Gavino Cruz-Moyaho v. Eric Holder ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-2716 & 12-1056
G AVINO C RUZ-M OYAHO,
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. A098 501 241
A RGUED S EPTEMBER 19, 2012—D ECIDED D ECEMBER 18, 2012
Before B AUER, K ANNE, and W OOD , Circuit Judges.
B AUER, Circuit Judge. Gavino Cruz-Moyaho has been
fighting his removal from the United States since 2005.
He claims that his removal would lead to “exceptional
and extremely unusual hardship” to his three United
States-citizen children so his removal should be can-
celled under 8 U.S.C. § 1229b(b). The immigration judge
(IJ) denied Cruz-Moyaho’s application for cancellation
2 Nos. 11-2716 & 12-1056
in October 2009, and the Board of Immigration Appeals
(the BIA or the Board) affirmed the denial in August 2010.
Now pending before us are two petitions for review
resulting from a series of denied motions challenging
subsequent decisions of the Board. We find that we
lack jurisdiction over the majority of Cruz-Moyaho’s
claims. But for those claims we may consider, we find
that the Board did not err in denying any of Cruz-
Moyaho’s motions and, therefore, deny the two petitions
for review.
I. BACKGROUND
Cruz-Moyaho is a Mexican citizen who first entered
the United States in June 1995. He did so “without inspec-
tion” and, therefore, was in the country illegally and was
eligible for removal. See Marin-Garcia v. Holder, 647 F.3d
666, 668 (7th Cir. 2011). Since then, Cruz-Moyaho has
lived in the United States, notwithstanding the fact he
may have traveled to and from Mexico on various occa-
sions. And during this time, he has worked as a roofer,
paid his taxes, and, together with his wife, raised three
children—each of whom was born in the United States.
On October 28, 2005, the Department of Homeland
Security (DHS) instituted removal proceedings against
Cruz-Moyaho. DHS charged Cruz-Moyaho with
being an alien in the United States without being ad-
mitted or paroled, subject to deportation pursuant to
Section 212(a)(6)(A)(i) of the Immigration and Nationality
Act (INA).
Nos. 11-2716 & 12-1056 3
On July 6, 2006, Cruz-Moyaho admitted his unlawful
status and conceded that he had no lawful right to
remain in the United States. Instead, he filed an applica-
tion for cancellation of removal under 8 U.S.C. § 1229b(b).
This provision allows the U.S. Attorney General to can-
cel removal of an alien if the alien satisfies the following
criteria: (1) he has been continuously present in the
United States for ten years prior to seeking this relief;
(2) he displays good moral character; (3) he has not
been convicted of certain, specified offenses; and (4) his
removal would result in “exceptional and extremely
unusual hardship” to a qualifying relative, including
his spouse, parent, or child. See Barma v. Holder, 640 F.3d
749, 751 (7th Cir. 2011) (quoting 8 U.S.C. § 1229b(b)(1)).
“Exceptional and extremely unusual hardship” has not
been statutorily defined, but the Board has held that the
standard requires the alien to prove “his qualifying
relatives would suffer hardship that is substantially
different from, or beyond, that which would be normally
expected from the deportation of an alien with close
family members [in the United States].” In re Monreal,
23 I. & N. Dec. 56, 65 (BIA 2001).
On October 27, 2009, the IJ, Craig M. Zerbe, issued an
oral decision denying Cruz-Moyaho’s application for relief.
The IJ concluded that Cruz-Moyaho satisfied the first three
elements but did not demonstrate that his three children
would suffer exceptional and extremely unusual hardship.
Cruz-Moyaho timely appealed to the Board, contending
that the IJ failed to consider “the cumulative effect of the
hardships” faced by his children. On August 12, 2010, the
Board affirmed the IJ’s decision.
4 Nos. 11-2716 & 12-1056
Cruz-Moyaho challenged the Board’s decision in a
number of ways; the Government opposed all of them.
He first petitioned us for review of the Board’s decision,
which was filed on September 7, 2010 (No. 10-3084).
With his petition still pending, Cruz-Moyaho filed a
Motion to Reconsider (Reconsider #1) with the Board on
September 10, 2010; he included new information that
discussed the increased violence in Mexico. This motion
was followed by a Motion to Reopen (Reopen #1),
which was filed on November 12, 2010. Reopen #1 cited
two unpublished Board decisions: In re Frausto-Jaramillo,
A097 330 776 (BIA 2010), in which the Board reopened
proceedings of another Mexican citizen who had also
unsuccessfully applied for cancellation of removal; and
In re Salgado-Salgado, A037 726 749 (BIA 2009), in which
the Board reopened the proceedings for an application
under INA § 212(c), see 8 U.S.C. § 1182(c) (repealed 1996).
Reopen #1 also discussed the additional Mexican-
violence information included in Reconsider #1.
On January 12, 2010, Cruz-Moyaho withdrew the peti-
tion for No. 10-3084 pursuant to Federal Rule of Appel-
late Procedure 42(b), and the case was dismissed.
The Board denied Reconsider #1 and Reopen #1 in a
joint order issued on June 29, 2011. Because Reconsider #1
contained new information about violence along the
Mexican border, the Board considered the new informa-
tion in conjunction with Reopen #1. (A motion to recon-
sider is focused on errors of law; new facts and informa-
tion should be introduced in a motion to reopen. See
Ortega v. Holder, 592 F.3d 738, 746 n.1 (7th Cir. 2010).)
Nos. 11-2716 & 12-1056 5
Nonetheless, the Board denied Reconsider #1 because
Cruz-Moyaho failed to convince the Board that its
decision on August 12, 2010, contained a procedural or
substantive error. As it relates to Reopen #1, the Board
denied this motion as well because the new evidence,
“at most, [showed] a generalized risk of harm” that
was not unusual to Cruz-Moyaho’s children. On July 27,
2011, Cruz-Moyaho petitioned for review of these
decisions (No. 11-2716).
Continuing with his challenge, Cruz-Moyaho filed
another motion with the Board on July 29, 2011. Cruz-
Moyaho was prohibited from asking for reconsidera-
tion of Reconsider #1, see 8 C.F.R. § 1003.2(b)(2), so he
asked the Board to reconsider its decision for Reopen #1
(Reconsider #2). He also asked the Board to use its dis-
cretion to reopen sua sponte, and included a message
dated July 15, 2011, from the U.S. Department of State
that discussed the increased violence in Ciudad Juárez,
Mexico, resulting from recent drug-enforcement activity.
Also attached to the motion was a Chicago Tribune
article by Patricia Giovine with the headline “More Mexi-
cans seeking U.S. asylum” and a TIME magazine
article discussing the drug violence in Mexico. See
Tim Padgett, Day of the Dead, TIME, July 11, 2011, at 26.
(The additional information equated to a second
Motion to Reopen (Reopen #2).)
On December 22, 2011, the Board issued an order deny-
ing Reconsider #2 and Reopen #2. In the order, the Board
said Cruz-Moyaho was not denied due process during
his removal proceedings and he did not identify any
6 Nos. 11-2716 & 12-1056
material factual or legal errors in the Board’s order of
June 29, 2011. Insofar as Cruz-Moyaho’s motion from
July 29, 2011, contained new information, the Board
denied Reopen #2 as untimely and number-barred.
See 8 C.F.R. § 1003.2(c)(2). The Board also concluded
that Cruz-Moyaho’s situation was not “an exceptional
situation” that warranted its sua sponte discretion. On
January 9, 2012, Cruz-Moyaho filed a petition for review of
the Board’s order from December 22, 2011 (No. 12-1056).
We consolidated Nos. 11-2716 and 12-1056, and we
shall now dispose of them.
II. DISCUSSION
Our review begins with the question of jurisdiction.
Cruz-Moyaho’s brief reads as if we were reviewing
the original denial of his cancellation of removal and had
the ability to review the IJ and the Board’s fact-finding
de novo; 8 U.S.C. § 1252(a) prohibits courts from reviewing
judgments regarding the granting of relief under § 1229b.
Accordingly, we lack jurisdiction to review any claim
in any of the motions or petitions that the IJ or the Board
incorrectly held that Cruz-Moyaho’s children would
not experience exceptional and extremely unusual hard-
ship if Cruz-Moyaho was deported. See Delgado v.
Holder, 674 F.3d 759, 765 (7th Cir. 2012). We have also
held that “where we lack jurisdiction to review an under-
lying order, we also lack jurisdiction over appeals
from denials of motions to reopen and reconsider
those orders.” Bachynskyy v. Holder, 668 F.3d 412, 416 (7th
Cir. 2011).
Nos. 11-2716 & 12-1056 7
Applying these rules, we conclude that we lack juris-
diction over the majority of Cruz-Moyaho’s arguments
that simply challenge the merits of the Board’s orders.
This includes his contentions that the Board “erred as a
matter of law” by reaching decisions contrary to his
position because they are merely factual disagreements
disguised as legal contentions. See Vasile v. Gonzales, 417
F.3d 766, 768 (7th Cir. 2005) (stating that a petitioner
cannot “shoehorn” a claim into a “question of law”). This
also includes any contention that the Board failed to
conduct a thorough review of the record, or as Cruz-
Moyaho puts it, failed to “[t]ak[e] all the relevant factors
in the aggregate.” See Mireles v. Gonzales, 433 F.3d 965,
968 (7th Cir. 2006).
To the extent Cruz-Moyaho sets forth colorable argu-
ments related to legal errors and constitutional claims
arising out of the Board’s orders from June 29, 2011, and
December 22, 2011, we retain jurisdiction and will
review them in turn. See 8 U.S.C. § 1252(a)(2)(D); Ward v.
Holder, 632 F.3d 395, 397 (7th Cir. 2011). (Cruz-Moyaho
withdrew No. 10-3084, so any arguments arising directly
out of the IJ’s October 27, 2009 oral decision or the
Board’s August 12, 2010 order are not properly before
us and are rejected accordingly.)
A. Legal Errors—Failure to Consider Evidence
Arguments focused on legal errors are reviewed de novo,
“with deference to the agency if the issue involves an
ambiguous section of the INA or an interpretation of
agency regulations.” Kiorkis v. Holder, 634 F.3d 924, 928
8 Nos. 11-2716 & 12-1056
(7th Cir. 2011). “Legal questions include ‘challenges to
the BIA’s interpretation of a statute, regulation, or con-
stitutional provision, claims that the BIA misread its
own precedent or applied the wrong legal standard,
or claims that the BIA failed to exercise discretion at
all.’ ” Ward, 632 F.3d at 397 (quoting Patel v. Holder, 563
F.3d 565, 568 (7th Cir. 2009)). “[A] claim that the BIA
has completely ignored the evidence put forth by a peti-
tioner is [also] an allegation of legal error.” Iglesias v.
Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).
The basis for Cruz-Moyaho’s legal claims is that the
Board failed to consider evidence in its orders from
June 29, 2011, and December 22, 2011. We address each
of Cruz-Moyaho’s claims as they relate to the Board’s
particular orders.
1. Order from June 29, 2011
Cruz-Moyaho’s only colorable legal claims with
respect to the order of June 29, 2011, are that the Board
failed to consider (or include in the order) certain pieces
of evidence, mainly: (1) his contention that he cannot
immigrate to the United States until his oldest child
turns twenty-one in March 2024; (2) the increasing
violence in Mexico; (3) the lower standard of living
in Mexico; (4) the poverty his children will suffer in
Mexico; and (5) the educational limitations in Mexico.
But colorable does not mean meritorious, and these
claims all fail.
Initially, the fact Cruz-Moyaho cannot immigrate to
the U.S. until March 2024 first appears in Cruz-Moyaho’s
Nos. 11-2716 & 12-1056 9
brief. If the Board never had the information to con-
sider, Cruz-Moyaho cannot be surprised that it was
not included in the adjudication of his case. The burden
was on Cruz-Moyaho to establish extreme and excep-
tionally unusual hardship; his failure to provide
relevant evidence to the Board cannot be the basis for a
legal challenge. See 8 U.S.C. § 1252(b)(4)(A) (stating that
“the court of appeals shall decide the petition only on
the administrative record on which the order of removal
is based”).
Next, when reaching a decision, the Board must “con-
sider the issues raised, and announce its decision in
terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.”
Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007)
(internal quotation marks omitted). We are convinced
the Board did that in its order of June 29, 2011; Cruz-
Moyaho’s challenges related to the remaining pieces of
evidence are equally without merit.
A petitioner has a high mountain to climb when
arguing that a motion to reconsider or to reopen should
be granted. See Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th
Cir. 2004) (“To be within a mile of being granted, a
motion for reconsideration has to give the tribunal to
which it is addressed a reason for changing its mind.”). It
thus makes sense that the Board can deny a motion—to
reconsider or to reopen—without discussing the merits
in detail if all it does is “rehash a previous argument.”
See Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004).
When discussing Reconsider #1 in the order of June 29,
2011, the Board did not discuss each piece of evidence
10 Nos. 11-2716 & 12-1056
Cruz-Moyaho ever provided because Cruz-Moyaho
failed to “identify any overlooked errors of fact or
law” in the Board’s order of August 12, 2010. A review
of the record confirms this finding. Additionally,
the Board provided a full explanation of its reasons for
denying Cruz-Moyaho’s original appeal in its order of
August 12, 2010, see Cruz-Moyaho, A098 501 241
(BIA 2010), so it was not required to provide the same
explanation a second time (in the order of June 29,
2012). Cf. Ahmed, 388 F.3d at 248-49 (stating that the
Board should have provided further explanation of its
reasons for denying the motion to reconsider because
the Board did not issue an opinion when it originally
affirmed the IJ’s decision). We find no errors in the
Board’s denial of Reconsider #1.
Looking to Reopen #1, Cruz-Moyaho provided addi-
tional comments to support his claim that the violence
and unrest in Mexico has increased. One article
submitted, Andi McDaniel, The Juan Doe Problem: One
Woman’s Search for Dead Migrants’ Roots, M OTHER JONES ,
Sept./Oct. 2010, at 64, discusses the current problem
of identifying and burying the roughly 700 dead bodies
of migrants found along the U.S./Mexico border every
year. A book provided, G EORGE W. G RAYSON, MEXICO:
N ARCO -V IOLENCE AND A F AILED S TATE? 1-6 (3rd prtg.
2010), explains the ongoing “war on drugs” in Mexico,
which it says, has led to powerful drug traffickers infil-
trating Mexico’s political and law enforcement organiza-
tions, violent turf wars among cartels, and an overall
increase in murders and kidnappings. In short, we are
cognizant of the information Cruz-Moyaho submitted as
Nos. 11-2716 & 12-1056 11
well as the current conditions in Mexico, see Cruz-Mayaho
v. Holder, Nos. 10-1634, 11-2914, 11-3512, 2012 U.S. App.
LEXIS 21561, at *10 (7th Cir. Oct. 17, 2012), but Cruz-
Moyaho’s only legal challenge is to whether the Board
considered the discussions at all.
The Board laid out its reasons for denying Reopen #1
in the order of June 29, 2011. The Board acknowledged
Cruz-Moyaho’s new information and stated exactly why
it was not persuaded to reopen the case:
[Cruz-Moyaho] has not provided evidence showing
an unusual risk to his children inherent in his home-
town of Puebla, where he stated he will return if
his family accompanies him to Mexico. When con-
sidered cumulatively with the hardship evidence
previously in the record, we are not persuaded
that these articles are likely to change the result in
this case. (citations omitted).
We believe the Board sufficiently considered the newly-
provided information about the violence in Mexico and
acted appropriately when it denied Reopen #1.
The rest of Cruz-Moyaho’s challenges to the June 29,
2011 order have been considered and are rejected for
lack of jurisdiction.
2. Order from December 22, 2011
Turning our attention to the December 22, 2011 order,
Cruz-Moyaho’s arguments again fail to gain traction.
As a preliminary matter, Cruz-Moyaho’s challenge to
12 Nos. 11-2716 & 12-1056
Reconsider #2 is the same as his challenge to Reconsider #1
and Reopen #1: the Board did not consider evidence.
When explaining why its denial of Reconsider #2 was
appropriate, the Board stated,
Although [Cruz-Moyaho] disagrees, the excessive
crime in Mexico does not amount to the exceptional
and extremely unusual hardship as contemplated
under the law. The motion cites to no binding law
regarding the hardship standard that would war-
rant reconsideration. The facts are essentially not
in dispute; just the results drawn from them. The
respondent has not established errors of fact or law
that would warrant reconsideration of our prior
order denying the motion to reopen. (internal cita-
tions omitted).
Again, we believe the Board adequately considered
the evidence previously provided regarding the vio-
lence in Mexico and find no errors in its decision to
deny Reconsider #2.
That brings us to the Board’s denial of Reopen #2. Cruz-
Moyaho contends the Board erred as a matter of law
when it concluded Reopen #2 was untimely and number-
barred and, as a result, it was prohibited from con-
sidering the newly-submitted evidence in Reopen #2.
This claim is not a legal claim, however. Cruz-Moyaho
does not argue that the Board applied the incorrect
statute or misinterpreted the relevant provision. Rather,
he is challenging the Board’s conclusion that the infor-
mation provided did not meet the standard for
“materially changed circumstances” in 8 C.F.R.
Nos. 11-2716 & 12-1056 13
§ 1003.2(c)(3)(ii) to warrant a departure from the limita-
tions on motions to reopen. Because we lack jurisdiction
to review this determination and can glean no legal
challenges to Reopen #2, we find no errors in the
Board’s decision.
Lastly, in accordance with our recent decision in Anaya-
Aguilar v. Holder, No. 11-3052, 2012 U.S. App. LEXIS
21120, at *1-2 (7th Cir. Oct. 4, 2012), we conclude that
we do not have jurisdiction to review Cruz-Moyaho’s
claims regarding the Board’s failure to exercise its
sua sponte authority. See id. (explaining that our jurisdic-
tion is limited to plausible constitutional or legal chal-
lenges to the Board’s exercise of its sua sponte authority).
B. Constitutional Claims
In search of an outcome more favorable than those
of his challenges to the Board’s consideration of the
evidence, Cruz-Moyaho claims that his and his children’s
due process and equal protection rights were violated
in one or more of the Board’s rulings. But the fate of
these claims is no different, and we can make short work
of any due process argument: neither Cruz-Moyaho nor
his children had a protected liberty interest in the discre-
tionary relief of a motion to reconsider or a motion
to reopen. See, e.g., Moosa v. Holder, 644 F.3d 380, 385
(7th Cir. 2011).
We proceed to the equal protection arguments,
beginning with those related to Cruz-Moyaho himself.
Cruz-Moyaho’s equal protection challenge relies on the
14 Nos. 11-2716 & 12-1056
cases of Jesus Salgado-Salgado and Carlos Frausto-
Jaramillo, two other Mexican aliens who had their
cases reopened by the Board. See In re Frausto-Jaramillo,
A097 330 776 (BIA 2010); In re Salgado-Salgado, A037 726 749
(BIA 2009). The arguments here are exactly the same
as those put forth in his brother Roberto’s case, Cruz-
Mayaho, 2012 U.S. App. LEXIS 21561, at *10-11, 14: Salgado-
Salgado and Frausto-Jaramillo’s cases were seemingly
decided on the basis of increased violence in Mexico, so
Cruz-Moyaho’s case should likewise be reopened on
that basis. The only difference here is Cruz-Moyaho
raised the Frausto-Jaramillo argument below. Cf. id. at 14-
15. That difference is inconsequential, however; we
were clear in Cruz-Mayaho why the comparisons failed
on the merits:
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-Jaramillo’s petition was unop-
posed [by the Government].
Id. at 14.
Nos. 11-2716 & 12-1056 15
Cruz-Moyaho’s arguments are the same as his
brother’s, and not surprisingly, they fail for the same
reasons. Cruz-Moyaho’s equal protection rights were
not violated.
The last issue involves the equal protection rights of
Cruz-Moyaho’s children. Cruz-Moyaho contends his
children’s equal protection rights were violated for the
same reasons his rights were violated. The Govern-
ment argues that Cruz-Moyaho’s attempt to assert his
children’s equal protection rights should be disregarded
because the argument was not raised below. See United
States v. Fluker, 698 F.3d 988, Nos. 11-1013, 11-3008 & 11-
3082, 2012 U.S. App. LEXIS 22219, at *36 (7th Cir. Oct. 26,
2012) (stating that we will only consider arguments
not properly raised below under “exceptional circum-
stances”); Long-Gang Lin v. Holder, 630 F.3d 536, 542 n.2
(7th Cir. 2010) (“The failure to exhaust may be excused
when an alien raises a constitutional claim that the
Board ‘would [have been] powerless to address,’ but such
failure is not excused when the claim is ‘based on proce-
dural failings that the [Board]’ could have remedied.”
(quoting Pjetri v. Gonzales, 468 F.3d 478, 481 (7th Cir.
2006))). We agree with the Government. There are no
exceptional circumstances in this case, and the argu-
ment’s principal focus is on a procedural deficiency—i.e.,
the Board’s failure to reopen Cruz-Moyaho’s case—that
the Board could have cured by simply reopening Cruz-
Moyaho’s case. Cruz-Moyaho is not excused from
failing to raise the argument before the Board, and the
argument is deemed waived.
16 Nos. 11-2716 & 12-1056
III. CONCLUSION
For the foregoing reasons, we D ENY the petitions for
review before us in Nos. 11-2716 and 12-1056.
12-18-12