Roberto Cruz-Mayaho v. Eric Holder , 698 F.3d 574 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1634, 11-2914, 11-3512
R OBERTO C RUZ-M AYAHO,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. 098-501-242
A RGUED S EPTEMBER 11, 2012—D ECIDED O CTOBER 17, 2012
Before B AUER, P OSNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Roberto Cruz-Mayaho has been
fighting removal from the United States with every tool
he can find, and then some. His is a somewhat unusual
case, however, because (at least initially) he was neither
claiming a right to asylum or related relief nor was he
asserting that he has a right to adjust his status because
of something like employment or a new marriage to a
2 Nos. 10-1634, 11-2914, 11-3512
U.S. citizen. Instead, desperate to avoid being returned
to his native Mexico, he has pursued cancellation of
removal based on alleged “exceptional and extremely
unusual hardship” to his young U.S.-citizen children.
The Board of Immigration Appeals denied his original
application in 2008, and since that time it has denied a
long line of motions to reopen and to reconsider its
ruling. The three petitions for review now before us are
the latest to reach this court. In the hope that this will
bring Cruz-Mayaho’s saga to a close, we deny these
petitions for review.
I
In January 1989, Cruz-Mayaho entered the United
States for the first time. He did so “without inspection,” as
the immigration authorities put it, and thus was in the
country without proper authorization. See Marin-Garcia
v. Holder, 647 F.3d 666, 668 (7th Cir. 2011). He may have
traveled to and from Mexico over the years, but the
critical fact for our purposes is the issuance, on Octo-
ber 28, 2005, of a Notice to Appear, which is the docu-
ment used by Immigration and Customs Enforce-
ment (ICE), an agency located within the Department of
Homeland Security, to initiate removal proceedings.
When his case came before an immigration judge (IJ), Cruz-
Mayaho applied for cancellation of removal pursuant to
8 U.S.C. § 1229b(b), a statute that gives the Attorney
General discretionary power to allow an alien to remain
in the United States if certain criteria are met. The IJ
concluded that Cruz-Mayaho met the requirement of
Nos. 10-1634, 11-2914, 11-3512 3
10 years’ continuous physical presence, that he was a
person of good moral character, and that he had no
disqualifying convictions on his record. But the final
requirement is that the alien must “establish[] that
removal would result in exceptional and extremely un-
usual hardship to the alien’s spouse, parent, or child, who
is a citizen of the United States.” § 1229b(b)(D). This
means, according to the Board, “hardship to his or her
qualifying relatives 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 Andazola-Rivas, 23 I. & N. Dec. 319, 321 (BIA
2002) (internal quotation marks omitted). Cruz-Mayaho
was not able to point to anything out of the ordinary,
and so the IJ denied his application for cancellation of
removal. On July 17, 2008, the Board affirmed without
opinion.
Cruz-Mayaho was not ready to give up, however, and
so he tried to challenge the Board’s decision in a number
of ways. He began, appropriately enough, with a petition
for review of the Board’s decision; he filed that on
August 14, 2008. We refer to it as Petition #1. The next
day, he filed a Motion to Reconsider with the Board;
we refer to it as Reconsider #1 and follow the same
format for later such motions. On November 7, 2008, the
Board denied Reconsider #1; Cruz-Mayaho then, on
November 12, 2008, filed Petition #2 in this court, chal-
lenging the denial of his motion to reconsider. Before
either of his two petitions was resolved, on January 26,
2009, he filed a Motion to Reopen (Reopen #1) with
the Board.
4 Nos. 10-1634, 11-2914, 11-3512
On August 11, 2009, this court dismissed Petitions #1
and #2 for lack of jurisdiction. See Cruz-Mayaho v. Holder,
Nos. 08-3068 & 08-3873, 2009 WL 2445064 (7th Cir. Aug. 11,
2009). Shortly thereafter, on September 30, 2009, the
Board denied Reopen #1 as untimely and declined to
use its discretion to reopen sua sponte. Cruz-Mayaho
promptly followed up on October 29, 2009, with a
motion to reconsider that decision, bringing us up to
Reconsider #2. The Board denied Reconsider #2 in an
order dated February 26, 2010. On March 16, 2010, Cruz-
Mayaho filed a petition for review from the Board’s
rejection of Reconsider #2 (Petition #3). That was
docketed as case 10-1634 in this court; it is the first
matter before us now. Not content to put all of his eggs
in that basket, however, on March 26, 2010, Cruz-
Mayaho filed yet another motion to reconsider the
denial of Reconsider #2 (Reconsider #3), and he added
a new motion to reopen (Reopen #2) in which he sought
for the first time to apply for asylum, withholding
of removal, and protection under the Convention
Against Torture (CAT). The Board denied Reconsider #3
and Reopen #2 in an order issued September 8, 2010.
In that order, the Board construed the motion as solely
one for reconsideration, and it denied it as numerically
barred. Cruz-Mayaho filed a petition for review from
that decision (Petition #4). Without opposition from the
government, this court on April 27, 2011, remanded
Petition #4 to the Board so that it could consider Reopen #2.
That brings us to the final chapter. On August 4, 2011,
the Board denied Reopen #2 as untimely, numerically
barred, unsupported by the evidence, and insufficient to
Nos. 10-1634, 11-2914, 11-3512 5
support relief under CAT. Cruz-Mayaho filed Petition
for Review #5 from that decision on August 22, 2011;
this petition is case 11-2914. Once again, Cruz-Mayaho
coupled his petition with another effort at reconsidera-
tion: he filed Reconsider #4 on August 29, 2011, as well
as Reopen #3 on the same date. The Board denied both
of those motions on October 27, 2011, and Cruz-Mayaho
filed Petition #6 from that decision on November 7,
2011; this is case 11-3512. We have consolidated the
three petitions for review now pending before us for
disposition.
II
The Board had authority over Cruz-Mayaho’s numer-
ous motions to reopen and to reconsider under 8 C.F.R.
§ 1003.2(a) and 8 U.S.C. § 1229a(c)(6)-(7). The petitions
for review before us were timely filed within 30 days
of the Board’s decisions. Our jurisdiction over these
petitions, however, is limited by the immigration statutes.
Under 8 U.S.C. § 1252(a)(2)(B)(i), we have no jurisdiction
to review “any judgment regarding the granting of
relief under . . . 1229b [cancellation of removal],” except
insofar as “constitutional claims or questions of law” are
raised. 8 U.S.C. § 1252(a)(2)(D). Ordinarily, if we lack
jurisdiction to review an order, then we also lack juris-
diction over motions to reopen or reconsider that order,
see, e.g., Martinez-Maldonado v. Gonzales, 437 F.3d 679,
683 (7th Cir. 2006), but in light of the Supreme Court’s
decision in Kucana v. Holder, 558 U.S. 233 (2010), we have
recognized that judicial review is foreclosed “only if the
6 Nos. 10-1634, 11-2914, 11-3512
agency’s rationale for denying the procedural request
also establishes the petitioner’s inability to prevail on the
merits of his underlying claim.” Calma v. Holder, 663
F.3d 868, 876 (7th Cir. 2011). As we put it in Calma:
[T]here are identifiable circumstances under which
a critical procedural step in a removal proceeding,
such as the denial of a continuance that is sought for
purposes of allowing another agency to complete
its review, the denial of a motion to reconsider, a
refusal to remand, or a refusal to reopen a case, lies
within our jurisdiction even though we are barred
from evaluating the BIA’s ultimate decision in the
circumstances spelled out in § 1252(a)(2)(B)(i). . . .
Sometimes review will be possible because . . . the
challenged action effectively nullifies the statutory
scheme and thus for all practical purposes raises a
question of law. Sometimes review will be possible
because . . . the request for the unreviewable relief
will be coupled with a request for relief like asy-
lum that is reviewable. If, however, it is impossible
to distinguish the challenged action from the deter-
mination on the merits, then jurisdiction is lacking
and the petition must be dismissed.
Id. at 876-77.
None of the circumstances we identified in Calma
applies to Cruz-Mayaho, and so that takes us back to the
default rule under which we do not have jurisdiction
over the motions to reopen or reconsider if we lack juris-
diction over the underlying order. Applying that rule,
we conclude that, for the most part, we lack jurisdiction
Nos. 10-1634, 11-2914, 11-3512 7
over the Board’s decisions. To the extent that we have
jurisdiction, our review is only for abuse of discretion.
In the end, these distinctions make little practical differ-
ence here: Cruz-Mayaho is not entitled to relief no
matter how his claims are viewed.
III
As the Board pointed out repeatedly, the key date for
Cruz-Mayaho is July 17, 2008. This was when the Board
denied his application for cancellation of removal. All
of his later efforts to reverse the consequences of that
decision are affected by it. Cruz-Mayaho had 90 days
from that date in which he could file, by right, a motion
to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i). (He did file a
petition for review within the mandatory 30-day pe-
riod.) With respect to his first motion to reopen, however,
Cruz-Mayaho argues for a different starting point—the
date when the Board denied his motion to reconsider
the original affirmance. We recently and definitively
rejected that position in Sarmiento v. Holder, 680 F.3d
799 (7th Cir. 2012). We did so for good reasons: the
time limits would mean nothing if people were free to
file one motion to reconsider after another, while they
collect new evidence to be used in a motion to reopen. Two
of our sister circuits have come to the same conclusion.
See Vega v. Holder, 611 F.3d 1168, 1170-71 (9th Cir.
2010); William v. INS, 217 F.3d 340, 342-43 (5th Cir. 2000).
There is also no authority for the proposition that the
pendency of a petition for review has any effect on
these time limits. Since a motion to reconsider does not
8 Nos. 10-1634, 11-2914, 11-3512
itself toll the 90-day period, it follows that a petition
for review from the denial of such a motion similarly
has no such effect. All of this means that the Board
was well within its rights to hold as a matter of law
that Cruz-Mayaho’s first motion to reopen was untimely,
and also that as a matter of fact Cruz-Mayaho was not
entitled to reconsideration of that decision. That is
enough to resolve case No. 10-1634 with a holding
that the legal ruling was correct and that we have no
jurisdiction to review the factual determination.
It was in Motion to Reopen #2 that Cruz-Mayaho
added his arguments about asylum and the Convention
Against Torture. He argues that he is entitled to relief
because conditions in Mexico have been generally bad
for some time now, and that they have become even
worse since the Board initially denied his petition for
cancellation. The existence of unrest in Mexico is well
known: there is even a Wikipedia entry about the
Mexican Drug War, see en.wikipedia.org/wiki/Mexican_
Drug_War; it indicates that, especially since the early
2000s, the Mexican army has been battling the cartels.
From time to time, grotesque events such as the
beheading of victims have occurred. One article in the
record reports that killings from drug-related crimes
increased from 2,700 in the country in 2007 to 3,700 in
2008. See Drug Killings Haunt Mexican Schoolchildren, N.Y.
Times Oct. 20, 2008, at A1. The World Bank presents an
even more sobering picture: it estimates that more than
15,000 people were killed in 2010 in drug-related vio-
lence. See http://www.worldbank.org/en/country/mexico/
overview. Cruz-Mayaho stresses that two other aliens,
Nos. 10-1634, 11-2914, 11-3512 9
Jesus Salgado-Salgado and Carlos Frausto-Jarimillo,
were granted cancellation on this basis. He uses that
fact both to illustrate why he believes that he too is
entitled to some form of relief and to support his equal
protection claim (which we discuss below).
The government presents a number of arguments
in support of the Board’s decision to deny Cruz-
Mayaho’s second motion to reopen. Among them are
the fact that his application for asylum was filed well
outside the one-year time during which such claims
may be raised; the fact that he failed in his motion to
reopen to carry forward his claim under the CAT; and
the fact that his evidence fails to show anything but
generally bad conditions in many parts of Mexico,
without shedding light on how things have worsened or
on Cruz-Mayaho’s ability (or lack thereof) to relocate to
a relatively safer area, and without asserting that he
would be persecuted on account of any of the five pro-
tected grounds recognized in the statute (race, religion,
nationality, political opinion, or social group). See 8 U.S.C.
§ 1101(a)(42); 8 C.F.R. § 1208.13(b). At oral argument, the
panel asked Cruz-Mayaho’s lawyer whether the logical
implication of his argument was that every Mexican
currently living in the United States without proper
authorization was entitled to asylum or cancellation.
Although we did not receive a one-word answer, we
inferred from the discussion that the answer was yes.
That of course is inconsistent with the statute, and (like
the Board) we are obliged to follow the law. We conclude
that the government has correctly characterized the
record here. Even if Cruz-Mayaho is correct that condi-
10 Nos. 10-1634, 11-2914, 11-3512
tions in Mexico are dangerous, he is not entitled to
asylum, cancellation of removal, or relief under the CAT
unless he meets the statutory or treaty criteria. The
Board reasonably concluded that he failed to meet that
burden. Even if we thought that there was some
evidence in the record supporting his arguments, that
is not enough to allow him to prevail. Indeed, we are
hard pressed to find any legal argument in this petition
for review that would support our jurisdiction. We
thus dismiss case No. 11-2914 for want of jurisdiction.
Finally, we have in case No. 11-3512 Cruz-Mayaho’s
challenge to the Board’s denial of his fourth motion to
reconsider and his third motion to reopen. The Board
found no error in its earlier determinations. We note,
however, that it unfortunately offered as one reason for
its decision its perception that Cruz-Mayaho had not
submitted any evidence about conditions in Mexico at
the time of his original hearing in 2007, and thus it had
no way of assessing whether matters had gotten worse
by 2011. This strikes us as needlessly picky: the Board
has seen mountains of evidence about conditions in
Mexico over the years, and as an expert agency it is able
to discern the trends. Nonetheless, any error it may
have made in this respect is harmless. The chart that the
Board supposedly overlooked, which came from an
article in Time magazine showing the increase in the
murder rate in Mexico from 2005 to 2010, would not by
itself have been enough to require reopening. New evi-
dence may not be considered in a motion to reconsider,
and so the chart was not relevant to that part of his case.
Nos. 10-1634, 11-2914, 11-3512 11
Last, we say a word about Cruz-Mayaho’s assertions
that the Board violated his due process and equal protec-
tion rights in one or more of the rulings involved in
these petitions. He asserts that the Board’s alleged failure
to consider the violence in Mexico somehow violated
his due process rights, but we cannot see how. The argu-
ment is a non-starter because Cruz-Mayaho lacked a
protected liberty interest in the discretionary relief of a
grant of a motion to reopen. See, e.g., Khan v. Mukasey, 517
F.3d 513, 518 (7th Cir. 2008). He fares no better with
his equal protection claim. The government suggests
that he may have forfeited this argument, but we are
satisfied that he attempted to present it to the Board, and
so it is neither forfeited nor unexhausted (at least with
respect to the comparison with Salgado-Salgado). It is,
however, without merit. In essence, Cruz-Mayaho is
raising a “class-of-one” argument. But no matter
whether one takes the view of this court’s lead opinion
in Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th
Cir. 2012) (opinion of Posner, J.), or the dissent registered
by a plurality of the court, id. at 905 (opinion of Wood, J.),
Cruz-Mayaho cannot prevail. There is neither evidence
of any improper motive directed personally against Cruz-
Mayaho on the Board’s part, nor does its decision lack
a rational basis. Salgado-Salgado’s case came up in a
different procedural posture—he was seeking a waiver
of inadmissibility for adjustment of status, and Frausto-
Jarimillo’s petition was unopposed. Worse, Cruz-Mayaho
never raised his arguments about Frausto-Jarimillo
before the Board, and thus he may not rely on them here.
We therefore deny the petition for review in case 11-3512.
12 Nos. 10-1634, 11-2914, 11-3512
IV
Cruz-Mayaho’s biggest problem is that he failed to
persuade the Board back in 2008 that his U.S.-citizen
children would experience extremely unusual hardship
if he were to be removed from the country. That decision
is not before us now; it became final years ago. None of
the rest of the arguments he has presented—both those
we have discussed and others that we have not thought
necessary to address—compel a different result. Finding
no abuse of discretion in the decisions of the Board
before us in Nos. 10-1634 and 11-3512, we D ENY those
petitions for review. We D ISMISS No. 11-2914 for want
of jurisdiction.
10-17-12