Israel Reyes-Cornejo v. Eric H. Holder, Jr. , 734 F.3d 636 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12-1712 & 12-3285
ISRAEL REYES-CORNEJO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY
GENERAL OF THE UNITED STATES,
Respondent.
Petitions for Review of an Order
of the Board of Immigration Appeals.
No. A099 027 603
ARGUED APRIL 15, 2013 — DECIDED OCTOBER 28, 2013
Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Israel Reyes-Cornejo was placed in
removal proceedings following his conviction on an aggra-
vated weapons charge. In removal proceedings,
Mr. Reyes-Cornejo applied for a waiver of inadmissibility, a
necessary first-step to securing an adjustment of status to that
of a lawful permanent resident based on his marriage to a
United States citizen. Following a hearing, an immigration
2 Nos. 12-1712 & 12-3285
judge (“IJ”) determined that he had not shown that his removal
would result in extreme hardship to a qualified relative and
separately determined that, even if Mr. Reyes-Cornejo had
made such a showing, he did not merit a favorable exercise of
discretion. The BIA affirmed. Mr. Reyes-Cornejo filed a motion
to reopen based on, among other grounds, new evidence of
hardship to his United States citizen daughter. The BIA denied
the motion. Mr. Reyes-Cornejo now seeks review of both
decisions of the BIA. For the reasons set forth in this opinion,
we deny the petition.
I
BACKGROUND
A. Facts1
Mr. Reyes-Cornejo’s father came to the United States in
1983 and, in 1994, brought his family to this country without
admission or parole. They first resided in Texas and later
moved to Colorado, where Mr. Reyes-Cornejo attended high
school and some college.
At about the age of eighteen, Mr. Reyes-Cornejo began
having run-ins with the law. By way of example only, in 1999,
he pleaded guilty to driving without a licence and to posses-
sion of a controlled substance and paraphernalia. In 2000, he
was arrested and charged with driving without a license. In
2001, he was charged with first degree criminal trespass, theft
1
Citations to the Administrative Record refer to the record in case number
12-3285.
Nos. 12-1712 & 12-3285 3
and criminal mischief for entry into a motor vehicle with intent
to commit theft. While on probation for the criminal trespass
charge, he was arrested and charged with possession of
marijuana and narcotic equipment. He was convicted of that
offense and served the sentence concurrently with his sentence
for violating his probation.
In 2001, Mr. Reyes-Cornejo moved to Chicago to live with
his grandmother.2 Between 2002 and 2005, Mr. Reyes-Cornejo
avoided any legal problems and also became involved roman-
tically with Carmen Lopez. In 2005, however,
Mr. Reyes-Cornejo was charged with two counts of domestic
battery and one count of criminal damage to property resulting
from an altercation with Lopez. A nolle prosequi was entered on
the charges, and Mr. Reyes-Cornejo was released from cus-
tody.
Following his relationship with Lopez, Mr. Reyes-Cornejo
began seeing his now wife, Karen Gallas.3 Throughout this
period, he continued to have legal difficulties. In 2006,
Mr. Reyes-Cornejo was charged with and pleaded guilty in
Illinois to aggravated unlawful use of a weapon when he
brandished a firearm during an argument with a neighbor.
Beginning in 2007 and continuing through his immigration
proceedings, Mr. Reyes-Cornejo had a series of four domestic
battery charges brought against him by Gallas in Colorado and
2
Prior to Mr. Reyes-Cornejo’s departure for Chicago, his father had filed
a form I-130 on his son’s behalf.
3
Gallas is a United States citizen.
4 Nos. 12-1712 & 12-3285
Illinois, but the charges were dropped. He also twice was
arrested for driving under the influence.
B. Administrative Proceedings
1.
Following his conviction for the weapons violation, the
Department of Homeland Security (“DHS”) served
Mr. Reyes-Cornejo with a notice to appear, which charged that
Mr. Reyes-Cornejo was subject to removal based on his illegal
presence in the United States without admission or parole and
on his conviction for a crime of moral turpitude.4 On May 16,
2007, Olga Rojas appeared on behalf of Mr. Reyes-Cornejo,
who remained in DHS custody. Rojas informed the IJ that
Mr. Reyes-Cornejo had obtained permission to marry Gallas
and requested a continuance so that the marriage could take
place.
One month later, Mr. Reyes-Cornejo appeared telephoni-
cally and Rojas appeared in person. She informed the IJ that
Mr. Reyes-Cornejo and Gallas had married and that a petition
for an alien relative had been filed by Gallas on
Mr. Reyes-Cornejo’s behalf. She requested an adjournment so
that the petition could be adjudicated.5
4
Initially, the DHS identified Mr. Reyes-Cornejo’s conviction for the Illinois
weapons charge as the crime of moral turpitude.
5
At a continued hearing on July 17, 2007, neither Mr. Reyes-Cornejo nor
Rojas appeared. The IJ entered an order of removal in absentia. During this
(continued...)
Nos. 12-1712 & 12-3285 5
At a hearing on October 23, 2007, Rojas again appeared on
behalf of Mr. Reyes-Cornejo and informed the IJ that the
petition had been approved and that she would be filing an
application for adjustment of status. She also informed the
court that she did not have the disposition of all of
Mr. Reyes-Cornejo’s criminal charges and needed additional
time to ensure that he was eligible for discretionary relief.
Prior to the next hearing, Rojas requested permission to
withdraw because Mr. Reyes-Cornejo, who now was out of
DHS custody on bond, was not cooperating with her efforts to
obtain documentation and was not complying with their
retainer agreement. Addressing the issue at an April 2008
hearing, the IJ advised Mr. Reyes-Cornejo that, despite his
extensive criminal history, it appeared that he was “eligible to
seek adjustment of status.”6 Nevertheless, Mr. Reyes-Cornejo
still would have to seek a waiver and, the IJ explained, “it’ll be
up to me ultimately to decide whether or not you deserve to
remain in the United States. Your best chances are to have
5
(...continued)
proceeding, the IJ concluded, and the Government’s counsel conceded, that
the Illinois weapons charge to which Mr. Reyes-Cornejo had pleaded guilty
did not constitute a crime of moral turpitude. See A.R. at 168–69. In her
written decision, the IJ set forth her rationale: “[P]ossession of a firearm
without evidence of an intent to harm someone has not been found to
amount to a crime involving moral turpitude. Matter of Granados, 16 I&N
Dec. 726 (BIA 1979).” A.R. at 900 n.4.
The proceedings later were reopened at Rojas’s request on the ground
that she had not received notice of the scheduled hearing.
6
A. at 958.
6 Nos. 12-1712 & 12-3285
competent counsel representing you. Ms. Rojas has certainly
done a great job, at least showing your eligibility for this
relief.”7 The IJ questioned Mr. Reyes-Cornejo about his ability
to pay Rojas going forward. The IJ then denied Rojas’s motion
to withdraw in the hopes that the summer construction season
would provide Mr. Reyes-Cornejo a means to pay his counsel.
Rojas expressed concern, however, that Mr. Reyes-Cornejo
would not be able to pay the filing fees for adjustment of
status. The IJ instructed Mr. Reyes-Cornejo to take a list of legal
aid attorneys, to consult with them and, in the meantime, to
cooperate with any of Rojas’s requests. The matter was set for
a master calendar hearing at which time Mr. Reyes-Cornejo
was to inform the court what efforts he had made to find
another attorney or to pay his current counsel.
When the hearing resumed on July 29, 2008, Rojas renewed
her request to withdraw. Before granting the motion, the IJ had
Rojas review the status of the case—that she believed that
Mr. Reyes-Cornejo was eligible for adjustment of status but
that he would need a waiver of inadmissibility for his criminal
trespass conviction.8 The IJ then granted Rojas’s motion and
7
Id. at 959.
8
In her discussion with the IJ, Rojas indicated her belief that the criminal
trespass committed in Colorado was a crime of moral turpitude for which
Mr. Reyes-Cornejo would have to seek a waiver of inadmissibility. See id.
at 973–74. The IJ agreed and instructed Mr. Reyes-Cornejo that, although
the crime had not been charged in the Notice to Appear, Mr. Reyes-Cornejo
would have to seek a waiver on the basis of that crime. See id. at 974. The
Government later amended the Notice to Appear to include additional
(continued...)
Nos. 12-1712 & 12-3285 7
advised Mr. Reyes-Cornejo that he would need to fill out a
waiver application. The IJ instructed Mr. Reyes-Cornejo how
to locate the I–601 waiver form on the United States Citizen-
ship and Immigration Service website. Additionally, the IJ
stated: “I would prefer if you had an attorney with experience
helping you out on this. Maybe if you go to these legal aid
organizations and tell them that you are now without counsel
they’ll take your case. If not, you have to now pursue your
case.”9 Later in the hearing, the IJ provided a copy of the I–601
form to Mr. Reyes-Cornejo but advised him to go to the
website for instructions.
At the next hearing, the IJ reiterated that Mr. Reyes-Cornejo
had the right to obtain counsel, but he informed the IJ that he
intended to proceed on his own. The IJ then confirmed that all
of the necessary paperwork for the adjustment of status and
waiver had been submitted. The IJ advised Mr. Reyes-Cornejo
how to make sure that he was fingerprinted in a timely
fashion. Finally, she stated:
Now, I’m going to set your case for hearing on the
merits of your application for adjustment of status
and for the waiver. You can bring witnesses with
you. Obviously, I think it would be a good idea for
8
(...continued)
factual allegations, specifically that Mr. Reyes-Cornejo was “on 11/15/01,
convicted in the District Court of Weld County, Colorado for the offense of
First Degree Criminal Trespass in violation of C.R.S. 18–4–502.” Id. at 339.
Mr. Reyes-Cornejo acknowledged receipt of the amended allegations at a
hearing on March 24, 2009. Id. at 982.
9
Id. at 973.
8 Nos. 12-1712 & 12-3285
you to bring your wife. … But anybody else who can
testify as to your good moral character, because you
need to show two things now; that you deserve this
as a matter of law, which means you that you really
do have eligibility based on an approved visa
petition, which you have, and that you don’t have
any statutory ineligibility basis, but you also need to
show that despite your record you deserve this as a
matter of discretion. So, sometimes people
bring—I’ll give you examples; neighbors, employ-
ers, ministers. You know? People who can vouch for
you; parents, kids. All right? Documents certainly
also. … Letters of support from people, you know,
who matter. … That can, can say that you are not
going to be a danger to society and that you deserve
this opportunity to remain. Okay? Do you have any
questions? I’m trying to be thorough as I can.[10]
Mr. Reyes-Cornejo and Gallas both responded, “No.”11
2.
When the merits hearing was conducted on June 21, 2010,
Mr. Reyes-Cornejo advised the court that he had been arrested
since the last hearing. Specifically, he had been charged with
driving under the influence. After the court reviewed the
materials submitted with respect to that charge, there was
10
Id. at 991–92.
11
Id. at 992.
Nos. 12-1712 & 12-3285 9
discussion about how testimony from Mr. Reyes-Cornejo
should be elicited given that he was unrepresented. The IJ then
asked Mr. Reyes-Cornejo a series of questions about his
marriage, his children, how he supports them, the relatives that
he had in the United States, and Gallas’s citizenship and
employment status. She then stated:
I’m going to be candid with you, Mr. Reyes. The—
I, I don’t have any question about your marriage to
a U.S. citizen and, and your presence in the United
States. I also don’t believe that there is a permanent
bar—or a statutory bar to you seeking a waiver with
the adjustment. I just think that your criminal
history is surely extensive and it’s fairly recent and
so, rather than me take the role of a prosecutor or
something I’m going to let the Government ask you
questions about your criminal history. You’re going
to have every opportunity after that to address, you
know, why … you don’t think it’s that serious of an
offense or why you changed or rehabilitated. Any-
thing like that. Okay?[12]
Mr. Reyes-Cornejo responded, “Okay.”13
Counsel for the Government asked Mr. Reyes-Cornejo
about his criminal history and also about many of his tattoos,
which appeared to be indicative of gang affiliation. After the
questioning, the IJ stated to Mr. Reyes-Cornejo, “Now,
12
Id. at 1023.
13
Id.
10 Nos. 12-1712 & 12-3285
Mr. Curran just asked you a lot of questions about your
criminal history. Do you have anything that you want to tell
me? Or—I know at one point you said you wanted to explain
something. This is your chance.”14 Specifically, the IJ recalled
that Mr. Reyes-Cornejo had tried to add something concerning
a domestic battery charge, and she stated: “And, you know,
there was the whole series of questions about your record in
Colorado and then the domestic battery issues. I mean, this
is—I, I don’t have any more questions of you, but I just want
to let you know if there’s anything that you want to add, this
is your chance. Because then your testimony is done and we’re
going to call your wife.”15 Mr. Reyes-Cornejo offered further
explanation for the bases of the charges, after which his wife
was called as a witness.
Gallas shed some additional light on the domestic violence
charges for which she was the complainant. She also testified
as to the importance of Mr. Reyes-Cornejo to herself, their
child, Ilena, and her older daughter, Isabella.
After Mr. Reyes-Cornejo, the IJ and the Government’s
counsel finished questioning Gallas, the IJ stated:
One of the things that has not been touched upon,
your husband had to file—he has filed a waiver—
.…
And in order to get that waiver, he needs to show
that a qualifying relative would suffer extreme
14
Id. at 1066–67.
15
Id. at 1067.
Nos. 12-1712 & 12-3285 11
hardship if he were deported. Now, I think the
qualifying relative in this case would obviously be
you because you’re a U.S. citizen and then his
two-year-old daughter, who’s a U.S. citizen, and to
perhaps family—any—a mother or father who have
a green card or are U.S. citizens. So, I’d like you to
tell me what hardship you believe that you or your
daughter, or the parents would suffer if Mr. Reyes
were deported from the United States to Mexico.[16]
Gallas offered approximately six pages of testimony on the
hardship that she, Ilena and Isabella would encounter.
After Gallas finished testifying, the IJ also turned to
Mr. Reyes-Cornejo to see if he had anything he would like to
add concerning hardship. Through Gallas and
Mr. Reyes-Cornejo, it was elicited that Gallas would suffer
both emotionally and financially if Mr. Reyes-Cornejo were
removed. Gallas explained that they “balance[d] [thei]r
schedules” so as to not incur child-care costs.17 Her family, she
explained, was not local and, therefore, could not help care for
the children on a daily basis. Gallas testified that
Mr. Reyes-Cornejo was especially helpful with Isabella because
he ensured that she completed her homework and “just
stay[ed] on top of things when mom’s not there.”18 She also
expressed concerns for her own and her daughters’ safety in
16
Id. at 1087.
17
Id.
18
Id. at 1090.
12 Nos. 12-1712 & 12-3285
Mexico. For his part, Mr. Reyes-Cornejo elaborated on his
relationship with his stepdaughter. He explained how they
shared an interest in art and how he helped her win a
school-wide art contest.19
The IJ gave Mr. Reyes-Cornejo the opportunity to call his
brother and his sister if he desired. Mr. Reyes-Cornejo re-
sponded, however, that he was “satisfied.”20
3.
The IJ denied the requested relief. In her written decision,
she noted that, in order to obtain a waiver of inadmissibility,
Mr. Reyes-Cornejo had to show extreme hardship on the part
of a qualifying relative. The IJ explained:
The key term in the provision is “extreme” and thus
only in cases of great actual or prospective injury to
a qualifying relative will the waiver be granted. The
phrase “extreme hardship” has been interpreted
narrowly by the [BIA]. Hardship which would
ordinarily be expected in a removal case, such as
separation from family and financial difficulties, in
and of itself is not sufficient to warrant approval
unless combined with much more extreme
impacts.[21]
19
See id. at 1096.
20
Id. at 1097.
21
Id. at 903–04 (citations omitted).
Nos. 12-1712 & 12-3285 13
The IJ went on to note that, even after an alien establishes
“extreme hardship,” the decision whether to grant relief still is
discretionary. Furthermore, the IJ noted that the regulations
instruct that, in order to merit a favorable exercise of discre-
tion, aliens who have committed “‘violent or dangerous
crimes’” must show “exceptional and extremely unusual
hardship” to the qualifying relative.22 The IJ determined that
Mr. Reyes-Cornejo’s actions fell within this category, but that,
even “under the lesser standard of just extreme hardship, the
respondent has failed to satisfy his burden of proof for the
waiver as well.”23 The IJ found that the financial, child care and
emotional burdens that Mr. Reyes-Cornejo’s wife and daugh-
ters would suffer as a result of his removal simply did not
amount to “extreme” hardship.
22
See id. at 904 (quoting 8 C.F.R. § 1212.7(d)). 8 C.F.R. § 1212.7(d) states in
relevant part:
The Attorney General, in general, will not favorably
exercise discretion under section 212(h)(2) of the Act (8
U.S.C. 1182(h)(2)) to consent to an application or
reapplication for a visa, or admission to the United States,
or adjustment of status, with respect to immigrant aliens
who are inadmissible under section 212(a)(2) of the Act in
cases involving violent or dangerous crimes, except in
extraordinary circumstances, such as those involving
national security or foreign policy considerations, or cases
in which an alien clearly demonstrates that the denial of
the application for adjustment of status or an immigrant
visa or admission as an immigrant would result in excep-
tional and extremely unusual hardship.
23
Id. at 904.
14 Nos. 12-1712 & 12-3285
Alternatively, the IJ determined that, even if
Mr. Reyes-Cornejo had established all of the requirements to
obtain a waiver, she would not have exercised her discretion
in Mr. Reyes-Cornejo’s favor. The IJ believed that
Mr. Reyes-Cornejo’s extensive criminal history, as well as the
fact that many of his violations of the law were recent, “cast[]
doubt on [his] professed rehabilitation and good character.”24
“Moreover, the respondent’s theft-related conviction, his
trespassing conviction, his repeated arrests on charges of
domestic battery, and his utter disregard for the law as recently
as 2009 when he was already in removal proceedings, reflect
his poor moral character and unworthiness of a favorable
exercise of discretion.”25
4.
The BIA affirmed. In a “de novo” review of the record, the
BIA concluded that it “agree[d] with the [IJ] that the respon-
dent ha[d] not demonstrated that his removal would result in
extreme hardship to a qualifying relative, and is therefore
ineligible for a waiver of inadmissibility.”26 The BIA also
“reject[ed] the respondent’s argument that the [IJ] provided
insufficient instruction to the respondent, who was pro se
during his merits hearing, regarding the requirements neces-
24
Id. at 905.
25
Id.
26
Id. at 825.
Nos. 12-1712 & 12-3285 15
sary to establish relief.”27 The BIA observed that due process
required that Mr. Reyes-Cornejo have a meaningful opportu-
nity to present his claim and that he had had such an opportu-
nity. Moreover, the IJ specifically had allowed
Mr. Reyes-Cornejo to present evidence of hardship, and the IJ
had questioned Mr. Reyes-Cornejo and his wife concerning the
hardship that his deportation would pose to each of his family
members. Finally, the BIA concluded that, even if there had
been some insufficient explanation by the IJ, the respondent
had not “demonstrated how the [IJ]’s allegedly deficient
instructions prejudiced him by articulating, for example, any
evidence of hardship that he would have presented regarding
this child had he better understood the requirements for a …
waiver.”28 The BIA therefore dismissed Mr. Reyes-Cornejo’s
appeal.
5.
In 2011, Mr. Reyes-Cornejo moved to reopen his proceed-
ings. The bases for his motion to reopen were: Isabella’s special
education needs; the recent diagnosis of Ilena with mixed
receptive and expressive disorder (“MRED”); the economic
and emotional hardship that his wife would face if he were
deported; and the deteriorating country conditions in Mexico.
The BIA denied the motion to reopen. It held that not all of
the evidence submitted was newly available. Specifically, it
27
Id.
28
Id. at 826.
16 Nos. 12-1712 & 12-3285
noted that the conditions in Mexico had not deteriorated
markedly since Mr. Reyes-Cornejo’s merits hearing in 2010.
Additionally, the information concerning Isabella and Gallas
was available at the time of the hearing. The BIA determined
that the only truly new evidence was that Ilena “was diag-
nosed with ‘moderate–severe mixed receptive and expressive
language disorder.’”29 It explained, however, that this change
did not justify reopening:
While this new evidence indicates that Ilena has
special education needs, the evidence does not
establish that the family’s hardship would be in-
creased by the respondent’s removal, aside from the
difficulties of separation which the [IJ] and the
Board already considered and addressed. The
documentation does not reflect that the family
would need to expend extra resources to care for
Ilena’s condition, or that Ilena’s treatment would
suffer substantial setbacks due to the respondent’s
absence. … Hardships which would occur regard-
less of the respondent’s removal are not sufficient.[30]
Moreover, the BIA was not persuaded that, in light of the
new evidence, Mr. Reyes-Cornejo merited a favorable exercise
of discretion given his lengthy criminal history.
Mr. Reyes-Cornejo timely petitioned for review of this ruling
as well.
29
Id. at 4.
30
Id.
Nos. 12-1712 & 12-3285 17
II
ANALYSIS
A. Statutory Requirements for Waiver of Inadmissibility
Before addressing the specific arguments raised by
Mr. Reyes-Cornejo, it is helpful to recall the requirements for
the relief he seeks. In his removal proceedings, the Govern-
ment charged that Mr. Reyes-Cornejo was inadmissible to the
United States.31 Mr. Reyes-Cornejo specifically was charged
with two counts of inadmissibility: He was present in the
United States without being admitted, inspected or paroled,32
and he had committed a crime of moral turpitude.33 Having
never been admitted or paroled, Mr. Reyes-Cornejo was
seeking “admission,” as that term is understood in immigra-
tion law, in the form of a request for adjustment of status, as a
defense to his removal. That is, acknowledging no present
authorization to remain in the United States at the time of his
31
See 8 U.S.C. § 1229a(a)(2) (stating that “[a]n alien placed in [removal]
proceedings … may be charged with any applicable ground of inadmissibil-
ity under section 1182(a)”).
32
See id. § 1182(a)(6)(A)(i).
33
See id. § 1182(a)(2)(A)(i)(I). As we noted above, see supra note 8, the
Government amended its factual allegations to include Mr. Reyes-Cornejo’s
criminal trespass conviction. Mr. Reyes-Cornejo’s Colorado conviction
states that he had “unlawfully, feloniously and knowingly … enter[ed] the
motor vehicle … with the intent to commit the crime of Theft.” A.R. at 342.
It is beyond dispute that theft is a crime involving moral turpitude, see
Hashish v. Gonzales, 442 F.3d 572, 576 (7th Cir. 2006) (collecting cases), and
Mr. Reyes-Cornejo does not dispute that he is inadmissible on this basis.
18 Nos. 12-1712 & 12-3285
charge, he nevertheless contended that he could be admitted
and given lawful permanent resident status and therefore
would not be removed.
Mr. Reyes-Cornejo’s inadmissibility, with its attendant
consequences, was the core issue to be decided in his proceed-
ing. Mr. Reyes-Cornejo did not contest that his presence and
the charged conviction for trespass rendered him inadmissible
and, if not waived in the context of a grant of adjustment of
status, would render him removable. To show that he was not
removable as charged, therefore, he sought to establish that his
grounds for inadmissibility were waivable and that he merited
such a waiver.34 On this appeal, we consider whether
34
See id. § 1182(h). 8 U.S.C. § 1182(h) provides:
(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E)
The Attorney General may, in his discretion, waive
the application of subparagraphs (A)(i)(I), (B), (D), and (E)
of subsection (a)(2) of this section and subparagraph
(A)(i)(II) of such subsection insofar as it relates to a single
offense of simple possession of 30 grams or less of mari-
juana if—
(1)(A) in the case of any immigrant it is established
to the satisfaction of the Attorney General that—
(i) the alien is inadmissible only under
subparagraph (D)(i) or (D)(ii) of such
subsection or the activities for which the
alien is inadmissible occurred more than
15 years before the date of the alien’s
application for a visa, admission, or ad-
justment of status,
(continued...)
Nos. 12-1712 & 12-3285 19
Mr. Reyes-Cornejo has met this burden.
The requirements for a waiver of inadmissibility are set
forth in 8 U.S.C. § 1182(h) and include a showing “that the
alien’s denial of admission would result in extreme hardship
to the United States citizen or lawfully resident spouse, parent,
son, or daughter of such alien.” Id. § 1182(h)(1)(B). If the alien
satisfies these requirements, the Attorney General “may, in his
discretion,” grant the waiver. Id. § 1182(h).
34
(...continued)
(ii) the admission to the United States of
such alien would not be contrary to the
national welfare, safety, or security of the
United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse,
parent, son, or daughter of a citizen of the United States or
an alien lawfully admitted for permanent residence if it is
established to the satisfaction of the Attorney General that
the alien’s denial of admission would result in extreme
hardship to the United States citizen or lawfully resident
spouse, parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and
pursuant to such terms, conditions and procedures as he
may by regulations prescribe, has consented to the alien’s
applying or reapplying for a visa, for admission to the
United States, or adjustment of status.
… No court shall have jurisdiction to review a
decision of the Attorney General to grant or deny a waiver
under this subsection.
20 Nos. 12-1712 & 12-3285
With this background in mind, we turn to the specific
arguments lodged by Mr. Reyes-Cornejo.
B. Right to Adequate Process
1.
Mr. Reyes-Cornejo first challenges the manner in which the
IJ conducted the proceedings. Specifically, Mr. Reyes-Cornejo
contends that the IJ failed to instruct him that he had to show
extreme hardship to a qualifying relative, and, consequently,
he was deprived of his right to present evidence of hardship
during the hearing. At bottom, Mr. Reyes-Cornejo contends
that his merits hearing was fundamentally unfair and deprived
him of due process of law.
Mr. Reyes-Cornejo’s claim, however, is not cognizable as a
due process violation. We have explained that,
[w]hile an alien has a Fifth Amendment right to due
process in immigration proceedings, it is
well-established that a party complaining of a
due-process violation must assert a liberty interest
in order to maintain his due-process claim. As a
result, we have repeatedly held that an alien’s right
to due process does not extend to proceedings that
provide only such discretionary relief because an
appeal to discretion is not a substantive entitlement.
Khan v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008) (internal
quotation marks omitted) (citations omitted). Because a waiver
of inadmissibility is a type of discretionary relief, see 8 U.S.C.
§ 1182(h); Khan, 517 F.3d at 518, Mr. Reyes-Cornejo cannot
Nos. 12-1712 & 12-3285 21
assert a liberty interest in the relief he seeks and, therefore,
cannot prevail on his due process claim.
2.
In addition to alleging a constitutional violation,
Mr. Reyes-Cornejo also claims that he was prejudiced by the
IJ’s failure to adhere to statutory and regulatory provisions
governing the conduct of removal proceedings.35 Specifically,
Mr. Reyes-Cornejo faults the IJ for failing to “develop[] the
record and elicit[] possible eligibility for relief” as required by
8 U.S.C. § 1229a(b)(1). Pet’r’s Br. 17. According to
Mr. Reyes-Cornejo, the IJ should have explicitly advised him
about the need to establish extreme hardship to a United States
citizen relative and also should have spent more time during
the merits hearing on this requirement. We do not believe that
the record before us supports a conclusion that the IJ violated
any statute or regulation or that, even if she did, any prejudice
resulted.
We begin by examining the statutory and regulatory bases
35
Although we lack jurisdiction to evaluate an agency’s denial of discre-
tionary relief, such as a waiver of inadmissibility, see 8
U.S.C. § 1252(a)(2)(B); Lam v. Holder, 698 F.3d 529, 533 (7th Cir. 2012)
(“Section 242(a)(2)(B) of the INA generally deprives courts of jurisdiction to
review discretionary denials of immigration relief.”), we nevertheless retain
jurisdiction to evaluate constitutional claims or questions of law raised in
conjunction with a discretionary determination, see 8 U.S.C. § 1252(a)(2)(D).
We therefore have jurisdiction to consider Mr. Reyes-Cornejo’s claims that
the IJ failed to adhere to specific regulatory and statutory requirements
when conducting the removal proceedings.
22 Nos. 12-1712 & 12-3285
for Mr. Reyes-Cornejo’s claim. Section 1229a(b)(1) of Title 8
states:
The immigration judge shall administer oaths,
receive evidence, and interrogate, examine, and
cross-examine the alien and any witnesses. The
immigration judge may issue subpoenas for the
attendance of witnesses and presentation of evi-
dence. The immigration judge shall have authority
(under regulations prescribed by the Attorney
General) to sanction by civil money penalty any
action (or inaction) in contempt of the judge's proper
exercise of authority under this chapter.
Similarly, 8 C.F.R. § 1240.32(b) provides: “The immigration
judge shall receive and adduce material and relevant evidence,
rule upon objections, and otherwise regulate the course of the
hearing.”
Here, the IJ specifically addressed the issue of hardship
and, during the hearing, elicited testimony about the hardship
of qualifying relatives. See A.R. at 1087 (“[I]n order to get that
waiver, he needs to show that a qualifying relative would
suffer extreme hardship if he were deported. … So, I’d like you
to tell me what hardship you believe that you or your daugh-
ter, or the parents would suffer if Mr. Reyes were deported
from the United States to Mexico.”). The IJ questioned Gallas
and Mr. Reyes-Cornejo about hardship, and their testimony
addressed the hardship to Gallas, to Isabella, to Ilena and to
Mr. Reyes-Cornejo’s parents. The testimony totaled ten
transcribed pages.
Mr. Reyes-Cornejo nevertheless faults the IJ for failing to
Nos. 12-1712 & 12-3285 23
advise him of the hardship requirement prior to the merits
hearing and for focusing on his criminal record during that
proceeding. The Board adequately evaluated this claim and
determined that, when the record was assessed as a whole, it
was clear that the IJ’s conduct of the proceedings oriented the
petitioner with respect to his responsibility to show extreme
hardship. The Board pointed out that the IJ had questioned
specifically the petitioner’s wife about potential hardship to the
petitioner’s stepdaughter,36 daughter and parents.
During the master calendar hearing, the IJ advised
Mr. Reyes-Cornejo that, in addition to meeting the statutory
requirements for eligibility, he also had to show that he
“deserve[d]” relief “as a matter of discretion.” Id. at 991. The IJ
then advised Mr. Reyes-Cornejo that he should bring any
witnesses who could “vouch for [him]” and explain why he
“deserve[d] this opportunity to remain.” Id. at 991–92. We
cannot fault the IJ for attempting to focus Mr. Reyes-Cornejo
on the issue that was critical for purposes of obtaining a
favorable exercise of her discretion and certainly cannot say
that the IJ’s conscientiousness in this regard clouded the
petitioner’s understanding of his responsibility to establish
extreme hardship. We have approved of an IJ’s attempt to
focus testimony and evidence on issues that were important for
the granting of relief. Cf., e.g., Kerciku v. INS, 314 F.3d 913,
917-18 (7th Cir. 2003) (explaining that when “the immigration
36
Although 8 U.S.C. § 1182(h) is limited to “spouse, parent, son, or
daughter,” 8 U.S.C. § 1101(b)(1)(B) defines “child” to include “a stepchild
… provided the child has not reached the age of eighteen years at the time
the marriage creating the stepchild status occurred.”
24 Nos. 12-1712 & 12-3285
judge limits the extent of some testimony or frequently
interrupts the applicant’s presentation,” a due process viola-
tion does not occur because these actions “serve to focus the
proceedings and exclude irrelevant evidence,” and collecting
cases).
Finally, even if Mr. Reyes-Cornejo had presented more
compelling evidence and had met the extreme hardship
standard, the waiver of inadmissibility still would have been
denied. We have explained that “[t]he grant of a waiver of
inadmissibility requires both a finding of extreme hardship for
a qualifying relative and the favorable exercise of discretion.”
Lam v. Holder, 698 F.3d 529, 534 (7th Cir. 2012) (emphasis in
original). The IJ determined that, even if Mr. Reyes-Cornejo
had shown the requisite hardship, she would not have exer-
cised her discretion in his favor because of his extensive
criminal record and his utter disregard for the law. The BIA
explained in Matter of Mendez-Moralez, 21 I. & N. Dec. 296, 301
(BIA 1996), that
[t]he equities that the applicant for [a waiver of
inadmissibility] must bring forward to establish that
he merits a favorable exercise of administrative
discretion will depend in each case on the nature
and circumstances of the ground of exclusion sought
to be waived and on the presence of any additional
adverse matters, and as the negative factors grow
more serious, it becomes incumbent upon the
applicant to introduce additional offsetting favor-
able evidence.
Given Mr. Reyes-Cornejo’s criminal record, which spans more
Nos. 12-1712 & 12-3285 25
than a decade, which includes a weapons charge, theft and
domestic abuse, and which extends through his removal
proceedings, we do not believe that the additional evidence of
hardship he now points to would have had any effect on the
IJ’s balancing of the equities.
C. Motion to Reopen
Mr. Reyes-Cornejo also maintains that the BIA erred in
failing to grant his motion to reopen. We review the BIA’s
decision to deny a motion to reopen for an abuse of discretion.
Vahora v. Holder, 707 F.3d 904, 911 (7th Cir. 2013). Under this
standard, we shall uphold the BIA’s decision “unless it was
made without rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.”
Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012).
Motions to reopen are governed by 8 C.F.R. § 1003.2, which
provides in relevant part that “[a] motion to reopen proceed-
ings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available
and could not have been discovered or presented at the former
hearing[] … .” Id. § 1003.2(c)(1) (emphasis added). As noted
above, the BIA denied Mr. Reyes-Cornejo’s motion to reopen
in part because the evidence concerning the violence in Mexico
and the special needs of Isabella was available at the time of his
merits hearing.
The BIA did not abuse its discretion in so concluding. With
respect to the violence in Mexico, Mr. Reyes-Cornejo had
pointed to a statement in a State Department travel warning
26 Nos. 12-1712 & 12-3285
that, “[i]n 2011[,] several areas in the state [of Durango]
continue to experience high rates of violence and remained
volatile and unpredictable.” A.R. at 56 (emphases added).37
Similarly, Mr. Reyes-Cornejo has not pointed to any aspect
of Isabella’s learning disabilities that was discovered or
documented subsequent to the merits hearing. All of the
information was known to Mr. Reyes-Cornejo at the time of the
hearing, but simply was not presented to the IJ.
The only new evidence that Mr. Reyes-Cornejo presented
in his motion to reopen was Ilena’s diagnosis with MRED. The
BIA discussed thoroughly the evidence concerning Ilena, but
concluded that Mr. Reyes-Cornejo’s removal would not affect
significantly Ilena’s treatment or progress. See A.R. at 5. On
appeal, Mr. Reyes-Cornejo maintains that, in reaching its
conclusion, the BIA “failed to consider most of the relevant
factors” for determining hardship to a qualifying relative. See
Pet’r’s Br. 28–29 (citing Matter of Cervantes, 22 I. & N. Dec. 560
(BIA 1999)).38 Because the only new evidence before the Board
37
Indeed, placed in context, the State Department travel warning states:
“Between 2006 and 2010, the number of narcotics–related murders in the
State of Durango increased dramatically. In 2011 several areas in the state
continue to experience high rates of violence and remained volatile and
unpredictable.” A.R. at 791.
38
In Matter of Cervantes, 22 I. & N. Dec. 560, 565–66 (BIA 1999), the BIA
stated:
The factors deemed relevant in determining extreme
hardship to a qualifying relative include, but are not
limited to, the following: the presence of lawful permanent
(continued...)
Nos. 12-1712 & 12-3285 27
was Ilena’s diagnosis, it was not necessary for the Board to
consider again all of the Cervantes factors in order to determine
if Mr. Reyes-Cornejo had established extreme hardship.39 It
simply needed to determine if the new evidence supplied by
Mr. Reyes-Cornejo changed its original analysis. As noted by
the Board, however, the materials submitted by
Mr. Reyes-Cornejo did not establish that his removal would
engender any additional hardship with respect to Ilena’s
38
(...continued)
resident or United States citizen family ties to this country;
the qualifying relative’s family ties outside the United
States; the conditions in the country or countries to which
the qualifying relative would relocate and the extent of the
qualifying relative’s ties to such countries; the financial
impact of departure from this country; and, finally,
significant conditions of health, particularly when tied to
an unavailability of suitable medical care in the country to
which the qualifying relative would relocate.
The BIA also noted that not all factors will be applicable in every case. See
id. at 566.
39
There is no question that, in eliciting and considering the evidence of
hardship presented at the merits hearing, the IJ was guided by the Cervantes
factors. See A.R. at 1088 (inquiring about Gallas’s family ties in the United
States); id. at 1089–90 (inquiring about Gallas’s willingness to move to
Mexico and any familiarity with Mexico). Gallas, however, made it clear
that her intent was to remain in the United States, see id.; consequently, the
IJ correctly focused on the hardship that Mr. Reyes-Cornejo’s wife,
stepdaughter and daughter would suffer if he were removed and they
remained in the United States, see id. at 1087–88 (wife); id. at 1090–91
(daughter and stepdaughter); id. at 1094–96 (same). Similarly, the BIA’s
initial decision focuses on the relevant factors in determining that
Mr. Reyes-Cornejo had not established the required level of hardship.
28 Nos. 12-1712 & 12-3285
condition. Mr. Reyes-Cornejo’s absence would not affect Ilena’s
ability to attend Head Start, to have an individual learning
plan developed for her or to obtain entry into a special pro-
gram for children with language disorders. Consequently, we
cannot say that the BIA abused its discretion in denying
Mr. Reyes-Cornejo’s motion to reopen on this ground.
Finally, there was no abuse of discretion in the BIA’s
alternative holding that, assuming a showing of extreme
hardship, the new evidence did not merit a favorable exercise
of discretion. In reaching this conclusion, the BIA considered
Mr. Reyes-Cornejo’s extensive criminal history, the variety of
crimes Mr. Reyes-Cornejo had committed and the length of
time that Mr. Reyes-Cornejo’s criminal actions spanned. In
Mendez-Moralez, 21 I. & N. Dec. at 301, the BIA observed that,
“as the negative factors grow more serious, it becomes incum-
bent upon the applicant to introduce additional offsetting …
evidence” of hardship or other favorable factors. Given
Mr. Reyes-Cornejo’s history of criminal involvement, which
extended beyond the time he was issued his notice to appear,
it was not irrational for the BIA to conclude that
Mr. Reyes-Cornejo did not merit a favorable exercise of
discretion, even considering any additional hardship to Ilena.
Conclusion
For the reasons set forth in this opinion, we deny
Mr. Reyes-Cornejo’s petition for review.
PETITION DENIED