Cruz–Moyaho v. Holder

• Decision Date: 18 December 2012
• Docket Number: Nos. 11–2716,12–1056.,s. 11–2716
• Citation: 703 F.3d 991
• Parties: Gavino CRUZ–MOYAHO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

703 F.3d 991

Gavino CRUZ–MOYAHO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 11–2716, 12–1056.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 2012.

Decided Dec. 18, 2012.

Royal F. Berg (argued), Attorney, Law Offices of Kenneth Y. Geman, Chicago, IL, for Petitioner.

OIL, Robert M. Stalzer (argued), Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, KANNE, and WOOD, Circuit Judges.

BAUER, Circuit Judge.

Gavino Cruz–Moyaho has been fighting his removal from the United States since 2005. He claims that his removal would lead to “exceptional and extremely unusual hardship” to his three United States-citizen children so his removal should be cancelled under 8 U.S.C. § 1229b(b). The immigration judge (IJ) denied Cruz–Moyaho's application for cancellation in October 2009, and the Board of Immigration Appeals (the BIA or the Board) affirmed the denial in August 2010. Now pending before us are two petitions for review resulting from a series of denied motions challenging subsequent decisions of the Board. We find that we lack jurisdiction over the majority of Cruz–Moyaho's claims. But for those claims we may consider, we find that the Board did not err in denying any of Cruz–Moyaho's motions and, therefore, deny the two petitions for review.

I. BACKGROUND

Cruz–Moyaho is a Mexican citizen who first entered the United States in June 1995. He did so “without inspection” and, therefore, was in the country illegally and was eligible for removal. See Marin–Garcia v. Holder, 647 F.3d 666, 668 (7th Cir.2011). Since then, Cruz–Moyaho has lived in the United States, notwithstanding the fact he may have traveled to and from Mexico on various occasions. And during this time, he has worked as a roofer, paid his taxes, and, together with his wife, raised three children—each of whom was born in the United States.

On October 28, 2005, the Department of Homeland Security (DHS) instituted removal proceedings against Cruz–Moyaho. DHS charged Cruz–Moyaho with being an alien in the United States without being admitted or paroled, subject to deportation pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA).

On July 6, 2006, Cruz–Moyaho admitted his unlawful status and conceded that he had no lawful right to remain in the United States. Instead, he filed an application for cancellation of removal under 8 U.S.C. § 1229b(b). This provision allows the U.S. Attorney General to cancel removal of an alien if the alien satisfies the following criteria: (1) he has been continuously present in the United States for ten years prior to seeking this relief; (2) he displays good moral character; (3) he has not been convicted of certain, specified offenses; and (4) his removal would result in “exceptional and extremely unusual hardship” to a qualifying relative, including his spouse, parent, or child. See Barma v. Holder, 640 F.3d 749, 751 (7th Cir.2011) (quoting 8 U.S.C. § 1229b(b)(1)). “Exceptional and extremely unusual hardship” has not been statutorily defined, but the Board has held that the standard requires the alien to prove “his qualifying relatives would suffer hardship that is substantially different from, or beyond, that which would be normally expected from the deportation of an alien with close family members [in the United States].” In re Monreal–Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001).

On October 27, 2009, the IJ, Craig M. Zerbe, issued an oral decision denying Cruz–Moyaho's application for relief. The IJ concluded that Cruz–Moyaho satisfied the first three elements but did not demonstrate that his three children would suffer exceptional and extremely unusual hardship. Cruz–Moyaho timely appealed to the Board, contending that the IJ failed to consider “the cumulative effect of the hardships” faced by his children. On August 12, 2010, the Board affirmed the IJ's decision.

Cruz–Moyaho challenged the Board's decision in a number of ways; the Government opposed all of them. He first petitioned us for review of the Board's decision, which was filed on September 7, 2010 (No. 10–3084).

With his petition still pending, Cruz–Moyaho filed a Motion to Reconsider (Reconsider # 1) with the Board on September 10, 2010; he included new information that discussed the increased violence in Mexico. This motion was followed by a Motion to Reopen (Reopen # 1), which was filed on November 12, 2010. Reopen # 1 cited two unpublished Board decisions: In re Frausto–Jaramillo, A097 330 776 (BIA 2010), in which the Board reopened proceedings of another Mexican citizen who had also unsuccessfully applied for cancellation of removal; and In re Salgado–Salgado, A037 726 749 (BIA 2009), in which the Board reopened the proceedings for an application under INA § 212(c), see8 U.S.C. § 1182(c) (repealed 1996). Reopen # 1 also discussed the additional Mexican-violence information included in Reconsider # 1.

On January 12, 2010, Cruz–Moyaho withdrew the petition for No. 10–3084 pursuant to Federal Rule of Appellate Procedure 42(b), and the case was dismissed.

The Board denied Reconsider # 1 and Reopen # 1 in a joint order issued on June 29, 2011. Because Reconsider # 1 contained new information about violence along the Mexican border, the Board considered the new information in conjunction with Reopen # 1. (A motion to reconsider is focused on errors of law; new facts and information should be introduced in a motion to reopen. See Ortega v. Holder, 592 F.3d 738, 746 n. 1 (7th Cir.2010).) Nonetheless, the Board denied Reconsider # 1 because Cruz–Moyaho failed to convince the Board that its decision on August 12, 2010, contained a procedural or substantive error. As it relates to Reopen # 1, the Board denied this motion as well because the new evidence, “at most, [showed] a generalized risk of harm” that was not unusual to Cruz–Moyaho's children. On July 27, 2011, Cruz–Moyaho petitioned for review of these decisions (No. 11–2716).

Continuing with his challenge, Cruz–Moyaho filed another motion with the Board on July 29, 2011. Cruz–Moyaho was prohibited from asking for reconsideration of Reconsider # 1, see8 C.F.R. § 1003.2(b)(2), so he asked the Board to reconsider its decision for Reopen # 1 (Reconsider # 2). He also asked the Board to use its discretion to reopen sua sponte, and included a message dated July 15, 2011, from the U.S. Department of State that discussed the increased violence in Ciudad Juárez, Mexico, resulting from recent drug-enforcement activity. Also attached to the motion was a Chicago Tribune article by Patricia Giovine with the headline “More Mexicans seeking U.S. asylum” and a TIME magazine article discussing the drug violence in Mexico. See Tim Padgett, Day of the Dead, TIME, July 11, 2011, at 26. (The additional information equated to a second Motion to Reopen (Reopen # 2).)

On December 22, 2011, the Board issued an order denying Reconsider # 2 and Reopen # 2. In the order, the Board said Cruz–Moyaho was not denied due process during his removal proceedings and he did not identify any material factual or legal errors in the Board's order of June 29, 2011. Insofar as Cruz–Moyaho's motion from July 29, 2011, contained new information, the Board denied Reopen # 2 as untimely and number-barred. See8 C.F.R. § 1003.2(c)(2). The Board also concluded that Cruz–Moyaho's situation was not “an exceptional situation” that warranted its sua sponte discretion. On January 9, 2012, Cruz–Moyaho filed a petition for review of the Board's order from December 22, 2011 (No. 12–1056).

We consolidated Nos. 11–2716 and 12–1056, and we shall now dispose of them.

II. DISCUSSION

Our review begins with the question of jurisdiction. Cruz–Moyaho's brief reads as if we were reviewing the original denial of his cancellation of removal and had the ability to review the IJ and the Board's fact-finding de novo;8 U.S.C. § 1252(a) prohibits courts from reviewing judgments regarding the granting of relief under § 1229b. Accordingly, we lack jurisdiction to review any claim in any of the motions or petitions that the IJ or the Board incorrectly held that Cruz–Moyaho's children would not experience exceptional and extremely unusual hardship if Cruz–Moyaho was deported. See Delgado v. Holder, 674 F.3d 759, 765 (7th Cir.2012). We have also held that “where we lack jurisdiction to review an underlying order, we also lack jurisdiction over appeals from denials of motions to reopen and reconsider those orders.” Bachynskyy v. Holder, 668 F.3d 412, 416 (7th Cir.2011).

Applying these rules, we conclude that we lack jurisdiction over the majority of Cruz–Moyaho's arguments that simply challenge the merits of the Board's orders. This includes his contentions that the Board “erred as a matter of law” by reaching decisions contrary to his position because they are merely factual disagreements disguised as legal contentions. See Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.2005) (stating that a petitioner cannot “shoehorn” a claim into a “question of law”). This also includes any contention that the Board failed to conduct a thorough review of the record, or as Cruz–Moyaho puts it, failed to “[t]ak[e] all the relevant factors in the aggregate.” See Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir.2006).

To the extent Cruz–Moyaho sets forth colorable arguments related to legal errors and constitutional claims arising out of the Board's orders from June 29, 2011, and December 22, 2011, we retain jurisdiction and will review them in turn. See8 U.S.C. § 1252(a)(2)(D); Ward v. Holder, 632 F.3d 395, 397 (7th Cir.2011). (Cruz–Moyaho withdrew No. 10–3084, so any arguments arising directly out of the IJ's October 27, 2009 oral decision or the Board's August 12, 2010 order are not properly before us and are rejected accordingly.)

A. Legal Errors—Failure to Consider Evidence

Arguments focused on legal errors are reviewed de novo, ...