Hernandez-Alvarez v. Barr

• Decision Date: 16 December 2020
• Docket Number: No. 20-1459,20-1459
• Citation: 982 F.3d 1088
• Parties: Ismael HERNANDEZ-ALVAREZ, Petitioner, v. William P. BARR, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

982 F.3d 1088

Ismael HERNANDEZ-ALVAREZ, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

No. 20-1459

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2020

Decided December 16, 2020

Maria T. Baldini-Potermin, Attorney, Maria Baldini-Potermin & Associates, Chicago, IL, for Petitioner.

Gregory Michael Kelch, OIL, Steven Kiyoto Uejio, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Rovner, Brennan and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Mexican citizen Ismael Hernandez-Alvarez was a permanent resident of the United States when, in 2002, he was convicted in Illinois of indecent solicitation of a child. The Department of Homeland Security ("DHS") initiated removal proceedings on the grounds that his conviction constituted an aggravated felony. Though Hernandez-Alvarez argued that his solicitation conviction did not qualify as an aggravated felony, an Immigration Judge ("IJ") and the Board of Immigration Appeals (the "Board") disagreed and ordered his removal. He then moved for the Board to reconsider but was removed to Mexico before the Board decided his motion. The Board then determined that his removal constituted a withdrawal of his motion to reconsider.

Fifteen years later, Hernandez-Alvarez moved for the Board to reconsider its decision and reopen his removal proceedings in light of two recent Supreme Court decisions: Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017), and Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). He argued that his motion was timely because it merited equitable tolling; alternatively, he requested that the Board invoke its authority to reopen his proceedings sua sponte .¹ The Board denied his statutory motion to reconsider and reopen, concluding that equitable tolling was not warranted because Hernandez-Alvarez failed to show due diligence. It also rejected his argument based on Pereira that the IJ did not have jurisdiction over his removal proceedings and declined to exercise its power to reopen the proceedings sua sponte. Because the Board did not abuse its discretion in denying Hernandez-Alvarez's statutory motion to reconsider and reopen, his petition for review is denied. And because the Board did not commit legal error in declining to reopen his proceedings sua sponte , we dismiss that aspect of the petition for want of jurisdiction.

I. Background

A. Removal Proceedings

In 2002, when he was 20 years old, Hernandez-Alvarez was charged and convicted of indecent solicitation of a child in Illinois as part of an undercover operation. He conversed in an internet chat room with an adult undercover investigator, whom he believed to be a 15-year-old girl named "Katie." He made plans to meet "Katie" for sex and was arrested the next morning en route to meet her. He was convicted under 720 ILCS 5/11–6(a), which provided:

A person of the age of 17 years and upwards commits the offense of indecent solicitation of a child if the person, with the intent that the offense of aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed, knowingly solicits a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct as defined in Section 12–12 of this Code.

The statute defined "child" as "a person under 17 years of age." 720 ILCS 5/11–6(b). Hernandez-Alvarez was then sentenced to 30 months’ probation and six months’ periodic imprisonment.

As a result of this conviction, on April 9, 2003, DHS initiated removal proceedings by issuing Hernandez-Alvarez a notice to appear. It charged him as being removable under 8 U.S.C. § 1227(a)(2)(A)(iii) on the theory that indecent solicitation of a child constitutes sexual abuse of a minor and so is an aggravated felony.² DHS later added an additional basis for removability based on 8 U.S.C. § 1101(a)(43)(U) ’s definition of "aggravated felony" to include an attempt to commit an offense that constitutes an aggravated felony.

The issued notice to appear did not include a date and time of the initial agency hearing and stated that it would occur on a date and time to be set. On April 18, 2003, the immigration court issued Hernandez-Alvarez a notice of hearing informing him that the hearing would take place on April 22, 2003.

Hernandez-Alvarez appeared with counsel at the April 22, 2003 hearing and at a subsequent hearing held on May 8, 2003. He moved to terminate his removal proceedings on the grounds that his conviction under 720 ILCS 5/11-6 was not an aggravated felony. The IJ disagreed and issued a written decision ordering Hernandez-Alvarez's removal. The IJ relied on 8 U.S.C. § 1101(a)(43)(U), which defines "aggravated felony" to include an attempt to commit any substantive offense listed in § 1101(a)(43), including the sexual abuse of a minor. See § 1101(a)(43)(A). The IJ determined that, regardless of whether Hernandez-Alvarez's conviction could be considered "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A), "his conviction clearly qualifies as an attempt to commit sexual abuse of a minor" because he intended to engage in sexual abuse of a minor and took a substantial step towards committing that criminal act.

Hernandez-Alvarez appealed his removal to the Board. On January 9, 2004, the Board adopted the IJ's rationale and denied his appeal. Hernandez-Alvarez then moved for the Board to reconsider, but before it could reach his motion, he was removed to Mexico. The Board subsequently determined that his removal constituted a withdrawal of his motion under 8 C.F.R. § 1003.2(d) and did not rule on the merits.

Hernandez-Alvarez filed a petition for review of the Board's decision to uphold his removal, which we denied. Hernandez-Alvarez v. Gonzales , 432 F.3d 763 (7th Cir. 2005). He argued that his solicitation conviction did not qualify as an attempt to commit sexual abuse of a minor because the person solicited was an adult investigator rather than a child. Id. at 765. We disagreed, reasoning that solicitation is "a partially completed offense similar to an attempt" and so Hernandez-Alvarez's conviction falls within the definition of "sexual abuse of a minor." Id. at 766. Even though his offense did not involve an actual minor, we determined that impossibility did not preclude Hernandez-Alvarez's conviction from being characterized as an aggravated felony because under both Illinois and federal law, "[t]he impossibility of completing the offense attempted is not a defense." Id. at 766–67 (citation omitted).

B. Motion to Reopen and Reconsider

Fifteen years later, on May 3, 2019, Hernandez-Alvarez filed a motion to reopen and reconsider with the Board based on two recent Supreme Court decisions. In Esquivel-Quintana , the Court addressed the question of "whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor" under the Immigration and Nationality Act and held that "it does not." 137 S. Ct. at 1567. Because "the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16," the state statute at issue did "not categorically fall within that definition" and so "a conviction pursuant to it is not an aggravated felony under § 1101(a)(43)(A)." Id. at 1568. Hernandez-Alvarez argued that just like the state statute at issue in Esquivel-Quintana , the Illinois statute he violated encompassed conduct that fell outside the generic federal definition of sexual abuse of a minor because it included 16-year-olds in its definition of "child." See 720 ILCS 5/11-6(b). Thus, his conviction should not have been considered an aggravated felony.

In Pereira , the Supreme Court examined a provision that allows nonpermanent residents who have accrued 10 years of continuous physical presence in the United States to be eligible for cancellation of their removal. According to the "stop-time rule," the "period of continuous physical presence is ‘deemed to end ... when the alien is served a notice to appear.’ " 138 S. Ct. at 2109 (quoting 8 U.S.C. § 1229b(d)(1)(A) ). The Court determined that a notice to appear that failed to specify the time or place of the removal proceedings was insufficient to trigger the stop-time rule. Id. at 2110. Hernandez-Alvarez contended that, because his notice to appear did not include the time or place, it was defective and so the immigration court lacked jurisdiction to conduct removal proceedings in his case.

Hernandez-Alvarez acknowledged that a motion to reconsider generally must be filed within 30 days of a final administrative order of removal, 8 U.S.C. § 1229a(c)(6)(B), and a motion to reopen generally must be filed within 90 days. 8 U.S.C. § 1229a(c)(7)(C)(i). Nonetheless, Hernandez-Alvarez argued that the Board should consider his statutory motion to reconsider and reopen timely because equitable tolling of the time and numeric limitations was warranted. Alternatively, he contended that the Board should invoke its authority to reconsider and reopen his removal proceedings sua sponte because he would suffer manifest injustice if its prior decision was allowed to stand.

The Board denied Hernandez-Alvarez's motion to reconsider and reopen. Regarding his statutory motion to reconsider its 2004 decision, the Board determined that equitable tolling was not warranted. The Board acknowledged that Hernandez-Alvarez had submitted a timely motion to reconsider in 2004, which it deemed withdrawn after he was removed. In 2010, we determined that the Board has jurisdiction to consider motions even after an alien has been removed. Marin-Rodriguez v. Holder , 612 F.3d 591 (7th Cir. 2010). Nonetheless, the Board noted that nine years had elapsed between our decision in Marin-Rodriguez and...