Jose A. Mendoza-Solis v. Jefferson B. Sessions III ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2017
Decided July 24, 2017
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
No. 17-1171
JOSE ALFREDO MENDOZA-SOLIS, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A200-144-813
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
ORDER
Jose Mendoza-Solis, a citizen of Mexico, petitions for review of the denial of his
application to cancel his removal. He disputes two conclusions of the Board of
Immigration Appeals: (1) that he is ineligible for cancellation because he did not
establish the requisite hardship to a qualifying relative, and (2) that the immigration
judge (IJ) gave him a fair hearing. We lack jurisdiction to review the first contention and
therefore dismiss that part of the petition; we deny it in all other respects.
Mendoza-Solis illegally entered the United States in the 1990s and settled in
suburban Chicago, where his wife and children later joined him. In 2012 the
Department of Homeland Security apprehended him and placed him in removal
No. 17-1171 Page 2
proceedings. At an initial hearing before an IJ, he conceded that he was present in the
United States without having been admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i),
but he expressed his intention to apply for cancellation of removal under 8 U.S.C.
§ 1229b(b).
To obtain cancellation of removal, Mendoza-Solis needed to establish that (1) he
had been present in the United States continuously for at least 10 years, (2) he had
“good moral character” during that time, (3) he had not been convicted of certain
crimes rendering one removable or inadmissible to the country, and (4) his removal
would cause “exceptional and extremely unusual hardship” to a qualifying relative
who is a U.S. citizen or lawful permanent resident. See 8 U.S.C. § 1229b(b)(1).
After a hearing in 2014, the IJ denied Mendoza-Solis’s application. The IJ did not
credit Mendoza-Solis’s testimony that he had been continuously present in the
United States for the required period and independently concluded that Mendoza-
Solis’s sole qualifying relative—his mother, a lawful permanent resident—would not
suffer sufficient hardship were he removed. He appealed to the Board, which
concluded at that stage that the IJ neither adequately supported his findings nor
provided Mendoza-Solis sufficient opportunity to present evidence; it remanded the
case.
At a status hearing following the remand, the IJ offered these comments on the
remand: “So I, I, I, for the life of me, I can’t understand what the Board of Immigration
Appeals felt. Maybe it was a staff attorney was concerned that I didn’t credit the mother
being a resident. I don’t know but we’re going to have to do it all over again in June.”
Despite his apparent frustration, the judge scheduled another merits hearing at which
Mendoza­Solis’s mother would be able to testify.
At the next hearing, Mendoza-Solis testified about his eligibility for relief. He
asserted that he had not left the United States since arriving in 1994. His three children
came to the United States in 2004, and his wife three years later; none of them has
lawful immigration status. Mendoza-Solis testified that he was arrested for drunk
driving in 2005 and in the past decade had been caught three times driving without a
license. The most recent of those encounters resulted in a month-long jail stint. When
asked about the hardship his mother would face if he were removed, he said that she
sometimes lived with him and that he helped her with medical expenses and food.
At the end of Mendoza-Solis’s testimony, the IJ invited both sides to make
closing statements. Mendoza-Solis’s attorney interjected and reminded the IJ that
Mendoza-Solis’s mother was present and that he wished to have her testify. The IJ
acknowledged the request, but first wanted to clarify whether Mendoza-Solis would be
No. 17-1171 Page 3
willing to depart the United States voluntarily if he did not qualify for cancellation of
removal. The IJ asked Mendoza-Solis whether he understood the difference between
voluntary departure and removal and whether he would be willing to leave voluntarily
if allowed to do so. Mendoza-Solis responded affirmatively to both questions.
Mendoza-Solis’s mother then testified, stating that she returned occasionally to
Mexico but spent most of her time in the United States, alternating between stays with
her grandson and Mendoza-Solis, who helped with expenses and transportation to
medical appointments.
The IJ again denied Mendoza-Solis’s application for cancellation of removal.
Pointing to the lack of corroboration as well as discrepancies in the evidence regarding
his year of entry (showing possible dates of 1999 and maybe even 2004, which would be
within the 10-year window for the 2012 Notice to Appear), the IJ discredited Mendoza-
Solis on this point and concluded that he could not establish continuous residency in
the United States for the required decade. The IJ also determined that Mendoza-Solis’s
criminal record undermined his contention that he was a person of good moral
character. Finally, the IJ found that Mendoza-Solis had not shown that his mother
would suffer “exceptional and extremely unusual hardship” if he were removed, since
she also lived with other family members in the United States and resided in Mexico for
part of the year.
Mendoza-Solis appealed the new decision to the Board, arguing that the IJ’s
expression of frustration at the order to re-do the case revealed that the IJ already had
decided to deny the application before listening to his mother’s testimony. The Board
disagreed with him, noting that the IJ allowed his mother to testify and only then
decided that any hardship would not be “exceptional and extremely unusual”—a
finding the Board did not disturb. The Board added that Mendoza-Solis had waived
any challenge to the IJ’s determinations regarding two other requirements for
cancellation of removal—10 years’ presence in the United States and good moral
character.
In his petition for review, Mendoza-Solis first disputes the manner in which the
IJ weighed the evidence in the record about his eligibility for cancellation of removal.
The IJ, he asserts, erred in several respects: the IJ did not give Mendoza-Solis’s
testimony about the length of his continuous presence here “the weight it deserved”;
the judge downplayed his letters of support and evidence of rehabilitation; and the
judge’s evaluation of hardship to his mother “failed to consider all the factors in the
aggregate.”
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Unfortunately for Mendoza-Solis, the Immigration Act does not give us
jurisdiction to review the denial of cancellation of removal based on a petitioner’s
failure to establish extreme hardship or good moral character, because these are
generally discretionary determinations reserved to the agency. See 8 U.S.C.
§ 1252(a)(2)(B)(i); Aparicio-Brito v. Lynch, 824 F.3d 674, 686 (7th Cir. 2016); Portillo-Rendon
v. Holder, 662 F.3d 815, 817 (7th Cir. 2011). Although the continuous-presence
requirement may raise a non-discretionary question of statutory interpretation over
which we would have jurisdiction, Aparicio-Brito, 824 F.3d at 686, Mendoza-Solis did not
exhaust his administrative remedies on this point before the Board, see 8 U.S.C.
§ 1252(d)(1); Perez-Fuentes, 842 F.3d at 511–12.
Mendoza-Solis also maintains that the IJ denied him due process at his hearing.
He argues that the IJ was biased (reflected by his expression of frustration with the
Board’s remand), “improperly assumed the role of counsel for the Government”
through aggressive, direct questioning of Mendoza-Solis, and pre-judged the case
before hearing testimony from Mendoza-Solis’s mother.
To the extent that Mendoza-Solis bases this claim on his statutory procedural
rights under 8 U.S.C. § 1229a(b)(4), he has not shown that the IJ’s active questioning
violated his statutory mandate to “administer oaths, receive evidence, and interrogate,
examine, and cross-examine the alien and any witnesses.” Id. § 1229a(b)(1);
see also 8 C.F.R. § 1240.32(b). Indeed, at oral argument Mendoza-Solis conceded that the
IJ neither asked any question that was inappropriate nor foreclosed any questioning by
either counsel. Nothing indicates that the IJ was unwilling to consider Mendoza-Solis’s
evidence, including his mother’s testimony. And the IJ’s inquiries about voluntary
departure reflected not that he pre-judged the case, but only that the judge was trying
to develop a record on Mendoza-Solis’s eligibility for any alternative relief. We add,
finally, that Mendoza-Solis does not have a liberty or property interest in a
discretionary form of relief such as cancellation of removal, and so he is not entitled to
constitutional due process in this regard. See Delgado v. Holder, 674 F.3d 759, 765
(7th Cir. 2012).
Because we lack authority to review the Board’s conclusion that Mendoza-Solis
did not establish his eligibility for cancellation of removal, we DISMISS that portion of
his petition for review. Because Mendoza-Solis has not shown that his hearing did not
meet the statutory standards for a fair hearing, we DENY the remainder of his petition.