Garcia, Abundio A. v. Gonzales, Alberto R. , 134 F. App'x 974 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 1, 2005
Decided June 17, 2005
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-2418
ABUNDIO A. GARCIA, On Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A90-610-780
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ORDER
Mexican national Abundio Garcia failed to attend his removal hearing and
was ordered removed in absentia. The Immigration Judge denied his motion to
reopen and subsequent motion to reconsider. The Board of Immigration Appeals
summarily affirmed the denial of the motion to reconsider and Garcia appeals. We
deny the petition.
In September 1995 in an Indiana state court, Garcia pleaded guilty to
possession of more than 3 grams of cocaine, a class C felony, for which he received a
suspended sentence of four years in prison and two years of probation. He was
granted an early satisfactory release from probation in December 1996.
Nevertheless, this conviction is grounds for removal under Section 237(a)(2)(B)(i) of
the Immigration and Nationality Act [8 U.S.C. § 1227(a)(2)(B)(i)], which permits
No. 04-2418 Page 2
immigration authorities to remove any alien convicted of violating a law “relating to
a controlled substance.” In November 2001 Garcia was served with a Notice to
Appear charging him with removability based on the conviction.
No hearing date was scheduled at the time the Notice to Appear was issued;
however, at a master calendar hearing that Garcia attended on April 3, 2002, he
was notified, both orally and in writing, that he would receive a hearing on
October 21, 2002, for his argument for relief from removal. Garcia failed to appear
and the IJ ordered him removed in absentia. When counsel reached him by phone
later that day, Garcia explained that he missed the hearing because he thought it
was scheduled for the following day.
In his motion to reopen the proceedings, Garcia argued that his erroneous
recollection was a matter “beyond his control” and thus constituted an “exceptional
circumstance” warranting rescission of the in absentia order. See 8 U.S.C.
§ 1229a(b)(5)(C)(i) (providing that the IJ may rescind an in absentia removal order
“upon a motion to reopen filed within 180 days after the date of the order of removal
if the alien demonstrates that the failure to appear was because of exceptional
circumstances”). In support of the motion, Garcia offered his own affidavit attesting
to his “shock[]” that he had mistaken the date and a letter from his employer
stating that Garcia had been “talking about” the hearing being on October 22 “for
quite some while” and that he had been scheduled to receive that day off for more
than a month. Garcia also claimed that his direct supervisor and a “principal” of
his employer had arranged to accompany him to the hearing on October 22 to
provide testimony. In his order denying the motion to reopen, the IJ acknowledged
that Garcia’s evidence “appear[ed] to corroborate” his assertion that he made a good
faith mistake concerning the date of his hearing, but in the IJ’s view that
circumstance was neither “exceptional” nor “beyond [Garcia’s] control.”
Garcia then moved for what he called “reconsideration” of the
decision—although the purpose of the motion was to introduce new evidence that
he claimed he could not have obtained at the time of his earlier motion. With the
motion for reconsideration, he submitted a psychological assessment by a licensed
clinical psychologist whose finding was essentially that there was “nothing to
suggest that [Garcia] was purposely being manipulative, deceitful or avoidant.”
The IJ denied Garcia’s motion, explaining that it did not meet the requirements for
a motion to reconsider since it did not identify a change in law or any fact or
argument that had been overlooked (citing In re Cerna, 20 I. & N. Dec. 399 (BIA
1991)); moreover, the IJ thought the motion “more in the nature of a second motion
to reopen,” which would have been barred by the numerical limitations on motions
to reopen under 8 C.F.R. § 1003.2(c)(2) [8 U.S.C. § 1229a(c)(6)(A)].
No. 04-2418 Page 3
Garcia appealed the denial of his motion to reconsider before the BIA, but in
his brief he simply reargued his position that his circumstances were exceptional
without taking issue with the IJ’s rulings. The BIA affirmed the denial of the
motion without opinion. See 8 C.F.R. § 1003.1(e)(4).
On petition in this court, Garcia presents essentially the same argument he
made to the BIA. Until recently, we would have dismissed the petition for lack of
jurisdiction, but the relevant law has changed due to the enactment of the REAL ID
Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. Review of the petition continues to
be governed by 8 U.S.C. § 1252(a)(2)(C), which prohibits the appellate courts from
reviewing “any final order of removal against an alien who is removable by reason
of having committed a criminal offense,” defined by, inter alia, 8 U.S.C.
§ 1227(a)(2)(B) (controlled substance offenses), including possession of cocaine. See
Garcia v. Ashcroft, 394 F.3d 487, 489 (7th Cir. 2005); Yanez-Garcia v. Ashcroft, 388
F.3d 280, 283 (7th Cir. 2004). However, the REAL ID Act amended § 1252(a)(2) to
repeal the jurisdictional bar insofar as it affects “constitutional claims” or
“questions of law,” such as the one Garcia seeks to raise. REAL ID Act,
sec. 106(a)(1)(A)(iii) (codified at 8 U.S.C. § 1252(a)(2)(D)); Fernandez-Ruiz v.
Gonzales, 2005 WL 1301593, at *1 (9th Cir. May 31, 2005). Thus, we now have
subject matter jurisdiction over Garcia’s petition.
Nonetheless, we do not reach Garcia’s “exceptional circumstances” claim
because he failed to directly appeal the IJ’s denial of the motion to reopen and
instead chose to file a motion to reconsider. The only matter that is properly before
us is whether the BIA erred in affirming the IJ’s denial of the motion to reconsider.
See Laboski v. Ashcroft, 387 F.3d 628, 631 (7th Cir. 2004); Ahmed v. Ashcroft,
388 F.3d 247, 248 (7th Cir. 2004).
Garcia’s petition does not address whether the IJ erred in finding that his
motion did not qualify as a motion to reconsider (or, alternatively, that it was a
supernumerary motion to reopen). Regardless, it is clear that the IJ (and,
therefore, the BIA) did not err. Section 1229a(c)(5)(C) provides: “The motion shall
specify the errors of law or fact in the previous order and shall be supported by
pertinent authority.” See also Ahmed, 388 F.3d at 249 (motions to reconsider
should be grounded in “‘additional legal arguments, a change of law, or perhaps an
argument or aspect of the case which was overlooked,’” quoting In re Cerna, 20 I. &
N. Dec. 399, 402 n.2 (BIA 1991)). Garcia’s motion to reconsider does not even
identify an error in the IJ’s earlier opinion, let alone support an argument for
reversal. It simply introduces a psychological assessment that Garcia claims was
not available to the IJ when the IJ denied his motion to reopen.
No. 04-2418 Page 4
For this reason, as the IJ recognized, the “motion to reconsider” more closely
resembles a statutory “motion to reopen,” which requires “new facts” and must be
“supported by affidavits or other evidentiary material.” § 1229a(c)(6)(B); see also
Simtion v. Ashcroft, 393 F.3d 733, 736 (7th Cir. 2004); Ahmed, 388 F.3d at 250.
But Garcia would not have been helped by recharacterization of the motion, as the
IJ also recognized, because as a motion to reopen, it would have run afoul of the
numerical limitation on motions to reopen in § 1229a(c)(6)(A). See Simtion,
393 F.3d at 736.
The BIA did not abuse its discretion in denying the motion to reconsider.
Consequently, the petition for review is DENIED.