Mauricio Moral-Salaz v. Eric Holder

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1353
M AURICIO G UILLERMO M ORAL-SALAZAR,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A041 664 079
A RGUED N OVEMBER 14, 2012—D ECIDED F EBRUARY 28, 2013
Before M ANION, K ANNE, and T INDER, Circuit Judges.
M ANION, Circuit Judge. The U.S. Department of Home-
land Security began removal proceedings against
Mauricio Moral-Salazar (“Moral”) because of his
multiple criminal convictions, including unlawful use of
a weapon and sexual abuse of a minor. The Immigra-
tion Judge (“IJ”) granted five continuances, four of which
allowed Moral to pursue state-court post-conviction
2 No. 12-1353
proceedings seeking to set aside his guilty plea for
sexual abuse of a minor occurring in 2002. After Moral
informed the IJ that the state criminal court dismissed
his petition, the IJ denied his request for another con-
tinuance and ordered his removal. Moral, through
counsel, appealed the IJ’s decision to the Board, and the
Board denied the appeal and denied Moral’s request
for additional continuances.
Moral’s appeal of the Board’s order in this court
presents another hurdle in the analysis of jurisdiction-
stripping provisions of the Immigration and Nationality
Act (“INA”) and their application to discretionary deter-
minations such as the denial of a motion for continuance
during removal proceedings. Recent cases construing
the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B) have
allowed review of procedural orders made discretionary
by regulation, see Kucana v. Holder, 130 S. Ct. 827 (2010),
even where a court has no jurisdiction to consider
the merits of the alien’s removal, see Calma v. Holder, 663
F.3d 868 (7th Cir. 2011). But since Calma, we have yet
to confront the scope of the jurisdictional bar of
8 U.S.C. § 1252(a)(2)(C) and whether it, unlike
§ 1252(a)(2)(B), does not allow review of the denial
of a motion for continuance. We conclude that
§ 1252(a)(2)(C), which is phrased more broadly than
subsection (B), strips this court of jurisdiction here. Ac-
cordingly, we dismiss the petition for review.
I. Background
Moral is a citizen and native of Ecuador who was
admitted to the United States in 1988 as an immigrant.
No. 12-1353 3
He was convicted of several crimes here, including crimi-
nal sexual abuse of a minor (2002), which is an ag-
gravated felony, see 8 U.S.C. § 1101(a)(43)(A), and
unlawful use of a weapon (1997). In 2011, the Depart-
ment of Homeland Security charged Moral as removable
due to his criminal activities.
In his removal proceedings before an immigration
judge, Moral received a total of five continuances, four
of which sought more time to allow him to pursue post-
conviction relief in Illinois state court on his 2002 sex-
abuse conviction. In state court Moral sought to with-
draw his guilty plea and overturn that conviction on
grounds that he was not informed of the immigration
consequences of his plea in violation of Padilla v.
Kentucky, 130 S. Ct. 1473 (2010). Overturning this con-
viction, he maintains, would affect his immigration
proceedings because the conviction was an aggravated
felony that precluded cancellation of removal under
8 U.S.C. § 1229b(a)(3). See 8 U.S.C. § 1101(a)(43)(A). Eventu-
ally, the state court dismissed his petition for post-con-
viction relief as untimely. Moral appealed that decision
and filed a new action in state court, seeking equitable
tolling of the statute of limitations for post-convic-
tion relief.
After Moral’s initial petition for post-conviction
relief was denied, the IJ, who had already granted five
continuances, refused to grant any more and entered
an order of removal. The IJ acknowledged Moral’s right
to challenge his conviction in state court, but concluded
that that “right had certain boundaries attached to it in
4 No. 12-1353
the form of a deadline.” Because Moral “had the oppor-
tunity to exercise his right to attack the conviction and . . .
obtained the ruling of the trial court in that regard,” the
IJ, in his discretion, decided not to grant more con-
tinuances to permit Moral to pursue an appeal of the
state-court judgment or his equitable-tolling suit.
Moral appealed to the Board of Immigration Ap-
peals, which upheld the IJ’s decision. The Board noted
that the IJ had discretion to allow a continuance
as long as there was “good cause,” but determined that
Moral’s ongoing efforts to pursue post-conviction relief
did not constitute “good cause.” According to the Board,
post-conviction challenges generally are speculative,
and Moral’s hope of obtaining relief “after having his
initial motion denied is particularly speculative.” The
Board also noted that Moral’s challenges in state court
were unlikely to be resolved in the foreseeable future.
Finally, the Board observed, even if Moral were to suc-
cessfully challenge his 2002 conviction, he had not made
a prima facie showing that cancellation of removal
would be appropriate in light of his other criminal con-
victions.
II. Discussion
Moral argues that the Board abused its discretion by
denying his motion for a continuance to allow him to
pursue his state-court appeal or his new suit seeking
equitable tolling. Moral contends that the denial of a
continuance renders toothless the Supreme Court’s deci-
sion in Padilla, 130 S. Ct. 1473, because without the con-
No. 12-1353 5
tinuance, he has no remedy for his public defender’s
alleged failure to inform him of the immigration conse-
quences of his 2002 guilty plea.
The government raises a threshold issue: whether we
have jurisdiction to even consider the merits of Moral’s
case. The government contends that the jurisdictional
bar in 8 U.S.C. § 1252(a)(2)(C) makes the Board’s deci-
sions in this case completely unreviewable. In support
of this argument, the government points to the statu-
tory language of subsection (C), which disallows review
of “any final order of removal” against an alien who is
removable by reason of having committed certain
criminal offenses (including sexual abuse of a minor, an
aggravated felony covered in § 1227(a)(2)(A)(iii)). The
government also cites case law that interprets subsec-
tion (C) to preclude even the review of discretionary,
procedural decisions such as the denial of a motion
for continuance. Further, the government argues that the
exception for constitutional or legal issues, see 8 U.S.C.
§ 1252(a)(2)(D), is construed narrowly and cannot
salvage Moral’s primarily factual contention that the
Board abused its discretion by denying a motion for
continuance. On the jurisdictional issue, the govern-
ment cites case law that predates Calma v. Holder, 663
F.3d 868 (7th Cir. 2011); it does not consider what,
if any, impact Calma should have on this court’s inter-
pretation of subsection (C).
In this case, we must determine whether our analysis
in Calma, which focused exclusively on § 1252(a)(2)(B),
applies to the jurisdictional bar set out in § 1252(a)(2)(C).
6 No. 12-1353
In Calma, we decided that we had jurisdiction to review
the Board’s denial of a motion for continuance where
an alien’s procedural challenge did not implicate the
merits of an otherwise unreviewable removal order.
Calma, 663 F.3d at 878. This case raises a similar ques-
tion—whether we have jurisdiction to review an alien’s
challenge to the denial of a motion for continuance—but
requires us to consider a different statutory provision,
subsection (C). As noted above, this provision deprives
us of jurisdiction “to review any final order of re-
moval” against an alien who has been convicted of
certain enumerated crimes. 8 U.S.C. § 1252(a)(2)(C).
Subsection (C) applies to Moral because he has been
convicted of an aggravated felony—sexual abuse of a
minor—see id. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(A), and
illegal use of a firearm, see id. § 1227(a)(2)(C). (The sex-
abuse conviction resulted from the guilty plea that
Moral unsuccessfully challenged in state court.)
Recently the Supreme Court in Kucana v. Holder, 130
S. Ct. 827 (2010), and subsequently this court in Calma,
663 F.3d 868, concluded that the jurisdiction-stripping
provisions found in 8 U.S.C. § 1252(a)(2)(B)(i) and (ii)
did not apply to agency decisions made discretionary
by regulation. Specifically, these included the denials of
motions to reopen and motions for continuance. In
Kucana the Supreme Court held that § 1252(a)(2)(B)(ii)
does not bar judicial review of agency decisions made
discretionary by regulation rather than by statute. See
Kucana, 130 S. Ct. at 839-40. The Court interpreted sub-
section (B)(ii) to allow judicial review of a motion to
reopen, which was made discretionary by regulation.
No. 12-1353 7
See Kucana, 130 S. Ct. at 840; 8 C.F.R. § 1003.2(a). Though
Kucana’s holding extended only to subsection (B)(ii),
some of the Court’s analysis suggested broader implica-
tions. In construing the statute, the Court relied on
the “presumption favoring judicial review of admin-
istrative action.” Id. at 839. The Court also emphasized
that decisions on a motion to reopen are adjunct, proce-
dural rulings, which do not concern substantive relief,
but instead ensure that aliens have a fair chance to
present their claims. Id. at 837. But the Court declined
to decide whether a discretionary procedural determina-
tion could be reviewed in cases where jurisdiction
was otherwise lacking over the alien’s underlying claim
for relief. Id. at 839 n.17.
In Calma, we extended Kucana’s holding to the other
provision of subsection (B), 8 U.S.C. § 1252(a)(2)(B)(i). In
Calma, petitioners challenged the denials of motions for
continuance, but not the merits of the underlying
denials of adjustment of status that are covered by the
jurisdictional bar in subsection (B)(i). See Calma, 663
F.3d at 873. Motions for continuance, like the motions
to reopen considered in Kucana, are made discretionary
by regulation. See 8 C.F.R. § 1003.29. We noted that sub-
section (B)(i) prohibits review of the ultimate adjustment-
of-status decision, but “says nothing about review of
antecedent procedural decisions such as continuances.”
Id. at 877. We concluded that we had jurisdiction to
review the continuance motions, because they “do not
implicate the merits of a final unreviewable order
but instead merely defer the resolution of the merits so
that the process as a whole can be completed with integ-
rity.” Id. at 878.
8 No. 12-1353
Kucana and Calma dealt only with § 1252(a)(2)(B), but
there are possible reasons to consider extending their
holdings to subsection (C). It is true, for instance, that
as in Calma, Moral’s motion for a continuance sought
to “defer the resolution of the merits,” rather than
overturn a final, unreviewable order. Calma, 663 F.3d at
878. Also, both Kucana and Calma recognize a general
principle of statutory construction: the presumption
favoring judicial review of administrative action. See
Kucana, 130 S. Ct. at 839; Calma, 663 F.3d at 877. And in
Calma, we were presented with and answered a
question left open by Kucana 1 and determined that a
court may review a procedural decision in some circum-
stances even where it lacks jurisdiction to review the
merits of a final, unreviewable order. Calma, 663 F.3d
at 878; Kucana, 130 S. Ct. at 839 n.17.
But textual differences between subsection (B) and
subsection (C) prevent us from extending Calma’s
holding to subsection (C). “Where Congress includes
particular language in one section of a statute but omits
it in another section of the same Act, it is generally pre-
sumed that Congress acts intentionally and purposely
1
As noted in Calma, the question left open in Kucana was
“whether review of [decisions made discretionary by regula-
tion] would be precluded if the court would lack jurisdiction
over the alien’s underlying claim for relief.” Calma, 663 F.3d
at 873. In Kucana, the Court concluded that the jurisdictional
bar under 8 U.S.C. § 1252(a)(2)(B)(ii) did not apply because
the Board’s decision (on a motion to reopen) was made discre-
tionary by regulation, not by statute. See 130 S. Ct. at 839-40.
No. 12-1353 9
in the disparate inclusion or exclusion.” Kucana, 130 S. Ct.
at 838 (internal quotation marks and brackets omitted).
While subsection (B) denies jurisdiction to review
certain agency decisions, Congress went further in
drafting subsection (C), which unequivocally declares
that “no court shall have jurisdiction to review
any final order of removal” against an alien who is re-
movable by reason of having committed certain criminal
offenses, such as Moral’s aggravated felony and firearm
violation. 8 U.S.C. § 1252(a)(2)(C) (emphasis added).2
We have interpreted the phrase “final order of removal”
to encompass not only the actual removal order, but
all decisions closely related to the proceeding. Torres-
Tristan v. Holder, 656 F.3d 653, 658 (7th Cir. 2011). Thus
an explicit jurisdictional bar on reviewing “any final
order of removal” includes prior procedural orders like
a motion for continuance. Subsection (B), on the other
hand, is more narrowly worded, denying “jurisdiction
2
In Kucana, the Supreme Court emphasized that the scope
of the INA’s jurisdictional bars must be defined by statute, not
by regulation. “By defining the various jurisdictional bars
by reference to other provisions in the INA itself, Congress
ensured that it, and only it, would limit the federal courts’
jurisdiction. To read § 1252(a)(2)(B)(ii) to apply to matters
where discretion is conferred on the Board by regulation,
rather than on the Attorney General by statute, would ignore
that congressional design.” Kucana, 130 S. Ct. at 839-40. The
scope of the jurisdictional bar under § 1252(a)(2)(C) is defined
by statute, and its language denies us jurisdiction to review
a discretionary denial of a continuance.
10 No. 12-1353
to review” specified decisions of the Attorney General
or his subordinates. 8 U.S.C. § 1252(a)(2)(B); see also
Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (com-
paring subsection (B), “which forbids review of
particular issues in a case” with subsection (C), which
“provides that the ‘order of removal’ itself is
unreviewable”); Ogunfuye v. Holder, 610 F.3d 303, 307
(5th Cir. 2010) (referring to subsection (C) as “broader”
than subsection (B)).
Thus, in light of the text of 8 U.S.C. § 1252(a)(2)(C), we
decline to extend Calma and Kucana to removal orders
where an alien has been convicted of a crime covered
by the jurisdictional bar in subsection (C).3 Even proce-
dural decisions made discretionary by regulation are
therefore unreviewable (unless a legal or constitutional
issue exists) in such cases. Our sister circuits have
similarly concluded, after Kucana, that subsection (C)
bars review of aggravated felons’ motions for continu-
ance. See Waugh v. Holder, 642 F.3d 1279, 1284-85 (10th
Cir. 2011); Ogunfuye, 610 F.3d at 307.
Nothing in this opinion, however, should be under-
stood to preclude judicial review of a denial of the excep-
tional remedy of deferral of removal under the Con-
3
Because this opinion establishes an analysis under 8 U.S.C.
§ 1252(a)(2)(C) that is distinct from the approach taken in
Calma for petitions covered by § 1252(a)(2)(B), this opinion
has been circulated to all active judges pursuant to Circuit
Rule 40(e). No judge in regular active service voted to hear
the case en banc.
No. 12-1353 11
vention Against Torture (“CAT”), which bars its signa-
tories from returning a person to a country where he
is likely to be tortured. See Wanjiru v. Holder, No. 11-3396,
slip op. at 10-13, 2013 WL 135712, at *5-6 (7th Cir. Jan. 11,
2013); Issaq v. Holder, 617 F.3d 962, 969-70 (7th Cir.
2010). Aliens facing torture who are not eligible for with-
holding of removal under the CAT (certain criminals,
for example) may petition for deferral of removal,
which halts removal proceedings but may be revisited
if circumstances change. See Wanjiru, No. 11-3396, slip op.
at 11, 2013 WL 135712, at *5; 8 C.F.R. §§ 1208.16(c)(4);
1208.17. Deferral of removal under the CAT is a unique
remedy that requires a distinct jurisdictional analysis.
An erroneous denial of deferral of removal may result
in a person being tortured or killed in his home coun-
try. And judicial review of decisions under the CAT—a
U.N. treaty signed and ratified by the United States—helps
ensure that this country is meeting its international ob-
ligations. See Wanjiru, No. 11-3396, slip op. at 13, 2013
WL 135712, at *6. These unusual considerations are not
present in a case, like Moral’s, in which an alien who
has committed crimes and seeks to avoid deportation
petitions for review of a denial of a motion for continu-
ance, a routine procedural motion.
Notwithstanding subsection (C)’s jurisdictional bar,
we would have jurisdiction to review any legal and
constitutional issues that Moral raises. See 8 U.S.C.
§ 1252(a)(2)(D). But Moral presents no legal or constitu-
tional question here. Moral contends that the Board
and IJ abused their discretion by denying him further
continuances to pursue post-conviction relief under
12 No. 12-1353
Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Mere refer-
ence to a legal standard or a constitutional provi-
sion, however, does not convert a discretionary deci-
sion into a reviewable legal or constitutional question.
See Zamora-Mallari v. Mukasey, 514 F.3d 679, 696 (7th
Cir. 2008) (a petitioner may not create jurisdiction by
“cloaking an argument in constitutional garb”) (internal
quotation marks and ellipsis omitted); Adebowale v.
Mukasey, 546 F.3d 893, 896 (7th Cir. 2008). Though
Moral cites the Supreme Court’s decision in Padilla,
Moral’s constitutional challenge to his conviction was
properly before the Illinois state courts; neither the
agency nor this court may rule on its merits. See Ghani v.
Holder, 557 F.3d 836, 839 (7th Cir. 2009) (“immigration
proceedings are not a permissible venue for attacking
the validity of a criminal conviction”).
III. Conclusion
Accordingly, we D ISMISS Moral’s petition for want
of jurisdiction.
2-28-13