Domingo Cueto Estrada v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1226
D OMINGO C UETO E STRADA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A93-031-549
No. 08-2218
D OMINGO C UETO E STRADA,
Plaintiff-Appellant,
v.
JANET A. N APOLITANO, Secretary
of Homeland Security, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 C 50042—Philip G. Reinhard, Judge.
A RGUED A PRIL 3, 2009—D ECIDED M AY 3, 2010
2 Nos. 08-1226 & 08-2218
Before E ASTERBROOK, Chief Judge, and E VANS and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Domingo Cueto Estrada,1 a
Mexican citizen, applied for cancellation of removal
under 8 U.S.C. § 1229b(a), but an Immigration Judge
(“IJ”) found him statutorily ineligible for such relief
because he is not a lawful permanent resident. The IJ’s
conclusion rested on the fact that Cueto Estrada was at
one time considered a lawful permanent resident under
the Special Agricultural Worker program, but the Im-
migration and Naturalization Service (“INS”) rescinded
his lawful-permanent-resident status in 1996 because it
believed Cueto Estrada obtained that status by fraud.
Cueto Estrada vigorously disputes this, and he also
claims that the 1996 rescission order is invalid because
he was never properly served with notice of the
agency’s action.
As his case comes to us, Cueto Estrada has traveled
two paths seeking a forum for his challenge to the
validity of the 1996 rescission order. Cueto Estrada asked
the IJ to examine the validity of the order in the removal
proceedings; the IJ refused to do so because he thought
Matter of Rodriguez-Esteban, 20 I. & N. Dec. 88 (BIA 1989),
prohibited him from reviewing permanent-resident
rescission orders. The Board of Immigration Appeals
1
The petitioner’s last name has been referred to as “Cueto,”
“Estrada,” “Cueto-Estrada,” and “Cueto Estrada” throughout
the record. We use “Cueto Estrada” to refer to the petitioner
because that is the name he used on his application for can-
cellation of removal.
Nos. 08-1226 & 08-2218 3
(“BIA”) adopted and affirmed this decision, and Cueto
Estrada filed a petition for review in this court. While
his removal proceedings were underway, Cueto Estrada
asked the U.S. Citizenship and Immigration Service in
2007 to reopen the 1996 rescission order; the agency
declined to do so because it thought Cueto Estrada’s
request was untimely. Cueto Estrada challenged this
decision by filing a complaint in the district court that
asserted violations of the Administrative Procedure
Act and his due-process rights, but the district court
dismissed the complaint for lack of subject-matter juris-
diction. Cueto Estrada filed an appeal.
We ordered the appeal and the petition for review
consolidated, and our job now is to sort out which
forum, if any, should have exercised jurisdiction over
Cueto Estrada’s challenge to the INS’s rescission of his
permanent-resident status. We conclude that Cueto
Estrada’s challenge to the sufficiency of the notice he
received before the agency rescinded his permanent-
resident status was reviewable in his removal pro-
ceedings. Rodriguez-Esteban only prohibits the IJ and the
BIA from reviewing a decision to rescind status when
an alien has been properly notified according to the
requirements of 8 C.F.R. § 246.1. Because Cueto Estrada
claims he never received notice of the INS’s intent to
rescind his permanent-resident status, Rodriguez-Esteban
does not apply and the agency should have considered
whether the 1996 rescission order was invalid because
Cueto Estrada did not receive proper notice. By
contrast, the complaint filed in the district court is the
equivalent of a challenge to an “order of removal” within
4 Nos. 08-1226 & 08-2218
the meaning of 8 U.S.C. § 1252(a)(5), and that sub-
section permits judicial review only via a petition for
review in the court of appeals. Accordingly, while we
affirm the district court’s decision to dismiss Cueto
Estrada’s complaint for lack of subject-matter jurisdic-
tion, we grant Cueto Estrada’s petition for review and
remand his case to the BIA so it can determine what effect
Cueto Estrada’s arguments against the 1996 rescission
order have on his request for cancellation of removal.
I. Background
Domingo Cueto Estrada, a native of Mexico, entered
the United States illegally in 1987. Thanks to the Special
Agriculture Worker (“SAW”) program, 8 U.S.C. § 1160,
Cueto Estrada was granted lawful-permanent-resident
status in 1990. But the government soon suspected that
Cueto Estrada received his permanent-resident status by
fraudulent means. Domingo Luna, who helped Cueto
Estrada prepare his SAW application, was convicted of
filing false statements on other SAW applications in
violation of 8 U.S.C. § 1160(b)(7)(A)(ii). The government
believed Cueto Estrada likewise purchased fraudulent
employment documents from Luna to support his
SAW application.
In 1995 immigration authorities initiated proceedings
that led to the rescission of Cueto Estrada’s status as
a legal permanent resident. The INS sent Cueto Estrada
notice of its intent to rescind his permanent-resident
status; the notice was sent via certified mail to Cueto
Estrada’s last-known address. Had Cueto Estrada re-
Nos. 08-1226 & 08-2218 5
sponded to the notice, he would have been entitled to a
hearing before an immigration judge to contest the rescis-
sion. See 8 C.F.R. § 246.3. But the immigration agency never
heard from Cueto Estrada, and in 1996 the INS rescinded
his peramanent-resident status without a hearing as
permitted by 8 C.F.R. § 246.2.
Cueto Estrada claims he never received the 1995 notice
and says he first learned that he had lost his permanent-
resident status in 2005 when the Department of Home-
land Security initiated removal proceedings against
him.2 Although he applied for cancellation of removal
under 8 U.S.C. § 1229b(a), his claim hinged on his ability
to show that he was a lawful permanent resident; if he
is not a lawful permanent resident, Cueto Estrada
admits he would be statutorily ineligible for cancella-
tion of removal under § 1229b(b). To make the required
showing, Cueto Estrada argued that the 1996 rescission
of his permanent-resident status was invalid because
he did not receive proper notice of the INS’s intent to
rescind. Had he been given proper notice, Cueto Estrada
2
Cueto Estrada was convicted of possessing heroin in 1999, a
violation of Illinois law. For purposes of this case, the Attor-
ney General alleges that Cueto Estrada could be removed via
proceedings under 8 U.S.C. § 1229a because he had committed
a state-law controlled-substance offense and because Cueto
Estrada arrived in the United States illegally. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), (a)(6)(A)(i). Cueto Estrada concedes he
can be removed on account of his drug conviction under
§ 1182(a)(2)(A)(i)(II).
6 Nos. 08-1226 & 08-2218
claimed he would have shown he did not obtain
his permanent-resident status through fraud.
The IJ rejected this argument by relying on Rodriguez-
Esteban, in which the BIA concluded that immigration
courts may not review a decision to rescind permanent-
resident status made by the INS.3 The IJ thought that
Rodriguez-Esteban prohibited him from either revisiting
the merits of the INS’s decision to rescind Cueto
Estrada’s status or considering whether the rescission
order was invalid because the INS did not comply with
its regulatory obligation to provide adequate notice of
the agency’s intent to institute rescission proceedings.
Accordingly, since Cueto Estrada was no longer a lawful
permanent resident, he was statutorily ineligible for
cancellation of removal under 8 U.S.C. § 1229b(a). The IJ
ordered Cueto Estrada removed. The BIA adopted and
affirmed the IJ’s decision in 2008, and Cueto Estrada
filed a petition for review in this court.
In early 2007, while these removal proceedings were
underway, Cueto Estrada asked the U.S. Citizenship and
Immigration Service (“USCIS”) to reconsider its 1996
decision to rescind his permanent-resident status,
arguing that the rescission was improper because he
never received notice of the INS’s intent to rescind.
3
The INS was disbanded in 2003, and the responsibilities
for rescinding aliens’ permanent-resident status was assigned
to the U.S. Citizen and Immigration Service (“USCIS”), a
branch of the Department of Homeland Security. We refer to
the INS and the USCIS interchangeably.
Nos. 08-1226 & 08-2218 7
The USCIS denied his request in April 2007, treating his
motion as untimely since it had been filed 11 years after
the 1996 decision was made, well outside the 30-day
period for filing reconsideration requests under 8 C.F.R.
§ 103.5(a)(1)(i). At the time of the USCIS’s decision, the
IJ had not yet ordered Cueto Estrada removed, and
the USCIS observed that any relief Cueto Estrada
sought “may be raised with the [IJ] during your removal
proceeding.” Cueto Estrada filed a petition for review
of the USCIS decision with this court in 2007, but we
dismissed it for lack of jurisdiction. Accordingly, Cueto
Estrada challenged the USCIS order by filing a com-
plaint with the district court. Although he claimed that
the USCIS’s refusal to revisit its 1996 rescission order
violated the Administrative Procedure Act (“APA”) and
his due-process rights, the district court treated Cueto
Estrada’s complaint as a challenge to a removal order
and dismissed his case for lack of jurisdiction. Cueto
Estrada appealed this dismissal, and we consolidated
his appeal with his petition for review.
II. Discussion
We start with Cueto Estrada’s petition for review. When
the BIA adopts and affirms the IJ’s decision, as it did in
this case, we review the IJ’s decision as supplemented
by the BIA. Khan v. Filip, 554 F.3d 681, 690 (7th Cir.
2009). Although the jurisdictional bar of 8 U.S.C.
§ 1252(a)(2)(B) ordinarily prohibits us from reviewing
the immigration agency’s decision on a cancellation-of-
removal claim, the immigration agency’s conclusion that
8 Nos. 08-1226 & 08-2218
it could not hear Estrada’s challenge to the validity of
the rescission order constitutes a “question of law”
that § 1252(a)(2)(D) permits us to review.
Our analysis begins with Matter of Rodriguez-Esteban,
20 I. & N. Dec. 88 (BIA 1989), the decision the IJ thought
precluded any review of Cueto Estrada’s attacks on
the INS’s 1996 rescission order. In Rodriguez-Esteban
the alien was served with notice of the agency’s intent
to revoke his permanent-resident status. The alien
disputed the allegations in the notice and requested a
hearing, but immigration officials never scheduled one
and rescinded the alien’s status as if he had never re-
sponded. When the alien was placed in removal pro-
ceedings, the IJ concluded that the rescission of the
alien’s permanent-resident status had been improper
because the alien had not been properly served with
the notice to rescind. This analysis was apparently
flawed; as the government argued on appeal to the
BIA, the alien had conceded that he had been properly
served. Id. at 89-90. On appeal the BIA held that the IJ
lacked jurisdiction to reconsider the INS’s rescission
order, but it nonetheless ordered the removal pro-
ceedings terminated because the alien had filed a
motion to reopen the rescission decision with the INS.
Id. at 90.
The BIA’s decision in Rodriguez-Esteban relied on 8 C.F.R.
§ 246.2, which authorizes the INS to rescind an alien’s
status if within 30 days after receiving a notice of intent
to rescind, an alien does not respond to the allegations
in the notice, admits the allegations, or fails to request
a hearing. In such circumstances “no appeal shall lie
Nos. 08-1226 & 08-2218 9
from” a district director’s or asylum-office director’s
decision to rescind status under § 246.2. But the alien’s
permanent-resident status may be summarily rescinded
under § 246.2 only if the agency has complied with the
requirements of 8 C.F.R. § 246.1, and § 246.1 requires
that a rescission proceeding “shall be commenced by
the personal service . . . of a notice of intent to rescind,
which shall inform him or her of the allegations upon
which it is intended to rescind the adjustment of his
or her status.” Accordingly, if an alien has not been
served with notice that the immigration agency intends
to rescind his permanent-resident status, then the agency
has not properly commenced rescission proceedings
and any rescission order is invalid.
The IJ and the BIA both thought Rodriguez-Esteban
prohibited review of any aspect of a decision to rescind
an alien’s permanent-resident status, but this reading is
overly broad. 4 In Rodriguez-Esteban the parties agreed
that the alien had been properly served within the
meaning of § 246.1; since the alien had not filed a
response or requested a hearing, § 246.2 prohibited any
appeal of the agency’s decision to rescind his status. 20
I. & N. Dec. at 90. By contrast, in this case, Cueto Estrada
claims that the requirements of § 246.1 have not
4
The BIA’s decision in Rodriguez-Esteban was stated in jurisdic-
tional terms. But the agency cannot by decision or regulation
reduce the scope of its own jurisdiction. See Union Pac. R.R. v.
Bhd. of Locomotive Eng’rs & Trainmen, 130 S. Ct. 584 (2009). The
IJ’s jurisdiction to conduct removal proceedings is derived
from 8 U.S.C. § 1229a.
10 Nos. 08-1226 & 08-2218
been satisfied because he was never properly served.
Accordingly, the “no appeal” provision of § 246.2
is not triggered, and the IJ should have heard Cueto
Estrada’s claim that he was not properly served with
notice of the INS’s intent to rescind his permanent-
resident status. If he was not, then the INS improperly
initiated rescission proceedings and the rescission order
is invalid. Because the IJ and the BIA did not reach
this question, remand to the agency is warranted.5
Title 8, section 246.1 of the Code of Federal Regulations
requires “personal service” of a notice of intent to
5
Our decision in Szczesny v. Ashcroft, 358 F.3d 464 (7th Cir.
2004), is not to the contrary. As in this case, the alien in Szczesny
argued that he did not receive adequate notice of the INS’s
intent to rescind his permanent-resident status and therefore
the rescission was invalid. While noting potential due-process
concerns, the IJ concluded that Rodriguez-Esteban prohibited
him from reviewing the rescission order and ordered the
alien deported. We denied the alien’s petition for review—but
because the alien waited until oral argument to suggest he
had a meritorious argument against rescission. Id. at 465-66.
This case is different because Cueto Estrada has consistently
argued that he has a meritorious defense to the allegations
that his SAW application was fraudulent and that would have
raised it had he received proper notice. Cueto Estrada claims
that the only reason immigration authorities rescinded his
permanent-resident status was because his application was
prepared by someone who was later convicted of making
false statements on other immigration forms; he points out
that the government has never shown that Cueto Estrada’s
application contained any false statements or that supporting
documents were obtained through fraudulent means.
Nos. 08-1226 & 08-2218 11
rescind permanent-resident status, and the applicable
regulations define “personal service” to include “[m]ailing
a copy by certified or registered mail, return receipt
requested, addressed to a person at his last known ad-
dress.” 8 C.F.R. § 103.5a(a)(2)(iv). The parties dispute
the sufficiency of the notice the INS sent in 1995; the
immigration agency should determine in the first
instance whether the evidence establishes compliance
with the requirements of 8 C.F.R. § 246.1.
We acknowledge that on remand Cueto Estrada
could win his battle against the 1996 rescission order
but lose his campaign to stay in this country. Cueto
Estrada remains statutorily ineligible for cancellation of
removal under 8 U.S.C. § 1229b(a) unless he can restore
his permanent-resident status. If Cueto Estrada con-
vinces the immigration agency that the rescission order
is invalid, that only means he becomes statutorily
eligible for cancellation of removal under § 1229b(a);
it does not entitle him to relief from removal. A decision
to cancel removal—regardless of whether the alien is a
lawful permanent resident—is a discretionary one,
Bakarian v. Mukasey, 541 F.3d 775, 785 (7th Cir. 2008), and
the BIA might decide against granting Cueto Estrada
the relief he seeks. In an effort to persuade us that
remand would be futile, the Attorney General has identi-
fied several reasons why the agency would not likely
cancel removal in this case. But the decision to grant
Cueto Estrada relief lies with immigration officials
who are charged with balancing the factors identified
in Matter of Marin, 16 I. & N. Dec. 581, 584-87 (BIA 1978),
and we will not assume that they would decline to
cancel removal.
12 Nos. 08-1226 & 08-2218
That leaves us with the question of what to do with
the APA and constitutional claims Cueto Estrada filed
in his complaint in the district court. The district court
dismissed those claims for lack of subject-matter juris-
diction, a decision we review de novo. Johnson v. Orr,
551 F.3d 564, 567 (7th Cir. 2008). We start with 8 U.S.C.
§ 1252(a)(5), which provides that a petition for review
“shall be the sole and exclusive means for judicial
review of an order of removal.” The challenges Cueto
Estrada raised in his petition for review and in his com-
plaint have the same objective: both seek to vacate the
1996 rescission order and permit Cueto Estrada to
contest the rescission of his permanent-resident status
on the merits. If Cueto Estrada obtains the relief he
seeks, the order of removal entered by the IJ and affirmed
by the BIA—which rested on the conclusion that Cueto
Estrada is no longer a lawful permanent resident—would
necessarily be flawed. We have concluded that Cueto
Estrada can obtain the relief sought in his complaint in
the removal proceedings before the IJ and the BIA, and
§ 1252(a)(5) provides that the exclusive means for
judicial review of removal proceedings shall be by peti-
tion for review. Accordingly, the district court properly
dismissed Cueto Estrada’s complaint for lack of subject-
matter jurisdiction.6
6
We acknowledge that the Second Circuit has concluded that
an alien could challenge a USCIS decision under the APA.
Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008). In Sharkey a
lawful permanent resident visited a passport agency to renew
(continued...)
Nos. 08-1226 & 08-2218 13
For the foregoing reasons, we A FFIRM the order of the
district court dismissing Cueto Estrada’s complaint for
lack of subject-matter jurisdiction. We G RANT Cueto
Estrada’s petition for review, V ACATE the order of the BIA,
and R EMAND for further proceedings consistent with
this opinion.
6
(...continued)
an I-551 stamp on her passport that had served as temporary
evidence of her permanent-resident status. Instead of renewing
the stamp, the immigration official crossed out the stamp and
wrote “cancelled with prejudice,” an action the alien inter-
preted as a rescission of her permanent-resident status that
violated the procedures set forth in 8 C.F.R. pt. 246. She filed
an action in district court under the APA, and the Second
Circuit concluded that the court had jurisdiction. Id. at 91-92.
An important difference between Sharkey and this case is that
the alien in Sharkey had not been placed in removal proceedings,
id. at 90 n.14, and therefore § 1252(a)(5) was not at issue. Thus,
Sharkey is distinguishable from this case, and we express no
opinion regarding whether the district court could have exer-
cised jurisdiction over Cueto Estrada’s complaint had he not
been placed in removal proceedings. We do note that if an alien
filed an action in district court “arising from the decision or
action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien,”
8 U.S.C. § 1252(g) generally prohibits district courts from
exercising jurisdiction over such challenges. See Sharif ex rel.
Sharif v. Ashcroft, 280 F.3d 786, 787-88 (7th Cir. 2002).
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