Cordova-Soto v. Holder

• Decision Date: 15 October 2013
• Docket Number: No. 12–3392.,12–3392.
• Citation: 732 F.3d 789
• Parties: Gabriela CORDOVA–SOTO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

732 F.3d 789

Gabriela CORDOVA–SOTO, Petitioner,

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

No. 12–3392.

United States Court of Appeals, Seventh Circuit.

Argued July 10, 2013.

Decided Oct. 15, 2013.

Brian J. Murray, Attorney, Jones Day, Chicago, IL, for Petitioner.

Aaron D. Nelson, Attorney, Office of Immigration Litigation, Department of Justice, Washington, DC, for Respondent.

Karen Cassandra Tumlin, Attorney, National Immigration Law Center, Los Angeles, CA, for Amicus Curiae.

Before BAUER, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner Gabriela Cordova–Soto is a Mexican citizen whose parents brought her to the United States at the age of nine months. She eventually became a lawful permanent resident. In 2005 at age 27, however, she signed a written stipulation agreeing to removal to Mexico after she was convicted in state court for possession of methamphetamine. She believed, she says, based on legal advice from an immigration officer that she had no way to stay in the United States lawfully after that conviction.

Immediately after her removal, though, Cordova–Soto returned to the United States unlawfully. After she was discovered in 2010, her earlier removal order from 2005 was reinstated. See 8 U.S.C. § 1231(a)(5). She was again removed to Mexico. After that second removal, Cordova–Soto sought in 2011 to reopen the removal order entered back in 2005. An immigration judge and then the Board of Immigration Appeals denied her motion to reopen the 2005 removal order. Cordova–Soto has petitioned for judicial review. We conclude that her illegal reentry after her 2005 removal permanently bars reopening that earlier removal order. See 8 U.S.C. § 1231(a)(5). Accordingly, we deny her petition.

I. Factual and Procedural Background

Cordova–Soto entered the United States in 1978 as an infant and became a lawful permanent resident in 1991 at the age of 13. After moving to Kansas, she worked at fast food restaurants to support her family and eventually received her high school equivalency degree. In her late teens, she started using drugs and ran into trouble with the law. She was sentenced to six months in prison in 2002 for theft, served 60 days in prison in 2003 for passing a worthless check, and was given a 20–month suspended sentence in 2005 for possessing methamphetamine—a felony under state law. See Kan. Stat. § 65–4160 (2005).

As a result of those convictions, immigration authorities in 2005 acted to remove Cordova–Soto on three related but legally distinct grounds: (1) commission of an aggravated felony; (2) commission of two crimes involving moral turpitude; and (3) commission of a controlled substance offense. See 8 U.S.C. § 1227(a)(2)(A)(ii), (a)(2)(A)(iii), and (a)(2)(B)(i). At the time of these immigration charges, the circuit courts of appeals had split on whether a drug possession conviction like Cordova–Soto's that was a felony under state law but that would be a misdemeanor under federal law should be treated as an aggravated felony for purposes of federal immigration law. See 8 U.S.C. § 1101(a)(43); Lopez v. Gonzales, 549 U.S. 47, 52 & n. 3, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) (resolving circuit split and holding that such convictions were not aggravated felonies under immigration law). We ruled in early 2006 that state convictions for drug possession without intent to distribute were not aggravated felonies for immigration purposes. Gonzales–Gomez v. Achim, 441 F.3d 532, 535 (7th Cir.2006).

According to Cordova–Soto, though, during her removal proceedings in 2005 an immigration officer said that she “did not have any way to stay in the United States,” and she received similar advice from a legal aid organization. Believing that her case was hopeless, she signed a “Stipulated Request for Issuance of Final Order of Removal, [and] Waiver of Appearance and Hearing.” This form included an admission of the factual allegations in her Notice to Appear, a waiver of “any right to make application for any relief from removal including ... cancellation of removal,” and an acknowledgment that she signed the form “voluntarily, knowingly, and intelligently.”

Based on the stipulation, and without a hearing, an immigration judge ordered Cordova–Soto removed to Mexico in November 2005. According to the National Immigrant Law Center, which filed an amicus curiae brief in this case, immigration officers routinely give detained immigrants like Cordova–Soto misleading information about their legal rights when offering them stipulated orders of removal. We do not know this is so, but we will assume it is for purposes of this case.

Just three weeks after her removal, Cordova–Soto returned to the United States illegally and moved back to Kansas to live with her four U.S.-born children (then ages 9, 8, 8, and 1) and their U.S.-citizen father, whom she later married in 2009. As understandable as her illegal return may have been in human terms, her illegal return has decisive consequences in this case.

In 2010 immigration authorities discovered that Cordova–Soto had returned to the United States and took her into custody. The authorities reinstated the 2005 order of removal using an expedited process available for aliens who are removed and then return illegally. See 8 U.S.C. § 1231(a)(5).

Cordova–Soto was again removed to Mexico. From there, she appealed to the Board of Immigration Appeals, which dismissed her appeal. She then petitioned the Tenth Circuit to review the reinstatement of the 2005 order of removal and the underlying order of removal itself. The Tenth Circuit ruled that it lacked jurisdiction to review the 2005 order and rejected Cordova–Soto's argument attacking the reinstatement of that order. Cordova–Soto v. Holder, 659 F.3d 1029, 1035 (10th Cir.2011).

After the Tenth Circuit rejected her challenge to the reinstatement, Cordova–Soto filed a motion with an immigration judge to reopen her 2005 removal order. She argued that the standard 90–day deadline did not apply or was equitably tolled. She also asked that the order be reopened sua sponte because of the defects in the underlying order. (A request for sua sponte reopening is an oxymoron, but the odd concept seems to be well entrenched in immigration law.)

The immigration judge denied Cordova–Soto's motion on four grounds: (1) her motion was untimely, and she had not shown due diligence by “hiding out for five years” and not consulting a lawyer until she was detained; (2) a removal order could never be reopened after the alien's illegal reentry and reinstatement of the order, see 8 U.S.C. § 1231(a)(5); (3) her written stipulation was knowing and intelligent because, the immigration judge asserted, the legal advice she received was correct at that time; and (4) she had not shown exceptional circumstances that would justify reopening sua sponte.

The Board agreed with the immigration judge that the motion was untimely and added that there was no basis for equitable tolling without a claim of ineffective assistance of counsel or other reason to think she was unaware of the status of her case. The Board also agreed with the immigration judge that Cordova–Soto had not presented “exceptional circumstances” that warranted reopening sua sponte. Cordova–Soto now petitions for review of that denial of reopening of the 2005 removal order.

II. Venue

We begin our analysis with the threshold question of venue. The government has moved to have this case dismissed for improper venue or transferred to the Eighth Circuit. At the time of Cordova–Soto's 2005 removal order, removal proceedings like hers that began in Kansas (her state of residence) were adjudicated by the immigration court in Chicago. Three years later the immigration court in Kansas City, Missouri, assumed control over proceedings involving aliens residing in Missouri and Kansas. Cordova–Soto filed her 2011 motion to reopen in Chicago, but was told to re-file in Kansas City. She did so, and an immigration judge in Kansas City denied her motion to reopen.

A petition for review must be “filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” 8 U.S.C. § 1252(b)(2). This is not a jurisdictional statute, however, so we are not deprived of subject matter jurisdiction over the petition merely because Cordova–Soto's immigration proceedings were completed in the Eighth Circuit. See Thiam v. Holder, 677 F.3d 299, 301–02 (6th Cir.2012) (listing cases); see also Nwaokolo v. INS, 314 F.3d 303, 306 n. 2 (7th Cir.2002) (per curiam). When jurisdiction is absent, 28 U.S.C. § 1631 empowers us to transfer a case to a court with jurisdiction “if it is in the interest of justice.” We join other circuits that take guidance from § 1631 in assessing whether to transfer a case from one court, like ours, having jurisdiction to another that would also have proper venue. See Thiam, 677 F.3d at 302;Sorcia v. Holder, 643 F.3d 117, 122 (4th Cir.2011); Moreno–Bravo v. Gonzales, 463 F.3d 253, 262–63 (2d Cir.2006).

Based on a combination of several unusual features of this case, we conclude that the interest of justice favors keeping Cordova–Soto's petition in this court. First, although the government moved to transfer soon after the petition was filed, the case has now been briefed and argued. A transfer now would inconvenience both parties, occupy two courts, and delay resolution of the petition. See Moreno–Bravo, 463 F.3d at 262–63;Bonhometre v. Gonzales, 414 F.3d 442, 446 n. 5 (3d Cir.2005). Second, Cordova–Soto is represented by pro bono counsel located in Chicago, so transfer would impose increased costs and inconvenience on her attorneys, whereas the government litigates nationwide. See Thiam, 677 F.3d at 302;Sorcia, 643 F.3d at 122–24. Also, because this case originally started in Chicago, Cordova–Soto did not act unreasonably by filing her petition here. In light of this unusual history, we believe...