                             In the

United States Court of Appeals
                For the Seventh Circuit

No. 11-2576

C HEIKH L AM,
                                                        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. A076-765-699



    A RGUED JANUARY 6, 2012—D ECIDED O CTOBER 16, 2012




  Before M ANION and W ILLIAMS, Circuit Judges, and
C ASTILLO, District Judge.
 W ILLIAMS, Circuit Judge. After being found inadmissible
due to a 2002 conviction for fraud, Cheikh Lam sought




  The Honorable Ruben Castillo, United States District Court
for the Northern District of Illinois, Eastern Division, sitting
by designation.
2                                             No. 11-2576

a waiver of inadmissibility under section 212(h)(1)(B) of
the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(h)(1)(B). That section provides that a noncitizen
may obtain a waiver if he is the spouse, parent, son, or
daughter of a United States citizen or lawful permanent
resident who would suffer extreme hardship if the
noncitizen is removed. At a hearing, Lam and his
United States citizen wife presented evidence that his
wife suffered from depression and argued that she
would face extreme hardship if he were removed to
his native Senegal. Lam was also asked about the
events leading to his 2002 conviction. The Immigra-
tion Judge (“IJ”) found that Lam had not shown that
his wife would suffer hardship that reached the level
of “extreme,” and that he failed to show rehabilita-
tion because his testimony conflicted with a document
in the record related to an investigation of an incident
at a car dealership. Lam’s attorney failed to file a brief
on appeal, and the Board of Immigration Appeals
(“BIA”) dismissed the appeal.
  After Lam obtained new counsel, the BIA reinstated
the appeal but dismissed it after briefing, finding that
the IJ did not err in his hardship and credibility deter-
minations. Because we find that the IJ and BIA over-
looked material evidence related to Lam’s wife’s depres-
sion and improperly relied on a report to determine
that Lam failed to show rehabilitation, we grant Lam’s
petition for review, vacate his removal order, and
remand to the agency for reconsideration.
No. 11-2576                                                3

                   I. BACKGROUND
  Cheikh Lam, a native and citizen of Senegal, first
entered the United States on a visitor’s visa in 1994. In
1995, he adjusted his immigration status to that of full-
time student, and in 2000, he again adjusted his status
to become a lawful permanent resident (“LPR”) based
on his marriage to a United States citizen. His wife,
Ms. Sophia Lin, is a naturalized citizen of Taiwanese
descent, and the couple has two young United States
citizen children.
  In January 2002, Lam pled guilty to violating 18 U.S.C.
§ 1028(a)(7). The indictment charged Lam with having
“knowingly used . . . the name and social security
number of an individual . . . with the intent to commit . . .
forgery” and stated that the conduct took place in
Oak Park, Illinois. Lam was sentenced to three years of
probation and ordered to pay a $2,000 fine.
  In December 2004, Lam returned to Chicago from
a trip abroad, and immigration officials at O’Hare Inter-
national Airport, made aware of his conviction, de-
ferred his inspection. In March 2005, the Department of
Homeland Security (“DHS”) formally paroled Lam into
the United States, and served him with a Notice to
Appear, thereby placing him in removal proceedings.
Lam was designated as an LPR seeking admission to the
United States and was charged with inadmissibility
for commission of a crime involving moral turpitude
under section 212(a)(2)(A)(i)(I) of the INA, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I).
 Lam hired Guy Croteau to represent him before the IJ.
A master calendar hearing was held in May 2005, and
4                                             No. 11-2576

the IJ granted Lam a continuance and set a deadline
of September 20, 2005, by which a pre-hearing state-
ment with evidence of Lam’s eligibility for relief from
removal had to be filed with the court. No statement
was ever filed. On October 4, 2005, Lam, through
counsel, contested that his conviction was for a crime
involving moral turpitude. Lam’s counsel also informed
the court that despite not having filed a statement with
the court, Lam would seek relief under INA § 212(h)(1)(B),
8 U.S.C. § 1182(h)(1)(B), under which a noncitizen may
obtain a waiver if he is the spouse, parent, son, or
daughter of a United States citizen or LPR who would
suffer “extreme hardship” if the noncitizen is removed.
  After a number of continuances, the next hearing
took place in April 2007. At that hearing, Croteau
informed the court that his client would not appear
because Croteau failed to review with Lam a change in
the hearing date. The IJ noted that Croteau appeared
to have committed “a serious dereliction of duty” by
failing to communicate the correct hearing date to his
client. Nevertheless, the IJ waived Lam’s appearance
for the hearing and found that the charge of inadmissi-
bility was established because Lam’s conviction con-
stituted a crime involving moral turpitude. The IJ re-
marked that Lam appeared prima facie eligible for a
§ 212(h) waiver and carried the case over for con-
sideration of that form of relief.
  At a hearing in June 2008, Lam was present, but
his counsel was not. Lam was informed after calling
No. 11-2576                                               5

Croteau’s office that his counsel had been hospitalized.1
At a final hearing in September 2008, the IJ heard testi-
mony on Lam’s § 212(h) waiver application. Lam
testified that he and his naturalized wife had two
United States citizen children, then two years old and
two weeks old. He stated that he had supported his
family but that when he lost his permanent residency
card, he was unable to work. He also said that the
family began to rely on his wife’s salary as an adjunct
professor, but at the time of the hearing nobody in the
family worked because his wife had just given birth.
Lam said that the bank had begun foreclosure pro-
ceedings on the family home. He also stated that if he
were removed, neither his wife nor his children would
live with him in Senegal because of discrimination
there against people of Taiwanese descent. He testified
that his wife had undergone psychiatric counseling and
was depressed. Lam stated that he volunteers in the
community and assists in a soup kitchen.
  Lam’s wife, Ms. Lin, testified that she had been in
denial about her depression and that because of Lam’s
removal proceedings, “everything snowballed into post-
partum depression.” She testified that the family
faced financial difficulties because her husband could
not obtain employment with his current status and that


1
  The IJ continued the case for two weeks and instructed
Croteau’s office to provide a doctor’s letter regarding his
absence. At the next hearing date, Croteau failed to provide
a doctor’s note. On August 7, 2008, he eventually provided
medical records regarding his absence.
6                                             No. 11-2576

she only had a part-time, adjunct position at an art col-
lege. She denied knowing the details of Lam’s crim-
inal conviction.
  Lam testified about both the events leading to the
conviction and a prior arrest, but the record is not
entirely clear as to when he is referring to which inci-
dent. (We discuss Lam’s testimony in greater detail
below). The IJ found the testimony “not credible and
not plausible” based on a document in the record that
purported to be a United States Secret Service investiga-
tion of his conduct. Relying on the document, the IJ
found that Lam had not shown rehabilitation. The IJ
also found that Ms. Lin had not shown “credible evi-
dence” that she would face ethnic discrimination in
Senegal and stated that her “stress” did not render
her hardship extreme. The IJ therefore denied Lam
relief under INA § 212(h).
   Lam sought to appeal the decision of the IJ. In
October 2008, Croteau, Lam’s attorney, filed a Notice
of Appeal with the BIA indicating that a brief would
be filed. After receiving one extension, Croteau failed to
file any brief on Lam’s behalf. The BIA then summarily
dismissed Lam’s appeal. Lam then filed a Request for
Investigation with the Illinois Attorney Registration
Disciplinary Commission (“ARDC”). (ARDC complaints
alleging misconduct had already been filed against
Croteau in at least five other cases.)
  After obtaining new counsel, Lam filed a Motion to
Reopen and Remand with the BIA in March 2010, alleging
ineffective assistance by his previous counsel. The BIA
No. 11-2576                                            7

granted the motion and reinstated the prior appeal.
Lam’s new counsel submitted a brief along with
additional evidence that Lam’s previous counsel failed
to provide, including country condition reports and
medical records relating to Ms. Lin’s depression. Lam
alleged that the IJ erred in finding that his qualifying
relatives would not suffer “extreme” hardship, and that
the IJ improperly relied on the record in finding a lack
of rehabilitation. He also argued that the failures of
his previous counsel prejudiced his previous relief ap-
plication.
  A three-member panel of the BIA dismissed Lam’s
appeal, finding that the IJ did not clearly err in its
adverse credibility determination or in finding that
Lam failed to show rehabilitation based on his incon-
sistent testimony, which was “unrelated to any actions
of previous counsel.” It also found that the new
evidence of hardship submitted on appeal did not
warrant further proceedings or remand. This petition
for review followed.


                    II. ANALYSIS
 A. This Court Has Jurisdiction to Examine Errors
    of Law
  We begin our analysis with the question of jurisdic-
tion. Section 242(a)(2)(B) of the INA generally deprives
courts of jurisdiction to review discretionary denials
of immigration relief. 8 U.S.C. § 1252(a)(2)(B); see also
Ali v. Achim, 468 F.3d 462, 465 (7th Cir. 2006). We may
review the discretionary decision to deny a waiver of
8                                              No. 11-2576

inadmissibility only where the petition for review raises
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D); see also Khan v. Mukasey, 517 F.3d 513,
517 (7th Cir. 2008). As such, we lack jurisdiction to
review the Attorney General’s exercise of discretion
when denying a waiver of inadmissibility, but we re-
tain jurisdiction to examine whether an error of law oc-
curred. See Khan, 517 F.3d at 517 (citing Ali, 468 F.3d at
465). That error could be a misinterpretation of a stat-
ute, regulation, or constitutional provision, but it could
also include a misreading of the BIA’s own precedent,
the BIA’s use of the wrong legal standard, “or simply
a failure to exercise discretion or to consider factors
acknowledged to be material to such an exercise.” Huang
v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008) (citations
omitted). That error could also be overlooking a peti-
tioner’s evidence. Escobar v. Holder, 657 F.3d 537, 544
(7th Cir. 2011) (“Even though our review is deferential,
the [Board] may not simply overlook evidence in the
record that supports the applicant’s case.” (internal
quotations and citation omitted)); Iglesias v. Mukasey, 540
F.3d 528, 531 (7th Cir. 2008) (“[A] claim that the BIA
has completely ignored the evidence put forth by a peti-
tioner is an allegation of legal error.”).


    B. The Immigration Judge and Bureau of Immigration
       Appeals Overlooked Key Evidence
  The grant of a waiver of inadmissibility requires both
a finding of extreme hardship for a qualifying relative and
No. 11-2576                                             9

the favorable exercise of discretion. See INA § 212(h);
8 U.S.C. § 1182(h). Here, the IJ denied the waiver on
both grounds, finding that the hardship suffered by
Lam’s family would not be “extreme,” and that Lam
did not warrant a discretionary waiver because of his
lack of rehabilitation. For us to have jurisdiction over
the claim, Lam must show a colorable claim that legal
error occurred with respect to both findings.
   Lam argues that the IJ and BIA overlooked key
evidence related to the extreme hardship claim. Ms. Lin
testified that she “was already depressed before [she]
had the children,” and that after the birth of her first
child, she “saw a spike in the problem after [her]
first pregnancy” and suffered from “severe” postpartum
depression. She also testified that she “cannot care for
two children on [her] own, psychologically.” She stated
that her doctor had recommended medication, but at
the time of the hearing, she had just given birth and
was reluctant and was “being cautious about medica-
tion at [that] point.” Lam submitted a letter from his
wife’s psychologist, who stated that Ms. Lin suffered
from “severe” postpartum depression and that she
was “truly psychologically unable to care fully” for their
children. Her psychologist also stated that Lam’s
removal would place Ms. Lin “in extreme psychological
distress.”
  In finding that the hardship Ms. Lin would suffer
was not “extreme,” the IJ only stated that the family is
“currently stressed” and that Ms. Lin faces “psychological
stress” because of the removal proceeding. The IJ did not
mention or discuss Ms. Lin’s depression. By only briefly
10                                              No. 11-2576

referencing her “stress,” and even so, only “stress” related
to the removal proceeding, the IJ ignored evidence
that was material to the finding of extreme hardship.
As we have previously held, “failure to exercise discre-
tion or to consider factors acknowledged to be material
to such an exercise—such as the wholesale failure to
consider evidence—[is] an error of law. . . .” Iglesias,
540 F.3d at 531 (internal quotation marks and citations
omitted); see also Champion v. Holder, 626 F.3d 952,
956 (7th Cir. 2010) (finding jurisdiction and remanding
to the BIA where the IJ and BIA “virtually ignored”
and “failed to consider” evidence related to hardship
for cancellation of removal).
  The government argues that the BIA considered such
evidence, but the BIA only referenced Ms. Lin’s depres-
sion when discussing Lam’s ineffective assistance
of counsel argument. Even then, the BIA only mentioned
in passing Ms. Lin’s “depression following the birth of
her child.” Ms. Lin, however, testified to depression
prior to her pregnancies, throughout her second preg-
nancy, and after the (then recent) birth of her second
child. We do not find such a passing reference in the
ineffective assistance context to be consideration of
this critical component of the “extreme hardship” analy-
sis. Where the IJ and BIA overlook such evidence, an
error of law occurs and the proper remedy is a remand
for reconsideration. Champion, 626 F.3d at 956-57; see
also Kone v. Holder, 620 F.3d 760, 763-64 (7th Cir. 2010);
Huang, 534 F.3d at 620 (stating that a failure to consider
factors acknowledged to be material to an exercise of
discretion amounts to legal error).
No. 11-2576                                            11

 C. The Immigration Judge Relied on Improper Evi-
    dence
  We turn next to the IJ’s discretionary denial of the
§ 212(h) waiver. The IJ found that Lam failed to show
rehabilitation because he was not “forthright and cred-
ible in his testimony about the activities which cul-
minated in his conviction.” At the hearing, Lam’s counsel
asked him about his 2002 federal fraud conviction.
Lam testified that a friend named “Oliver” had paid
him $200 to pick up an Isuzu at Oak Park Suzuki. Ac-
cording to Lam, Oliver had given the dealership a fake
name. When Lam went to retrieve the car, he signed
Oliver’s name on the vehicle registration card and was
subsequently arrested by the Oak Park Police.
  At the hearing, Lam’s counsel introduced into evi-
dence a four-page document that appears to be the
second of two reports from the Chicago field office of the
United States Secret Service summarizing an investiga-
tion that followed Lam’s arrest by authorities in Oak
Park, Illinois. That document states that Lam contacted
Gateway Chevrolet-Oldsmobile in April 2001 about the
purchase of a car. On April 3, 2001, Ken Mizdrak, a sales-
man at the dealership, met with Lam’s co-signer, an
“Aaron Meyer.” A week after Lam purchased a 1997
Lexus ES300, he began having difficulty with the en-
gine. Mizdrak offered to replace the vehicle with an
Isuzu Vehicross and met with Meyer to get the neces-
sary paperwork signed. Although the document notes
that federal authorities arrested Lam for fraud on June 4,
2001, it does not indicate what the act of fraud was. A
12                                              No. 11-2576

separate arrest report in the record shows that local
police arrested Lam on May 11, 2001, in Oak Park on a
forgery charge.
  The government did not submit at the hearing (or on
appeal) the full record of conviction from Lam’s guilty
plea, so there is no plea agreement or colloquy that
might shed light on the facts leading to Lam’s conviction.
The indictment only states that on May 11, 2001, in
Oak Park, Illinois, Lam “knowingly used, without lawful
authority, a means of identification of another person . . .
with the intent to commit, and to aid and abet, an
unlawful activity that constituted a felony under the
laws of the State of Illinois, namely forgery.” The
judgment does not provide the factual basis of the
plea either. At oral argument, the government did not
have any further insight to offer about the actual events
that led to Lam’s conviction and conceded that on the
basis of the current record, the underlying facts of
Lam’s conviction are unknown.
  We have held that an IJ may rely on hearsay evidence
“so long as it’s probative and its use is not funda-
mentally unfair.” Ogbolumani v. Napolitano, 557 F.3d 729,
734 (7th Cir. 2009) (citing Olowo v. Ashcroft, 368 F.3d
692, 699 (7th Cir. 2004)). Here, the lack of probative
value of the Secret Service document is clear on its
face: it has to do with events at a Gateway Chevrolet-
Oldsmobile dealership—a dealership that Lam acknowl-
edged in his testimony (and the government does not
contest) is located on North Milwaukee Avenue in the
Jefferson Park neighborhood of Chicago, approximately
No. 11-2576                                           13

nine miles north of Oak Park and under the jurisdiction
of the Chicago Police Department. Given that the indict-
ment states that the events underlying the federal
charge occurred in Oak Park, Illinois, the Secret Service
document was not a proper source on which to rely to
find discrepancies in Lam’s testimony regarding his
federal conviction.
   The government argues that Lam’s testimony on cross-
examination itself is enough to support the IJ’s exer-
cise of discretion and strip us of jurisdiction. But the
only thing that Lam’s testimony reveals is his
(and possibly the government’s) confusion regarding the
Gateway dealership incident. It is clear from the rec-
ord that there were two dealerships involved and that
the IJ relied on improper evidence in making his discre-
tionary determination that Lam failed to exhibit rehabil-
itation. Because Lam is not disagreeing with the weight
that the IJ and Board placed on the evidence, see Huang,
534 F.3d at 621, but on mischaracterization of the docu-
ment as impeachment evidence, we have jurisdiction
over Lam’s claim. We find that reliance on the docu-
ment was improper. It is not clear to us whether the IJ’s
discretionary determination would stand without re-
liance on the improper evidence, so we remand to the
BIA for reconsideration.


                  III. CONCLUSION
  For the reasons set forth above, we G RANT Lam’s
petition for review, V ACATE the order of removal, and
14                                      No. 11-2576

R EMAND to the agency for reconsideration of Lam’s
application for a waiver of inadmissibility.




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