Leyva, Crisanto v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4065
CRISANTO LEYVA,
Petitioner,
v.
JOHN D. ASHCROFT, United States Attorney General,
Respondent.
____________
Appeal from the Board of Immigration Appeals
Executive Office for Immigration Review
United States Department of Justice.
No. A 77 769 193
____________
ARGUED JUNE 11, 2004—DECIDED AUGUST 13, 2004
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
MANION, Circuit Judge. Crisanto Leyva, an illegal alien,
appeals from the Attorney General’s final judgment to deny
his application for cancellation of removal. Because we lack
jurisdiction over this appeal, we dismiss.
I.
By his own admission, Leyva is an illegal alien who
crossed the border between the United States and Mexico in
2 No. 03-4065
1990. After settling in Illinois, Leyva found work as the
operator of a paper cutter, and he and his wife (who is also
an illegal alien) bought their own home. His wife also gave
birth to two children in the United States, Richard and
Cynthia, who thereby became U.S. citizens. Other than his
status as an illegal alien, Leyva was living the American
dream.
That dream came to an end in 1999, when Leyva applied
1
to the Immigration and Naturalization Service (“INS”) for
permanent residence. In so doing, Leyva acted under the
mistaken belief that he could obtain an employment au-
thorization card and make legitimate his immigration status.
In reality, because Leyva had no basis to qualify for per-
manent residence, he had essentially reported himself to the
INS.
At his removal proceeding in September 2001, Leyva con-
ceded that he was in the United States without inspection or
admission and thus removable. Leyva argued, however, that
he was eligible for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1), which requires the alien to show, among other
things, that his removal would result in “exceptional and
extremely unusual hardship” to a spouse, parent, or child
who is either a lawful permanent resident or a U.S. citizen.
Leyva maintained that Richard and Cynthia would suffer
such hardship because it would be difficult for him to
support his family in his hometown in Mexico, and because
Richard and Cynthia would lack adequate educational
opportunities and a decent standard of living in Mexico.
The immigration judge disagreed, concluding that Leyva
had not shown that Richard and Cynthia would face “ex-
1
On March 1, 2003, the INS ceased to exist as an independent
agency and the Department of Homeland Security assumed its
functions.
No. 03-4065 3
ceptional and extremely unusual hardship” in Mexico. He
reasoned that the difficulties that Richard and Cynthia would
face “are not materially different from those hardships en-
countered by other similarly situated youngsters who have
grown up in the United States and faced the prospect of
relocating to a country abroad with their alien parents.” The
immigration judge therefore ordered removal, and the
Board of Immigration Appeals (“BIA”) affirmed without
opinion. Leyva appeals, arguing that the Fifth Amendment
requires that, in assessing hardship under § 1229b(b)(1),
Richard and Cynthia be compared to all citizen children
instead of being compared only to the children of aliens.
II.
Whether to cancel an alien’s removal, pursuant to
§ 1229b(b)(1), is a matter committed to the Attorney General’s
discretion. Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir.
2003). To qualify for cancellation of removal under
§ 1229b(b)(1), an alien 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). Although the im-
migration judge concluded that Leyva met the first three
criteria, he decided that Leyva did not meet the hardship
requirement. The immigration judge therefore denied relief,
and the BIA then affirmed that decision, which constitutes
the Attorney General’s final judgment to deny relief under
§ 1229b. Kharkhan, 336 F.3d at 604.
Leyva now contends that the Attorney General’s judg-
ment should be vacated, arguing that the Attorney General
4 No. 03-4065
violated the Fifth Amendment’s guarantee of due process by
comparing Richard and Cynthia to “other similarly situated
youngsters who have grown up in the United States and
faced the prospect of relocating to a country abroad with
their alien parents,” instead of comparing them to all citizen
children. In effect, Leyva is demanding that the standard of
comparison include all citizen children, including those
whose parents are U.S. citizens, in the hypothetical event that
they were ordered to relocate to another coun-
try—presumably Mexico. It is not clear how this greatly
expanded standard would affect the prospects of Leyva
showing that his children would suffer exceptional and
extremely unusual hardship, but it is evident that it would
include many times the number of children to whom the
statute refers (i.e., children of deportable aliens). Leyva asks
us to vacate the order of removal and remand this case for
another determination (this time, one that complies with his
definition of due process) of whether he is eligible for
cancellation of removal.
The government argues that we lack jurisdiction to decide
this case. In support of this assertion, the government points
to 8 U.S.C. § 1252(a)(2)(B)(i), which states that, “[n]ot-
withstanding any other provision of law, no court shall have
jurisdiction to review . . . any judgment regarding the
granting of relief under” § 1229b. Although § 1252(a)(2)
(B)(i) seems unequivocally to deprive us of jurisdiction over
Leyva’s appeal, he notes that his claim is constitutional and
invokes the principle that there must be a safety valve for
constitutional claims; that is, he argues that interpretation of
§ 1252(a)(2)(B)(i), like interpretation of any other statute,
must be informed by the presumption against precluding
jurisdiction over constitutional arguments. Singh v. Reno,
182 F.3d 504, 509 (7th Cir. 1999). So it must.
Our precedent, however, leads to the conclusion that
§ 1252(a)(2)(B)(i) overcomes this presumption and places
No. 03-4065 5
claims like Leyva’s beyond the limits of our jurisdiction. See
Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004) (con-
cluding that, even if the petitioner had asserted properly a
denial of due process under the Fifth Amendment, § 1252(a)(2)
(B)(i) would have precluded the court’s jurisdiction, but
allowing jurisdiction over constitutional claims which may
present “bizarre miscarriages of justice.”); Kharkhan, 336
F.3d at 604 (concluding that § 1252(a)(2)(B)(i) precluded
jurisdiction over the petitioner’s constitutional claim); see
also Bosede v. Ashcroft, 309 F.3d 441, 446 (7th Cir. 2002) (con-
cluding that a jurisdiction-limiting provision precluded our
consideration of the petitioner’s “claim that his Fifth
Amendment due process rights were violated”); Samirah v.
O’Connell, 335 F.3d 545, 549 (7th Cir. 2003) (concluding that
§ 1252(a)(2)(B)(ii) precluded jurisdiction over the peti-
tioner’s challenge, outside the context of a habeas proceed-
ing, to the revocation of his advance parole).
Leyva argues that LaGuerre v. Reno, 164 F.3d 1035, 1040
(7th Cir. 1998) and Singh stand for the contrary position that
“direct review in the courts of appeals remains an option for
aliens wishing to challenge their deportation on constitu-
tional grounds.” In both of those cases, we stated that this
court could review directly the constitutional claims of
aliens who, before the 1996 amendments to the Immigration
and Nationality Act, could have filed habeas petitions in the
district court. See Singh, 182 F.3d at 501-11; LaGuerre, 164
F.3d at 1040. LaGuerre and Singh are distinguishable because
in neither case did we confront the jurisdictional bar relevant
here: § 1252(a)(2)(B)(i). Instead, LaGuerre concerned § 440(a)
of the Antiterrorism and Effective Death Penalty Act of
1996, codified as 8 U.S.C. § 1252(a)(2)(C), see LaGuerre, at
1040, and Singh dealt with both § 1252(a)(2)(C) and 8 U.S.C.
§ 1252(g), see Singh, 182 F.3d at 508. Therefore, unlike
Kharkhan and Dave, neither LaGuerre nor Singh is directly on
point.
6 No. 03-4065
We further note that in LaGuerre the government agreed
that the relevant jurisdictional bar (there, § 440(a)) allowed
for direct review of the petitioners’ constitutional claims,
LaGuerre, 164 F.3d at 1040, so the court never had the benefit
of adversary briefing as to that issue. Here, by contrast, the
government explicitly argues that the jurisdictional bar (in
this case, § 1252(a)(2)(B)(i)) precludes our review of this
case.
As to Singh, we also observe that this court recognized
that the “safety valve” of constitutional review discussed in
that case was an “exceptional procedure” justified by the
petitioner’s “Homeric odyssey through the administrative
and judicial process” in that “highly unusual case.” Singh,
182 F.3d at 510-11. By its own terms, our opinion in Singh
applies only to a highly unusual case—and we see nothing
unusual here. Singh, therefore, would be of little aid to us
even if Kharkhan and Dave were not the most applicable
precedents.
We turn finally to Leyva’s contention that, notwithstand-
ing § 1252(a)(2)(B)(i), this court has jurisdiction under 8
U.S.C. § 1252(b)(9), a provision titled “[c]onsolidation of
questions for judicial review.” Section 1252(b)(9) provides
that “[j]udicial review of all questions of law and fact, in-
cluding interpretation and application of constitutional and
statutory provisions, arising from any action taken or pro-
ceeding brought to remove an alien from the United States
under this subchapter shall be available only in judicial
review of a final order under this section.” 8 U.S.C.
§ 1252(b)(9). We disagree with Leyva because § 1252(b)(9) is
a “jurisdictional limitation,” Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. 471, 483 (1999) (emphasis
added), not a grant of jurisdiction. Its purpose is to “consol-
idate certain questions in one petition for review from the
final order,” Flores-Miramontes v. INS, 212 F.3d 1133, 1140
No. 03-4065 7
(9th Cir. 2000), and not to render § 1252(a)(2)(B)(i) a nullity,
see Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) (dis-
cussing the interplay between § 1252(a)(2)(B)(i) and
§ 1252(b)(9)). Accordingly, § 1252(b)(9) does not provide an
independent basis for jurisdiction that somehow overcomes
the clear dictate of § 1252(a)(2)(B)(i).
III.
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), even where that judgment is challenged on
the ground that it violates due process. Congress, in passing
§ 1252(a)(2)(B)(i), has clearly and convincingly placed
Leyva’s due process challenge to the denial of his applica-
tion for cancellation of removal outside of our jurisdictional
limits. This appeal is therefore DISMISSED for want of
jurisdiction.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-13-04