Miguel Perez-Montes v. JEFFERSON B. SESSIONS III, Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2520
MIGUEL PEREZ-MONTES,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United
States,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals.
No. A042 218 279.
____________________
ARGUED JANUARY 3, 2018 — DECIDED JANUARY 24, 2018
____________________
Before EASTERBROOK and SYKES, Circuit Judges, and
REAGAN, District Judge.*
EASTERBROOK, Circuit Judge. Miguel Perez-Montes, a citi-
zen of Mexico, entered the United States in 1989 as a lawful
permanent resident. In 2001 he joined the Army and later
served two tours in Afghanistan. He received a general dis-
* Of the Southern District of Illinois, sitting by designation.

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2 No. 17-2520
charge under honorable conditions. During all the years he
could do so, he did not apply for citizenship. His eligibility
ended in 2010, when he was convicted of a cocaine offense.
That conviction led to removal proceedings and made Perez-
Montes ineligible for most forms of relief.
Aliens convicted of aggravated felonies remain eligible
for deferral of removal under the Convention Against Tor-
ture. Perez-Montes contended that he was at risk of being
tortured or killed in Mexico because his military training
would lead drug gangs to recruit him. If he refused to coop-
erate—he says that he would not cooperate and that the po-
lice would fail to protect him—he would be harmed. He also
asserted that the Mexican government tortures its citizens
who return after serving in the U.S. military. An immigra-
tion judge concluded that Perez-Montes had not established
a substantial risk that he would be targeted by gangs or
harmed if he refused to help them. The IJ added that, if ap-
proached by gangs, Perez-Montes could move to parts of
Mexico where they don’t operate, and that there is no evi-
dence that Mexican officials mistreat former soldiers. The
Board of Immigration Appeals agreed with the IJ and left the
removal order in place.
Perez-Montes does not contend that the administrative
decision is unsupported by substantial evidence. Instead he
makes a purely legal argument: that both the IJ and the BIA
misunderstood the burden that an alien faces when seeking
relief under the Convention. Regulations require an alien to
show that torture is “more likely than not”. 8 C.F.R.
§§ 1208.16(b)(1)(iii), (b)(2), (c)(2), (c)(4), 1208.17(a). Perez-
Montes contends that the Board and the IJ erred by asking,
instead, whether he faced a “substantial risk” of torture in

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No. 17-2520 3
Mexico. That differs from the regulatory standard, he as-
serts, and saddled him with a greater burden.
The IJ and BIA did not pluck this phrase out of the air. It
comes from Rodriguez-Molinero v. Lynch, 808 F.3d 1134, 1136
(7th Cir. 2015), which discussed the fact that the regulatory
phrase sometimes has been seen as requiring statistical proof
that quantifies the precise risk an alien faces. Does the risk
exceed 50%? What if there is a 20% risk of death and a 40%
risk of bodily injury? Is that “more likely than not” when
neither risk exceeds 50%? Does a 20% risk of death exceed a
60% risk of losing a limb? Similar questions are easy to spin
out. The panel in Rodriguez-Molinero stated that a statistical
requirement cannot be taken seriously and that the best an
agency or court can do is look for substantial risk.
“More likely than not” is the standard burden in civil lit-
igation and does not impose a statistical or quantitative re-
quirement in a tort or contract suit any more than in a re-
moval proceeding. Our opinion in Rodriguez-Molinero did
not suggest that “substantial risk” means something more
than the “more likely than not” standard. It was designed,
rather, as a non-quantitative restatement of that standard. If
there is any gap between the two, it is in the direction of le-
nience to aliens, potentially treating (say) a moderate risk of
death as equivalent to a much greater risk of being beaten
up, and treating either as enough to allow the agency to
permit an alien to stay in this nation. We need not decide
whether there is a real, as opposed to linguistic, difference
between the phrase in the regulation and the phrase in Ro-
driguez-Molinero. Since Rodriguez-Molinero we have cited
both standards interchangeably. See Gutierrez v. Lynch, 834
F.3d 800, 804–06 (7th Cir. 2016); Velasquez-Banegas v. Lynch,

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4 No. 17-2520
846 F.3d 258, 261–62 (7th Cir. 2017); Orellana-Arias v. Sessions,
865 F.3d 476, 488 (7th Cir. 2017). No decision in this circuit
holds the regulation invalid or creates a standard incompati-
ble with it. If there is a difference, it is not one adverse to al-
iens. By reciting this circuit’s non-quantitative proxy for the
regulatory language, the IJ and BIA did not commit a legal
error.
The petition for review is denied.

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