Melesio-Rodriguez v. Sessions, No. 16-1781 (7th Cir. 2018)
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Melesio‐Rodriguez was brought to the U.S. from Mexico as a child. She became a lawful permanent resident in 1998, at age 19. She was convicted of battery and attempted possession of cocaine in 2003 and of attempted burglary in 2013. DHS charged her as removable under 8 U.S.C. 1227(a)(2)(B)(i)) and alleged that she had failed to disclose a cocaine‐possession conviction that occurred before she was granted permanent resident status. An immigration judge found Melesio‐Rodriguez removeable. She told the judge she did not wish to apply for protection but expressed interest in applying for a U‐visa, for which she was potentially eligible as a victim of domestic violence. The judge stated that only USCIS had jurisdiction over U‐ visas and that he would order removal. Melesio‐Rodriguez said she understood “really clearly” and confirmed twice that she wished to accept the order as final rather than reserve an appeal. Melesio‐Rodriguez then retained counsel and unsuccessfully moved for reconsideration, arguing that the IJ had not fully apprised her of her rights; one of her convictions was not a “conviction” for immigration purposes; she was eligible for a U‐visa; she feared torture in Mexico; and the removal proceedings violated the Fifth and Eighth Amendments. The Seventh Circuit dismissed her petition for review. Melesio‐Rodriguez is a criminal alien and the question of her waiver of appeal is factual in nature, so the court lacked jurisdiction, 8 U.S.C. 1252(a)(2)(C).
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 1781 CLAUDIA MELESIO RODRIGUEZ, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A075 877 715 ____________________ ARGUED FEBRUARY 15, 2018 — DECIDED MARCH 7, 2018 ____________________ Before BAUER, FLAUM, and MANION, Circuit Judges. MANION, Circuit Judge. An immigration judge ordered Pe titioner Claudia Melesio Rodriguez removed to Mexico be cause she had committed multiple controlled substance of fenses. Petitioner accepted the removal order as final and waived her right to appeal it. Nevertheless, she almost simul taneously appealed to the Board of Immigration Appeals and filed a motion for reconsideration with the immigration 2 No. 16 1781 judge. Petitioner never asked us to review the Board’s dismis sal of her first appeal. This petition challenges the Board’s eventual dismissal of her reconsideration appeal. Petitioner principally argues that she did not knowingly and intelligently waive her appeal rights in the initial hearing. But because Petitioner is a criminal alien and the waiver ques tion is factual in nature, we lack jurisdiction to answer it un der 8 U.S.C. § 1252(a)(2)(C). That leaves us with no choice but to dismiss her petition. I. Background Petitioner was brought to the United States from Mexico as a child. She became a lawful permanent resident on De cember 7, 1998, when she was 19. However, she was convicted of battery and attempted possession of cocaine in 2003 and of attempted burglary in 2013. As a result, the Department of Homeland Security took Petitioner into custody on June 27, 2014, and served her with a Notice to Appear in removal pro ceedings. DHS charged not only that Petitioner was remova ble as an alien convicted of a controlled substance violation under 8 U.S.C. § 1227(a)(2)(B)(i), but also that she had failed to disclose a cocaine possession conviction that occurred be fore she was granted permanent resident status. Petitioner’s case was referred to an immigration judge, who granted several continuances to afford her an oppor tunity to find counsel. Nevertheless, she appeared before the judge pro se by video conference from jail on September 11, 2014. Petitioner admitted her Mexican birth and previous con victions, and so the immigration judge found that she was re movable based on the nature of her offenses. The judge also No. 16 1781 3 advised Petitioner that due to her controlled substance of fenses, she was ineligible for adjustment of status or cancella tion of removal. However, the judge noted that Petitioner was eligible to apply for protection based on a legitimate fear of persecution or torture in Mexico. At her next hearing on September 30, Petitioner repre sented that she was afraid to return to Mexico. But when the immigration judge explained that, to be eligible for protec tion, Petitioner’s fear had to be based on a protected charac teristic, Petitioner told the judge she did not wish to apply for protection. Instead, Petitioner expressed interest in applying for a U visa, a status change for which she was potentially el igible because she had been the victim of domestic violence. The judge informed Petitioner that only United States Citizen ship and Immigration Services had jurisdiction over the U visa process. Since Petitioner had indicated that she didn’t want to apply for any kind of relief the judge could grant, the judge indicated that he would be issuing an order of removal and asked if Petitioner understood. She said she understood “really clearly” and confirmed twice that she wished to accept the order as final rather than reserve an appeal. The judge then entered a written removal order reflecting that both par ties had waived appeal. Petitioner then retained counsel and, on October 6, filed a motion to reconsider the immigration judge’s ruling and a re quest for stay of removal. She argued that (1) the immigration judge had not fully apprised her of her rights in the removal proceeding; (2) one of her convictions was not a “conviction” for immigration purposes; (3) she was eligible for a U visa; (4) she feared torture in Mexico; and (5) the removal proceedings were unfair and violated the Fifth and Eighth Amendments. 4 No. 16 1781 After the previous immigration judge retired, a new judge granted a stay of removal, but eventually denied the motion on November 4, 2015. The new judge rejected all Petitioner’s arguments, concluding that the proceedings were fair, she was given an opportunity to obtain counsel, knowingly and intelligently waived her appellate rights, and declined to ap ply for protection from torture. With respect to the U visa, the judge noted that there was nothing to reconsider as no appli cation had been filed at the time of the original decision and, in any event, immigration courts lack jurisdiction over U visa applications. At the same time she was pursuing the motion to recon sider, Petitioner also appealed the initial removal order to the Board of Immigration Appeals. She argued in her appeal that the judge erred by not further continuing her case to allow her to retain counsel and not permitting her to fill out various ap plications for protection. Petitioner also claimed that the pro ceedings violated due process and that the judge erred in finding her removable. The Board dismissed the appeal on December 10, 2014, holding that Petitioner had waived her ap peal rights by accepting the judge’s decision as final. Peti tioner did not file a petition for judicial review in this court. Finally, on March 15, 2016, the Board dismissed Peti tioner’s appeal of the denial of her motion to reconsider. The Board adopted the immigration judge’s decision and found, on de novo review, that Petitioner knowingly and intelligently waived her appeal rights in the initial proceeding. Further, the Board said that most of the legal issues Petitioner raised were not properly before it because they could have been raised in the initial proceedings. Petitioner then filed a petition for ju dicial review. No. 16 1781 5 II. Analysis Because Petitioner is a criminal alien, 8 U.S.C. § 1252(a)(2)(C) significantly limits our jurisdiction. We may only review “constitutional claims or questions of law” pre sented in a criminal alien’s petition for review. Id. § 1252(a)(2)(D); see also Sharashidze v. Mukasey, 542 F.3d 1177, 1178 (7th Cir. 2008). That presents a significant problem for Petitioner. In order to overcome her waiver of appeal rights, she would have to show that it was not knowingly and intel ligently made. But that is not a question of law, but rather a fact intensive inquiry. See Henderson v. DeTella, 97 F.3d 942, 946 (7th Cir. 1996) (“Whether a petitioner actually waived his Miranda rights, and whether he did so freely, knowingly, and intelligently, are fact dependent issues … .”). Therefore, we lack the authority to disturb the Board of Immigration Ap peals’ finding that Petitioner knowingly and intelligently waived her appeal rights.1 The fact that Petitioner waived her right to appeal is fatal to our jurisdiction over the entire petition. But even if she hadn’t waived her appeal rights, none of her other arguments have been properly presented to this court. Petitioner has pe titioned only from the dismissal of her appeal of the denial of her motion for reconsideration. Such a petition “presents only 1 We also cannot consider Petitioner’s argument, made for the first time here, that the Board’s waiver regulations are ultra vires. See Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (the obligation to exhaust admin istrative remedies “usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal.”). And even if we could, it would be unavailing. United States v. Worthen, 842 F.3d 552, 554 (7th Cir. 2016) (“Generally speaking, appeal waivers are enforce able and preclude appellate review.”). 6 No. 16 1781 the denial of the motion to reopen,” not the initial removal decision. Ajose v. Gonzales, 408 F.3d 393, 394–95 (7th Cir. 2005). Motions for reconsideration “‘are not replays of the main event’ and should not be used to argue what was or could have been raised on an initial appeal.” Shaohua He v. Holder, 781 F.3d 880, 882 (7th Cir. 2015) (quoting Khan v. Holder, 766 F.3d 689, 696 (7th Cir. 2014)). Petitioner claims that: (1) she’s not removable because her initial cocaine related conviction isn’t a “conviction” for immigration purposes; and (2) her in itial hearing wasn’t fairly conducted. She could have raised both of these arguments in an initial appeal and a petition to this court. But she neglected to file such a petition, so she “has waived any arguments [s]he might have made to challenge the only decision over which we have jurisdiction.” Id. III. Conclusion For the foregoing reasons, the petition for review is DISMISSED.
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