Luis Barrados-Zarate v. William Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1040
LUIS BARRADOS-ZARATE,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089-280-474
____________________
ARGUED NOVEMBER 17, 2020 — DECIDED NOVEMBER 24, 2020
____________________
Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit
Judges.
EASTERBROOK, Circuit Judge. Luis Barrados-Zarate, a citi-
zen of Mexico, lacks any claim of legal authority to be in the
United States. By 2009, when he was served with a notice to
appear under 8 U.S.C. §1229(a)(1), he had been here for more
than a decade. This entitled him to apply for cancellation of
removal under 8 U.S.C. §1229b(b)(1). He has two children
2 No. 20-1040
who were born in the United States, and he contends that his
“removal would result in exceptional and extremely unusual
hardship to … [a] child, who is a citizen of the United States”
(§1229b(b)(1)(D)).
In proceedings before an immigration judge, Barrados-
Zarate asserted that, if he is removed to Mexico, his domestic
partner (also a Mexican citizen) and their children will ac-
company him. That would cause “exceptional and extremely
unusual hardship” to the children, he asserted, because the
rural area where he would sedle has poor health care, defi-
cient educational opportunities, fewer available jobs, and a
high crime rate. The immigration judge concluded that
hardships adributable to these shortcomings are not “excep-
tional and extremely unusual”; to the contrary, they are
common consequences of removal to a nation with lower
standards of living. The Board of Immigration Appeals dis-
missed the appeal, explaining that the children will receive a
free public education, do not appear to be in special need of
medical care that may be unavailable, and will have the
support of Barrados-Zarate’s extended family.
Barrados-Zarate sees an opening in the fact that the
Board did not mention the crime rate in Mexico as a whole
or the locality where he plans to take his family. He asks us
to remand for further proceedings on that subject. The
Adorney General replies that the Board’s silence has a sim-
ple explanation: Barrados-Zarate did not present the subject
for decision. He has accordingly failed to exhaust adminis-
trative remedies, which under 8 U.S.C. §1252(d)(1) precludes
judicial relief. We have reviewed the brief that Barrados-
Zarate’s lawyer filed with the Board, and it confirms the
Adorney General’s position: it does not mention, let alone
No. 20-1040 3
make an argument about, the prevalence of crime or vio-
lence in Mexico as a whole or any of its localities. The prob-
lem is not that the brief lacks a heading and separate discus-
sion about crime; it is that the brief does not address the sub-
ject at all. But Barrados-Zarate insists that this is irrelevant
because, in the words of his reply brief, “[v]iolence in a
country is inherent in every cancellation case.”
The petition for review presents a potential jurisdictional
problem. The agency’s decisions under §1229b are not sub-
ject to judicial review, except for issues of law. 8 U.S.C.
§1252(a)(2)(B)(i), (D). We have treated deficiencies in the
Board’s opinion writing as legal errors, reviewable under
§1252(a)(2)(D). Champion v. Holder, 626 F.3d 952, 956 (7th Cir.
2010). Cases such as this show that it is not easy to isolate
legal issues in this way; Barrados-Zarate’s theme is that the
agency made a substantive error in not awarding him can-
cellation of removal, not simply that a sentence is missing
from the Board’s opinion, yet arguments about the existence
and degree of hardship are blocked by §1252(a)(2)(B)(i). Cf.
Viracacha v. Mukasey, 518 F.3d 511, 514–15 (7th Cir. 2008). But
the Adorney General has not asked us to refine (or revisit)
circuit law about the use of §1252(a)(2)(D) to contest the
Board’s explanations for its decisions, so we shall proceed.
Section 1252(d) provides that a court may review the
Board’s order “only if (1) the alien has exhausted all adminis-
trative remedies available to the alien as of right” (emphasis
added). Barrados-Zarate did not ask the Board to address
the subject of criminal violence in Mexico. His reply that
“[v]iolence in a country is inherent in every cancellation
case” is nothing but a proposal to ignore §1252(d)(1).
4 No. 20-1040
Courts generally are limited to addressing and resolving
the arguments made to them. See United States v. Sineneng-
Smith, 140 S. Ct. 1575 (2020). An exhaustion doctrine applies
that same understanding to the administrative process.
Some statutes and rules permit review for plain error, but
the Immigration and Nationality Act lacks such an exception
to the norm of party presentation.
The Board of Immigration Appeals is inundated by cases;
it needs and is entitled to rely on the parties to separate
those issues that need adention from the many more that
have been satisfactorily resolved by the immigration judge
or were never raised at all. Barrados-Zarate asked the Board
to address the significance of medical care, education, and
economic opportunities in Mexico, and the Board did so—
apparently to his satisfaction, because he has let those sub-
jects drop. He did not ask the Board to consider criminal vio-
lence. Whether or not the Board could raise that subject on
its own, it was not legally obliged to do so.
Even when a court or agency makes a de novo decision—
that is, acts without deference to some other tribunal—it still
needs to know which issues require resolution. Section
1252(d)(1) shows that immigration adjudication is an adver-
sarial, party-driven approach rather than an inquisitorial,
judge-driven system.
Barrados-Zarate has not cited any appellate decision es-
tablishing that, notwithstanding §1252(d)(1), a court of ap-
peals may set aside an administrative decision that passes in
silence a topic that the parties themselves have passed in si-
lence. We looked but could not find such a decision. To the
contrary, we have held that aliens must raise specific argu-
No. 20-1040 5
ments to which the Board can “apply its specialized
knowledge and experience.” Minghai Tian v. Holder, 745 F.3d
822, 826 (7th Cir. 2014). See also El-Gazawy v. Holder, 690 F.3d
852, 859 (7th Cir. 2012). We routinely reject arguments to the
effect that a general claim (say, for cancellation of removal)
preserves a more specific but unstated argument that might
support it. See Sarmiento v. Holder, 680 F.3d 799, 804 (7th Cir.
2012); Huang v. Mukasey, 525 F.3d 559, 564 (7th Cir. 2008);
Margos v. Gonzales, 443 F.3d 593, 599 (7th Cir. 2006). “To de-
termine whether an issue has been raised … , courts look to
whether a party actually argued it, not whether the argu-
ment bears some relation to the evidentiary record.” Duarte-
Salagosa v. Holder, 775 F.3d 841, 846 (7th Cir. 2014).
That is not the only problem with Barrados-Zarate’s con-
tentions. His lawyer maintained at oral argument that no al-
iens who have U.S. citizens as spouses or children should be
returned to Mexico, given the level of criminal violence in
that nation. But the statute requires “exceptional and ex-
tremely unusual hardship” to U.S. citizens. A risk encoun-
tered by everyone who lives in Mexico cannot be “excep-
tional and extremely unusual”. But then, §1252(a)(2)(B)(i)
unambiguously forbids judicial review of this factual aspect
of the alien’s argument.
The petition for review is dismissed for want of juris-
diction to the extent that Barrados-Zarate is adempting a
covert adack on the substance of the agency’s decision and is
denied to the extent that Barrados-Zarate adacks the Board’s
silence about the effect of criminal violence in Mexico.