Morales-Morales v. Ashcroft

• Decision Date: 15 September 2004
• Docket Number: No. 02-3936.,02-3936.
• Citation: 384 F.3d 418
• Parties: Celia MORALES-MORALES, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

384 F.3d 418

Celia MORALES-MORALES, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3936.

United States Court of Appeals, Seventh Circuit.

Argued September 16, 2003.

Decided September 15, 2004.

Petition for review from the Board of Immigration Appeals.

Scott D. Pollock (argued), Pollock & Associates, Chicago, IL, for Petitioner.

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

Before FLAUM, Chief Judge, and DIANE P. WOOD and WILLIAMS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Celia Morales-Morales (Morales) is a Mexican citizen who has resided in the United States since her original entry without inspection in 1986. After briefly returning to Mexico to attend to her gravely ill mother, Morales repeatedly and unsuccessfully attempted to reenter the United States in March 1999. Ultimately, she was arrested and convicted for the latter attempt. Upon Morales's release from imprisonment, the Immigration and Naturalization Service (INS)¹ initiated removal proceedings, and Morales in turn applied for cancellation of removal. The Immigration Judge (IJ) ruled that Morales's brief absence from the country rendered her ineligible under the statute for cancellation of removal, and on that ground only, rejected her petition. The Board of Immigration Appeals (BIA) affirmed without opinion under its streamlining procedure. Because we conclude that the statute did not preclude this relief for Morales, we grant her petition for review and remand for further proceedings.

I

Morales first entered the United States without inspection (i.e., illegally) in June 1986 at age 16. She is married to a lawful permanent resident of the United States and is the mother of four U.S. citizen children, ranging in age from nine to 16 years old. As far as this record shows, Morales remained in the United States from the time of her entry until early March 1999, when she returned to Mexico to visit her ailing mother. On March 22, 1999, after about two weeks in Mexico, Morales reentered the United States without inspection. The U.S. Border Patrol promptly detained her informally, and she voluntarily returned to Mexico. These events repeated themselves on three more occasions over the course of six days. Morales testified that each time the Border Patrol "just took me, threw me around, and turned me back." Importantly, she never appeared before an immigration judge, and no removal proceedings were initiated. On March 31, 1999, the U.S. Border Patrol apprehended Morales as she entered the country without inspection for the fifth time. This time the authorities took matters more seriously. Morales was charged with, and pleaded guilty to, illegal entry in violation of 8 U.S.C. § 1325 and 8 U.S.C. § 1329, and was sentenced to 179 days' imprisonment, which she served.

Upon completion of her sentence, Morales was released into the custody of the INS, which initiated removal proceedings. Shortly thereafter, Morales applied for cancellation of removal under 8 U.S.C. § 1229b(b). On January 11, 2001, an IJ found that Morales's "return to Mexico by the Immigration Service was meaningfully interruptive of her physical presence," and therefore she could not satisfy the ten years of continuous physical presence required for eligibility for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(A). On this basis, the IJ denied Morales's application for cancellation of removal and ordered that she be deported to Mexico. Morales appealed to the BIA, which affirmed without opinion under its streamlining procedure on October 7, 2002. See 8 C.F.R. § 1003.1(a)(7). This petition for review followed.

II

Before we reach the merits of Morales's appeal, we must address several preliminary matters. The first concerns this court's jurisdiction over her petition for review. We have an independent obligation to ensure that subject matter jurisdiction is proper before proceeding to the merits, even where, as here, neither of the parties has raised this as an issue in the case. Smith v. Am. Gen. Life & Acc. Ins. Co., 337 F.3d 888, 892 (7th Cir.2003). The governing statute is 8 U.S.C. § 1252(a)(2)(B), which reads as follows:

(B) Denials of discretionary relief

Notwithstanding any other provision of law, no court shall have jurisdiction to review —

(i) any judgment regarding the granting of relief under section 1182(h), 1182(I), 1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.

Section 1229b, which is included in the list in part (i), governs cancellation of removal. The question before us is whether this statute was intended to preclude all judicial review whatsoever, or only judicial review of the way in which the Attorney General exercises his discretion. At first blush, the language of the statute appears to be quite broad: read literally, it would preclude judicial review even of a decision by the Attorney General to deny cancellation of removal to all Muslims, or a decision by the Attorney General to eliminate this form of relief from the statute altogether. In other areas of immigration law, however, courts have resisted such an extreme position. Instead, relying on the proposition that at a minimum, jurisdiction to determine jurisdiction exists, see Jideonwo v. INS, 224 F.3d 692, 696 (7th Cir.2000), courts have exercised the authority to decide whether the particular alien's claim falls within the scope of the jurisdiction-stripping statute. See, e.g., Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997) (deciding whether the alien had committed one of the enumerated crimes that leads to automatic, and unreviewable, removal from the United States).

Although it is true that Morales ultimately wants cancellation of removal, that is not the relief she is seeking before this court — for good reason, as we have no power to grant that relief. Instead, she seeks to have the Attorney General consider her petition for cancellation of removal under the correct interpretation of the eligibility requirements set forth in § 1229b(b). That is not the same as requesting review of the grant or denial of cancellation of removal, any more than the request by certain Caucasian applicants to the University of Michigan for a race-neutral admissions process necessarily included a demand for a spot in the class. See Gratz v. Bollinger, 539 U.S. 244, 252, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (relief requested included damages, an injunction requiring reformation of the admissions process, and only lastly an order requiring an opportunity to transfer to the University). Morales's petition only indirectly concerns the ultimate grant or denial of cancellation of removal; its focus is on the meaning of the statutory criteria that cabin the Attorney General's decisionmaking. In that respect, it is much like Yang, where the only issue was whether the petitioner had committed the kind of crime that led to removal.

Although our conclusion that § 1252(a)(2)(B) does not foreclose review of this narrow set of questions is consistent with the fact that the statute expressly refers to denials of "discretionary" review in the caption, we recognize that the caption alone is of limited help in understanding the actual text of the law. Compare INS v. St. Cyr, 533 U.S. 289, 308-09, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that a section captioned "elimination of review by habeas corpus" did not eliminate all such review). We come to this result instead because the statute does not clearly indicate that the exclusion from judicial review is so extreme as to purport to authorize the Attorney General to disregard both the Constitution and the statutory criteria set forth by Congress. As we suggested in Fornalik v. Perryman, 223 F.3d 523 (7th Cir.2000), a case may "fall outside [§ 1252(a)(2)(B)'s] scope because [the petitioner] is challenging a pure error of law ..., not the exercise of discretion." Id. at 532; cf. Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003) ("We retain jurisdiction [under § 1252(a)(2)(B)] to review the purely legal and hence non-discretionary question whether [the applicant's] adult daughter qualifies as a `child' for purposes of the `exceptional and extremely unusual hardship' requirement." (Citations omitted)).

We have taken the same approach to the very next subsection of the statute, 8 U.S.C. § 1252(a)(2)(C), which provides that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in" certain enumerated sections. In applying § 1252(a)(2)(C), we have held that "all persons ordered removed retain the right to judicial review of the antecedent, non-discretionary questions, such as whether they are aliens and whether they have committed disqualifying crimes." Gill v. Ashcroft, 335 F.3d 574, 575 (7th Cir.2003); see also Bosede v. Ashcroft, 309 F.3d 441, 445 (7th Cir.2002) ("We have held before on a number of occasions that the review-preclusion provisions in the 1996 amendments to the immigration laws do not prevent us from determining whether the alien is being removed for a permissible reason.").

Our conclusion is also consistent with the decisions of the other circuits that have already confronted the question before us, namely, whether the determination that an alien has established continuous physical presence for purposes of § 1229b(b)(1)(A) is subject to judicial review. In Kalaw v. INS, 133 F.3d 1147 (9th Cir.1997), the Ninth Circuit considered whether § 1252(a)(2)(B) barred judicial review of a BIA determination...