Cevilla, Maria D. v. Gonzales, Alberto

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2387
MARIA DEL CONSUELO CEVILLA,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A77-771-892.
____________
ARGUED FEBRUARY 15, 2006—DECIDED MAY 1, 2006
____________
Before POSNER, ROVNER, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Maria Cevilla, a citizen of Mexico,
entered the United States in 1990 on a visitor’s visa. Eventu-
ally the government initiated proceedings to re-
move (deport) her. She conceded removability but sought
cancellation of removal on the basis that she met the
dual requirements for that form of relief of (1) having
resided in the United States continuously for 10 years
beginning in 1990 and (2) removal would cause extreme
hardship. 8 U.S.C. § 1229b(b)(1). After a hearing, the
immigration judge determined that neither requirement had
been met and denied relief. The Board of Immigra-
2 No. 05-2387
tion Appeals affirmed. Nine months later Cevilla filed a
motion with the Board to reopen the proceeding, attach-
ing to the motion new evidence concerning hardship. The
Board denied the motion, noting that it was untimely,
but adding:
The new evidence presented by the respondent
with regard to the physical and emotional difficulties
faced by her mother and son might have caused us to
consider a sua sponte grant of the motion. However, the
Immigration Judge also made a determination, based on
the inconsistent testimony of the respondent, her
mother and her sister, that the respondent had not
established the statutorily-required 10 years of con-
tinued presence in the United States. The Immigration
Judge’s decision in this regard has not been suffi-
ciently challenged on appeal to warrant a finding by
this Board that it was clearly erroneous.
Cevilla asks us to review the denial.
The government argues that we have no jurisdiction; that
while the Board can if it wishes entertain an untimely
petition to reopen, 8 C.F.R. § 1003.2(a); Ajose v. Gonzales, 408
F.3d 393, 395 (7th Cir. 2005); Joshi v. Ashcroft, 389 F.3d 732,
734 (7th Cir. 2004); Enriquez-Alvarado v. Ashcroft, 371 F.3d
246, 248-49 (5th Cir. 2004), its decision whether to do so or
not is unreviewable. A number of cases do so hold, on the
ground that the decision to forgive an untimely filing is
purely discretionary. Martinez-Maldonado v. Gonzales, 437
F.3d 679, 682-83 (7th Cir. 2006); Pilch v. Ashcroft, 353 F.3d
585, 586 (7th Cir. 2003); Assaad v. Ashcroft, 378 F.3d 471, 475-
76 (5th Cir. 2004) (per curiam); Belay-Gebru v. INS, 327 F.3d
998, 1001 (10th Cir. 2003); Calle-Vujiles v. Ashcroft, 320 F.3d
472, 475 (3d Cir. 2003). But as emphasized in Belay-Gebru
and Calle-Vujiles, all are cases in which the Board’s order
No. 05-2387 3
that was sought to be reviewed was indeed based on an
exercise of uncabined discretion rather than on the applica-
tion of a legal standard. (Compare Smriko v. Ashcroft, 387
F.3d 279, 292-93 (3d Cir. 2004).) The Administrative Proce-
dure Act denies judicial review of agency action in cases
where there is no law for a reviewing court to apply. 5
U.S.C. § 701(a)(2); Delgado v. Gonzales, 428 F.3d 916, 920
(10th Cir. 2005); Schneider v. Feinberg, 345 F.3d 135, 148 (2d
Cir. 2002) (per curiam). This is not such a case; the denial of
the motion to reopen was based on a determination that a
factual finding by the immigration judge was not clearly
erroneous.
The government fails to note, however, that the general
“no law to apply” principle of judicial review of administra-
tive action has been superseded in the immigration context
by 8 U.S.C. § 1252(a)(2), as amended by the REAL ID Act in
May 2005. Subsection (B) of section 1252(a)(2) provides that
“notwithstanding any other provision of law . . . no court
shall have jurisdiction to review (i) any judgment regarding
the granting of relief under section 1182(h), 1182(i), 1229b,
1229c, or 1255 of this title” (emphasis added). Both the
Board’s initial order, and its order declining to reopen the
case, are “judgment[s] regarding the granting of relief under
section . . . 1229b.” However, subsection (D) of section
1252(a)(2), also added by the REAL ID Act and thus post-
dating the cases on which the government relies, provides
that “nothing in subparagraph (B) . . ., or in any other
provision of this chapter (other than this section) which
limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section” (emphasis
added). Even before the enactment of subsection (D), we
had held in Morales-Morales v. Ashcroft, 384 F.3d 418, 421-23
4 No. 05-2387
(7th Cir. 2004), that the interpretation by an immigration
judge of the statutory phrase “continuous physical pres-
ence” was judicially reviewable, and Cuellar Lopez v.
Gonzales, 427 F.3d 492, 493-94 (7th Cir. 2005), reaffirmed this
holding after the enactment of subsection (D). Neither case,
however, involved review of the application of the “contin-
uous physical presence” standard to the facts of the case.
Noting that subsection (B) of 8 U.S.C. § 1252(a)(2) is
captioned “discretionary denials of relief,” several courts
have held that despite its uncompromising language it does
not bar judicial review of rulings that are not discretionary
in character. Ibarra-Flores v. Gonzales, 439 F.3d 613, 618 (9th
Cir. 2006); Santana-Albarran v. Ashcroft, 393 F.3d 699, 705 (6th
Cir. 2005); cf. Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661
(5th Cir. 2003); Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-
51 (9th Cir. 2004). The Second Circuit disagrees, noting that
subsection (D) explicitly confines judicial review to constitu-
tional questions and “questions of law.” Bugayong v. INS,
442 F.3d 67, 73 (2d Cir. 2006) (per curiam); Chen v. U.S.
Dep’t. of Justice, 434 F.3d 144, 151-55 (2d Cir. 2006).
The difficulty that has given rise to this disagreement is
that while the purpose of the door-closing statute appears to
be to place discretionary rulings beyond the power of
judicial review (hence the caption of subsection (B)), the
statute itself, read literally, goes further and places all
rulings other than those resolving questions of law or
constitutional issues beyond the power of judicial review. A
further complication is that the application of a legal
standard (whether negligence, possession, or, as in this case,
continuous physical presence) to facts is both recognized to
be different from a purely factual determination (for
example, that the defendant was driving more than 60 m.p.h
when he struck the plaintiff) and reviewed by the same
No. 05-2387 5
clearly-erroneous or substantial-evidence standard as a
purely factual determination. E.g., Thomas v. General Motors
Acceptance Corp., 288 F.3d 305, 307 (7th Cir. 2002); St. Mary’s
Medical Center v. Disco Aluminum Products Co., 969 F.2d 585,
588-89 (7th Cir. 1992); Mucha v. King, 792 F.2d 602, 604-05
(7th Cir. 1986); Johansen v. Combustion Engineering, Inc., 170
F.3d 1320, 1334 and n. 29 (11th Cir. 1999).
The issue of the meaning of “questions of law” in section
1252(a)(2)(D) is discussed most thoroughly in Chen v.
U.S. Dep’t. of Justice, supra, which reviews the legislative
history and finds that originally the phrase “questions of
law” had been “pure questions of law,” that “pure” had
been dropped as “superfluous,” and that Congress had
intended by its use of the phrase “questions of law” to
distinguish between “statutory-construction questions” and
“factual questions” and to permit judicial review only of
answers to the former. 434 F.3d at 153, citing the conference
report, H.R. Rep. No. 109-72, at 175 (2005). See also Ramaden
v. Gonzales, 427 F.3d 1218, 1222 (7th Cir. 2005). The report of
a conference committee is one of the more reliable forms of
legislative history, Bassiouni v. FBI, 436 F.3d 712, 716 (7th
Cir. 2006); Disabled in Action of Metropolitan New York v.
Hammons, 202 F.3d 110, 124 (2d Cir. 2000); RJR Nabisco, Inc.
v. United States, 955 F.2d 1457, 1462-63 (11th Cir. 1992);
Railway Labor Executives Ass’n v. ICC, 735 F.2d 691, 701 (2d
Cir. 1984), and the committee’s explanation is consonant
with the ordinary meaning of “questions of law” and with
Congress’s evident purpose of limiting judicial review of
removal cases.
Chen closes one door to relief. But because constitu-
tional rulings are excepted from the door-closing stat-
ute along with rulings on questions of law, a petitioner
might want to argue that the analysis of the facts by the
immigration judge or the Board of Immigration Appeals
6 No. 05-2387
had been so wacky as to constitute a denial of due pro-
cess of law, Remer v. Burlington Area School Dist., 286 F.3d
1007, 1013 (7th Cir. 2002); Abdulrahman v. Ashcroft, 330 F.3d
587, 596-97 (3d Cir. 2003), though a mere procedural or
evidentiary error must not be confused with a denial of due
process. Saloum v. U.S. Citizenship & Immigration Services, 437
F.3d 238, 243-44 (2d Cir. 2006); Sanchez-Cruz v. INS, 255 F.3d
775, 779 (9th Cir. 2001); McCurdy v. Dodd, 352 F.3d 820, 827
(3d Cir. 2003); Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th
Cir. 2000). But no due process challenge may be made
unless the challenger has been (or is threatened with being)
deprived of life, liberty, or property. Bangura v. Hansen, 434
F.3d 487, 495-96 (6th Cir. 2006). Cevilla has a liberty interest
in remaining in the United States, but prevailing on the
issue of continuous physical presence in the United States
would not give her any right to remain here. It would
merely give her an opportunity to establish extreme hard-
ship, which is an appeal to the government’s discretion,
rather than a substantive entitlement. Guerra-Soto v. Ashcroft,
397 F.3d 637, 639 n. 1 (8th Cir. 2005). A procedural entitle-
ment is not a liberty interest. Olim v. Wakinekona, 461 U.S.
238, 250-51 (1983); Hewitt v. Helms, 459 U.S. 460, 471 (1983);
Russ v. Young, 895 F.2d 1149, 1153 (7th Cir. 1990); Sealed v.
Sealed, 332 F.3d 51, 57 (2d Cir. 2003). And so “an alien’s right
to due process does not extend to proceedings that provide
only such discretionary relief.” Hamden v. Gonzales, 425 F.3d
1051, 1060-61 (7th Cir. 2005); see Dandan v. Ashcroft, 339 F.3d
567, 575 (7th Cir. 2003); Hernandez v. Gonzales, 437 F.3d 341,
345-46 (3d Cir. 2006).
A complicating factor is that the Board has signaled that it
would probably accept Cevilla’s claim of extreme hardship
if it thought she had been continuously present in the
United States for the required 10 years. Does this mean that
No. 05-2387 7
establishing presence would effectively confer a substantive
entitlement on her? It would not even if all the statutory
criteria, including extreme hardship, are present, because
they are merely preconditions to asking the government to
exercise discretion in the alien’s favor. See 8 U.S.C.
§ 1229b(b)(1); Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir.
2004); Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.
2003); Alvidres-Reyes v. Reno, 180 F.3d 199, 202 (5th Cir.
1999); cf. Cook v. Wiley, 208 F.3d 1314, 1322-23 (11th Cir.
2000); Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998).
And Cevilla could not prevail even if she had a property
or liberty interest. For although the Board’s determina-
tion that she failed to prove 10 years of continuous residence
is not persuasive, there was no denial of due process.
Cevilla testified initially that she first traveled to the
United States in 1990 with her mother, that her first child
was born here that year, and that she had resided continu-
ously here since. Had this been the only testimony, the
immigration judge would have accepted that Cevilla
had proved the requisite continuity of residence. Morales-
Morales v. Ashcroft, supra, 384 F.3d at 427-28; Lopez-Alvarado
v. Ashcroft, supra, 381 F.3d at 854. But he was disturbed
by the conflicting evidence of Cevilla’s mother and sister.
The mother testified that she entered by herself some-
time before 1992, then went back to Mexico that year and
brought her daughter back and that the daughter’s first
child was born that year, that is, 1992. At the time of her
testimony, the mother was an elderly woman in poor
physical and mental health. Her testimony was not plausi-
ble, because the child’s birth certificate indicated that he had
been born in 1990. Nevertheless the immigration judge gave
weight to the testimony. He should not have.
8 No. 05-2387
The sister testified that Cevilla first visited the United
States in 1985 and traveled back and forth between
Mexico and the United States until 1990 when she
settled here for good. The fact that Cevilla did not reside
continuously in the United States from 1985 is irrelevant,
since she needed only to have resided here from 1990 to
satisfy the 10-year requirement. But the immigration
judge thought that the inconsistency between Cevilla’s
testimony that she first entered in 1990 and the sister’s
testimony undermined Cevilla’s credibility because, after
hearing her sister testify, Cevilla acknowledged that she had
been in the United States off and on before 1990 though she
insisted that 1990 was the date of her last entry. Since the
only relevant date of entry was the date on which her
continuous residence in the United States began, and since
the fact that she had been here intermittently before moving
here for good would not make it less probable that she had
indeed later moved here for good, it is difficult to under-
stand why the immigration judge thought that “the incon-
sistencies in the testimonial evidence” warranted a finding
that Cevilla had left the United States after 1990. Her first
child was born that year, and no reason has been suggested
why she might have gone back to Mexico since then. There
is no indication of family or business in Mexico; her mother
is in the United States along with seven siblings; both her
children are U.S. citizens. She would have had to travel to
and from Mexico illegally in order to avoid revealing a
break in her residence, and that would have been a risky
undertaking. Especially considering the immigration judge’s
inexplicable decision to credit the mother’s obviously
erroneous testimony, we do not think that the Board’s
finding with regard to continuous presence is sound.
Nevertheless, the analysis that generated the finding, the
procedure and evidence on which that analysis rested, and
No. 05-2387 9
the finding itself are not so unreasonable as to constitute a
denial of due process.
For all these reasons, the petition for review must be
DENIED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-1-06