Luis Aparicio-Brito v. Loretta E. Lynch , 824 F.3d 674 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3062, 15-1720, and 15-1769
LUIS APARICIO-BRITO,
Petitioner,
v.
LORETTA LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A 076-879-145
____________________
ARGUED JANUARY 6, 2016 — DECIDED MAY 31, 2016
____________________
Before POSNER and WILLIAMS, Circuit Judges, and
PALLMEYER, District Judge. ∗
WILLIAMS, Circuit Judge. Following petitioner Luis Apari-
cio-Brito’s fourth arrest for driving under the influence, the
∗ Of the Northern District of Illinois, sitting by designation.
2 Nos. 14-3062, 15-1270, and 15-1769
U.S. government commenced deportation proceedings
against him. Aparicio-Brito, a native and citizen of Mexico,
did not challenge removability; instead, he focused his ef-
forts on suppressing the government’s evidence regarding
his alienage and applying for cancellation of removal. But an
immigration judge (IJ) denied his suppression motions and
his application, as well as his request for voluntary depar-
ture. In doing so, the IJ concluded that the government suffi-
ciently demonstrated that Aparicio-Brito had entered the
United States without inspection, and that cancellation of
removal and voluntary departure would be improper be-
cause of Aparicio-Brito’s inability to demonstrate continuous
presence in the United States, good moral character, and ex-
treme hardship on family members upon deportation.
Aparicio-Brito appealed the IJ’s decision to the Board of
Immigration Appeals (BIA), arguing that the IJ and the gov-
ernment had violated his due process rights in various ways
before and during the proceedings, and challenging the IJ’s
conclusions regarding alienage, cancellation of removal, and
voluntary departure. The BIA dismissed this appeal and de-
nied Aparicio-Brito’s later request to reopen proceedings.
We find that the IJ and the government complied with
their statutory responsibilities relating to Aparicio-Brito’s
removal proceedings. Also, the IJ properly concluded that a
summary of Aparicio-Brito’s statements to government offi-
cials adequately demonstrated his alienage. And the IJ cor-
rectly denied Aparicio-Brito’s application for cancellation of
removal based on his inability to demonstrate ten years of
continuous physical presence in the United States. So we de-
ny Aparicio-Brito’s petition for review.
Nos. 14-3062, 15-1270, and 15-1769 3
I. BACKGROUND
Aparicio-Brito entered the United States without inspec-
tion sometime in 1998. He has remained in the United States
since then, aside from two multi-month trips back to Mexico
in the early 2000s. During his residency in the United States,
Aparicio-Brito was arrested and convicted four separate
times for driving under the influence (DUI). The first three
DUI offenses occurred in 1999, 2001, and 2003, respectively.
The fourth offense, which occurred in March 2010, attracted
the attention of the Department of Homeland Security
(DHS).
Several days after his March 2010 arrest, Aparicio-Brito
was transferred into DHS custody. Shortly thereafter, DHS
officers filled out a Form I-213, stating that Aparicio-Brito
had admitted to being a Mexican citizen and to entering the
United States without inspection. DHS then instituted re-
moval proceedings by issuing a Notice to Appear (NTA) that
charged Aparicio-Brito with being an immigrant present in
the United States without admission or parole under 8
U.S.C. § 1182(a)(6)(A)(i).
In advance of his removal hearing, Aparicio-Brito stated
that he would neither admit nor deny the allegations in the
NTA or the charge of removability. He did, however, file an
application for cancellation of removal as a non-permanent
resident under 8 U.S.C. § 1229b(b), and attached to the appli-
cation attendance sheets for Alcoholics Anonymous (AA)
meetings dating back to 2010 and a letter regarding his
church attendance. Aparicio-Brito also filed a motion to
suppress any statements he made to law-enforcement offic-
ers that appeared in the Form I-213, and a motion for sub-
4 Nos. 14-3062, 15-1270, and 15-1769
poenas to compel the appearance of any officers present
when he made these statements.
At the removal hearing, Aparicio-Brito declined to chal-
lenge the accuracy or authenticity of the Form I-213, prompt-
ing the IJ to deny both of Aparicio-Brito’s motions and to
admit the Form into evidence. The IJ also concluded that the
Form adequately established Aparicio-Brito’s alienage under
8 C.F.R. § 1240.8(c), and sustained the removability charge.
After Aparicio-Brito declined to designate a country for re-
moval, the IJ referenced his duty to advise Aparicio-Brito of
his right to apply for asylum and withholding of removal.
But the IJ said this requirement had been satisfied when,
several months earlier, the IJ had instructed Aparicio-Brito
to apply for cancellation of removal before the removal hear-
ing. (The IJ apparently viewed this instruction to encompass
applications for withholding and asylum, too.) The IJ found
that Aparicio-Brito’s failure to apply for withholding or asy-
lum alongside cancellation of removal amounted to aban-
donment of those issues and identified Mexico as the coun-
try of removal.
The hearing then turned to Aparicio-Brito’s application
for cancellation of removal. Aparicio-Brito testified that his
two daughters—both of whom were U.S. citizens—would
suffer greatly if he were removed to Mexico. He stated that
he was their primary means of financial support but would
have difficulty obtaining employment in Mexico, and that he
would not take them to Mexico because of violence and in-
adequate schooling options. Aparicio-Brito also testified that
he had remained in the United States continuously since en-
tering in 1998, apart from two separate trips to Mexico to
visit his parents, each for approximately three to four
Nos. 14-3062, 15-1270, and 15-1769 5
months. In addition, Aparicio-Brito acknowledged his four
DUI convictions.
The IJ denied Aparicio-Brito’s application for cancellation
due to his failure to satisfy three of the eligibility require-
ments under § 1229b(b)(1) of the Immigration and Nationali-
ty Act. Specifically, the IJ found that Aparicio-Brito had
failed to establish (1) ten years of “continuous physical pres-
ence in the United States,” based on his two trips to Mexico;
(2) “exceptional and extremely unusual hardship” for his
daughters, based on his wife’s employment status and no
indication that his daughters suffered from any serious med-
ical conditions; and (3) “good moral character,” based on his
four DUI convictions. The IJ also concluded that this lack of
good moral character warranted rejection of Aparicio-Brito’s
request for voluntary departure.
Aparicio-Brito appealed the IJ’s decision to the BIA, argu-
ing, among other things, that the IJ violated his due process
rights by asking him questions in an adversarial manner
during the removal hearing; that the DHS officers failed to
inform him of his right to remain silent before interviewing
him; and that the Form I-213, by itself, could not establish
alienage. The BIA affirmed the IJ’s ruling. In doing so, it con-
cluded that IJs are statutorily authorized to interrogate and
cross-examine witnesses; that the DHS officers adequately
notified Aparicio-Brito of his rights when they served him
with an NTA; and that a Form I-213 is presumed reliable
where, as here, there is no evidence of duress or coercion.
Aparicio-Brito then moved the BIA to reconsider its deci-
sion and to reopen the proceedings. The BIA denied both
motions, concluding that most of Aparicio-Brito’s arguments
appeared verbatim in his opening brief on appeal, and that
6 Nos. 14-3062, 15-1270, and 15-1769
“new controlling authority” he cited—Lopez-Esparza v. Hold-
er, 770 F.3d 606 (7th Cir. 2014)—was distinguishable. Apari-
cio-Brito later filed a motion to reconsider the ruling, which
the BIA denied. This appeal followed.
II. ANALYSIS
“Because the [BIA] affirmed the decision of the IJ and
added its own reasoning, we review both decisions, bearing
in mind that factual and credibility determinations must be
supported by substantial evidence, while legal conclusions
are reviewed de novo.” Lishou Wang v. Lynch, 804 F.3d 855,
858 (7th Cir. 2015) (citations omitted). On appeal, Aparicio-
Brito argues that the IJ and the government violated his due
process rights. He also claims that the IJ improperly relied
on the Form I-213 in determining alienage, and erred in
denying his application for cancellation of removal and his
request for voluntary departure. In addition, he argues that
the BIA erroneously denied his motions for reconsideration
and to reopen the removal proceedings. We disagree.
A. No Violation of Petitioner’s Due Process Rights
Although immigrants in removal proceedings have due
process rights under the Fifth Amendment, these rights do
not extend to “hearings for discretionary relief, such as those
conducted in response to a § 1229b application for cancella-
tion of removal.” Delgado v. Holder, 674 F.3d 759, 765 (7th Cir.
2012). But statutory provisions impose procedural require-
ments on removal proceedings, including the opportunity to
examine evidence supplied by the government, present evi-
dence on one’s own behalf, and cross-examine government
witnesses. Id. at 765–66; 8 U.S.C. § 1229a(b)(4). It is this latter
category of protections to which we turn our attention.
Nos. 14-3062, 15-1270, and 15-1769 7
Aparicio-Brito claims that the IJ and the government vio-
lated his due process rights in over half a dozen ways before
and during the removal hearing. These various claims, how-
ever, largely amount to conclusory assertions that lack sup-
port in the case law and the record.
1. No Improper Questioning by Immigration Judge
Aparicio-Brito contends that the IJ acted improperly by
repeatedly asking him questions in a prosecutorial manner.
IJs are authorized to “interrogate, examine, and cross-
examine the alien and any witnesses” during removal pro-
ceedings. 8 U.S.C. § 1229a(b)(1); see also Sankoh v. Mukasey,
539 F.3d 456, 467 (7th Cir. 2008) (“Unlike Article III courts,
an immigration court is a more inquisitorial tribunal.”). We
have repeatedly observed that an IJ can interrupt a witness’s
testimony to ask questions—even repeatedly—so long as the
questions are relevant, non-confrontational, and clarifying in
purpose. See Delgado, 674 F.3d at 766–68 (collecting cases);
Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997) (stating that IJs
have “broad discretion to control the manner of interroga-
tion in order to ascertain the truth”). However, an IJ’s “dis-
cretion [in questioning] is bounded by the applicant’s right
to receive a fair hearing.” Podio v. INS, 153 F.3d 506, 509 (7th
Cir. 1998); see also Kerciku v. INS, 314 F.3d 913, 917–18 (7th
Cir. 2003) (per curiam) (observing that while an IJ may “lim-
it[] the extent of some testimony or frequently interrupt[] the
applicant’s presentation,” the IJ may not “bar[] complete
chunks of oral testimony that would support the applicant’s
claims”).
We find nothing inappropriate with the IJ’s questioning
of Aparicio-Brito. To the contrary: nearly all of the IJ’s ques-
tions were clarifying in nature and relevant to the issues re-
8 Nos. 14-3062, 15-1270, and 15-1769
lating to Aparicio-Brito’s application for cancellation of re-
moval—for example, the date he entered the United States,
the dates and locations of his DUI offenses, and the dates he
travelled to and from Mexico for family visits. In fact, certain
questions related to issues that were beneficial to Aparicio-
Brito’s application—for example, whether his daughters re-
ceived medical assistance cards or food stamps, his weekly
salary, his monthly rental payments, and the specific hard-
ships his daughters might face upon his removal. Nowhere
in the record is there any indication that Aparicio-Brito be-
came “frazzled” by these questions. Apouviepseakoda v. Gon-
zales, 475 F.3d 881, 885–86 (7th Cir. 2007) (“[T]he closest cases
are those in which ‘the questioning becomes so aggressive
that it frazzles applicants and nit-picks inconsistencies’ until
a petitioner ‘became so distraught that the immigration
judge was forced to pause the proceedings to give the [non-
citizen] a chance to collect herself.’” (second alteration in
original) (quoting Giday v. Gonzales, 434 F.3d 543, 549 (7th
Cir. 2006))). In addition, the IJ sustained only one objection
to Aparicio-Brito’s counsel’s questions, and permitted Apa-
ricio-Brito’s counsel to question him until there were no
questions left to ask. In sum, the IJ’s questioning during the
hearing should be commended, not criticized.
2. Motions Concerning Form I-213 Were Properly
Denied
Aparicio-Brito also contends that the IJ violated his right
of cross-examination by denying his motion to suppress the
Form I-213 and his motion for subpoenas. Immigrants in
removal proceedings generally have the right to “cross-
examine witnesses presented by the Government.” 8 U.S.C.
§ 1229a(b)(4). However, when the evidence at issue is a Form
Nos. 14-3062, 15-1270, and 15-1769 9
I-213 completed by a DHS agent, “the absent agent ‘cannot
be presumed to be an unfriendly witness or other than an
accurate recorder.’” Barradas v. Holder, 582 F.3d 754, 763 (7th
Cir. 2009) (quoting Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.
1995)); see also Pouhova v. Holder, 726 F.3d 1007, 1013 (7th Cir.
2013) (“As a general rule, a Form I-213 is treated as inherent-
ly trustworthy and admissible even without the testimony of
the officer who prepared it.”). So a Form I-213 is properly
admitted without the opportunity for cross-examination, un-
less there is an indication that the Form was carelessly or
maliciously drafted or was intended to serve as anything
other than an administrative record. Id.; Antia-Perea v. Holder,
768 F.3d 647, 658 (7th Cir. 2014). 1
Aparicio-Brito has failed to identify a single detail con-
cerning the Form I-213 here that suggests error or foul play
on the part of DHS. At the removal hearing, Aparicio-Brito’s
counsel was unable to articulate any factual basis in support
of the motion to suppress. Nor has Aparicio-Brito highlight-
ed any such basis in his various appellate briefs to the BIA or
to this Court. So the Form I-213 was properly admitted
without corroborating evidence from the DHS officers.
3. Form I-213 Adequately Informed Petitioner that
His Statements Could Be Used Against Him
Aparicio-Brito also attempts to suppress the Form I-213
on the ground that his due process rights were violated
1 Aparicio-Brito invites us to revisit this aspect of Antia-Perea v. Hold-
er in a one-sentence footnote and without any justification or elaboration.
We decline to do so. Cf. McClain v. Retail Food Emp’rs Joint Pension Plan,
413 F.3d 582, 586 (7th Cir. 2005) (“We require a compelling reason to
overturn circuit precedent.”).
10 Nos. 14-3062, 15-1270, and 15-1769
when state and federal officials did not timely warn him that
his statements could be used against him in subsequent pro-
ceedings. In addition, he further complains that the warning
he did receive was not conveyed in a language that he could
understand. While we are sympathetic to Aparicio-Brito’s
arguments, they lack the requisite legal and factual support.
Aparicio-Brito claims that the warning was untimely be-
cause it was supplied after his interview with DHS officials
had concluded. He seeks refuge in the fact that when an
immigrant is “arrested without warrant and [is] placed into
formal proceedings,” the examining officer must notify the
immigrant that “any statement made may be used against
him or her in a subsequent proceeding.” 8 C.F.R. § 287.3(c).
But “formal proceedings” begin when the government files a
notice to appear in an immigration court. Id. § 1239.1(a);
Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007). Because
the NTA was filed after DHS officers spoke with Aparicio-
Brito, § 287.3(c) is not implicated. Matter of E-R-M-F- & A-S-
M-, 25 I&N Dec. 580, 585 (BIA 2011); see also Samayoa-
Martinez v. Holder, 558 F.3d 897, 901–02 (9th Cir. 2009); Ya-
nez-Marquez v. Lynch, 789 F.3d 434, 474 (4th Cir. 2015).
Aparicio-Brito also complains that the warning he ulti-
mately received via the NTA is deficient because it appeared
in English—a language he claims he cannot read—and no
government official subsequently read it to him in Spanish.
But there is insufficient evidence in the record that supports
these claims. Nowhere in the record does Aparicio-Brito tes-
tify or otherwise attest that the government failed to trans-
mit the warning in a manner that he could comprehend.
And even assuming such a failure occurred, there is no indi-
cation that Aparicio-Brito was actually harmed by this al-
Nos. 14-3062, 15-1270, and 15-1769 11
leged failure. This absence is unsurprising, given the fact
that Aparicio-Brito’s problematic statements (from his per-
spective, anyways) were uttered before he received the warn-
ing. The damage had already been done.
Before continuing on, we pause to note our concern with
§ 287.3(c), which does not require the receipt of a warning
until after an NTA is filed. As this case demonstrates, such a
receipt can occur after an immigrant is questioned by law-
enforcement officials and has divulged potentially damning
information. If anything, receiving the warning in an NTA
merely hints at the difficulties that are likely to come, rather
than protecting against such complications. But § 287.3(c) is
clear, and Aparicio-Brito does not suggest a path to circum-
venting this clarity.
4. Court Lacks Jurisdiction to Review Petitioner’s
Claims Regarding Asylum and Withholding of
Removal
Aparicio-Brito claims that the IJ violated his due process
rights by failing to advise him about his right to apply for
asylum under 8 C.F.R. § 1240.11(c)(1) once he expressed a
fear of returning to Mexico. Aparicio-Brito also faults the IJ
for denying him the opportunity to apply for asylum and
withholding of removal when the IJ concluded that he had
abandoned these applications by not submitting them along-
side his application for cancellation of removal. However,
we may not exercise jurisdiction over these claims.
As the government correctly notes, Aparicio-Brito failed
to raise either argument with the BIA when he appealed the
IJ’s ruling. In fact, the word “asylum” does not even appear
in his opening brief to the BIA. And when Aparicio-Brito
12 Nos. 14-3062, 15-1270, and 15-1769
moved to reopen his removal proceedings so that an asylum
hearing could be conducted, he did not argue that the IJ had
acted erroneously regarding asylum. So he has failed to ex-
haust his administrative remedies.
We have recognized a limited exception to exhaustion
when “exceptional circumstances” exist—specifically, when
a petitioner raises a constitutional claim that the [BIA]
‘would [have been] powerless to address.’” Long-Gang Lin v.
Holder, 630 F.3d 536, 542 n.2 (7th Cir. 2010) (quoting Pjetri v.
Gonzales, 468 F.3d 478, 481 (7th Cir. 2006)). However, such
failure “is not excused when the claim is ‘based on proce-
dural failings that the [BIA] could have remedied.’” Id. Apa-
ricio-Brito has not invoked this exception, and even if he
had, it would not apply: the BIA could have remedied his
claim by remanding the case to the IJ for a hearing on asy-
lum and withholding of removal. See id.; Cruz-Moyaho v.
Holder, 703 F.3d 991, 1001 (7th Cir. 2012).
5. Remaining Due Process Claims Are Meritless
In addition, Aparicio-Brito contends that the IJ somehow
violated his due process rights by concluding that Aparicio-
Brito had not been in the United States continuously for ten
years and is not a person of good moral character. But Apa-
ricio-Brito makes no attempt to situate these arguments in
the due process context. Nor could he, since continuous
presence and good moral character relate to cancellation of
removal, which is a form of discretionary relief in which
“there is no liberty interest at stake.” Delgado, 674 F.3d at 765.
We have repeatedly observed that similar attempts to dis-
guise evidentiary challenges with due process verbiage are
improper. See, e.g., Portillo-Rendon v. Holder, 662 F.3d 815, 817
(7th Cir. 2011). So we will review these claims alongside
Nos. 14-3062, 15-1270, and 15-1769 13
Aparicio-Brito’s broader claim of eligibility for cancellation
of removal, which we will turn to later.
Finally, Aparicio-Brito suggests that the IJ failed to apply
the rule of lenity when the IJ “interpreted the law and the
facts against [him].” The rule of lenity is a tool of statutory
interpretation that “directs us to read ‘ambiguous’ statutory
provisions narrowly in favor of the alien in deportation pro-
ceedings.” Lara-Ruiz v. INS, 241 F.3d 934, 942 (7th Cir. 2001).
Here, Aparicio-Brito has not identified any provision in the
Immigration and Naturalization Act—or any other statute
for that matter—that is ambiguous in any relevant way. His
invocation of the rule therefore lacks any merit.
B. Form I-213 Supplied Sufficient Information to Es-
tablish Alienage
The government bears the burden of proving removabil-
ity by “clear and convincing evidence” based on an immi-
grant’s presence in the United States without being admitted
or paroled. 8 C.F.R. §§ 1240.8(a), (c); INS v. Lopez-Mendoza,
468 U.S. 1032, 1039 (1984). Where, as here, the BIA has found
that the government has met this burden, “it is our task to
consider whether the deportation order is supported by rea-
sonable, substantial, and probative evidence.” Dashto v. INS,
59 F.3d 697, 701 (7th Cir. 1995) (citations and internal quota-
tion marks omitted). Although Aparicio-Brito attacks the IJ
and BIA’s alienage determination on various grounds, none
can overcome this high bar.
First, Aparicio-Brito contends that the Form I-213, by it-
self, is insufficient because it “does not state that the Peti-
tioner was advised that any statement he made could be
used against him.” But as discussed above, Aparicio-Brito
14 Nos. 14-3062, 15-1270, and 15-1769
was not entitled to this instruction when the Form was cre-
ated because the government had not yet initiated formal
removal proceedings. Aparicio-Brito also claims that the
Form I-213 is somehow invalid because he was in a stressful
situation, under duress, and deprived of his liberty; howev-
er, these conclusory allegations lack the requisite factual and
legal support to warrant consideration. See United States v.
Collins, 796 F.3d 829, 836 (7th Cir. 2015) (explaining that un-
supported arguments that are “bereft of citations” and
“completely undeveloped” are “insufficient to raise an issue
on appeal”).
Finally, Aparicio-Brito argues that the Form I-213 lacks
the requisite factual specificity regarding how its preparer
encountered him and concluded that he was a Mexican citi-
zen. We rejected a similar attack in Antia-Perea. In doing so,
we emphasized that the Form I-213 was prepared the same
day that the interview occurred; that the petitioner was pre-
sent for this interview; and that the petitioner declined to tell
his side of the story at any point during the removal pro-
ceedings, which warranted the IJ’s drawing of adverse infer-
ences. 768 F.3d at 657–58. All three considerations apply
with equal force in this case. In particular, Aparicio-Brito has
failed to allege a single fact indicating that his citizenship
information was somehow fabricated or supplied by an in-
dividual other than himself. See also Rosendo-Ramirez v. INS,
32 F.3d 1085, 1088 (7th Cir. 1994) (concluding that I-213 was
properly admitted where petitioner “could have made the
statement [captured in the Form I-213] and can point to no
evidence that he did not”). At the removal hearing, Aparicio-
Brito suggested that the content of the Form may have been
based solely on his “Hispanic appearance,” but acknowl-
edged that he had filed no affidavit to support this concluso-
Nos. 14-3062, 15-1270, and 15-1769 15
ry claim. Aparicio-Brito attempts to distinguish Antia-Perea
on the ground that the Form I-213 in that case expressly stat-
ed that the petitioner admitted his Mexican citizenship. Al-
though the Form here does not describe Aparicio-Brito’s
admission so explicitly, the fact that an admission occurred
is the only reasonable interpretation of the form. Cf. id. (ob-
serving that “the I-213 is supposed to be a record of a con-
versation with an alien”).
Because Aparicio-Brito has not overcome the presump-
tive reliability of the Form I-213, we hold that the IJ and BIA
properly considered it as evidence of alienage. See Gutierrez-
Berdin v. Holder, 618 F.3d 647, 653 (7th Cir. 2010).
C. Petitioner Ineligible for Cancellation of Removal
Aparicio-Brito claims that the IJ erroneously concluded
that he was ineligible for cancellation of removal under
§ 1229b when the IJ found that he had failed to satisfy the
continuous residence, good moral character, and exceptional
hardship factors. We disagree.
An immigrant is eligible for cancellation of removal if he
or she “has been physically present in the United States for a
continuous period of not less than 10 years immediately pre-
ceding the date of such application.” 8 U.S.C.
§ 1229b(b)(1)(A). Presence is not “continuous,” however, if
the immigrant has departed the United States for “any peri-
od in excess of 90 days or for any periods in the aggregate
exceeding 180 days.” Id. § 1229b(d)(2). Eligibility also re-
quires that the immigrant “has been a person of good moral
character during such period”; “establishes that removal
would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who is a citizen of the
16 Nos. 14-3062, 15-1270, and 15-1769
United States or an alien lawfully admitted for permanent
residence”; and has not been convicted of certain offenses.
Id. § 1229b(b)(1)(B)–(D). (The final factor is not at issue here.)
The petitioner bears the burden of proof by a preponderance
of the evidence. Lopez-Esparza, 770 F.3d at 607.
We lack jurisdiction to review a denial of cancellation of
removal, except to the extent constitutional claims and ques-
tions of law arise. 8 U.S.C. §§ 1252(a)(2)(B), (D); see also, e.g.,
Cruz-Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir. 2012). “A
legal question arises when the Board misinterprets a statute,
regulation, constitutional provision, or its own precedent,
applies the wrong legal standard, or fails to exercise its dis-
cretion at all.” Bachynskyy v. Holder, 668 F.3d 412, 417 (7th
Cir. 2011) (citing Patel v. Holder, 563 F.3d 565, 568 (7th Cir.
2009)). Although good moral character and extreme hard-
ship generally are unreviewable, see Portillo-Rendon v. Holder,
662 F.3d 815, 817 (7th Cir. 2011); Delgado v. Holder, 674 F.3d
759, 765 (7th Cir. 2012), we have held that the continuous-
presence requirement falls outside of the jurisdiction-
stripping rule, see Morales-Morales v. Ashcroft, 384 F.3d 418,
423 (7th Cir. 2004) (concluding that “the meaning of the term
‘continuous physical presence’ is a non-discretionary ques-
tion of statutory interpretation”).
Aparicio-Brito faults the IJ for “determining that he had
to have documentation to establish that he was not gone too
long.” But this argument ignores the fact that Aparicio-Brito
was unable to testify confidently about the length of his trips
whatsoever, much less that their lengths did not exceed 90
days individually or 180 days cumulatively. Cf. Lopez-
Esparza, 770 F.3d at 608 (remanding where, though uncer-
Nos. 14-3062, 15-1270, and 15-1769 17
tainty existed concerning the length of three trips, the aggre-
gate length was certainly less than 180 days).
At his removal hearing, Aparicio-Brito said he returned
to Mexico twice to visit family, once in 2000 and once in
2001. Critically, however, he could not recall the precise du-
ration of either trip, speculating that they each may have
lasted “[t]hree or four months possibly, I don’t know exact-
ly.” Presumably understanding that three months was the
maximum length for a permissible trip under § 1229b(d)(2),
the IJ asked Aparicio-Brito whether he had employment rec-
ords or any other type of documentation relating to the
length of his trips. Aparicio-Brito had none, and did not
provide any additional testimony from employers, cowork-
ers, family, or friends. Given this lack of documentary sup-
port and the equivocal nature of Aparicio-Brito’s testimony,
the IJ correctly concluded that Aparicio-Brito failed to carry
his burden of proof as to continuous presence. This failure
alone prevents Aparicio-Brito from obtaining cancellation of
removal, so we need not consider whether he adequately
demonstrated exceptional hardship or good moral character.
Nunez-Moron v. Holder, 702 F.3d 353, 359 (7th Cir. 2012).
D. No Jurisdiction to Review Denial of Voluntary De-
parture
As the government correctly notes, we are generally pre-
cluded from reviewing a discretionary decision to deny vol-
untary departure. 8 U.S.C. § 1229c(f); Bachynskyy, 668 F.3d at
416. But we can review non-discretionary determinations
relating to constitutional claims and questions of law. 8
U.S.C. § 1252(a)(2)(D); Hashish v. Gonzales, 442 F.3d 572, 574
(7th Cir. 2006).
18 Nos. 14-3062, 15-1270, and 15-1769
Aparicio-Brito purports to raise two legal questions. First,
he argues that the IJ erroneously considered all four of his
DUI offenses when only the final offense necessitated atten-
tion. We find that we have jurisdiction to address this issue
but disagree with Aparicio-Brito’s position. The Immigration
and Nationality Act permits voluntary departure if, among
other things, “the alien is, and has been, a person of good
moral character for at least 5 years immediately preceding
the alien’s application for voluntary departure.” 8 U.S.C.
§ 1229c(b)(1)(B) (emphasis added). Aparicio-Brito does not
cite—and we are unaware of—any case that prohibits con-
sideration of an alien’s conduct beyond this five-year period.
Cf. Villanueva-Franco v. INS, 802 F.2d 327, 330 (9th Cir. 1986)
(rejecting an argument that the BIA “impermissibly consid-
ered convictions or acts beyond the five-year period” be-
cause the period “is necessary but not sufficient for a finding
of good moral character” (quoting Hibbert v. INS, 554 F.2d
17, 20 n.2 (2d Cir. 1977)) (internal quotation marks omitted)).
So the IJ did not err in considering all of Aparicio-Brito’s
DUI offenses.
Second, Aparicio-Brito argues that the IJ did not “consid-
er and weigh the positive factors” against his DUI offenses.
To the extent he suggests that a legal question exists because
the IJ “fail[ed] to exercise its discretion at all,” Bachynskyy,
668 F.3d at 417, we disagree. The IJ clearly weighed the posi-
tive and negative factors against one another when it found
that Aparicio-Brito “ha[d] not submitted sufficient favorable
evidence to offset th[e] unfavorable evidence.” The BIA clari-
fied this finding by acknowledging that Aparicio-Brito’s at-
tendance at AA meetings and church and his familial ties to
the United States weigh in favor of granting voluntary de-
parture, but that his criminal history outweighed these posi-
Nos. 14-3062, 15-1270, and 15-1769 19
tive factors. Aparicio-Brito’s real disagreement with the IJ’s
decision relates to how the IJ exercised his discretion in
weighing the various factors; we lack jurisdiction to review
this complaint. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 652
(7th Cir. 2004) (observing that courts do not have jurisdiction
to review the merits of an underlying decision on a request
for voluntary departure).
E. BIA Properly Denied Motions for Reconsideration
and to Reopen Proceedings
Aparicio-Brito contends that the BIA erred in denying his
motion to reconsider the IJ’s ruling, his motion to reopen the
proceedings, and his motion to reconsider the denial of that
motion. He faces an especially steep climb in proving these
claims.
While motions to reconsider must “specify[] the errors of
fact or law in the prior [BIA] decision,” 8 C.F.R.
§ 1003.2(b)(1), they “are not replays of the main event,” Khan
v. Holder, 766 F.3d 689, 696 (7th Cir. 2014) (quoting Rehman v.
Gonzales, 441 F.3d 506, 508 (7th Cir. 2006)) (internal quotation
mark omitted). Similarly, a motion to reopen “shall not be
granted unless it appears to the [BIA] that evidence sought
to be offered is material and was not available and could not
have been discovered or presented at the [earlier] hearing.” 8
C.F.R. § 1003.2(c)(1). The BIA’s denial of either type of mo-
tion will stand unless the denial “was made without a ra-
tional explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidi-
ous discrimination against a particular race or group.” Awad
v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003) (internal quota-
tion marks omitted); Khan, 766 F.3d at 696 (quoting Victor v.
Holder, 616 F.3d 705, 708 (7th Cir. 2010)).
20 Nos. 14-3062, 15-1270, and 15-1769
Here, the BIA properly denied Aparicio-Brito’s motions
for reconsideration. Rather than highlighting overlooked
facts or case law, Aparicio-Brito’s motions simply repeat ear-
lier arguments presented to and rejected by the BIA. Indeed,
aside from references to the BIA’s initial decisions, the two
motions for reconsideration are almost identical to the open-
ing motions—same argument structure, same wording,
same case law quotations. A motion for reconsideration is
properly denied when, as here, the petitioner presents the
same arguments to a different judge hoping for a more fa-
vorable outcome.
Aparicio-Brito’s motion to reopen fares no better. The on-
ly new evidence Aparicio-Brito sought to introduce con-
cerned violence in Mexico generally—evidence that was
available to him well in advance of his removal hearing. And
the only new case law he called the BIA’s attention to, Lopez-
Esparza v. Holder, undermined his case rather than fortifying
it. See supra at 16–17. So the BIA’s denials of the various mo-
tions must stand.
III. CONCLUSION
We DENY Aparicio-Brito’s petition for review.