Radica Whitefoot v. William Barr ( 2020 )

NONPRECEDENTIAL DISPOSITION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
Submitted May 29, 2020*
Decided June 8, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 19-2711
RADICA WHITEFOOT, Petition for Review of an Order
Petitioner, of the Board of Immigration
Appeals.
v.
No. A096-702-815.
WILLIAM P. BARR, Attorney General of the
United States,
Respondent.
Order
More than three years after the entry of a final removal order, Radica Whitefoot
asked the Board of Immigration Appeals to reopen her proceedings and grant
cancellation of removal, see 8 U.S.C. §1229b, on the basis of ten years’ presence in the
*We have unanimously agreed to decide the case without argument because the briefs and record
adequately present the facts and legal arguments, and argument would not significantly aid the court.
See Fed. R. App. P. 34(a)(2)(C).
No. 19-2711 Page 2
United States plus the Supreme Court’s opinion in Pereira v. Sessions, 138 S. Ct. 2105
(2018), which according to Whitefoot shows that the Notice to Appear that began the
removal proceeding is invalid.
The Board stated that, even if it were willing to accept an untimely motion (a
question it did not resolve), it would not afford Whitefoot any relief. It gave two
reasons: first, that Pereira does not make Whitefoot eligible for cancellation of removal;
second, that even if Whitefoot were eligible, she would not receive that benefit because
she has not shown that her removal would cause the necessary degree of hardship to a
qualifying relative in the United States.
Whitefoot’s petition for review addresses only the first of these issues. Yet someone
who loses on two grounds must contest both, because otherwise a legal ruling on the
sole contested ground is just an advisory opinion that cannot affect the outcome.
Moreover, we have held that the Board’s hardship rulings with respect to petitions
under §1229b are not subject to judicial review. See Cruz-Moyaho v. Holder, 703 F.3d 991
(7th Cir. 2012). (We recognize that Whitefoot’s brief mentions this subject at page 10, but
it neither develops an argument nor explains how review would be compatible
with Cruz-Moyaho.)
Even if the eligibility aspect of the Board’s decision were open to review
independent of the hardship aspect, Whitefoot could not benefit. We held in Chen v.
Barr, No. 19-2375 (7th Cir. May 29, 2020), that an alien who delays making an argument
about the adequacy of the Notice to Appear until a motion to reopen had forfeited
whatever benefit Pereira might have offered.
The petition for review is denied.