Maricela Herrera-Ramirez v. Loretta Lynch
Filed opinion of the court by Chief Judge Wood. DISMISSED. Diane P. Wood, Chief Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6848058-1]  [16-4204]
United States Court of Appeals
For the Seventh Circuit
JEFFERSON B. SESSIONS III, Attorney General of the United
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A 205 153 425.
ARGUED MAY 17, 2017 — DECIDED JUNE 15, 2017
Before WOOD, Chief Judge, and MANION and HAMILTON,
WOOD, Chief Judge. Maricela Herrera-Ramirez is fighting
deportation from the United States. She is a citizen of Mexico,
but she has been living in this country without the right to do
so since she was six years old. She is married and has four
U.S.-citizen children. She found herself facing removal after a
violent incident on December 30, 2011, in which she was involved with a drive-by shooting near a Milwaukee bar where
she had been with her friends. State criminal proceedings followed, and in time she came to the attention of U.S. Immigration and Customs Service, known as ICE, which instituted removal proceedings against her. First an Immigration Judge
(IJ) and then the Board of Immigration Appeals (BIA) found
that her offense was a “particularly serious crime” for immigration purposes, and thus that she was ineligible for withholding of removal (the only possible relief). She has filed a
petition for review from that determination, but we conclude
we lack jurisdiction over it because there is no legal issue before us, and so we dismiss on that basis.
The underlying facts of Herrera-Ramirez’s offense are
straightforward. She was at the bar in Milwaukee with her
friends when the friends got into a fight with some other patrons. Herrera-Ramirez ushered her friends out of the bar and
into her car; she intended to drive away. One of the friends,
however, told her to drive past the other patrons who were
still standing outside the bar. She did so, and the passenger
rolled down the car window and shot two of the bystanders.
Herrera-Ramirez claimed that she initially had no idea that
the passenger had a gun or what he was planning to do. After
the shooting, Herrera-Ramirez drove off and dropped her
friends off somewhere. She did not contact the police, but the
police found her, arrested her, and found the gun in her car.
She was charged with, and convicted for, first-degree reckless
injury in violation of Wis. Stat. § 940.23(1)(a). The court sentenced her to 11 months in prison. She came to the attention
of ICE a short time after the shooting, and that led to the order
of removal she is challenging.
On a petition for review of a decision of the BIA, we have
jurisdiction over final orders, but our authority is not
unlimited. As relevant here, we may not second-guess the
Board’s decision that the crime of which a petitioner has been
convicted is a
“particularly serious” one, see
8 U.S.C. § 1252(a)(2)(B)(ii), unless the petitioner has raised a
question of law, see id. § 1252(a)(2)(D). We must therefore
decide whether Herrera-Ramirez has raised a legal question,
or if she is disputing only the Board’s discretionary
characterization of her offense.
As Herrera-Ramirez sees it, the critical issue is whether the
Board correctly interpreted the term “particularly serious
crime.” She emphasizes the fact that she was charged as a
party to the crime of first-degree reckless injury, not as the
principal offender. That much is true, but it does not help her.
Under Wisconsin law, all parties to a crime are principals for
liability purposes, even if they did not directly commit the
crime. Wis. Stat. § 939.05(1). The law defines as a party to a
crime any person who (a) directly commits the crime,
(b) intentionally aids and abets the commission of the crime,
or (c) is a party to a conspiracy to commit the crime or advises
another to commit it. Wis. Stat. § 939.05(2). At HerreraRamirez’s criminal trial, therefore, the jury needed only to
find that she did one of those three things in order to convict
her. In Holland v. State, 280 N.W.2d 288 (Wis. 1979), the
Supreme Court of Wisconsin noted that “the party to a crime
statute does not create three separate and distinct offenses.”
Id. at 293. See also State v. Zelenka, 387 N.W.2d 55, 60
(Wis. 1986); State v. Charbarneau, 264 N.W.2d 227, 229
(Wis. 1978). In short, nothing about the fact that HerreraRamirez was charged as a party to a crime prevented the
Board from regarding her level of culpability as significant
under the immigration laws. We note that even the shooter
was charged as a party to a crime.
Herrera-Ramirez also contends that she was just a minor
player in the unfolding violence—nothing more than an inadvertent aider and abettor who had no idea that the passenger
was going to shoot at the bystanders. But this is not a legal
argument; at best it is a characterization of the facts. (And
some of the facts are unfavorable to Herrera-Ramirez, including that she told police she realized her passenger had a gun
before the shooting, and that she thought that the passenger
meant only to rob the men standing outside the bar, not to
No rule of law prevents the Board from regarding
Herrera-Ramirez’s offense as “particularly serious.” Pertinent
regulations allow the Board to examine “the nature of the
conviction, the type of sentence imposed, and the
circumstances underlying facts of the conviction” in the
course of determining whether a crime meets that standard.
Estrada-Martinez v. Lynch, 809 F.3d 886, 889 (7th Cir. 2016)
(quoting In re N-A-M, 24 I. & N. Dec. 336, 342 (BIA 2007)). The
Board also is entitled to, and did, give weight to the elements
of the offense and the nature of the crime. N-A-M,
24 I. & N. Dec. at 342. At worst, it did not give as much weight
to Herrera-Ramirez’s supposedly peripheral role in the
offense as she would have liked. But that was a discretionary
decision beyond our authority to review.
Herrera-Ramirez also accuses the Board of totally ignoring
her argument that the evidence did not support a finding that
her offense was especially serious, and she points out that
such a claim describes a legal error. Delgado-Arteaga v. Sessions,
856 F.3d 1109, 1116–17 (7th Cir. 2017). The problem with this
point is that the Board did identify the evidence supporting
its determination. It noted the following facts about the offense: (1) it required that she have caused great bodily harm
under circumstances showing utter disregard for human life,
(2) it was a crime against a person, and (3) it involved driving
a car while another person shot a gun. It also quoted the IJ’s
conclusion that the offense “was a dangerous crime against
[sic] involving driving a motor vehicle through the city streets
while people in the car shot out a window.” HerreraRamirez’s argument that the Board ignored the fact that her
sentence was seemingly light and she was released early for
good behavior is similarly unfounded. It acknowledged these
facts at the beginning of its opinion, even though it did not
repeat them later during the discussion of what made the offense particularly serious.
We conclude by noting that Herrera-Ramirez would face
additional problems even if she had somehow surmounted
the jurisdictional barrier. She failed to present her argument
based on Wisconsin’s “party-to-the-crime” statute to the
Board, and so there is a serious question whether she properly
exhausted her remedies. See 8 U.S.C. § 1252(d)(1). The fact
that she complained more generally about the “particularly
serious” label would not be enough if it did not alert the Board
to the specific issue she had in mind. Finally, even if exhaustion did not block her case, she would still have to persuade
us that the Board abused its discretion when it refused to
place very much weight on her role in the offense. That, too,
is a heavy lift.
We need not resolve those issues, however, because we
lack jurisdiction over this petition for review. It is therefore
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