Roberto Cruz-Mayaho v. Eric Holder, Jr. , 341 F. App'x 190 ( 2009 )

NONPRECEDENTIAL DISPOSITION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 August 4, 2009
Decided August 11, 2009
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 08-3068 & 08-3873
ROBERTO CRUZ-MAYAHO, Petitions for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A90 712 401
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
ORDER
Roberto Cruz-Mayaho, a native and citizen of Mexico, was charged with
removability for being present in the United States without being admitted or paroled. See
8 U.S.C. § 1182(a)(6)(A)(i). An immigration judge found him removable and ineligible for
cancellation of removal. The Board of Immigration Appeals affirmed the IJ’s decision
without issuing a separate opinion and denied Cruz-Mayaho’s motion to reconsider. He
now petitions for review. Because we lack jurisdiction, we dismiss Cruz-Mayaho’s petition.
Nos. 08-3068 & 08-3873 Page 2
Cruz-Mayaho entered the United States without inspection in 1989. Although
illegally present in the country, he built a decent life for himself over the next sixteen years.
By all accounts, he was a valued member of the community and a hard-working and (apart
from his immigration violation) a law-abiding person. In 2005, however, the Department of
Homeland Security (which apparently caught up with him while he was volunteering his
services as a roofer in Louisiana to help victims of Hurricane Katrina) served him with a
notice to appear and commenced removal proceedings.
Cruz-Mayaho admitted removability but later sought cancellation of removal based
upon “exceptional and extremely unusual hardship” to his two U.S.-born children, aged
three and four. (The record indicates that Cruz-Mayaho’s wife is also an undocumented
alien.) At his hearing, he said that his daughter had a “problem” with her left eye that
required periodic medical attention but was “under control.” And he testified to the
hardships his removal would create for both children. First, he predicts that he would have
no way to provide for them regardless of whether they remained in the United States or
joined him in Mexico. Second, he fears that they would be swept into gangs if they are left
to fend for themselves in the United States.
At the conclusion of the removal hearing, the IJ rejected Cruz-Mayaho’s application
for cancellation of removal. The judge found that although Cruz-Mayaho had shown
continuous physical presence in the United States for ten years and good moral character,
see 8 U.S.C. § 1229b(b)(1), he had not established that his removal would work an
“exceptional and extremely unusual hardship” on his children. The IJ reasoned that the
hardship his children might suffer was not “substantially beyond that which would be
ordinarily expected to result from an alien’s deportation.” The judge did, though, allow
Cruz-Mayaho to depart the United States voluntarily. Cruz-Mayaho then appealed to the
BIA, which adopted the IJ’s decision without opinion.
In 2008 Cruz-Mayaho filed a motion to reconsider with the BIA, contending that the
Board “did not properly address” his arguments. If the BIA had done so, Cruz-Mayaho
asserted, it would have found that his deportation would lead to “horrific hardships” for
his children. Cruz-Mayaho also raised for the first time a somewhat vague due process
argument—he contended that his case had been adjudicated by an IJ known to be hired
during a spate of political appointments at the Department of Justice. Three months later
the BIA denied his motion for reconsideration, determining that it reiterated previous
arguments for the most part and that his due process claims were without merit. Cruz-
Mayaho now petitions this court for review of the BIA’s rejection of his motion for
reconsideration and of the underlying BIA decision.
Nos. 08-3068 & 08-3873 Page 3
In his petition for review, Cruz-Mayaho argues that the BIA erred in upholding the
IJ’s decision and denying his motion for reconsideration. The Government, however, raises
the threshold question whether we have jurisdiction over this appeal. The Government
urges that 8 U.S.C. § 1252(a)(2)(B) strips this court of jurisdiction to consider both the
underlying decision denying cancellation of removal and the BIA’s denial of Cruz-
Mayaho’s motion for reconsideration. Under that provision, “no court shall have
jurisdiction to review . . . any judgment regarding the granting of relief under section . . .
1229b.” 8 U.S.C. § 1252(a)(2)(B)(i). We have consistently construed this provision to mean
that a discretionary decision to cancel removal pursuant to 8 U.S.C. § 1229b(b)(1) is not
subject to judicial review, see, e.g., Stepanovic v. Filip, 554 F.3d 673, 678-79 (7th Cir. 2009);
Martinez-Maldonado v. Gonzales, 437 F.3d 679, 682 (7th Cir. 2006); Leyva v. Ashcroft, 380 F.3d
303, 305-06 (7th Cir. 2004), unless it involves either “constitutional claims” or “questions of
law,” 8 U.S.C. § 1252(a)(2)(D); see Mireles v. Gonzales, 433 F.3d 965, 968-69 (7th Cir. 2006).
Cruz-Mayaho does not acknowledge this jurisdictional bar and declined even to file
a reply brief to respond to the Government’s argument, despite being granted two
extensions of time. He does, however, suggest that the BIA and IJ erred “as a matter of law”
because of changed circumstances in Mexico. He contends that his children would face
“lesser educational opportunities, a diminished future, and inadequate medical care” in
Mexico. But this contention is nothing more than a challenge to the IJ’s factual findings
regarding the hardship his children might suffer if he were removed to Mexico. Such a
challenge is beyond this court’s jurisdiction because it seeks review of a discretionary,
factual determination rather than a legal question. See Khan v. Filip, 554 F.3d 681, 688-89
(7th Cir. 2009). Because we lack jurisdiction to review the IJ’s underlying decision, we also
lack jurisdiction to review the BIA’s denial of Cruz-Mayaho’s motion for reconsideration.
See Martinez-Maldonado, 437 F.3d at 683; Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004).
The only argument Cruz-Mayaho advances that might conceivably raise a “question
of law” is his claim that the IJ applied an incorrect standard when evaluating his argument
for cancellation of removal. Cruz-Mayaho points out that the judge required him to
demonstrate “extreme and unusual hardship,” rather than “exceptional and extremely
unusual hardship,” as required under the statute. Yet the context of the judge’s
misstatement reflects that he understood the correct standard; the misstatement occurred
only once and appears within the section bearing the heading “Exceptional and Extremely
Unusual Hardship.” See generally Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007).
Cruz-Mayaho’s remaining arguments—that the IJ and BIA violated his right to due
process of law by ignoring evidence and appearing biased—are also without merit. See,
e.g., Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1118-19 (7th Cir. 2008) (due process claims
Nos. 08-3068 & 08-3873 Page 4
require prejudice); Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008) (due process does not
extend to proceedings that provide only discretionary relief). We note finally that his
arguments concerning his motion to reopen, which we understand is pending before the
BIA, are premature from this court’s standpoint. Counsel for the Government conceded
that Cruz-Mayaho would be entitled to file a new petition for review from the Board’s
adjudication of that motion.
Accordingly, we D ISMISS Cruz-Mayaho’s petitions for review.