NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 2, 2016
Decided March 17, 2016
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 15‐2336
JULIO ESTRADA‐HERNANDEZ, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A091‐335‐563
LORETTA E. LYNCH, Attorney
General of the United States,
Respondent.
O R D E R
Julio Estrada‐Hernandez is a 34‐year‐old Mexican citizen who has been removed
from the United States as an alien convicted of controlled‐substance offenses, a firearm
offense (an aggravated felony), and crimes involving moral turpitude. See 8 U.S.C.
§ 1227(a)(2). First an immigration judge and then the Board of Immigration Appeals
rejected his efforts to avoid removal, and so he has now turned to this court for relief. We
find no reason to upset the BIA’s decision, however, and so we deny his petition for
review.
No. 15‐2336 Page 2
I
Estrada‐Hernandez and his mother entered the United States unlawfully when he
was a small child. They adjusted their status to that of lawful permanent residents
(LPRs) in 1989, when Estrada‐Hernandez was seven. His mother became a naturalized
citizen when he was 16, but a quirk of immigration law prevented her naturalization
from conferring citizenship on him automatically. His parents were married, though
apparently not happily so. He could have become a citizen in one of two ways: either
both of his parents would have had to naturalize before he turned 18, or they would
have had to become legally separated. See Citizenship through parents,
https://www.uscis.gov/us‐citizenship/citizenship‐through‐parents (last visited Mar. 9,
2016). Neither of those things happened, however.
Over the next 15 years, Estrada‐Hernandez was convicted of several state crimes,
including three controlled‐substance violations, two retail theft convictions, and one
charge of felon‐in‐possession of a firearm. Eventually the Department of Homeland
Security’s Immigration and Customs Enforcement (ICE) section became aware of his
criminal record and his LPR status. ICE instituted removal proceedings against him in
January 2015, charging him with being removable as an alien who after admission to the
United States was convicted of three controlled‐substance crimes,
8 U.S.C. § 1227(a)(2)(B)(i), and one aggravated felony conviction stemming from a
firearm violation, id. § 1227(a)(2)(A)(iii). Estrada‐Hernandez was later charged with two
additional grounds of removal—one for a firearm violation, id. § 1227(a)(2)(C), arising
out of the same conviction as the aggravated felony charge, and one based on
convictions for two or more crimes involving moral turpitude, id. § 1227(a)(2)(A)(ii),
stemming from two shoplifting incidents.
At Estrada‐Hernandez’s removal hearing, the IJ informed him of his right to
representation at no cost to the government and asked whether he wished to have the
case continued in order to secure counsel. Estrada‐Hernandez did not respond; instead,
he asked why he was being detained and explained that he thought he had become a
citizen when his mother naturalized. The IJ explored the issue and determined that
Estrada‐Hernandez had never obtained citizenship because his parents had remained
legally married. The following colloquy then took place:
IJ: Well, it does not appear to me, sir, you are a citizen of the United States …
Do you want me to continue your case to give you more time to get a lawyer?
No. 15‐2336 Page 3
Estrada‐Hernandez (E‐H): No.
IJ: Do you wish then to represent yourself?
E‐H: Yes, I mean what other choices do I have?
IJ: Well, I’m willing to continue the case to give you time to contact the
lawyers on that list that you received or any other lawyer that you might wish to
contact.
E‐H: I’ve tried to—I’m sorry.
IJ: Or any other lawyer that you might wish—
E‐H: I’ve already contacted them.
IJ: If you wish to represent yourself today, it’s your right to do so. It includes
your right to speak on your own behalf and to present witnesses and evidence in
court. You have the right to inspect evidence that the Government presents
against you and you may object to such evidence by asking that the Court not
consider it. You have the right to question any witness who testifies in your case
and if this Court rules against you, you would have the right to appeal to a higher
court which is known as the Board of Immigration Appeals. Do you understand
these rights?
E‐H: Yes, sir.
The IJ then proceeded with the hearing, in the course of which
Estrada‐Hernandez admitted that he had been convicted of three state
controlled‐substance offenses (all involving possession of cocaine), retail theft, and
possessing a firearm as a felon. Estrada‐Hernandez could not remember the other theft
that was the basis for the charge of removability as an alien “convicted of two or more
crimes involving moral turpitude,” 8 U.S.C. § 1227(a)(2)(A)(ii), but the government
offered proof of that conviction by submitting court documents from Cook County. The
IJ asked Estrada‐Hernandez whether he feared being harmed if he were returned to
Mexico, even offering to continue the case to give him more time to consider whether he
wished to apply for asylum. Estrada‐Hernandez once again declined the IJ’s offer of a
continuance. The IJ then pronounced that he was removable on all four grounds charged
by the government and entered an order of removal.
Only then did Estrada‐Hernandez finally obtain counsel. He appealed to the
Board of Immigration Appeals, arguing that remand was warranted to allow him to
withdraw the admissions he had made while unrepresented. He asked the Board to
“issue a published decision requiring immigration judges to enter a contested plea to all
charges in the notice to appear when a noncitizen is appearing in pro per regardless of
the reason why he appears without counsel.” Due process requires such a rule, he
No. 15‐2336 Page 4
asserted, because asking uncounseled aliens to admit or deny the allegations against
them has the effect of shifting the burden of proof, rather than requiring the agency to
prove charges by clear and convincing evidence. Estrada‐Hernandez also argued that he
was not subject to removal for the aggravated felony conviction because his adjustment
of status does not qualify as an admission to the United States and thus
§ 1227(a)(2)(A)(iii)—which provides that “[a]ny alien who is convicted of an aggravated
felony at any time after admission is deportable” (emphasis added)—does not apply to
him. Finally he argued that the IJ erred in finding that his conviction for possessing a
firearm as a felon qualified as an aggravated felony because the state crime that was the
predicate for that conviction—possessing cocaine, 720 ILCS 570/402(c)—is punishable by
imprisonment for “one year or more,” rather than a term of more than one year, and
therefore the state crime “does not squarely ‘fit in’ within the express statutory language
of the federal definition.”
The Board rejected all of Estrada‐Hernandez’s arguments and upheld the removal
order. It concluded that Estrada‐Hernandez was afforded due process because the IJ
fully complied with the statutory requirement to inform him of his right to obtain
counsel, 8 U.S.C. § 1229a(b)(4), and offered repeatedly to continue the case to allow
Estrada‐Hernandez to obtain representation. The Board dismissed any suggestion that
the IJ shifted the burden of proof regarding the charges set forth in the Notice to Appear;
the government properly supported its charges with evidence of each conviction. As for
the question whether Estrada‐Hernandez’s firearms conviction was an aggravated
felony for immigration purposes, the Board observed that this court already had
resolved the question in the government’s favor. Negrete‐Rodriguez v. Mukasey, 518 F.3d
497 (7th Cir. 2008). The Board rejected Estrada‐Hernandez’s contention that he was not
removable under 8 U.S.C. § 1227(a)(2)(iii) because he was never “admitted” at a border;
it held that Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), establishes that
adjustment of status qualifies as an admission for purposes of § 1227(a)(2)(A)(iii).
II
Estrada‐Hernandez pins his hopes in this petition on his effort to persuade us that
the alleged “denial of the right to counsel,” which “includes the substantial interference
with that right,” amounted to “a denial of due process under the Fifth Amendment.” He
contends that the IJ “coerced and discouraged him from pursuing legal representation”
by informing him that he did not derive citizenship through his mother and then by
accepting admissions he made in the absence of counsel. And, he asserts, the IJ
“excus[ed] the Department from carrying on its own burden of proof” by finding him
No. 15‐2336 Page 5
removable based on his own admissions.
The suggestion of coercion is baseless. The IJ repeatedly offered to continue the
case so that Estrada‐Hernandez could try to contact a lawyer, but Estrada‐Hernandez
explicitly declined those offers, confirmed his wish to proceed pro se, and stated that he
already had contacted the pro bono attorneys on the list he had been provided.
Moreover, it would be impossible for Estrada‐Hernandez to show prejudice from
counsel’s absence, because the government presented evidence to support each
conviction. Although 8 U.S.C. §1229a(b)(4) confers a statutory right to hire one’s own
lawyer in an immigration hearing, that right is not derived from the Sixth Amendment
right to counsel in a criminal proceeding. The latter right does not apply to removal
proceedings, which are regarded as civil in nature. See Magala v. Gonzales, 434 F.3d 523,
525 (7th Cir. 2005); Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001); Leslie v. Att’y Gen. of the
United States, 611 F.3d 171, 180–81 (3d Cir. 2010). Due process protections do apply in all
civil proceedings, including removal hearings, Stroe, 256 F.3d at 500, but we presume
that any removal proceeding satisfies due process when it is conducted in accordance
with 8 U.S.C. §1229a(b)(4). That statute requires only that a noncitizen be given an
opportunity to hire a lawyer. Apouviepseakoda v. Gonzales, 475 F.3d 881, 884–85 (7th Cir.
2007). The IJ made it clear to Estrada‐Hernandez that he had this right.
Although Estrada‐Hernandez represented at one point that the sole issue on
appeal was his complaint about the supposed denial of counsel, he raises two other
arguments as well, both of which the Board rejected. First, without addressing the
Board’s contrary conclusion, he contends that he is not removable under
§ 1227(a)(2)(A)(iii), which applies only to aliens who have committed an aggravated
felony after admission. His theory is that his adjustment of status, which occurred after
he had entered the United States unlawfully, does not qualify as an “admission” under
8 U.S.C. § 1101(a)(13)(A). Ergo, he reasons, he committed no felonies, aggravated or
otherwise, after admission because he was never “admitted.” He bases this argument on
Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005), which he calls the “seminal case”
holding that an alien who is not inspected by an immigration officer at entry has never
been admitted and is not subject to removal under § 1227. Abdelqadar, Estrada says, has
been “consistently followed [in the Seventh Circuit], as it must, by a series of published
decisions with full unconditional approval.”
That is not what Abdelqadar holds. Indeed, it is distinctly unhelpful for
Estrada‐Hernandez. Citing Matter of Rosas‐Ramirez, 22 I. & N. 616 (BIA 1999) (en banc),
the Abdelqadar court endorsed the Board’s interpretation that, for an alien who had
No. 15‐2336 Page 6
entered the United States illegally, an adjustment of status is an “admission” for purpose
of § 1227(a)(2)(A)(iii) because the adjustment of status is the first point at which that
individual is lawfully in the United States. Abdelqadar, 413 F.3d at 672–73. Otherwise,
illegal entrants would be exempt from removal and would, paradoxically, enjoy greater
rights than lawful immigrants. Id. at 673; see also Ocampo‐Duran v. Ashcroft, 254 F.3d
1133, 1134–35 (9th Cir. 2001) (rejecting argument that alien who adjusted to lawful status
after illegal entry was never admitted for purposes of § 1227(a)(2)(A)(iii)).
Estrada‐Hernandez mistakenly relies on an inapposite passage from Abdelqadar, in
which we rejected the Board’s view that the word “admission” in another part of the
statute, § 1227(a)(2)(A)(i), referred to the most recent, rather than the initial, entry. 413
F.3d at 673–74. Indeed, we cautioned in Abdelqadar that “the whole point of contextual
reading is that context matters—and the context of the word ‘admission’ in [one part of
the statute] differs substantially from its context in [another].” Id. at 674. See Lemus‐Losa
v. Holder, 576 F.3d 752, 757 (7th Cir. 2009).
Estrada‐Hernandez argues finally that the Board erred by concluding that his
state conviction under 720 ILCS § 5/24‐1.1(a) for being a felon in possession of a firearm
qualifies as an aggravated felony for purposes of removal. See
8 U.S.C. § 1227(a)(2)(A)(iii). The state crime does not “squarely fit [ ] with the express
statutory language of [the analogous federal offense, 18 U.S.C. § 922(g)(1)],” he contends,
because his predicate state felony conviction for possession of cocaine is punishable by
imprisonment of not less than one year, while federal law defines a felony as a crime
punishable by a sentence of more than one year. But as the government correctly points
out, the relevant inquiry is whether the Illinois felon‐in‐possession offense (of which
Estrada‐Hernandez was convicted) qualifies as an aggravated felony, and this court has
already concluded that it does. See Negrete‐Rodriguez v. Mukasey, 518 F.3d 497, 500–02
(7th Cir. 2008).
Finally, it is worth noting that Estrada‐Hernandez challenges only the IJ’s finding
that he is subject to removal based on an aggravated felony conviction. He has not
challenged the IJ’s ruling that he was also subject to removal based on convictions for
two or more crimes involving moral turpitude, three controlled substance convictions,
and a conviction for a firearm offense. Given our finding that the removal proceedings
were not tainted by any due process violation and the ample support the government
furnished, we DENY the petition for review.