Rebeca Perez-Perez v. Monty Wilkinson ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1048
REBECA PEREZ-PEREZ,
Petitioner,
v.
MONTY WILKINSON,
Acting Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A024-750-424
____________________
ARGUED NOVEMBER 5, 2020 — DECIDED FEBRUARY 11, 2021
____________________
Before SYKES, Chief Judge, and HAMILTON and SCUDDER,
Circuit Judges.
SCUDDER, Circuit Judge. Rebeca Perez-Perez entered the
United States illegally in 1990. After she failed to appear at a
deportation hearing scheduled in 1992, an immigration judge
ordered Perez-Perez to be deported. Twenty-six years later,
and still living in the United States, she moved to reopen her
1992 deportation proceedings under the mistaken belief that
2 No. 20-1048
the Supreme Court’s 2018 decision in Pereira v. Sessions of-
fered her a path to relief from deportation. An immigration
judge denied her motion and the Board of Immigration Ap-
peals affirmed, finding reopening unwarranted and Perez-Pe-
rez’s reliance on Pereira misplaced. We see no abuse of discre-
tion in the Board’s refusal to reopen the 1992 deportation pro-
ceedings and deny the petition for review.
I
A
In May 1990, 18-year-old Rebeca Perez-Perez entered the
United States from Mexico without inspection. She was ap-
prehended within a few weeks after police stopped a van
transporting nine undocumented immigrants through Illinois
to New York. Federal immigration authorities personally
served Perez-Perez with an Order to Show Cause charging
her with unlawful entry and ordering her to appear for a de-
portation hearing at a time and place “to be set.” They then
released her on her own recognizance.
Two years later, the Immigration and Naturalization Ser-
vice initiated deportation proceedings and scheduled a hear-
ing for July 2, 1992 before an immigration judge in Chicago.
The immigration court sent a notice of the hearing to Perez-
Perez on May 29 at the New York address she provided upon
being released in 1990. The court rescheduled the hearing for
July 30 at 10:00 a.m. and sent a second notice to Perez-Perez
at the same address, informing her of the new date and warn-
ing that she could be ordered deported for failure to appear
at the hearing. The court sent this second notice by certified
mail and a receipt bearing the signature of “Rebeca Perez,”
postmarked on July 6, arrived at the Chicago immigration
No. 20-1048 3
court on July 22. Perez-Perez insists, however, that she never
received either notice and was unaware of the deportation
hearing.
Perez-Perez did not attend the July 30 hearing. The immi-
gration judge found her deportable by clear and convincing
evidence, noting in her absence that she failed to show any
entitlement to relief from deportation and ordering her de-
ported to Mexico. The immigration court sent Perez-Perez a
copy of the decision and advised that the deportation order
was final unless she appealed by August 17, 1992. No appeal
followed.
Twenty-six years passed before Perez-Perez—on October
26, 2018—filed a motion with the Chicago immigration court
to reopen her deportation proceedings to pursue a form of
discretionary relief known as cancellation of removal. During
these many intervening years, several important changes took
place in immigration law. These changes matter for Perez-Pe-
rez.
For one, in 1996 Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act. See Pub. L. No.
104–208, 110 Stat. 3009–546 (1996). The Act, often shorthanded
as IIRIRA, increased the requirements for the charging docu-
ment used to initiate “removal” proceedings—the new term
for “deportation”—mandating that the government serve a
non-citizen with a written Notice to Appear specifying the
time and place of a hearing, among other information. See
8 U.S.C. § 1229(a)(1). IIRIRA also created a new form of dis-
cretionary relief called “cancellation of removal” available to
certain non-citizens in active removal proceedings who
demonstrate ten years of continuous physical presence in the
United States, good moral character, no disqualifying
4 No. 20-1048
criminal convictions, and extreme hardship if removed. See
id. § 1229b(b)(1). Under a so-called “stop-time rule,” Congress
also provided that a period of continuous physical presence
ends when a non-citizen receives a Notice to Appear. See id.
§ 1229b(d)(1).
The next development came in June 2018, when the
Supreme Court held in Pereira v. Sessions that a Notice to
Appear omitting the time and place of a removal hearing is
deficient and does not trigger the stop-time rule. See 138 S. Ct.
2105, 2114–15 (2018). Put more simply, a non-citizen who
received a defective Notice to Appear lacking this date and
place information continues to accrue time toward the ten-
year continuous presence requirement for cancellation of
removal.
Perez-Perez thought Pereira might provide her relief from
the order of deportation entered 26 years earlier. She saw Pe-
reira as rendering her 1990 Order to Show Cause defective for
lacking the date and time of her deportation hearing and that
this shortcoming deprived the immigration court of jurisdic-
tion and invalidated her 1992 deportation order. On this rea-
soning, Perez-Perez asked the immigration court in October
2018 to reopen her deportation proceedings and allow her to
apply for cancellation of removal.
B
The immigration judge denied Perez-Perez’s motion to re-
open in February 2019. Because she had been served an Order
to Show Cause, the judge reasoned, the Supreme Court’s
holding in Pereira regarding the requisite inclusion of date
and time information in a Notice to Appear—a different type
of document with different requirements under a modified
No. 20-1048 5
statutory scheme—did not apply to Perez-Perez. There was,
therefore, no ground upon which to reopen her 1992 deporta-
tion proceedings.
The Board of Immigration Appeals dismissed Perez-Pe-
rez’s appeal in December 2019. At the outset, the Board deter-
mined that the record—and in particular the proof of service
by certified mail in July 1992—established that Perez-Perez
had received notice of her deportation hearing. The Board
then agreed with the immigration judge that Pereira had no
application to Perez-Perez because she received an Order to
Show Cause, while Pereira concerned the post-1996 IIRIRA re-
quirements of a Notice to Appear. In any event, the Board
acknowledged, Perez-Perez was ineligible for the underlying
relief she sought—cancellation of removal—because she was
not in removal proceedings but instead had faced deportation
proceedings in 1992, before Congress enacted IIRIRA four
years later. The Board also refused to reopen the prior depor-
tation proceedings sua sponte, finding no circumstances that
would justify that extraordinary discretionary remedy.
Perez-Perez petitioned our court for review.
II
A
Perez-Perez challenges the denial of her motion to reopen
and asks that we remand for the Board to consider her appli-
cation for cancellation of removal on the merits. We have ju-
risdiction to consider the Board’s denial of a motion to reopen
notwithstanding that the decision to grant or deny such a re-
quest lies soundly within the discretion of both the immigra-
tion judge and Board. See Kucana v. Holder, 558 U.S. 233, 253
(2010); 8 C.F.R. § 1003.2(a) (explaining the Board’s
6 No. 20-1048
discretionary authority to reopen immigration proceedings);
8 C.F.R. § 1003.23(b)(3) (addressing an immigration judge’s
discretion to reopen proceedings). Because the Board adopted
the immigration judge’s decision but provided additional rea-
soning, we review the judge’s decision as supplemented by
the Board. See Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013)
(en banc).
Our standard of review is deferential in light of the
Board’s wide latitude. See Kucana, 558 U.S. at 242. Indeed, we
review the Board’s denial of reopening for abuse of discretion.
See Gamero v. Barr, 929 F.3d 464, 468 (7th Cir. 2019), cert. de-
nied, 141 S. Ct. 85 (2020). And we will not disturb the Board’s
decision unless it “was made without a rational explanation,
inexplicably departed from established policies, or rested on
an impermissible basis such as invidious discrimination
against a particular race or group.” Id. at 468 (citation omit-
ted).
A motion to reopen deportation proceedings asks an im-
migration judge or the Board to alter a prior decision in light
of newly discovered evidence or changed circumstances since
the deportation hearing. See Dada v. Mukasey, 554 U.S. 1, 12
(2008). The Board can deny a motion to reopen for several rea-
sons, including if the motion “is not supported by previously
unavailable and material evidence,” if “it fails to establish the
applicant’s prima facie eligibility for the underlying relief
sought,” or if “the Board determines discretionary relief is not
appropriate in the petitioner’s case.” See Boika v. Holder,
727 F.3d 735, 738 (7th Cir. 2013). Even if the non-citizen has
made out a prima facie case for relief, the Board has discretion
to deny reopening. See 8 C.F.R. § 1003.2(a); Kucana, 558 U.S.
at 242–44.
No. 20-1048 7
B
The Board did not abuse its discretion or commit any legal
error in denying Perez-Perez’s motion to reopen. To begin, Pe-
rez-Perez has not identified any defect in her 1992 proceed-
ings. To initiate deportation proceedings under the governing
law in 1990, when Perez-Perez was apprehended, immigra-
tion authorities had to provide a non-citizen with an Order to
Show Cause specifying the nature of the proceeding and the
charges against the non-citizen, among other information. See
8 U.S.C. § 1252b(a)(1) (repealed 1996). Authorities also had to
provide written notice of the time and place at which the pro-
ceedings would be held, “in the order to show cause or other-
wise.” See id. § 1252b(a)(2)(A) (repealed 1996); see also Ortiz-
Santiago v. Barr, 924 F.3d 956, 962 (7th Cir. 2019) (recognizing
that an Order to Show Cause did not itself need to specify the
time and place of the deportation hearing).
The record shows that Perez-Perez received an Order to
Show Cause by personal service in June 1990, with the Order
specifying only that she was to appear for a hearing at a date
and time “to be set.” But the immigration court then followed
up by sending notice by certified mail on July 2, 1992, advis-
ing Perez-Perez that her deportation hearing would occur on
July 30, 1992 at 10:00 a.m. in Chicago. The Board determined
that Perez-Perez received and acknowledged this notice as
part of the certified mail service. While Perez-Perez maintains
that she never received notice, she has made no showing that
calls the Board’s contrary finding into question. On this rec-
ord, we will not disturb the Board’s determination. See Garcia-
Arce v. Barr, 946 F.3d 371, 376 (7th Cir. 2019) (recognizing that
the Board’s “findings of fact are conclusive unless any
8 No. 20-1048
reasonable adjudicator would be compelled to conclude to the
contrary” (quoting 8 U.S.C. § 1252(b)(4)(B))).
Nor is there anything about the Supreme Court’s decision
in Pereira that affects the soundness of Perez-Perez’s 1992 de-
portation proceedings. Pereira concerned a non-citizen’s eligi-
bility for cancellation of removal and the statutory require-
ments of a Notice to Appear—the charging document used to
trigger removal proceedings after IIRIRA became effective on
April 1, 1997. See 138 S. Ct. at 2109–10. Because the statute ex-
pressly mandates that a Notice to Appear include the time
and place at which removal proceedings will be held, a notice
which fails to include such information, the Court concluded,
is not a proper “Notice to Appear” and therefore does not trig-
ger the stop-time rule. See id. at 2114.
But remember that Perez-Perez’s Order to Show Cause
was governed by different statutory requirements—the ones
in place before IIRIRA. The Order complied with the pre-
IIRIRA prescriptions. See Ortiz-Santiago, 924 F.3d at 962 (rec-
ognizing that an “Order to Show Cause had to include largely
the same information as the later Notice to Appear, except
that it did not need to specify the time and place of the hear-
ing”). As Pereira only addressed the statutory requirements of
a Notice to Appear, the holding has no application to Perez-
Perez’s Order to Show Cause.
All of this leads us to conclude that the Board did not
abuse its discretion in declining to reopen Perez-Perez’s 1992
deportation proceedings 26 years later, and we can deny her
petition on this basis alone.
If we went further, the outcome would not change for Pe-
rez-Perez. The Board permissibly found reopening was not
No. 20-1048 9
warranted on the additional ground that Perez-Perez is not
eligible for the underlying relief she seeks. Perez-Perez moved
to reopen so she could apply for cancellation of removal un-
der 8 U.S.C. § 1229b(b)(1). But we held in Ming-Hui Wu v.
Holder that the discretionary relief “provisions created by the
IIRIRA, including cancellation of removal, are inapplicable to
aliens who were in exclusion or deportation proceedings
prior to the IIRIRA’s effective date on April 1, 1997.” 567 F.3d
888, 893 (7th Cir. 2009). As Perez-Perez entered deportation
proceedings and received a final deportation order in 1992—
years before IIRIRA’s effective date—the Board stood on solid
ground in finding that she had failed to show eligibility for
cancellation of removal.
C
We close by addressing Perez-Perez’s contention that the
Board violated her substantive due process rights when it de-
termined she was ineligible for cancellation of removal and
denied her motion to reopen. We disagree. In “immigration
proceedings, a petitioner has no liberty or property interest in
obtaining purely discretionary relief,” so “the denial of such
relief therefore cannot implicate due process.” Dave v. Ash-
croft, 363 F.3d 649, 653 (7th Cir. 2004); see also Portillo-Rendon
v. Holder, 662 F.3d 815, 817 (7th Cir. 2011) (recognizing that
“hope for a favorable exercise of administrative discretion”
falls short of legal entitlement to relief). Both reopening and
cancellation of removal are forms of discretionary relief which
the Board can deny even if Perez-Perez presents a prima facie
case for relief. See Cruz-Moyaho v. Holder, 703 F.3d 991, 1000
(7th Cir. 2012); Dave, 363 F.3d at 653. The Board’s denial here,
then, does not offend principles of due process.
10 No. 20-1048
In the end, the decision to reopen deportation proceedings
rests firmly in the Board’s discretion. We cannot say the Board
abused its discretion in denying Perez-Perez’s motion here, so
her petition for review is DENIED.