Sergio Isunza v. Loretta E. Lynch , 809 F.3d 971 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1286
SERGIO ISUNZA,
Petitioner,
v.
LORETTA LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals
No. A044-567-013.
____________________
ARGUED NOVEMBER 30, 2015 — DECIDED JANUARY 11, 2016
____________________
Before ROVNER, and WILLIAMS, Circuit Judges, and SHAH,
District Judge.*
SHAH, District Judge. Sergio Isunza seeks judicial review
of a decision of the Board of Immigration Appeals denying
reconsideration of its dismissal of Isunza’s appeal. Our juris-
* Of the Northern District of Illinois, sitting by designation.
2 No. 15-1286
diction to review such a decision is quite limited because Is-
unza did not seek review of the Board’s original dismissal of
his appeal and he is removable because he committed a con-
trolled substance offense. The Board exercised its discretion
not to reconsider its decision and it committed no legal error
in applying precedent to Isunza’s appeal. The petition is
dismissed in part for lack of jurisdiction and denied in part.
Isunza came to the United States from Mexico when he
was seventeen years old in 1978. His parents were lawfully
present in the United States, but Isunza did not adjust his
status in the country for many years. In 1994, he became a
permanent resident through the sponsorship of his wife, a
U.S. citizen. In 1998, he was found guilty of possession of 0.1
grams of cocaine and placed on probation. See 720 ILCS
570/410. He successfully renewed his permanent resident
card in 2000, and traveled briefly to Mexico without incident
in 2000, 2001, 2006, and 2011. Isunza’s luck ran out when he
returned to Chicago from Mexico in 2011. Authorities confis-
cated his permanent resident card.
The Department of Homeland Security alleged that Isun-
za was subject to removal as an alien convicted of a con-
trolled substance offense. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Dur-
ing his removal proceedings, Isunza conceded the charge of
removability, and sought relief from removal. He argued
that his continuous residency in the United States after reen-
tering in 2000 made him eligible for cancellation of removal.
8 U.S.C. § 1229b(a). The immigration judge found that Isun-
za was ineligible for cancellation of removal because the
clock for accruing time toward continuous residency
stopped when Isunza was convicted in 1998, 8 U.S.C.
No. 15-1286 3
§ 1229b(d)(1), and his subsequent departures from and re-
turns to the United States did not start the clock again.
Isunza appealed to the Board of Immigration Appeals. It
found no error in the immigration judge’s decision, and de-
termined that Isunza’s 1998 conviction permanently termi-
nated the accrual of time toward continuous residency. It
dismissed the appeal. Isunza did not seek judicial review of
that decision, but did ask the Board to reconsider it. The
Board said that Isunza raised a new argument in his motion
that could have been presented in his appeal (namely, that
his admission into the United States as a minor should count
toward his continuous residency period). A motion to recon-
sider is not an opportunity to raise new arguments, and the
Board found no error in the rationale for its earlier dismissal
of Isunza’s appeal. It denied the motion to reconsider. Isunza
then petitioned this court to review his removal.1
Only the Board’s ruling on the motion to reconsider is be-
fore us because Isunza did not seek review of the Board’s
dismissal of his appeal within 30 days of that decision.
8 U.S.C. § 1252(b)(1); Muratoski v. Holder, 622 F.3d 824, 829–30
(7th Cir. 2010). Our jurisdiction is further limited by 8 U.S.C.
§ 1252(a)(2)(C) because Isunza is removable based on his
commission of a drug offense. Garcia v. Ashcroft, 394 F.3d 487,
1Isunza suffers from a genetic heart condition and is a participant in
an experimental study at Northwestern University involving a device
implanted in his aorta. The Board noted Isunza’s humanitarian argu-
ments, but only the Department of Homeland Security can grant a re-
quest for the exercise of prosecutorial discretion. At oral argument, gov-
ernment counsel reported that Isunza’s requests to the department were
denied. The record does not reflect the rationale behind this unfortunate
outcome.
4 No. 15-1286
489 (7th Cir. 2005). Under these circumstances, we do not
have jurisdiction to review discretionary decisions by the
Board; only legal or constitutional claims are subject to judi-
cial review. 8 U.S.C. § 1252(a)(2)(D).
There are two parts to the Board’s decision to deny re-
consideration of Isunza’s appeal. First, it decided that Isunza
raised a new argument about his admission as a minor that
he could have presented earlier, and so it would not recon-
sider on that basis. Second, it reaffirmed its decision that Is-
unza’s trips outside the country after his drug offense did
not restart the clock for accruing time toward continuous
presence in the United States. The first decision was a discre-
tionary one, not of legal or constitutional dimension, and we
therefore have no jurisdiction to review it.
Isunza’s challenge to the second part of the board’s deci-
sion—finding the residency clock permanently stopped with
his 1998 drug crime—is a legal one. His argument is that his
return to the United States in 2000 was, under the applicable
law, an admission into the United States “in any status” and
restarted the clock to determine eligibility for cancellation of
removal under 8 U.S.C. § 1229b(a). We have jurisdiction to
review this argument, giving deference to the board’s con-
struction of the immigration statutes. See Zivkovic v. Holder,
724 F.3d 894, 897 (7th Cir. 2013) (citing I.N.S. v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999)); see also Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).
The Board reasonably construed the statute, 8 U.S.C.
§ 1229b, to find that commission of a qualifying drug crime
permanently terminated the accrual of time toward continu-
ous residency. In Matter of Nelson, 25 I. & N. Dec. 410, 413
(BIA 2011), the Board held that commission of a specified
No. 15-1286 5
crime was a terminating event “after which continuous
physical presence or continuous residence could no longer
accrue.” Isunza points out that in Okeke v. Gonzales, 407 F.3d
585 (3d Cir. 2005), the court determined that continuous
presence could restart after a reentry into the United States.
But that decision is an outlier and based on distinguishable
facts—the petitioner’s notice to appear for removal proceed-
ings was tied to an overstay of a student visa, not the com-
mission of a crime. After Okeke, the Board decided Nelson,
which firmly holds that a qualifying drug crime stops the
clock. The Third Circuit then affirmed Nelson, and held that
the Board’s conclusion that reentry did not restart the clock
was reasonable. Nelson v. Attorney Gen. of U.S., 685 F.3d 318,
325 (3d Cir. 2012). More recently, the Third Circuit again cab-
ined Okeke to cases where the petitioner’s notice omitted ref-
erence to a qualifying drug crime. Singh v. Attorney Gen. of
U.S., 807 F.3d 547, 553 (3d Cir. 2015) (residency clock
stopped when petitioner committed crime and “could never
re-start”). Perhaps most importantly for our purposes, this
court has declined to follow Okeke and said that petitioners
cannot restart the clock and accrue time for purposes of es-
tablishing continuous physical presence after commission of
a drug crime. Torres-Rendon v. Holder, 656 F.3d 456, 463 (7th
Cir. 2011). The Board’s decision here was in line with this
precedent. It also makes sense because a person who com-
mits a drug crime and leaves the United States for a vacation
“has no greater logical claim to be entitled to cancellation of
removal than a similarly-situated alien who never leaves the
country.” Nelson, 685 F.3d at 325. A logical decision, con-
6 No. 15-1286
sistent with precedent, is a reasonable one and entitled to
deference.2
For these reasons, the petition for review is dismissed in
part and denied in part.
2Isunza’s remaining arguments about the hardship that his removal
would cause him and the immigration judge’s denial of a continuance
are outside the scope of our limited jurisdiction to review the Board’s
denial of the motion to reconsider.