Luis Aparicio-Brito v. Eric Holder, Jr.
Filing
Filed opinion of the court by Judge Williams. We DENY Aparicio-Brito's petition for review. Richard A. Posner, Circuit Judge; Ann Claire Williams, Circuit Judge and Rebecca R. Pallmeyer, District Court Judge. [6754390-1] [6754390] [14-3062, 15-1270, 15-1769]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3062, 15-1720, and 15-1769
LUIS APARICIO-BRITO,
Petitioner,
v.
LORETTA LYNCH,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A 076-879-145
____________________
ARGUED JANUARY 6, 2016 — DECIDED MAY 31, 2016
____________________
Before POSNER and WILLIAMS, Circuit Judges, and
PALLMEYER, District Judge. ∗
WILLIAMS, Circuit Judge. Following petitioner Luis Aparicio-Brito’s fourth arrest for driving under the influence, the
∗ Of the Northern District of Illinois, sitting by designation.
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U.S. government commenced deportation proceedings
against him. Aparicio-Brito, a native and citizen of Mexico,
did not challenge removability; instead, he focused his efforts on suppressing the government’s evidence regarding
his alienage and applying for cancellation of removal. But an
immigration judge (IJ) denied his suppression motions and
his application, as well as his request for voluntary departure. In doing so, the IJ concluded that the government sufficiently demonstrated that Aparicio-Brito had entered the
United States without inspection, and that cancellation of
removal and voluntary departure would be improper because of Aparicio-Brito’s inability to demonstrate continuous
presence in the United States, good moral character, and extreme hardship on family members upon deportation.
Aparicio-Brito appealed the IJ’s decision to the Board of
Immigration Appeals (BIA), arguing that the IJ and the government had violated his due process rights in various ways
before and during the proceedings, and challenging the IJ’s
conclusions regarding alienage, cancellation of removal, and
voluntary departure. The BIA dismissed this appeal and denied Aparicio-Brito’s later request to reopen proceedings.
We find that the IJ and the government complied with
their statutory responsibilities relating to Aparicio-Brito’s
removal proceedings. Also, the IJ properly concluded that a
summary of Aparicio-Brito’s statements to government officials adequately demonstrated his alienage. And the IJ correctly denied Aparicio-Brito’s application for cancellation of
removal based on his inability to demonstrate ten years of
continuous physical presence in the United States. So we deny Aparicio-Brito’s petition for review.
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I. BACKGROUND
Aparicio-Brito entered the United States without inspection sometime in 1998. He has remained in the United States
since then, aside from two multi-month trips back to Mexico
in the early 2000s. During his residency in the United States,
Aparicio-Brito was arrested and convicted four separate
times for driving under the influence (DUI). The first three
DUI offenses occurred in 1999, 2001, and 2003, respectively.
The fourth offense, which occurred in March 2010, attracted
the attention of the Department of Homeland Security
(DHS).
Several days after his March 2010 arrest, Aparicio-Brito
was transferred into DHS custody. Shortly thereafter, DHS
officers filled out a Form I-213, stating that Aparicio-Brito
had admitted to being a Mexican citizen and to entering the
United States without inspection. DHS then instituted removal proceedings by issuing a Notice to Appear (NTA) that
charged Aparicio-Brito with being an immigrant present in
the United States without admission or parole under 8
U.S.C. § 1182(a)(6)(A)(i).
In advance of his removal hearing, Aparicio-Brito stated
that he would neither admit nor deny the allegations in the
NTA or the charge of removability. He did, however, file an
application for cancellation of removal as a non-permanent
resident under 8 U.S.C. § 1229b(b), and attached to the application attendance sheets for Alcoholics Anonymous (AA)
meetings dating back to 2010 and a letter regarding his
church attendance. Aparicio-Brito also filed a motion to
suppress any statements he made to law-enforcement officers that appeared in the Form I-213, and a motion for sub-
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poenas to compel the appearance of any officers present
when he made these statements.
At the removal hearing, Aparicio-Brito declined to challenge the accuracy or authenticity of the Form I-213, prompting the IJ to deny both of Aparicio-Brito’s motions and to
admit the Form into evidence. The IJ also concluded that the
Form adequately established Aparicio-Brito’s alienage under
8 C.F.R. § 1240.8(c), and sustained the removability charge.
After Aparicio-Brito declined to designate a country for removal, the IJ referenced his duty to advise Aparicio-Brito of
his right to apply for asylum and withholding of removal.
But the IJ said this requirement had been satisfied when,
several months earlier, the IJ had instructed Aparicio-Brito
to apply for cancellation of removal before the removal hearing. (The IJ apparently viewed this instruction to encompass
applications for withholding and asylum, too.) The IJ found
that Aparicio-Brito’s failure to apply for withholding or asylum alongside cancellation of removal amounted to abandonment of those issues and identified Mexico as the country of removal.
The hearing then turned to Aparicio-Brito’s application
for cancellation of removal. Aparicio-Brito testified that his
two daughters—both of whom were U.S. citizens—would
suffer greatly if he were removed to Mexico. He stated that
he was their primary means of financial support but would
have difficulty obtaining employment in Mexico, and that he
would not take them to Mexico because of violence and inadequate schooling options. Aparicio-Brito also testified that
he had remained in the United States continuously since entering in 1998, apart from two separate trips to Mexico to
visit his parents, each for approximately three to four
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months. In addition, Aparicio-Brito acknowledged his four
DUI convictions.
The IJ denied Aparicio-Brito’s application for cancellation
due to his failure to satisfy three of the eligibility requirements under § 1229b(b)(1) of the Immigration and Nationality Act. Specifically, the IJ found that Aparicio-Brito had
failed to establish (1) ten years of “continuous physical presence in the United States,” based on his two trips to Mexico;
(2) “exceptional and extremely unusual hardship” for his
daughters, based on his wife’s employment status and no
indication that his daughters suffered from any serious medical conditions; and (3) “good moral character,” based on his
four DUI convictions. The IJ also concluded that this lack of
good moral character warranted rejection of Aparicio-Brito’s
request for voluntary departure.
Aparicio-Brito appealed the IJ’s decision to the BIA, arguing, among other things, that the IJ violated his due process
rights by asking him questions in an adversarial manner
during the removal hearing; that the DHS officers failed to
inform him of his right to remain silent before interviewing
him; and that the Form I-213, by itself, could not establish
alienage. The BIA affirmed the IJ’s ruling. In doing so, it concluded that IJs are statutorily authorized to interrogate and
cross-examine witnesses; that the DHS officers adequately
notified Aparicio-Brito of his rights when they served him
with an NTA; and that a Form I-213 is presumed reliable
where, as here, there is no evidence of duress or coercion.
Aparicio-Brito then moved the BIA to reconsider its decision and to reopen the proceedings. The BIA denied both
motions, concluding that most of Aparicio-Brito’s arguments
appeared verbatim in his opening brief on appeal, and that
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“new controlling authority” he cited—Lopez-Esparza v. Holder, 770 F.3d 606 (7th Cir. 2014)—was distinguishable. Aparicio-Brito later filed a motion to reconsider the ruling, which
the BIA denied. This appeal followed.
II. ANALYSIS
“Because the [BIA] affirmed the decision of the IJ and
added its own reasoning, we review both decisions, bearing
in mind that factual and credibility determinations must be
supported by substantial evidence, while legal conclusions
are reviewed de novo.” Lishou Wang v. Lynch, 804 F.3d 855,
858 (7th Cir. 2015) (citations omitted). On appeal, AparicioBrito argues that the IJ and the government violated his due
process rights. He also claims that the IJ improperly relied
on the Form I-213 in determining alienage, and erred in
denying his application for cancellation of removal and his
request for voluntary departure. In addition, he argues that
the BIA erroneously denied his motions for reconsideration
and to reopen the removal proceedings. We disagree.
A. No Violation of Petitioner’s Due Process Rights
Although immigrants in removal proceedings have due
process rights under the Fifth Amendment, these rights do
not extend to “hearings for discretionary relief, such as those
conducted in response to a § 1229b application for cancellation of removal.” Delgado v. Holder, 674 F.3d 759, 765 (7th Cir.
2012). But statutory provisions impose procedural requirements on removal proceedings, including the opportunity to
examine evidence supplied by the government, present evidence on one’s own behalf, and cross-examine government
witnesses. Id. at 765–66; 8 U.S.C. § 1229a(b)(4). It is this latter
category of protections to which we turn our attention.
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Aparicio-Brito claims that the IJ and the government violated his due process rights in over half a dozen ways before
and during the removal hearing. These various claims, however, largely amount to conclusory assertions that lack support in the case law and the record.
1. No Improper Questioning by Immigration Judge
Aparicio-Brito contends that the IJ acted improperly by
repeatedly asking him questions in a prosecutorial manner.
IJs are authorized to “interrogate, examine, and crossexamine the alien and any witnesses” during removal proceedings. 8 U.S.C. § 1229a(b)(1); see also Sankoh v. Mukasey,
539 F.3d 456, 467 (7th Cir. 2008) (“Unlike Article III courts,
an immigration court is a more inquisitorial tribunal.”). We
have repeatedly observed that an IJ can interrupt a witness’s
testimony to ask questions—even repeatedly—so long as the
questions are relevant, non-confrontational, and clarifying in
purpose. See Delgado, 674 F.3d at 766–68 (collecting cases);
Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997) (stating that IJs
have “broad discretion to control the manner of interrogation in order to ascertain the truth”). However, an IJ’s “discretion [in questioning] is bounded by the applicant’s right
to receive a fair hearing.” Podio v. INS, 153 F.3d 506, 509 (7th
Cir. 1998); see also Kerciku v. INS, 314 F.3d 913, 917–18 (7th
Cir. 2003) (per curiam) (observing that while an IJ may “limit[] the extent of some testimony or frequently interrupt[] the
applicant’s presentation,” the IJ may not “bar[] complete
chunks of oral testimony that would support the applicant’s
claims”).
We find nothing inappropriate with the IJ’s questioning
of Aparicio-Brito. To the contrary: nearly all of the IJ’s questions were clarifying in nature and relevant to the issues re-
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lating to Aparicio-Brito’s application for cancellation of removal—for example, the date he entered the United States,
the dates and locations of his DUI offenses, and the dates he
travelled to and from Mexico for family visits. In fact, certain
questions related to issues that were beneficial to AparicioBrito’s application—for example, whether his daughters received medical assistance cards or food stamps, his weekly
salary, his monthly rental payments, and the specific hardships his daughters might face upon his removal. Nowhere
in the record is there any indication that Aparicio-Brito became “frazzled” by these questions. Apouviepseakoda v. Gonzales, 475 F.3d 881, 885–86 (7th Cir. 2007) (“[T]he closest cases
are those in which ‘the questioning becomes so aggressive
that it frazzles applicants and nit-picks inconsistencies’ until
a petitioner ‘became so distraught that the immigration
judge was forced to pause the proceedings to give the [noncitizen] a chance to collect herself.’” (second alteration in
original) (quoting Giday v. Gonzales, 434 F.3d 543, 549 (7th
Cir. 2006))). In addition, the IJ sustained only one objection
to Aparicio-Brito’s counsel’s questions, and permitted Aparicio-Brito’s counsel to question him until there were no
questions left to ask. In sum, the IJ’s questioning during the
hearing should be commended, not criticized.
2. Motions Concerning Form I-213 Were Properly
Denied
Aparicio-Brito also contends that the IJ violated his right
of cross-examination by denying his motion to suppress the
Form I-213 and his motion for subpoenas. Immigrants in
removal proceedings generally have the right to “crossexamine witnesses presented by the Government.” 8 U.S.C.
§ 1229a(b)(4). However, when the evidence at issue is a Form
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I-213 completed by a DHS agent, “the absent agent ‘cannot
be presumed to be an unfriendly witness or other than an
accurate recorder.’” Barradas v. Holder, 582 F.3d 754, 763 (7th
Cir. 2009) (quoting Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.
1995)); see also Pouhova v. Holder, 726 F.3d 1007, 1013 (7th Cir.
2013) (“As a general rule, a Form I-213 is treated as inherently trustworthy and admissible even without the testimony of
the officer who prepared it.”). So a Form I-213 is properly
admitted without the opportunity for cross-examination, unless there is an indication that the Form was carelessly or
maliciously drafted or was intended to serve as anything
other than an administrative record. Id.; Antia-Perea v. Holder,
768 F.3d 647, 658 (7th Cir. 2014). 1
Aparicio-Brito has failed to identify a single detail concerning the Form I-213 here that suggests error or foul play
on the part of DHS. At the removal hearing, Aparicio-Brito’s
counsel was unable to articulate any factual basis in support
of the motion to suppress. Nor has Aparicio-Brito highlighted any such basis in his various appellate briefs to the BIA or
to this Court. So the Form I-213 was properly admitted
without corroborating evidence from the DHS officers.
3. Form I-213 Adequately Informed Petitioner that
His Statements Could Be Used Against Him
Aparicio-Brito also attempts to suppress the Form I-213
on the ground that his due process rights were violated
1
Aparicio-Brito invites us to revisit this aspect of Antia-Perea v. Holder in a one-sentence footnote and without any justification or elaboration.
We decline to do so. Cf. McClain v. Retail Food Emp’rs Joint Pension Plan,
413 F.3d 582, 586 (7th Cir. 2005) (“We require a compelling reason to
overturn circuit precedent.”).
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when state and federal officials did not timely warn him that
his statements could be used against him in subsequent proceedings. In addition, he further complains that the warning
he did receive was not conveyed in a language that he could
understand. While we are sympathetic to Aparicio-Brito’s
arguments, they lack the requisite legal and factual support.
Aparicio-Brito claims that the warning was untimely because it was supplied after his interview with DHS officials
had concluded. He seeks refuge in the fact that when an
immigrant is “arrested without warrant and [is] placed into
formal proceedings,” the examining officer must notify the
immigrant that “any statement made may be used against
him or her in a subsequent proceeding.” 8 C.F.R. § 287.3(c).
But “formal proceedings” begin when the government files a
notice to appear in an immigration court. Id. § 1239.1(a);
Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007). Because
the NTA was filed after DHS officers spoke with AparicioBrito, § 287.3(c) is not implicated. Matter of E-R-M-F- & A-SM-, 25 I&N Dec. 580, 585 (BIA 2011); see also SamayoaMartinez v. Holder, 558 F.3d 897, 901–02 (9th Cir. 2009); Yanez-Marquez v. Lynch, 789 F.3d 434, 474 (4th Cir. 2015).
Aparicio-Brito also complains that the warning he ultimately received via the NTA is deficient because it appeared
in English—a language he claims he cannot read—and no
government official subsequently read it to him in Spanish.
But there is insufficient evidence in the record that supports
these claims. Nowhere in the record does Aparicio-Brito testify or otherwise attest that the government failed to transmit the warning in a manner that he could comprehend.
And even assuming such a failure occurred, there is no indication that Aparicio-Brito was actually harmed by this al-
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leged failure. This absence is unsurprising, given the fact
that Aparicio-Brito’s problematic statements (from his perspective, anyways) were uttered before he received the warning. The damage had already been done.
Before continuing on, we pause to note our concern with
§ 287.3(c), which does not require the receipt of a warning
until after an NTA is filed. As this case demonstrates, such a
receipt can occur after an immigrant is questioned by lawenforcement officials and has divulged potentially damning
information. If anything, receiving the warning in an NTA
merely hints at the difficulties that are likely to come, rather
than protecting against such complications. But § 287.3(c) is
clear, and Aparicio-Brito does not suggest a path to circumventing this clarity.
4. Court Lacks Jurisdiction to Review Petitioner’s
Claims Regarding Asylum and Withholding of
Removal
Aparicio-Brito claims that the IJ violated his due process
rights by failing to advise him about his right to apply for
asylum under 8 C.F.R. § 1240.11(c)(1) once he expressed a
fear of returning to Mexico. Aparicio-Brito also faults the IJ
for denying him the opportunity to apply for asylum and
withholding of removal when the IJ concluded that he had
abandoned these applications by not submitting them alongside his application for cancellation of removal. However,
we may not exercise jurisdiction over these claims.
As the government correctly notes, Aparicio-Brito failed
to raise either argument with the BIA when he appealed the
IJ’s ruling. In fact, the word “asylum” does not even appear
in his opening brief to the BIA. And when Aparicio-Brito
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moved to reopen his removal proceedings so that an asylum
hearing could be conducted, he did not argue that the IJ had
acted erroneously regarding asylum. So he has failed to exhaust his administrative remedies.
We have recognized a limited exception to exhaustion
when “exceptional circumstances” exist—specifically, when
a petitioner raises a constitutional claim that the [BIA]
‘would [have been] powerless to address.’” Long-Gang Lin v.
Holder, 630 F.3d 536, 542 n.2 (7th Cir. 2010) (quoting Pjetri v.
Gonzales, 468 F.3d 478, 481 (7th Cir. 2006)). However, such
failure “is not excused when the claim is ‘based on procedural failings that the [BIA] could have remedied.’” Id. Aparicio-Brito has not invoked this exception, and even if he
had, it would not apply: the BIA could have remedied his
claim by remanding the case to the IJ for a hearing on asylum and withholding of removal. See id.; Cruz-Moyaho v.
Holder, 703 F.3d 991, 1001 (7th Cir. 2012).
5. Remaining Due Process Claims Are Meritless
In addition, Aparicio-Brito contends that the IJ somehow
violated his due process rights by concluding that AparicioBrito had not been in the United States continuously for ten
years and is not a person of good moral character. But Aparicio-Brito makes no attempt to situate these arguments in
the due process context. Nor could he, since continuous
presence and good moral character relate to cancellation of
removal, which is a form of discretionary relief in which
“there is no liberty interest at stake.” Delgado, 674 F.3d at 765.
We have repeatedly observed that similar attempts to disguise evidentiary challenges with due process verbiage are
improper. See, e.g., Portillo-Rendon v. Holder, 662 F.3d 815, 817
(7th Cir. 2011). So we will review these claims alongside
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Aparicio-Brito’s broader claim of eligibility for cancellation
of removal, which we will turn to later.
Finally, Aparicio-Brito suggests that the IJ failed to apply
the rule of lenity when the IJ “interpreted the law and the
facts against [him].” The rule of lenity is a tool of statutory
interpretation that “directs us to read ‘ambiguous’ statutory
provisions narrowly in favor of the alien in deportation proceedings.” Lara-Ruiz v. INS, 241 F.3d 934, 942 (7th Cir. 2001).
Here, Aparicio-Brito has not identified any provision in the
Immigration and Naturalization Act—or any other statute
for that matter—that is ambiguous in any relevant way. His
invocation of the rule therefore lacks any merit.
B. Form I-213 Supplied Sufficient Information to Establish Alienage
The government bears the burden of proving removability by “clear and convincing evidence” based on an immigrant’s presence in the United States without being admitted
or paroled. 8 C.F.R. §§ 1240.8(a), (c); INS v. Lopez-Mendoza,
468 U.S. 1032, 1039 (1984). Where, as here, the BIA has found
that the government has met this burden, “it is our task to
consider whether the deportation order is supported by reasonable, substantial, and probative evidence.” Dashto v. INS,
59 F.3d 697, 701 (7th Cir. 1995) (citations and internal quotation marks omitted). Although Aparicio-Brito attacks the IJ
and BIA’s alienage determination on various grounds, none
can overcome this high bar.
First, Aparicio-Brito contends that the Form I-213, by itself, is insufficient because it “does not state that the Petitioner was advised that any statement he made could be
used against him.” But as discussed above, Aparicio-Brito
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was not entitled to this instruction when the Form was created because the government had not yet initiated formal
removal proceedings. Aparicio-Brito also claims that the
Form I-213 is somehow invalid because he was in a stressful
situation, under duress, and deprived of his liberty; however, these conclusory allegations lack the requisite factual and
legal support to warrant consideration. See United States v.
Collins, 796 F.3d 829, 836 (7th Cir. 2015) (explaining that unsupported arguments that are “bereft of citations” and
“completely undeveloped” are “insufficient to raise an issue
on appeal”).
Finally, Aparicio-Brito argues that the Form I-213 lacks
the requisite factual specificity regarding how its preparer
encountered him and concluded that he was a Mexican citizen. We rejected a similar attack in Antia-Perea. In doing so,
we emphasized that the Form I-213 was prepared the same
day that the interview occurred; that the petitioner was present for this interview; and that the petitioner declined to tell
his side of the story at any point during the removal proceedings, which warranted the IJ’s drawing of adverse inferences. 768 F.3d at 657–58. All three considerations apply
with equal force in this case. In particular, Aparicio-Brito has
failed to allege a single fact indicating that his citizenship
information was somehow fabricated or supplied by an individual other than himself. See also Rosendo-Ramirez v. INS,
32 F.3d 1085, 1088 (7th Cir. 1994) (concluding that I-213 was
properly admitted where petitioner “could have made the
statement [captured in the Form I-213] and can point to no
evidence that he did not”). At the removal hearing, AparicioBrito suggested that the content of the Form may have been
based solely on his “Hispanic appearance,” but acknowledged that he had filed no affidavit to support this concluso-
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ry claim. Aparicio-Brito attempts to distinguish Antia-Perea
on the ground that the Form I-213 in that case expressly stated that the petitioner admitted his Mexican citizenship. Although the Form here does not describe Aparicio-Brito’s
admission so explicitly, the fact that an admission occurred
is the only reasonable interpretation of the form. Cf. id. (observing that “the I-213 is supposed to be a record of a conversation with an alien”).
Because Aparicio-Brito has not overcome the presumptive reliability of the Form I-213, we hold that the IJ and BIA
properly considered it as evidence of alienage. See GutierrezBerdin v. Holder, 618 F.3d 647, 653 (7th Cir. 2010).
C. Petitioner Ineligible for Cancellation of Removal
Aparicio-Brito claims that the IJ erroneously concluded
that he was ineligible for cancellation of removal under
§ 1229b when the IJ found that he had failed to satisfy the
continuous residence, good moral character, and exceptional
hardship factors. We disagree.
An immigrant is eligible for cancellation of removal if he
or she “has been physically present in the United States for a
continuous period of not less than 10 years immediately preceding the date of such application.” 8 U.S.C.
§ 1229b(b)(1)(A). Presence is not “continuous,” however, if
the immigrant has departed the United States for “any period in excess of 90 days or for any periods in the aggregate
exceeding 180 days.” Id. § 1229b(d)(2). Eligibility also requires that the immigrant “has been a person of good moral
character during such period”; “establishes that removal
would result in exceptional and extremely unusual hardship
to the alien’s spouse, parent, or child, who is a citizen of the
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United States or an alien lawfully admitted for permanent
residence”; and has not been convicted of certain offenses.
Id. § 1229b(b)(1)(B)–(D). (The final factor is not at issue here.)
The petitioner bears the burden of proof by a preponderance
of the evidence. Lopez-Esparza, 770 F.3d at 607.
We lack jurisdiction to review a denial of cancellation of
removal, except to the extent constitutional claims and questions of law arise. 8 U.S.C. §§ 1252(a)(2)(B), (D); see also, e.g.,
Cruz-Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir. 2012). “A
legal question arises when the Board misinterprets a statute,
regulation, constitutional provision, or its own precedent,
applies the wrong legal standard, or fails to exercise its discretion at all.” Bachynskyy v. Holder, 668 F.3d 412, 417 (7th
Cir. 2011) (citing Patel v. Holder, 563 F.3d 565, 568 (7th Cir.
2009)). Although good moral character and extreme hardship generally are unreviewable, see Portillo-Rendon v. Holder,
662 F.3d 815, 817 (7th Cir. 2011); Delgado v. Holder, 674 F.3d
759, 765 (7th Cir. 2012), we have held that the continuouspresence requirement falls outside of the jurisdictionstripping rule, see Morales-Morales v. Ashcroft, 384 F.3d 418,
423 (7th Cir. 2004) (concluding that “the meaning of the term
‘continuous physical presence’ is a non-discretionary question of statutory interpretation”).
Aparicio-Brito faults the IJ for “determining that he had
to have documentation to establish that he was not gone too
long.” But this argument ignores the fact that Aparicio-Brito
was unable to testify confidently about the length of his trips
whatsoever, much less that their lengths did not exceed 90
days individually or 180 days cumulatively. Cf. LopezEsparza, 770 F.3d at 608 (remanding where, though uncer-
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tainty existed concerning the length of three trips, the aggregate length was certainly less than 180 days).
At his removal hearing, Aparicio-Brito said he returned
to Mexico twice to visit family, once in 2000 and once in
2001. Critically, however, he could not recall the precise duration of either trip, speculating that they each may have
lasted “[t]hree or four months possibly, I don’t know exactly.” Presumably understanding that three months was the
maximum length for a permissible trip under § 1229b(d)(2),
the IJ asked Aparicio-Brito whether he had employment records or any other type of documentation relating to the
length of his trips. Aparicio-Brito had none, and did not
provide any additional testimony from employers, coworkers, family, or friends. Given this lack of documentary support and the equivocal nature of Aparicio-Brito’s testimony,
the IJ correctly concluded that Aparicio-Brito failed to carry
his burden of proof as to continuous presence. This failure
alone prevents Aparicio-Brito from obtaining cancellation of
removal, so we need not consider whether he adequately
demonstrated exceptional hardship or good moral character.
Nunez-Moron v. Holder, 702 F.3d 353, 359 (7th Cir. 2012).
D. No Jurisdiction to Review Denial of Voluntary Departure
As the government correctly notes, we are generally precluded from reviewing a discretionary decision to deny voluntary departure. 8 U.S.C. § 1229c(f); Bachynskyy, 668 F.3d at
416. But we can review non-discretionary determinations
relating to constitutional claims and questions of law. 8
U.S.C. § 1252(a)(2)(D); Hashish v. Gonzales, 442 F.3d 572, 574
(7th Cir. 2006).
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Document: 55
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Nos. 14-3062, 15-1270, and 15-1769
Aparicio-Brito purports to raise two legal questions. First,
he argues that the IJ erroneously considered all four of his
DUI offenses when only the final offense necessitated attention. We find that we have jurisdiction to address this issue
but disagree with Aparicio-Brito’s position. The Immigration
and Nationality Act permits voluntary departure if, among
other things, “the alien is, and has been, a person of good
moral character for at least 5 years immediately preceding
the alien’s application for voluntary departure.” 8 U.S.C.
§ 1229c(b)(1)(B) (emphasis added). Aparicio-Brito does not
cite—and we are unaware of—any case that prohibits consideration of an alien’s conduct beyond this five-year period.
Cf. Villanueva-Franco v. INS, 802 F.2d 327, 330 (9th Cir. 1986)
(rejecting an argument that the BIA “impermissibly considered convictions or acts beyond the five-year period” because the period “is necessary but not sufficient for a finding
of good moral character” (quoting Hibbert v. INS, 554 F.2d
17, 20 n.2 (2d Cir. 1977)) (internal quotation marks omitted)).
So the IJ did not err in considering all of Aparicio-Brito’s
DUI offenses.
Second, Aparicio-Brito argues that the IJ did not “consider and weigh the positive factors” against his DUI offenses.
To the extent he suggests that a legal question exists because
the IJ “fail[ed] to exercise its discretion at all,” Bachynskyy,
668 F.3d at 417, we disagree. The IJ clearly weighed the positive and negative factors against one another when it found
that Aparicio-Brito “ha[d] not submitted sufficient favorable
evidence to offset th[e] unfavorable evidence.” The BIA clarified this finding by acknowledging that Aparicio-Brito’s attendance at AA meetings and church and his familial ties to
the United States weigh in favor of granting voluntary departure, but that his criminal history outweighed these posi-
Case: 14-3062
Document: 55
Nos. 14-3062, 15-1270, and 15-1769
Filed: 05/31/2016
Pages: 20
19
tive factors. Aparicio-Brito’s real disagreement with the IJ’s
decision relates to how the IJ exercised his discretion in
weighing the various factors; we lack jurisdiction to review
this complaint. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 652
(7th Cir. 2004) (observing that courts do not have jurisdiction
to review the merits of an underlying decision on a request
for voluntary departure).
E. BIA Properly Denied Motions for Reconsideration
and to Reopen Proceedings
Aparicio-Brito contends that the BIA erred in denying his
motion to reconsider the IJ’s ruling, his motion to reopen the
proceedings, and his motion to reconsider the denial of that
motion. He faces an especially steep climb in proving these
claims.
While motions to reconsider must “specify[] the errors of
fact or law in the prior [BIA] decision,” 8 C.F.R.
§ 1003.2(b)(1), they “are not replays of the main event,” Khan
v. Holder, 766 F.3d 689, 696 (7th Cir. 2014) (quoting Rehman v.
Gonzales, 441 F.3d 506, 508 (7th Cir. 2006)) (internal quotation
mark omitted). Similarly, a motion to reopen “shall not be
granted unless it appears to the [BIA] that evidence sought
to be offered is material and was not available and could not
have been discovered or presented at the [earlier] hearing.” 8
C.F.R. § 1003.2(c)(1). The BIA’s denial of either type of motion will stand unless the denial “was made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Awad
v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003) (internal quotation marks omitted); Khan, 766 F.3d at 696 (quoting Victor v.
Holder, 616 F.3d 705, 708 (7th Cir. 2010)).
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Document: 55
Filed: 05/31/2016
Pages: 20
Nos. 14-3062, 15-1270, and 15-1769
Here, the BIA properly denied Aparicio-Brito’s motions
for reconsideration. Rather than highlighting overlooked
facts or case law, Aparicio-Brito’s motions simply repeat earlier arguments presented to and rejected by the BIA. Indeed,
aside from references to the BIA’s initial decisions, the two
motions for reconsideration are almost identical to the opening motions—same argument structure, same wording,
same case law quotations. A motion for reconsideration is
properly denied when, as here, the petitioner presents the
same arguments to a different judge hoping for a more favorable outcome.
Aparicio-Brito’s motion to reopen fares no better. The only new evidence Aparicio-Brito sought to introduce concerned violence in Mexico generally—evidence that was
available to him well in advance of his removal hearing. And
the only new case law he called the BIA’s attention to, LopezEsparza v. Holder, undermined his case rather than fortifying
it. See supra at 16–17. So the BIA’s denials of the various motions must stand.
III. CONCLUSION
We DENY Aparicio-Brito’s petition for review.
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