Cruz–Mayaho v. Holder

• Decision Date: 17 October 2012
• Docket Number: Nos. 10–1634,11–2914,11–3512.,s. 10–1634
• Citation: 698 F.3d 574
• Parties: Roberto CRUZ–MAYAHO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

698 F.3d 574

Roberto CRUZ–MAYAHO, Petitioner,

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

Nos. 10–1634, 11–2914, 11–3512.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 11, 2012.

Decided Oct. 17, 2012.

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

Franklin M. Johnson, Jr., Jessica R.C. Malloy (argued), OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Roberto Cruz–Mayaho has been fighting removal from the United States with every tool he can find, and then some. His is a somewhat unusual case, however, because (at least initially) he was neither claiming a right to asylum or related relief nor was he asserting that he has a right to adjust his status because of something like employment or a new marriage to a U.S. citizen. Instead, desperate to avoid being returned to his native Mexico, he has pursued cancellation of removal based on alleged “exceptional and extremely unusual hardship” to his young U.S.-citizen children. The Board of Immigration Appeals denied his original application in 2008, and since that time it has denied a long line of motions to reopen and to reconsider its ruling. The three petitions for review now before us are the latest to reach this court. In the hope that this will bring Cruz–Mayaho's saga to a close, we deny these petitions for review.

I

In January 1989, Cruz–Mayaho entered the United States for the first time. He did so “without inspection,” as the immigration authorities put it, and thus was in the country without proper authorization. See Marin–Garcia v. Holder, 647 F.3d 666, 668 (7th Cir.2011). He may have traveled to and from Mexico over the years, but the critical fact for our purposes is the issuance, on October 28, 2005, of a Notice to Appear, which is the document used by Immigration and Customs Enforcement (ICE), an agency located within the Department of Homeland Security, to initiate removal proceedings. When his case came before an immigration judge (IJ), Cruz–Mayaho applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b), a statute that gives the Attorney General discretionary power to allow an alien to remain in the United States if certain criteria are met. The IJ concluded that Cruz–Mayaho met the requirement of 10 years' continuous physical presence, that he was a person of good moral character, and that he had no disqualifying convictions on his record. But the final requirement is that the alien must “establish[ ] that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States.” § 1229b(b)(1)(D). This means, according to the Board, “hardship to his or her qualifying relatives that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.” In re Andazola–Rivas, 23 I. & N. Dec. 319, 321 (BIA 2002) (internal quotation marks omitted). Cruz–Mayaho was not able to point to anything out of the ordinary, and so the IJ denied his application for cancellation of removal. On July 17, 2008, the Board affirmed without opinion.

Cruz–Mayaho was not ready to give up, however, and so he tried to challenge the Board's decision in a number of ways. He began, appropriately enough, with a petition for review of the Board's decision; he filed that on August 14, 2008. We refer to it as Petition # 1. The next day, he filed a Motion to Reconsider with the Board; we refer to it as Reconsider # 1 and follow the same format for later such motions. On November 7, 2008, the Board denied Reconsider # 1; Cruz–Mayaho then, on November 12, 2008, filed Petition # 2 in this court, challenging the denial of his motion to reconsider. Before either of his two petitions was resolved, on January 26, 2009, he filed a Motion to Reopen (Reopen # 1) with the Board.

On August 11, 2009, this court dismissed Petitions # 1 and # 2 for lack of jurisdiction. See Cruz–Mayaho v. Holder, 341 Fed.Appx. 190 (7th Cir. Aug. 11, 2009). Shortly thereafter, on September 30, 2009, the Board denied Reopen # 1 as untimely and declined to use its discretion to reopen sua sponte. Cruz–Mayaho promptly followed up on October 29, 2009, with a motion to reconsider that decision, bringing us up to Reconsider # 2. The Board denied Reconsider # 2 in an order dated February 26, 2010. On March 16, 2010, Cruz–Mayaho filed a petition for review from the Board's rejection of Reconsider # 2 (Petition # 3). That was docketed as case 10–1634 in this court; it is the first matter before us now. Not content to put all of his eggs in that basket, however, on March 26, 2010, Cruz–Mayaho filed yet another motion to reconsider the denial of Reconsider # 2 (Reconsider # 3), and he added a new motion to reopen (Reopen # 2) in which he sought for the first time to apply for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Board denied Reconsider # 3 and Reopen # 2 in an order issued September 8, 2010. In that order, the Board construed the motion as solely one for reconsideration, and it denied it as numerically barred. Cruz–Mayaho filed a petition for review from that decision (Petition # 4). Without opposition from the government, this court on April 27, 2011, remanded Petition # 4 to the Board so that it could consider Reopen # 2.

That brings us to the final chapter. On August 4, 2011, the Board denied Reopen # 2 as untimely, numerically barred, unsupported by the evidence, and insufficient to support relief under CAT. Cruz–Mayaho filed Petition for Review # 5 from that decision on August 22, 2011; this petition is case 11–2914. Once again, Cruz–Mayaho coupled his petition with another effort at reconsideration: he filed Reconsider # 4 on August 29, 2011, as well as Reopen # 3 on the same date. The Board denied both of those motions on October 27, 2011, and Cruz–Mayaho filed Petition # 6 from that decision on November 7, 2011; this is case 11–3512. We have consolidated the three petitions for review now pending before us for disposition.

II

The Board had authority over Cruz–Mayaho's numerous motions to reopen and to reconsider under 8 C.F.R. § 1003.2(a) and 8 U.S.C. § 1229a(c)(6)-(7). The petitions for review before us were timely filed within 30 days of the Board's decisions. Our jurisdiction over these petitions, however, is limited by the immigration statutes. Under 8 U.S.C. § 1252(a)(2)(B)(i), we have no jurisdiction to review “any judgment regarding the granting of relief under ... 1229b [cancellation of removal],” except insofar as “constitutional claims or questions of law” are raised. 8 U.S.C. § 1252(a)(2)(D). Ordinarily, if we lack jurisdiction to review an order, then we also lack jurisdiction over motions to reopen or reconsider that order, see, e.g., Martinez–Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir.2006), but in light of the Supreme Court's decision in Kucana v. Holder, 558 U.S. 233, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), we have recognized that judicial review is foreclosed “only if the agency's rationale for denying the procedural request also establishes the petitioner's inability to prevail on the merits of his underlying claim.” Calma v. Holder, 663 F.3d 868, 876 (7th Cir.2011). As we put it in Calma:

[T]here are identifiable circumstances under which a critical procedural step in a removal proceeding, such as the denial of a continuance that is sought for purposes of allowing another agency to complete its review, the denial of a motion to reconsider, a refusal to remand, or a refusal to reopen a case, lies within our jurisdiction even though we are barred from evaluating the BIA's ultimate decision in the circumstances spelled out in § 1252(a)(2)(B)(i).... Sometimes review will be possible because ... the challenged action effectively nullifies the statutory scheme and thus for all practical purposes raises a question of law. Sometimes review will be possible because ... the request for the unreviewable relief will be coupled with a request for relief like asylum that is reviewable. If, however, it is impossible to distinguish the challenged action from the determination on the merits, then jurisdiction is lacking and the petition must be dismissed.

Id. at 876–77.

None of the circumstances we identified in Calma applies to Cruz–Mayaho, and so that takes us back to the default rule under which we do not have jurisdiction over the motions to reopen or reconsider if we lack jurisdiction over the underlying order. Applying that rule, we conclude that, for the most part, we lack jurisdiction over the Board's decisions. To the extent that we have jurisdiction, our review is only for abuse of discretion. In the end, these distinctions make little practical difference here: Cruz–Mayaho is not entitled to relief no matter how his claims are viewed.

III

As the Board pointed out repeatedly, the key date for Cruz–Mayaho is July 17, 2008. This was when the Board denied his application for cancellation of removal. All of his later efforts to reverse the consequences of that decision are affected by it. Cruz–Mayaho had 90 days from that date in which he could file, by right, a motion to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i). (He did file a petition for review within the mandatory 30–day period.) With respect to his first motion to reopen, however, Cruz–Mayaho argues for a different starting point—the date when the Board denied his motion to reconsider the original affirmance. We recently and definitively rejected that position in Sarmiento v. Holder, 680 F.3d 799 (7th Cir.2012). We did so for good reasons: the time limits would mean nothing if people were free to file one motion to reconsider after another, while they collect new evidence to be used in a motion to...