Sanchez v. Sessions, No. 17-1673 (7th Cir. 2017)

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Justia Opinion Summary

An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal under 8 U.S.C. 1229b(b), which required that he show that he had been physically present in the U.S. for at least 10 years, that during that period he was a person of good moral character, and that his removal would result in “exceptional and extremely unusual hardship” to his U.S.‐citizen children, ages eight years, six years, and 15 months. His wife also lacks legal‐resident status and Sanchez was the primary breadwinner for his family, having worked at the same pizza restaurant for 18 years. He admitted having been convicted four times in the past 16 years of driving under the influence, and that he had twice violated conditions of his bond. The immigration judge denied relief. The BIA dismissed an appeal. The Seventh Circuit stayed his removal pending review of the BIA’s refusal to reopen in light of new evidence in support of Sanchez’ ineffective‐assistance‐of‐counsel claim, including evidence that his children do not speak Spanish and that one child has a disability.

The court issued a subsequent related opinion or order on July 5, 2018.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17 1673 RICARDO SANCHEZ, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Motion to Stay Removal Ordered by the Board of Immigration Appeals. No. A205 830 444. ____________________ SUBMITTED MAY 5, 2017 — DECIDED MAY 24, 2017 ____________________ Before BAUER, POSNER, and FLAUM, Circuit Judges. POSNER, Circuit Judge. Before us is a petition for review of the refusal of the Board of Immigration Appeals to reopen its order removing (i.e., deporting) the petitioner, Ricardo Sanchez, and a motion by the petitioner to stay his removal pending a definitive ruling on his petition, and finally a statement by the Department of Justice opposing both the petition and the motion. 2 No. 17 1673 An illegal immigrant, Sanchez conceded his removability at a hearing before an immigration judge, but applied for cancellation of removal for nonpermanent residents. See 8 U.S.C. § 1229b(b). To obtain that relief he had to show that he had been physically present in the United States for at least 10 years and that during that period he was a person of good moral character. Id. He also had to establish that his removal would result in “exceptional and extremely unusual hard ship” to his U.S. citizen children. Id. (He has three children, ages eight years, six years, and fifteen months, and lives with them and his wife, who also lacks legal resident status.) He testified that he was the primary breadwinner for his family, having worked at the same pizza restaurant for the past eighteen years, and that he feared that his removal would wreak extreme hardship on his children because he wouldn’t be able to provide for his family with the wages that he would earn in Mexico. He admitted having been con victed four times in the past sixteen years of driving under the influence, and that he had twice violated conditions of his bond. The immigration judge concluded that because of the DUI convictions Sanchez had failed to demonstrate good moral character. The immigration judge also concluded that Sanchez had failed to establish that his removal would result in exceptional and extremely unusual hardship for his chil dren, because he was unable to answer questions about whether his family would follow him to Mexico. And so the immigration judge denied the application for cancellation of removal. Sanchez appealed to the Board of Immigration Appeals, which, agreeing with the immigration judge, dismissed the No. 17 1673 3 appeal. Sanchez filed a timely motion with the Board to reo pen his appeal; represented by new counsel, he argued that his original counsel had failed to prepare him for his hearing before the immigration judge. As a result he had failed to tes tify that his two older children are native English speakers who speak little Spanish; that his third child, who had not yet been born at the time of the removal hearing, has been diagnosed with delayed motor development, requiring three months of weekly physical therapy; and that he had filed tax returns for the preceding several years. Again the Board re jected his appeal, precipitating the petition and motion now before us for resolution. There is a threshold question whether this court has ju risdiction to review the denial of Sanchez’s motion to reopen, given that we would not have jurisdiction over the underly ing request for relief—cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). But we do have jurisdiction to review questions of law. 8 U.S.C. § 1252(a)(2)(D). And in Mata v. Lynch, 135 S. Ct. 2150, 2155 (2015), the Supreme Court said that “whenever the Board [of Immigration Appeals] denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision.” And the First Cir cuit, citing Mata, has asserted jurisdiction over a motion to reopen in a case where the petitioner, as in the present case, was seeking a form of discretionary relief (a waiver under 8 U.S.C. § 1182(h)) from removal that would not otherwise be reviewable by the court. Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015). The government has not responded to Sanchez’s invocation of Mata in the present case. Assuming as we do that we have jurisdiction to review the Board’s denial of Sanchez’s motion to reopen, we shall 4 No. 17 1673 exercise it, and order Sanchez’s removal stayed pending our review of the Board’s denial of his motion for reconsidera tion. The Board noted that Sanchez had attached to his mo tion new evidence in support of his ineffective assistance of counsel claim, including affidavits from Sanchez and others, information about his U.S. citizen children, and records per taining to his criminal history. The Board concluded, but without explanation, that none of the evidence “would have likely altered the outcome of this case with regard to the hardship that would accrue to his children.” Although the Board is not required “to write an exegesis on every conten tion” of an alien fighting removal, a blanket rejection of all the alien’s evidence precludes meaningful review of its deci sion. Ji Cheng Ni v. Holder, 715 F.3d 620, 625–30 (7th Cir. 2013). The government also failed to respond to Sanchez’s ar gument that he and his family will suffer irreparable harm if he is removed to Mexico before his petition to reopen the removal proceeding is resolved. See Nken v. Holder, 556 U.S. 418, 426 (2009). He is his family’s primary breadwinner, sup porting his wife and their three young children. Sanchez ex presses concern that he won’t be able to support his family, who are expected to remain in Ohio, with whatever wage he can make in Mexico, and that his youngest son will be unable to continue with the therapy he needs if Sanchez’s wife is forced to go back to work to support the family. He further argues that his removal should not be a priority for the De partment of Homeland Security because the decision to re move him was not based on his criminal convictions. Given the irreparable harm that Sanchez’s removal could inflict on his minor U.S. citizen children, we have decided to No. 17 1673 5 stay the order of removal until we rule on his petition for review of the decision of the Board of Immigration Appeals denying his motion to reopen. So ordered.
Primary Holding
Seventh Circuit stays removal pending review of denial of motion to reopen, based on new evidence of ineffective assistance in establishing irreparable harm to illegal immigrant's children.

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