Alvaro Adame v. Eric Holder, Jr. , 762 F.3d 667 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2405
ALVARO ADAME,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
On Petition for Review of a Final Order
of the Board of Immigration Appeals.
No. A089 856 290
____________________
ARGUED APRIL 14, 2014 — DECIDED AUGUST 12, 2014
____________________
Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit
Judges.
WOOD, Chief Judge. Petitioner Alvaro Adame was placed
in removal proceedings in 2009. He applied for cancellation
of removal, but an immigration judge (IJ) rejected his appli-
cation in 2011 and ordered him removed. The Board of Im-
migration Appeals (Board) affirmed. Adame now petitions
for review of the Board’s decision, asserting that we have ju-
2 No. 13-2405
risdiction under 8 U.S.C. § 1252(a)(2)(D). The central issue
before us is whether that is true.
Adame is a citizen and native of Mexico. The exact date
of his entry to the United States is not clear. At the latest it
was in 2001, as demonstrated by a traffic ticket he received
in Kansas that year. Adame testified before the IJ that he en-
tered the country in 1997, but he had no other evidentiary
support for that statement. Either way, he entered the coun-
try without inspection and lived in the United States without
incident (at least from an immigration perspective) until
2009, when the Department of Homeland Security issued
him a Notice to Appear. The Department had discovered
him because of an arrest, which is the subject of a baffling
but ultimately inconsequential uncertainty: though he ap-
parently was arrested for the manufacture and delivery of
cocaine, his record shows that he pleaded guilty to “drinking
in a park.”
Adame conceded removability as a noncitizen present
without inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). With the
help of counsel, however, he prepared an application for
cancellation of removal. After two continuances, the IJ de-
nied his application on October 6, 2011, and ordered him
removed to Mexico.
Cancellation of removal is a form of discretionary relief
available to certain nonpermanent residents. In order to be
eligible, the applicant must meet three statutory criteria.
First, she must have been physically present in the United
States for at least ten consecutive years immediately preced-
ing the date of her application. Second, she must have been a
person of “good moral character” during that period. Final-
ly, she must show that her removal would cause “exception-
No. 13-2405 3
al and extremely unusual hardship” to a U.S.-citizen or per-
manent-resident spouse, parent, or child. 8 U.S.C. § 1229b(b).
The petitioner bears the burden of establishing each of these
criteria.
The IJ found that Adame had struck out on all three. He
could not show the necessary ten years’ continuous resi-
dence, the IJ reasoned, because the earliest documentary ev-
idence of his presence in the United States was the 2001 traf-
fic ticket, issued only eight years before he submitted his ap-
plication in 2009. In so ruling, the IJ chose not to credit
Adame’s testimony that he entered in 1997. He found the tes-
timony unreliable because of inconsistencies in Adame’s tes-
timony on other matters such as his arrest record.
The IJ added that Adame could not establish the required
good moral character because his criminal record reflected
multiple minor offenses, most related to drinking (e.g., driv-
ing while intoxicated, loitering in a bar, public intoxication).
Finally, Adame failed to prove that his U.S.-citizen children
would suffer “exceptional and extremely unusual hardship”
beyond that experienced by all children whose parent is re-
moved from the country, because there was no evidence that
he would be unable to support the children in Mexico or to
obtain certain necessary medications for them.
The Board affirmed the order of removal and the denial
of cancellation of removal. Because a failure to show any one
of the three requirements was enough to deny relief, the
Board opted to restrict its discussion to the continuous-
residence issue. On that point, it observed that “the testimo-
nial evidence alone was insufficient,” and it rejected
Adame’s argument that the IJ should have warned him earli-
er that he would need to present documentary evidence to
4 No. 13-2405
support his contention that he entered in 1997. The Board
also noted that the IJ told Adame at his first hearing that he
would have to “present proof” of his residence and that “just
saying you’ve been here” would not suffice. Accordingly, the
Board dismissed Adame’s appeal, and Adame filed a timely
petition for review in this court.
As a general matter, the courts of appeals lack jurisdic-
tion to review the denial of discretionary relief in immigra-
tion proceedings. Under 8 U.S.C. § 1252(a)(2)(B), “no court
shall have jurisdiction to review … any judgment regarding
the granting of relief under [§ 1229b] … [or] any other deci-
sion or action of the Attorney General … the authority for
which is specified under this subchapter to be in the discre-
tion of the Attorney General … .” The only (but important)
exception to this rule is if the petition for review presents a
constitutional claim or question of law. See id.
§ 1252(a)(2)(D). Cognizant of this limitation, Adame styles
his petition as raising a due process claim: he argues that the
IJ and then the Board violated his Fifth Amendment right to
due process by determining that his testimony lacked credi-
bility and by requiring him to submit extra documentation
to prove his ten years of continuous residence. Alternatively,
Adame argues that the IJ should have granted a continuance
to allow him to collect this documentation.
Like any party raising a due process claim, an immigra-
tion petitioner must have a constitutionally protected liberty
(or property) interest in order for some process to be “due”
under the Fifth Amendment. See Brock v. Roadway Express,
Inc., 481 U.S. 252, 260 (1987). While a noncitizen has a pro-
tected liberty interest in remaining in the United States, that
interest does not encompass a right to favorable decisions
No. 13-2405 5
that would allow the petitioner to seek discretionary relief.
Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006). Even if
the IJ were flat-out wrong and Adame had resided in the
United States for ten continuous years before he received his
Notice to Appear, the question remains whether a court of
appeals would be authorized to correct that error. The stat-
ute, after all, does not say that jurisdiction exists over consti-
tutional questions, legal issues, and egregious mistakes of
fact. Moreover, even if there were some legal hook that
would permit a petitioner like Adame to obtain review of the
residence determination, correction of any error in that find-
ing would not be enough to guarantee that cancellation of
removal would be granted. It would merely allow him to
move to steps two and three—that is, to present evidence on
good moral character and extremely unusual hardship to a
U.S.-citizen relative.
Even a successful showing of those points would not be
enough on its own. It would simply authorize the IJ to use
his discretion over cancellation of removal in Adame’s favor.
As the statute puts it, after the three criteria are established,
the IJ “may cancel removal”; it does not say that the judge
must do so. 8 U.S.C. § 1229b(b)(1) (emphasis added). A
noncitizen’s “right to due process does not extend to pro-
ceedings that provide only … discretionary relief.” Cevilla,
446 F.3d at 662 (quoting Hamdan v. Gonzales, 425 F.3d 1051,
1060–61 (7th Cir. 2005)) (internal quotation mark omitted).
As cancellation proceedings provide only discretionary re-
lief, it follows that the IJ’s decision to deny cancellation of
removal did not violate any rights protected by the Fifth
Amendment’s Due Process clause. We may resolve the legal
issue presented by this part of the petition, because Adame’s
6 No. 13-2405
argument is not so insubstantial that it fails to engage our
jurisdiction under § 1252(a)(2)(D).
In the alternative, Adame argues that the IJ incorrectly
applied the law to the facts by requiring additional evidence
that he had been in the United States for ten years of contin-
uous residence when that evidence was not reasonably
available. Adame urges that the IJ erred by calling for docu-
mentary evidence to supplement his testimony without con-
sidering whether that evidence could reasonably be ob-
tained. This, he says, is another question of law over which
we may take jurisdiction, and he points to the Eighth Cir-
cuit’s decision in Sanchez-Velasco v. Holder, 593 F.3d 733 (8th
Cir. 2010), as one case that adopts the approach he describes.
We acknowledge that not only the Eighth Circuit, but al-
so the Fifth, Sixth, and Ninth Circuits have taken the posi-
tion that the jurisdiction to review questions of law referred
to in 8 U.S.C. § 1252(a)(2)(D) extends to “questions involving
the application of statutes or regulations to undisputed facts,
sometimes referred to as mixed questions of fact and law.”
Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007); see also
Morales-Flores v. Holder, 328 F. App’x 987, 989 (6th Cir. 2009)
(citing Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir.
2005)); Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir.
2008); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir.
2003). These courts evaluate such claims using the standard
of review provided by the Administrative Procedure Act, 5
U.S.C. § 706. See, e.g., Santana-Albarran, 393 F.3d at 705 (re-
viewing continuous-presence determination under substan-
tial-evidence test).
We might add the Second Circuit to that list. Though it
declined to determine the “precise outer limits” of what con-
No. 13-2405 7
stitutes a “question of law” in Chen v. United States Depart-
ment of Justice, the Second Circuit too allows some considera-
tion of “mixed” questions of law and fact, at least to the ex-
tent that similar challenges may be brought on habeas cor-
pus review of executive detentions. 471 F.3d 315, 326–27 (2d
Cir. 2006). This allows a court to consider claims concerning
errors in both the interpretation and application of statutes.
Id. at 327 (citing I.N.S. v. St. Cyr, 533 U.S. 289, 302 (2001)).
The Second Circuit arrived at this position after vacating its
earlier opinion in Chen, in which it had held that only consti-
tutional and statutory construction questions fell within the
court’s jurisdiction. See Chen v. U.S. Dep’t of Justice, 434 F.3d
144, 153–54 (2d Cir. 2006) vacated by Chen, 471 F.3d 315 (2d
Cir. 2006). That said, the Second Circuit has made an effort
not to allow the “mixed-question” exception overwhelm the
statutory rule. It thus holds that disputes about the IJ’s fact-
finding dressed up as legal questions and general challenges
about an IJ’s alleged failure to take certain evidence into ac-
count fall outside what a court may consider. See Liu v.
I.N.S., 508 F.3d 716, 720–21 (2d Cir. 2007). The First, Third,
and Fourth Circuits have followed Chen, permitting review
of the threshold question whether the correct legal standard
was used, but finding no jurisdiction when the so-called le-
gal question is simply a means of challenging factual conclu-
sions. See Vargas v. Attorney General, 543 F. App’x 162, 163–64
(3d Cir. 2013) (per curiam); Amedome v. Holder, 524 F. App’x
936, 937–38 (4th Cir. 2013); Ayeni v. Holder, 617 F.3d 67, 72–73
(1st Cir. 2010).
This court’s position has been a strict one. We have ad-
hered for years to the rule that § 1252(a)(2)(B) excludes from
our jurisdiction challenges to an IJ’s application of the law to
the facts of a case when the grounds for relief sought are dis-
8 No. 13-2405
cretionary, and that in such a case the subpart (B) exclusion
is unaffected by § 1252(a)(2)(D). Cevilla, 446 F.3d at 661. We
have understood the review of the application of law to facts
as something different from review of so-called “pure” ques-
tions of law. Even though Cevilla relied heavily on the Sec-
ond Circuit’s now-vacated initial opinion in Chen for its rea-
soning, we have reconsidered and reaffirmed our position
on this point. See Viracacha v. Mukasey, 518 F.3d 511, 515–16
(7th Cir. 2008). We thus limit our review to constitutional
claims and questions of statutory construction. See id.; Cuel-
lar Lopez v. Gonzales, 427 F.3d 492, 493 (7th Cir. 2005) (explain-
ing that interpretation of term “continuous physical pres-
ence” can be reviewed because it presents a legal question of
statutory construction). Under this court’s understanding of
the statutory scheme, Adame’s challenge to the IJ’s demand
for additional evidence falls outside of our authority. The
conflict in the circuits on this point is a serious one, but it has
stood for some time. Indeed, the government candidly in-
formed us at oral argument that it would not press the same
jurisdictional defense in other circuits.
This disposes of most of Adame’s petition. We comment
briefly on a few additional arguments he raises. First, he
faults the Board for offering no new or additional analysis in
its order affirming the IJ’s conclusion. But the Board is under
no obligation to provide “extra” analysis; if the IJ’s analysis
is sufficient to sustain its conclusion, the Board is entitled to
affirm on that basis.
Second, Adame challenges the IJ’s decisions about his
moral character and his family’s potential hardship. We do
not have jurisdiction to review those decisions for the same
reasons we cannot review the sufficiency of the evidence on
No. 13-2405 9
the duration of his residence: they lead only to discretionary
relief, and they involve only applications of law to facts.
Third, Adame contends that the IJ failed to follow the
procedural requirements for considering an application for
cancellation of removal. While no particular statute sets out
explicitly what those procedures are, a noncitizen “applying
for cancellation of removal has the same statutory process
protections as an alien involved in removal proceedings … .”
Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012); cf. Portillo-
Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011) (explaining
that statutorily required procedures assure compliance with
constitutional due process requirements, and that a petition-
er may have a legal claim when she can show statutory pro-
cedural shortfalls). But he has not told us enough about his
complaint to allow us to address this point. Instead, he mere-
ly refers to 8 U.S.C. § 1229a without explaining how its re-
quirements were violated. It is true that 8 U.S.C.
§ 1229a(c)(4)(B) directs the IJ to weigh credible testimony
along with other evidence in the record, but we do not see
where that gets Adame, since the IJ found his testimony not
credible. Section 1229a(c)(4)(C) directs the IJ to base his deci-
sion on the totality of the circumstances, and that is what he
did.
Last, Adame argues that the IJ erred by refusing to grant
him a continuance to seek additional documentary evidence
rather than ordering him removed. We may review an alle-
gation that the immigration courts failed to follow their own
precedent faithfully, because this presents a question of law.
Ward v. Holder, 632 F.3d 395, 397 (7th Cir. 2011). The Board’s
rule on when continuances should be granted comes from
Matter of Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009), in which
10 No. 13-2405
the Board laid out what must be shown before a continuance
may be granted. Two of the most salient requirements for
our purposes are that the petitioner must be unable to pro-
cure the necessary evidence despite a diligent effort, and that
the evidence would be significantly favorable to him. Id. at
788. Under this standard, we conclude that the IJ’s denial of a
continuance was within his discretion. Adame and his coun-
sel knew for two years that he would have to prove ten
years’ residence. Adame’s complaint that it was difficult to
obtain evidence from his alleged employer or the relatives he
says he lived with at the time rings hollow. First, two years is
a substantial period of time to gather the evidence, and sec-
ond, there is nothing in the record to show that Adame made
a diligent effort (or any effort) to pursue these leads.
The petition for review is DISMISSED to the extent we lack
jurisdiction and DENIED as to the remainder.