Alberto Delgado-Ramos v. Eric Holder, Jr. ( 2013 )

NONPRECEDENTIAL DISPOSITION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 May 1, 2013
Decided May 8, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-3615
ALBERTO DELGADO-RAMOS, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A089 275 801
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
ORDER
Alberto Delgado-Ramos, a Mexican citizen, applied for cancellation of removal,
which an immigration judge denied after refusing Delgado-Ramos’s third request for a
continuance. The Board of Immigration Appeals upheld the denial of relief, and Delgado-
Ramos petitions for review. Delgado-Ramos seeks to characterize his removal proceedings
as constitutionally and statutorily deficient. For the reasons that follow, we deny the
petition in part and dismiss it in part for lack of jurisdiction.
Delgado-Ramos was brought illegally into the United States by his parents when he
was 6 years old. He is now 28 and married to a U.S. citizen, Cathy Delgado, who is the
No. 12-3615 Page 2
mother of his 6-year-old U.S.-citizen daughter and his 16-year-old U.S-citizen
step-daughter.
In January 2009, a few days after Delgado-Ramos was arrested for possession of
cocaine, the Department of Homeland Security served him with a notice to appear charging
that he was never admitted or paroled into the country and thus subject to removal, see 8
U.S.C. § 1182(a)(6)(A)(I). Delgado-Ramos and his wife were living together before he was
placed in removal proceedings, but they did not marry until four months later. (They wed
one week after Cathy’s divorce finalized.) She has since filed a Petition for Alien Relative
seeking a visa on his behalf. That visa application is not relevant to the present case.
The immigration judge twice postponed the proceedings at Delgado-Ramos’s
request while he sought to resolve the pending drug charge. When Delgado-Ramos next
appeared in June 2009, he conceded removability and said he would be applying for
cancellation of removal. The IJ then scheduled the removal hearing for March 21, 2011,
21 months in the future. The IJ set a deadline of 90 days for Delgado-Ramos to file a written
application for cancellation of removal, and also reminded Delgado-Ramos that he could
file supporting materials until 15 days before the hearing. At all of these appearances before
the IJ in 2009, Delgado-Ramos was represented by attorney Frank Vasquez.
Delgado-Ramos met with attorney Vasquez on September 16, 2009, and the next day
the lawyer filed the written application for cancellation of removal. In mid-February 2011,
five weeks before the scheduled removal hearing, Vasquez moved to withdraw. He
explained that, in the 17 months since their September 2009 meeting, his client had not
returned the lawyer’s phone calls (or even provided a working telephone number).
Vasquez had written to Delgado-Ramos at his last known address in December 2010 and
January 2011 reminding him of the impending hearing date. In those letters Vasquez
recounted that he had been trying to contact Delgado-Ramos and warned that he would
withdraw if Delgado-Ramos remained incommunicado since adequate representation
would be impossible. Vasquez also said in his motion to withdraw that 10 days earlier he
had finally received a phone call from Delgado-Ramos’s wife, who scheduled an
appointment for the couple to meet with the lawyer. But neither of them showed up, and
thus the lawyer had filed this motion to withdraw as he warned Delgado-Ramos’s wife he
would do.
Delgado-Ramos did appear for the removal hearing but made no effort to explain
his failure to communicate with attorney Vasquez. And neither did the IJ ask for an
explanation or invite Delgado-Ramos to respond to counsel’s statement that the petitioner
was in the process of seeking a different lawyer. The IJ refused to let Vasquez withdraw,
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reasoning that his client’s failure to communicate was not an acceptable excuse for the
lawyer to be excused from the case because, with today’s technology, ”the only way you
cannot get in communication is if you choose not to be in communication.” The IJ also
characterized the lawyer’s motion as untimely (apparently on the premise that Vasquez
should have moved to withdraw sooner). Moreover, the IJ said, nothing had prevented
Delgado-Ramos from retaining a different lawyer before the hearing, so he was not being
deprived of his choice of counsel. And granting counsel’s motion, the IJ added, effectively
would mean granting a lengthy continuance, which the judge was unwilling to do.
Attorney Vasquez then moved for “a very short continuance” so that he could
obtain “additional documents” from Delgado-Ramos to support his application for
cancellation of removal. Vasquez specifically mentioned income tax returns and “school
records” but, when pressed by the IJ, identified no others. The IJ denied this request with
the explanation that Delgado-Ramos had not established good cause. The IJ reasoned that,
in the months since Delgado-Ramos’s last appearance in June 2009, he could have gathered
and submitted any relevant information in support of his application.
Delgado-Ramos and his wife testified that she and their children will suffer
exceptional and extremely unusual hardship if he is removed to Mexico. Delgado-Ramos is
the primary wage earner, earning $750 per week, and Cathy earns $450 per week. His wife
called him the “backbone” of their family and exclaimed that, without him, “our family
would be completely destroyed.” She explained that he had stepped in as a father figure
and role model for her eldest daughter after the girl’s natural father abandoned that role.
Delgado-Ramos and his step-daughter have a great relationship, Cathy continued, and she
would suffer emotionally without him. Cathy insisted, however, that she would not move
their daughters to Mexico because living in such an unfamiliar environment would be too
stressful for them. She added that her own health problems preclude her from moving to
Mexico: She began experiencing anxiety around the time the removal proceedings began,
and her doctors are testing her for fibromyalgia because she has persistent joint pain.
In denying Delgado-Ramos’s request for cancellation of removal, the IJ found that
the petitioner was of good moral character and had been continuously present in the
United States. But Delgado-Ramos was not eligible for discretionary relief, the IJ reasoned,
because he had not established that his U.S.-citizen wife and children will suffer
exceptional and extremely unusual hardship if he is removed to Mexico, see 8 U.S.C.
§ 1229b(b)(1). The IJ explained that Delgado-Ramos’s wife will not suffer if she moves with
him to Mexico because he is capable of supporting the family in Mexico and her
anxiety—seemingly brought on by the removal proceedings and, in the IJ’s view,
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ephemeral1 —is not sufficiently serious to prevent her from living there. And, the IJ
continued, Cathy will not suffer if she remains in the United States because she is not
financially dependant on her husband and the separation “would be of her own choosing.”
Moreover, the IJ noted, she knew at the time she married Delgado-Ramos that he was in
removal proceedings. The daughters too, the IJ said, were both in good mental and physical
health and would be capable of adjusting to life and schooling in Mexico.
Delgado-Ramos, through new counsel, appealed to the Board. He argued that the IJ
had denied him due process by refusing to let his lawyer withdraw and not granting a
continuance so that he could prepare adequately for the removal hearing. (Delgado-Ramos
did not specify what he would have done if given more time.) He also contended that the
IJ’s insistence that attorney Vasquez remain on the case violated his statutory right to have
the lawyer of his choosing, see 8 U.S.C. § 1362. Moreover, Delgado-Ramos argued, the IJ had
ignored the requirement that hardship factors be considered in the aggregate. Instead,
Delgado-Ramos asserted, the IJ had given too much weight to his wife’s decision to marry
him knowing that he faced removal and too little weight to her medical conditions and the
emotional devastation his departure would bring upon his children.
The Board upheld the denial of cancellation of removal. First, the Board concluded
that forcing attorney Vasquez to remain on the case did not offend Delgado-Ramos’s right
to due process. Like the IJ, the Board seemed to think that granting the lawyer’s motion to
withdraw compelled the IJ to give Delgado-Ramos a lengthy continuance. Moving forward
with the removal hearing with attorney Vasquez, the Board explained, had not caused any
prejudice to Delgado-Ramos because he and his wife were able to testify about hardship to
her and to their children. Moreover, Delgado-Ramos had not shown how granting the
motion, i.e., giving Delgado-Ramos a continuance, would have changed the evidence
presented to establish hardship. Second, the Board agreed with the IJ that Delgado-Ramos
had been given more than enough time to prepare for the hearing. Finally, the Board
concluded that Delgado-Ramos did not establish that his removal would cause exceptional
and extremely unusual hardship to his wife and children. The BIA noted that both
Delgado-Ramos and his wife had conceded that she and the daughters would remain in the
United States. Although they would suffer some financial hardship, the BIA continued, his
wife had not shown an inability to independently support herself and her daughters.
Additionally, the children are in good health, and her anxiety is being treated.
1
The transcript of the oral decision of the immigration judge reads “femoral,” but we
think that is a transcription error, and that the IJ meant to say “ephemeral.”
No. 12-3615 Page 5
Cumulatively, the Board concluded, these factors did not amount to the requisite level of
hardship to warrant cancellation of removal.
Delgado-Ramos argues that the immigration courts denied him due process by not
postponing his removal hearing and by “rendering a decision which did not apply the
correct legal standard in considering the aggregate of petitioner’s colorable and meritorious
factors cumulatively.” The Board issued its own opinion, rather than adopting or
supplementing the IJ’s, and so the Board’s order is the one under the microscope.
See Borovsky v. Holder, 612 F.3d 917, 920 (7th Cir. 2010); Xiao v. Mukasey, 547 F.3d 712, 717
(7th Cir. 2008); Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir. 2004).
We have no jurisdiction to review an order denying cancellation of removal except if
constitutional claims or questions of law are raised. See 8 U.S.C. § 1252(a)(2)(D); Jawad v.
Holder, 686 F.3d 400, 403–04 (7th Cir. 2012). Concerning the hardship factors, the
government correctly responds that Delgado-Ramos has poorly disguised his disagreement
with the Board’s weighing of the hardship factors as a legal error. The presence of a legal
question “is a matter of substance, not a function of labeling,” Ayeni v. Holder, 617 F.3d 67,
70–71 (1st Cir. 2010), and Delgado-Ramos “cannot overcome the jurisdictional bar against
reviewing discretionary decisions by cloaking [a] rationale he does not agree with as legal
error,” Ishitiaq v. Holder, 578 F.3d 712, 716 (7th Cir. 2009); see Cruz-Moyaho v. Holder, 703 F.3d
991, 997 (7th Cir. 2012); Pawlowska v. Holder, 623 F.3d 1138, 1142 (7th Cir. 2010). Thus, the
petitioner’s contention that the Board did not consider all of the hardship factors in the
aggregate does not present a question of law, and we lack jurisdiction to review this
portion of Delgado-Ramos’s appeal concerning cancellation of removal. See Cruz-Moyaho,
703 F.3d at 997.
The only question really before us, then, is whether the IJ was required to postpone
Delgado-Ramos’s removal hearing. As the petitioner sees things, he was “denied due
process because his ability to show hardship was crippled because he had to confront an
adversarial proceeding with an attorney who admitted that he was unprepared to proceed
and in fact admitted that he had not seen his client in a year and 1/2.” Constitutional claims
are reviewable, see 8 U.S.C.§ 1252(a)(2)(D); Marin-Garcia v. Holder, 647 F.3d 666, 671 (7th Cir.
2011), but this one can be resolved quickly. Cancellation of removal is discretionary,
Munoz-Pacheco v. Holder, 673 F.3d 741, 742 (7th Cir. 2012), and due-process protections do
not extend to an alien’s interest in obtaining discretionary relief, see Delgado v. Holder, 674
F.3d 759, 765 (7th Cir. 2012); Moosa v. Holder, 644 F.3d 380, 385 (7th Cir. 2011); Lim v. Holder,
710 F.3d 1074, 1076 (9th Cir. 2013); Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 441 (8th Cir.
2008).
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The IJ and the Board seem to have been operating under the assumption that
granting a continuance is part and parcel of granting an attorney’s motion to withdraw.
This is not so. See Gjeci v. Gonzales, 451 F.3d 416, 421–23 (7th Cir. 2006) (noting IJ’s broad
discretion to grant motions to withdraw and for continuance but concluding that here,
where it was obvious that petitioner did not understand consequences of counsel’s
withdrawal and counsel did not return key documents to petitioner for use during hearing,
petitioner was denied fair hearing); Mendez-Mendez v. Mukasey, 525 F.3d 828, 830–31, 835
(9th Cir. 2008) (concluding that IJ did not violate petitioner’s right to full and fair hearing
even though, three days before removal hearing, IJ granted motion for substitution of
counsel but denied motion for continuance); Jean v. Gonzales, 435 F.3d 475, 483–84 (4th Cir.
2006) (concluding that, because petitioner did not say what additional evidence she would
have presented if granted continuance to obtain new counsel, IJ did not deny petitioner fair
hearing by going forward with proceedings despite permitting counsel to withdraw six
weeks before entry of final order of removal); Ponce-Leiva v. Ashcroft, 331 F.3d 369, 371–72,
375–76 (3d Cir. 2003) (concluding that petitioner’s right to counsel was not violated when,
after denying counsel’s request for continuance two days earlier, counsel did not show up
at removal hearing and proceedings went forward). We do wonder, however, why the IJ
did not ask Delgado-Ramos or his wife to explain why their communication with attorney
Vasquez broke down; having that information in the record would have aided our review.
A continuance would have been necessary only if forcing attorney Vasquez to
represent Delgado-Ramos during the removal hearing would have violated the petitioner’s
statutory right to a fair hearing by denying him a reasonable opportunity to present
evidence. See 8 U.S.C. § 1229a(b)(4)(B); Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008);
Hussain v. Keisler, 505 F.3d 779, 781 (7th Cir. 2007). Although “adequacy of representation is
an important factor in assuring that the statutory right to a fundamentally fair proceeding
is respected,” Sanchez v. Keisler, 505 F.3d 641, 648 (7th Cir, 2007), Delgado-Ramos cannot
prevail without showing that granting a continuance likely would have affected the result
of the hearing, see Boci v. Gonzales, 473 F.3d 762, 768 (7th Cir. 2007).
Delgado-Ramos says he would have developed 11 topics if granted a continuance,
but he does not explain how evidence about these topics could have led to a favorable
decision. Six of the topics relate to conditions in Mexico and are irrelevant to the hardship
analysis because Delgado-Ramos and his wife both testified that she and their daughters
would remain in the United States. For the same reason Delgado-Ramos’s assertion that he
would have presented evidence that his wife’s divorce prohibits her from taking their
eldest daughter out of the country is inconsequential. He also asserts that he would have
presented testimony about his parents without stating if they are qualifying relatives (he
No. 12-3615 Page 7
illegally entered the country with them, so presumably they would not be qualifying U.S.
citizens or lawful permanent residents, see 8 U.S.C. §§ 1182(a)(6)(A)(I), 1229b(b)(1)(D).)
The only possibly relevant evidence that Delgado-Ramos says he would have
presented is (1) “specific testimony or documentation” about how his wife’s medical
conditions will be exacerbated if he is removed and (2) a psychological report showing
emotional and psychological hardship caused by separation. But it is not enough to
suggest, generally, that this evidence, had he been allowed to present it, would have
changed the IJ’s decision denying cancellation of removal. See Boadi v. Holder, 706 F.3d 854,
859 (7th Cir. 2013). In the two years after his removal hearing, Delgado-Ramos did not
provide the Board, and thus has not provided us, an affidavit describing that evidence.
See Rehman v. Gonzalez, 441 F.3d 506, 509 (7th Cir. 2006); Alimi v. Ashcroft, 391 F.3d 888,
890–91 (7th Cir. 2004). Nor does he even hint at how the psychological report would
demonstrate emotional and psychological hardship that is “substantially different from, or
beyond, that which would normally be expected from the deportation of an alien with close
family members here.” In re Monreal-Aguinaga, 23 I&N Dec. 56, 65 (BIA 2001). And
Delgado-Ramos, with his new lawyer, could have asked the Board to remand for the IJ to
take additional evidence and engage in further factfinding. See 8 C.F.R. § 1003.1(d)(3)(iv);
Lin v. Holder, 630 F.3d 536, 545 (7th Cir. 2010); Figueras v. Holder, 574 F.3d 434, 437–38 (7th
Cir. 2009); Duhaney v. Attorney Gen. of U.S., 621 F.3d 340, 346 (3d Cir. 2010); Saleheen v.
Holder, 618 F.3d 957, 962 (8th Cir. 2010); Witjaksono v. Holder, 573 F.3d 968, 975–76 (10th Cir.
2009). He made no effort to do so and has not suggested that the BIA should have.
The portion of the petition raising constitutional claims and questions of law is
DENIED. The remainder is DISMISSED for want of jurisdiction.