCIS, Apr. 6, 2007,
http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_
32_O_Deferred_Action_04-06-07.pdf (last visited Aug. 3,
2010) (describing the deferred action); Reno v. Ameri-
can-Arab Anti-Discrimination Comm., 525 U.S. 471, 484-85
(1999) (quoting 6 C. G ORDON, S. M AILMAN, & S. Y ALE-
L OEHR, IMMIGRATION L AW AND P ROCEDURE § 72.03[2][a]
(1998)) (same); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999)
(discussing humanitarian parole).
14 No. 09-2673
* * *
Aguilar-Mejia’s petition for review is D ISMISSED for
lack of jurisdiction.
8-6-10