Martinez-Maldonado v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1448 & 04-3471
JOSE MARTINEZ-MALDONADO,
Petitioner,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
____________
On Petitions for Review of Orders of
The Board of Immigration Appeals.
No. A76-774-223
____________
ARGUED JANUARY 4, 2006—DECIDED FEBRUARY 10, 2006
____________
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.
2 Nos. 04-1448 & 04-3471
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).ΠHowever, when his ap-
plication 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 re-
mained longer than permitted. Martinez-Maldonado
initially sought cancellation of removal based upon “excep-
tional 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
Œ
On March 1, 2002, the INS ceased to exist as an independent
agency and the Department of Homeland Security assumed its
functions.
Nos. 04-1448 & 04-3471 3
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 volun-
tarily 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 opin-
ion 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 deporta-
tion of the petitioner “would have a significant financial,
emotional, and enduring psychological negative effect” on
4 Nos. 04-1448 & 04-3471
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 regula-
tions (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 psycho-
logical reports discussing petitioner’s role in and relation-
ship 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 simi-
lar 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.
Nos. 04-1448 & 04-3471 5
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 recon-
sider. 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,
6 Nos. 04-1448 & 04-3471
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 cancella-
tion 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 discre-
tionary decision not subject to review”).
Martinez-Maldonado attempts to get around this jurisdic-
tional limitation by arguing that his case can be distin-
guished in three key ways from those cited above. First, he
argues that even if this court does not have jurisdiction over
the initial BIA decision, it does have jurisdiction over the
BIA’s decision to deny Martinez-Maldonado’s motion to
reopen and reconsider. He cites Singh v. Gonzales, 404 F.3d
1024 (2005) in support of this contention. However, he fails
to discuss a significant factor distinguishing his case from
Singh. In Singh, we did not find that we lacked jurisdiction
over the underlying order; here, we do. We have earlier held
that we lack jurisdiction over motions to reopen and
reconsider in cases where we lack jurisdiction to review the
underlying order. See Dave v. Ashcroft, 363 F.3d 649, 652
(7th Cir. 2004); Nwaokolo v. INS, 314 F.3d 303, 306 (7th
Cir. 2002) (per curiam) (“Ms. Nwaokolo’s motion to reopen
is part and parcel of her deportation proceedings”); Chow v.
Nos. 04-1448 & 04-3471 7
INS, 113 F.3d 659, 664 (7th Cir. 1997) (an order of deporta-
tion includes “orders denying motions to reconsider and
reopen”), abrogated on other grounds by LaGuerre v. Reno,
164 F.3d 1035, (7th Cir. 1998).
Other Circuits have come to the same conclusion. See,
e.g., Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir.
2004) (“Only where judicial review of the underlying
order is precluded is denial of a subsequent motion to
reopen also precluded.”); Patel v. United States Att’y Gen.,
334 F.3d 1259, 1261 (11th Cir. 2003) (holding that when
jurisdiction over final order is precluded, court lacked
jurisdiction to review orders denying motions to reopen
such final orders); Rodriguez v. Ashcroft, 253 F.3d 797, 800
(5th Cir. 2001) (“It is axiomatic that if we are divested of
jurisdiction to review an original determination of the
Board that an alien has failed to establish that he
would suffer extreme hardship if deported, we must also be
divested of jurisdiction to review the Board’s denial of a
motion to reopen on the ground that the alien has still
failed to establish such a hardship.”); Sarmadi v. INS, 121
F.3d 1319, 1322 (9th Cir. 1997) (“where Congress explicitly
withdraws our jurisdiction to review a final order of depor-
tation, our authority to review motions to reconsider or to
reopen deportation proceedings is thereby likewise with-
drawn”). Since we do not have jurisdiction to hear the
underlying discretionary hardship issue in Martinez-
Maldonado’s case, we also do not have jurisdiction to hear
his appeal of the BIA’s decision to deny his motion to reopen
and reconsider.
Martinez-Maldonado further argues that this court has
jurisdiction to consider his challenge to the BIA’s procedure
in affirming without opinion (AWO) the decision of the IJ.
Martinez-Maldonado argues that because he is challenging
not the merits of the BIA decision, but instead the BIA’s
decision to follow the AWO process, we have jurisdiction.
However, when the BIA decides whether or not to stream-
8 Nos. 04-1448 & 04-3471
line a case using the AWO process, the members of the BIA
analyze the IJ’s decision to determine if the decision is
correct, if the factual situation is novel or if any errors were
harmless. See 8 C.F.R. § 1003.1(e)(4). We would have to
invoke a similar analysis of the IJ’s decision in order to
determine if the streamlining factors were appropriately
applied, but we lack jurisdiction to engage in a merits
analysis of the IJ’s decision. Thus, because we lack jurisdic-
tion to review the IJ’s decision on the merits of the hardship
claim, we necessarily lack jurisdiction to review the Board’s
decision to affirm without opinion. See Dave v. Ashcroft, 363
F.3d 649, 653 (7th Cir. 2004) (“[Dave’s] claim that the BIA
violated due process by streamlining his appeal would face
a separate jurisdictional bar, one that prevents us from
reviewing the merits of an IJ’s discretionary decision to
deny an application for cancellation of removal.”). See also
Falcon Carriche et al. v. Ashcroft, 335 F.3d 1009, 1017-18
(9th Cir. 2003) (“To assess whether streamlining was
appropriate, we would necessarily be engaged in a merits
analysis of the hardship claim. Because we lack jurisdiction
to review the merits of the IJ’s discretionary decision
regarding the ‘exceptional and extremely unusual hardship’
requirement—the only aspect of the cancellation of removal
decision at issue in [this case]—we are also without jurisdic-
tion to evaluate whether streamlining was appropriate.”).
Finally, Martinez-Maldonado argued, in his briefs, that
this Court has jurisdiction to remand his case for a new and
complete review of his application based on the class action
settlement in Ramos et al. v. Ridge, et al, Case No. 02 C
8266. This settlement agreement arose from claims that the
Chicago District Office of the INS did not follow the law and
its own regulations when it used information obtained by
aliens petitioning for permanent residence and adjustment
of status to place these applicants into removal proceedings.
This agreement allows class members to apply to the
United States Immigration and Customs Enforcement (ICE)
Nos. 04-1448 & 04-3471 9
to exercise discretionary review to dismiss removal proceed-
ings against the class members. Martinez-Maldonado
argued that the settlement agreement should constitute the
last agency action and, since it changed the position of the
agency regarding his application, we should find that it
controls, and remand the case for review. However, we
cannot even get to the question of whether the settle-
ment agreement would have constituted the latest
agency action because before oral argument the ICE
informed Martinez-Maldonado that it had decided to decline
invoking its prosecutorial discretion in his case to dismiss
the removal proceedings against him. At oral argument,
Martinez-Maldonado conceded that he could no longer
argue that the settlement agreement changed the position
of the agency favorably to him in such a way that this court
should remand his case based on the agreement. The
prosecutorial discretion exercised by the ICE is not at issue
in this appeal and is not reviewable by us, according to the
settlement agreement.
Martinez-Maldonado fails to distinguish his case from
well-established case law supporting the conclusion that we
do not have jurisdiction to review this appeal.
Petition for review dismissed for lack of jurisdiction.
10 Nos. 04-1448 & 04-3471
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-10-06