Martinez-Maldonado v. Gonzales

• Decision Date: 10 February 2006
• Docket Number: No. 04-3471.,No. 04-1448.,04-1448.,04-3471.
• Citation: 437 F.3d 679
• Parties: Jose MARTINEZ-MALDONADO, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

437 F.3d 679

Jose MARTINEZ-MALDONADO, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 04-1448.

No. 04-3471.

United States Court of Appeals, Seventh Circuit.

Argued January 4, 2006.

Decided February 10, 2006.

Barbara J. Clinite (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Jennifer J. Keeney (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

Jose Martinez-Maldonado, a native and citizen of Mexico, appeals from the Board of Immigration Appeals' (BIA) denial of his appeal from the Immigration Judge's (IJ) denial of removal as well as the denial of his subsequent motion to reopen and reconsider. Because we lack jurisdiction of this appeal, we dismiss.

I. Background

Jose Martinez-Maldonado entered the United States in 1996 as a non-immigrant visitor from Mexico and was authorized to remain in the United States for six months. However, he did not return to Mexico as required. During his time in the United States, Martinez-Maldonado and his wife, Maria B. Hernandez (a non-U.S. citizen), built a comfortable life. Martinez-Maldonado obtained a job at Breanne Inc. in Palatine, Illinois, where he earned $940 per week. He and his wife resided in Palatine, Illinois, with his father and three children. Two of the minor children, Pablo (DOB 7/11/98) and Paula (DOB 8/29/00), are United States citizens, since they were born in the United States.

In 1998 Martinez-Maldonado filed an application for permanent resident status with the Immigration and Naturalization Service(INS).^* However, when his application was reviewed by the INS, it was determined that he was not eligible for permanent resident status and that he had been in the United States unlawfully. Consequently, he was served with a notice of removal proceedings under section 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B), as a non-immigrant alien who had remained longer than permitted. Martinez-Maldonado initially sought cancellation of removal based upon "exceptional and extremely unusual hardship" to his citizen minor children.

An evidentiary hearing was held at which Martinez-Maldonado testified. He presented information about his children his job and his family. His wife resides in the United States without permission. His children are in good health and speak Spanish. His oldest daughter, Maria Jose, is nine years old and arrived in the United States in 1997 with Martinez-Maldonado's wife. His middle child, Pablo, is four years old and does not yet attend school. His youngest child, Paula Beatriz, is two years old and does not yet attend school. His only relative (besides his children and wife) living in the United States is his 71-year-old father who resides in the United States without permission. His mother, sister, brother and cousins reside in Mexico. He also owns a three-bedroom house in Mexico. In the United States, Martinez-Maldonado owns a time-share in Florida and two automobiles.

After the completion of the evidentiary hearing, the IJ on September 27, 2002, denied Martinez-Maldonado's application for cancellation because he failed to establish that his children would suffer exceptional or extremely unusual hardship if they were removed to Mexico. The judge did, however, allow Martinez-Maldonado to voluntarily depart the United States. Martinez-Maldonado appealed the judge's decision to the BIA on October 28, 2002. On January 26, 2003, the BIA affirmed the judge's decision without opinion.

On February 25, 2004, Martinez-Maldonado filed a motion with the BIA to reopen and reconsider. He argued that the BIA improperly affirmed without separate opinion because the IJ was incorrect factually and legally in finding that Martinez-Maldonado could find gainful employment in Mexico. He argued that the immigration judge should have taken judicial notice of the extreme unemployment and depressed economy in Mexico. Martinez-Maldonado also argued that his deportation would lead to the "de-facto deportation of his daughters." Further, he believed that he was able to show that his deportation would lead to irreparable hardship for his children, and he referred the BIA to two exhibits attached to his motion. This was additional evidence not presented before the immigration judge. The evidence was in the form of an assessment by a clinical psychologist stating that deportation of the petitioner "would have a significant financial, emotional, and enduring psychological negative effect" on Martinez-Maldonado's children. Martinez-Maldonado also sought our review of the BIA's underlying decision on the same day.

On August 26, 2004, the BIA denied petitioner's motion to reopen and reconsider. The BIA found that petitioner failed to demonstrate any error of fact or law in its prior decision. It rejected petitioner's argument that the BIA's decision to affirm without separate opinion was barred by the regulations (citing 8 C.F.R. § 1003.2(b)(3)).

Additionally, the Board denied Martinez-Maldonado's motion to reopen based on new evidence. The Board found that Martinez-Maldonado's evidence of psychological reports discussing petitioner's role in and relationship with his family did not include a curriculum vitae or evidence of professional credentials of the reporting psychologist. The BIA further found that Martinez-Maldonado failed to establish that these reports, or similar reports, were unavailable and could not have been discovered or presented during proceedings before the IJ, as required by 8 C.F.R. § 1003.2(c)(1). Finally, the BIA found that the reports did not describe any additional hardships that would be encountered by Martinez-Maldonado's United States citizen children beyond those considered in the decision of the IJ and by the initial BIA decision. On September 23, 2004, Martinez-Maldonado sought review by this court of the rejection of the motion to reopen and the underlying BIA decision.

II. Discussion

We are only able to decide this case on the merits if we have jurisdiction over this appeal. The government argues that we lack jurisdiction to review the BIA's initial denial of Martinez-Maldonado's appeal from the IJ's decision denying cancellation of removal as well as the BIA's decision to deny his motion to reopen and reconsider. The decision whether to cancel an alien's removal pursuant to § 1229b(b)(1) is left to the Attorney General's discretion. Leyva v. Ashcroft, 380 F.3d 303, 305 (7th Cir.2004); Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir.2003). Section 1229b(b)(1) requires that in order for an alien to receive cancellation of removal, he must: (1) be continuously present for ten years prior to being served with a notice to appear; (2) display good moral character; (3) not have been convicted of specified offenses; and (4) demonstrate 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 or an alien lawfully admitted for permanent residence." 8 U.S.C § 1229b(b)(1) (2000).

The IJ found that Martinez-Maldonado met the first three requirements, but that he was not able to show that his United States citizen children would suffer exceptional or extremely unusual hardship as a result of his removal. The BIA affirmed this decision without opinion, thus providing the Attorney General's final judgment denying relief under § 1229b. Kharkhan, 336 F.3d at 604. The BIA subsequently denied Martinez-Maldonado's motion to reopen and reconsider. After considering the government's argument, we agree that we are not able to reach the merits here because we lack jurisdiction over this appeal. The statute that limits our jurisdiction, 8 U.S.C. § 1252(a)(2)(B)(I), provides "no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b [cancellation of removal] of this title." This provision, together with its companion provision, 8 U.S.C. § 1252(a)(2)(B)(ii), bars judicial review of all discretionary decisions of the Attorney General made in immigration cases, with a few exceptions, such as asylum cases.

Our Court and others have confirmed that the application of this statute strips us of jurisdiction in discretionary cancellation of removal cases. See, e.g., Leyva v. Ashcroft, 380 F.3d 303, 305 (7th Cir.2004) ("The meaning of 8 U.S.C. § 1252(a)(2)(B)(I) is clear: we may not review the Attorney General's judgment regarding whether or not to grant cancellation of removal under 8 U.S.C. § 1229b(b)(1)"); Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir.2003); Pilch v. Ashcroft, 353 F.3d 585, 587 (7th Cir.2003) ("The thing under review is the agency's final decision, not the language of its opinion; and if the final decision is to withhold certain discretionary remedies, that's the end. . . . we lack jurisdiction whether or not the agency made a factual or legal error on the way to decision."). See also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003) (Court "lack[s] jurisdiction to review the BIA's discretionary determination that an alien failed to satisfy the `exceptional and extremely unusual hardship' requirement for cancellation of removal"); Gonzalez-Oropeza et al. v. Ashcroft, 321 F.3d 1331, 1332-33 (11th Cir. 2003) ("the exceptional and extremely unusual hardship determination is a discretionary decision not subject to review").

Martinez-Maldonado attempts to get around this jurisdictional limitation by arguing that his case can be distinguished in three key ways from those cited above. First, he argues that even if this court does not...