Cruz-Velasco v. Garland, No. 21-1642 (7th Cir. 2023)
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Cruz‐Velasco entered the U.S. without inspection in 1999. He has remained continuously present, raising his American‐born sons as a single father after the death of his partner. In 2014, Cruz‐Velasco was convicted of reckless driving, endangering safety, and operating a vehicle while intoxicated, with his nine‐ and 11‐year‐old sons in the car. In subsequent removal proceedings, Cruz‐Velasco sought cancellation of removal, 8 U.S.C. 1229b(b). While in removal proceedings, Cruz‐Velasco was convicted again with DUI and sentenced to serve another 10 days in jail. Cruz‐Velasco stopped drinking after his 2016 arrest and completed a court‐ordered substance abuse program.
The IJ held that he was ineligible for cancellation of removal, having failed to establish that his sons would suffer hardship beyond what is predictable as a result of a parent’s removal and because his DUI convictions demonstrated a lack of good moral character. While his BIA appeal was pending, the Attorney General ruled that two or more DUI convictions in the relevant period raise a presumption that a noncitizen lacks good moral character, which cannot be overcome solely by showing rehabilitation. The BIA affirmed the removal order Amid the 2020 COVID‐19 pandemic, Cruz‐Velasco sought to reopen his application, submitting new evidence that he had been diagnosed with diabetes and that this condition increased his risk of dying from COVID‐19 in Mexico. The BIA denied Cruz‐Velasco’s motion, without specifically addressing arguments concerning his diabetes. The Seventh Circuit denied a petition for review.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21 1642 FRANCISCO CRUZ VELASCO, Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A205 154 344. ____________________ ARGUED SEPTEMBER 8, 2022 — DECIDED JANUARY 24, 2023 ____________________ Before WOOD, ST. EVE, and JACKSON AKIWUMI, Circuit Judges. WOOD, Circuit Judge. Francisco Cruz Velasco, a native and citizen of Mexico, is seeking cancellation of removal under 8 U.S.C. § 1229b(b). To succeed, he must prove that he has been a person of good moral character during the ten years preceding the date of his application. But after two convic tions for driving while intoxicated, Cruz Velasco faces an 2 No. 21 1642 uphill battle. An immigration judge held that his criminal con victions demonstrated a lack of good moral character and or dered his removal; the Board of Immigration Appeals af firmed. Cruz Velasco filed a motion to reopen his application, but the Board denied his request. He now challenges the Board’s denial of his motion to reopen. Finding no reversible error, we deny his petition for review. I A Cruz Velasco first entered the United States without in spection in 1999. He has remained continuously present in the country ever since, raising his two American born sons as a single father after the premature death of his partner. (Alt hough he made two brief trips to Mexico, they did not cause a break in his continuous physical presence.) In 2013, Cruz Velasco was charged with reckless driving, endangering safety, and operating a vehicle while intoxi cated. The charges related to his unfortunate decision to have alcoholic drinks (quantity unknown) at a birthday party and then to drive home with his nine and eleven year old sons in the car. He was convicted of these o enses in 2014 and sen tenced to serve ten days in jail. But that was the least of his problems. In the wake of his arrest, immigration o cers sought his removal on the ground that he was unlawfully pre sent in the United States without admission or parole. Cruz Velasco conceded his removability but applied for cancella tion of removal under 8 U.S.C. § 1229b(b). In 2016, while in removal proceedings, Cruz Velasco was charged again with operating a vehicle while intoxicated. He was convicted in 2018 and sentenced to serve another ten days in jail. No. 21 1642 3 B Cruz Velasco appeared at his removal hearing in July 2018. To establish eligibility for cancellation of removal, he had to prove (among other things) that (a) he had been phys ically present in the United States for at least ten consecutive years immediately preceding the date of his application, (b) he had been a person of “good moral character” during that period, and (c) his removal would cause “exceptional and ex tremely unusual hardship” to his U.S. citizen sons. 8 U.S.C. § 1229b(b). At the hearing, Cruz Velasco established that he had been present in the United States since 2008; addressed the hardship his sons would su er if he were removed; ex plained the circumstances surrounding each of his criminal o enses; and testified that he had entirely stopped drinking after his 2016 arrest and had completed the court ordered substance abuse program. The immigration judge (IJ) found these arguments want ing, held that he was statutorily ineligible for cancellation of removal, and ordered his removal. First, the IJ concluded that Cruz Velasco had failed to establish that his sons would su er hardship beyond what is predictable as a result of a parent’s removal. Next, the judge held that his two criminal convic tions for operating while intoxicated demonstrated a lack of good moral character. Noting the seriousness of his first of fense, the IJ stressed Cruz Velasco’s failure to learn from his mistake, as shown by his arrest for operating while intoxi cated only three years later. In the judge’s view, Cruz Ve lasco’s rehabilitation was insu cient to outweigh the e ect of these two convictions. Cruz Velasco appealed to the Board of Immigration Ap peals. While the appeal was pending, the Attorney General 4 No. 21 1642 ruled that two or more convictions for driving under the in fluence in the relevant period raise a presumption that a noncitizen lacks good moral character. Matter of Castillo Perez, 27 I.&N. Dec. 664, 669–71, 673 (A.G. 2019). Moreover, the rul ing stated, that presumption cannot be overcome solely by ev idence showing rehabilitation. Id. at 671. Relying on Matter of Castillo Perez, the Board a rmed the IJ’s decision and held that Cruz Velasco’s rehabilitation e orts were not enough to overcome his presumed lack of good moral character. Amid the 2020 COVID 19 pandemic, Cruz Velasco filed a motion to reopen his cancellation of removal application. He submitted new evidence showing that he had been diagnosed with diabetes and that this condition increased his risk of dy ing from COVID 19 in Mexico. He also reiterated that he had the requisite moral character because he had abstained from drinking alcohol since his 2016 arrest. The Board denied Cruz Velasco’s motion, finding that the COVID 19 pandemic did not meaningfully distinguish his sit uation from that of other noncitizens seeking cancellation of removal. It also confirmed that his evidence of rehabilitation did not overcome his presumed lack of good moral character resulting from his criminal convictions. Finally, the Board specifically noted that it was not willing to invoke its sua sponte reopening authority to grant relief. Notably, however, the Board failed to address Cruz Velasco’s argument concern ing his higher than normal risk of dying as a result of his di abetes. Cruz Velasco timely filed the present petition for review, arguing that the Board erred in denying his motion to reopen. The government concedes that the Board failed to address Cruz Velasco’s diabetes claim. Even so, the government No. 21 1642 5 argues that this omission is immaterial because Cruz Ve lasco’s lack of good moral character constitutes an adequate and independent basis for denying reopening. We agree with the latter proposition and thus address only Cruz Velasco’s contentions that the Board erred in determining that he failed to establish good moral character and in refusing to exercise its sua sponte authority to reopen. II A Before delving into the merits of Cruz Velasco’s moral character, we must add a word about our jurisdiction. Whether we have authority to review the Board’s denial of a motion to reopen depends on our authority to review the Board’s underlying decision ordering Cruz Velasco’s re moval. See Sanchez v. Sessions, 894 F.3d 858, 862 (7th Cir. 2018) (citing Cruz Mayaho v. Holder, 698 F.3d 574, 576 (7th Cir. 2012) (“[W]here we lack the power to review the Board’s underly ing order … we ordinarily lack the authority to review the de nial of a request to reconsider or reopen that order.”)). We lack jurisdiction to review “any judgment regarding the granting of relief” under the cancellation of removal pro visions in section 1229b. 8 U.S.C. § 1252(a)(2)(B)(i). But we re tain jurisdiction to review constitutional claims and questions of law. Id. § 1252(a)(2)(D). Further, we have held that the Board’s “application of law to undisputed facts” itself raises a question of law that falls within our jurisdiction. Arreola Ochoa v. Garland, 34 F.4th 603, 610 (7th Cir. 2022) (quoting Guerrero Lasprilla v. Barr, 140 S. Ct. 1062, 1070 (2020)). Cruz Velasco claims that the Board erred in failing to con sider the fact that he has abstained from drinking alcohol 6 No. 21 1642 since 2016. Because no one disputes the length of Cruz Ve lasco’s sobriety or any other evidence concerning his rehabil itation, we have jurisdiction to decide whether the Board rea sonably applied the good moral character standard to those undisputed facts. See id. (asserting jurisdiction to review the Board’s application of the hardship standard to undisputed facts). The government challenges that point, however, based on the Supreme Court’s recent decision in Patel v. Garland, 142 S. Ct. 1614 (2022). Patel addressed the question whether section 1252(a)(2)(B)(i) precludes federal courts from reviewing a de termination that a petitioner’s testimony is not credible. 142 S. Ct. at 1621–22. The Supreme Court held that “[f]ederal courts lack jurisdiction to review facts found as part of discretionary relief proceedings under § 1255 and the other provisions enu merated in § 1252(a)(2)(B)(i).” Id. at 1627 (emphasis added). Relying on Patel, the government contends that we cannot ap ply the mixed questions framework in the context of section 1252(a)(2)(B)(i). But the government reads Patel too broadly. The Patel Court explicitly clarified that it was dealing only with “judicial review of factfinding,” not the application of a legal standard to undisputed facts under section 1252(a)(2)(D). Id. at 1618, 1623. To illustrate this point, let’s assume that the IJ had deemed Cruz Velasco’s testimony not credible and had ruled that he lacked good moral character because he had not remained sober. Section 1252(a)(2)(B)(i) would have pre cluded us from reviewing that underlying factual finding. But here, no one questions the IJ’s findings of fact; the length of Cruz Velasco’s sobriety is undisputed. We are asked only to decide whether the Board erred in determining that Cruz Ve lasco’s rehabilitation failed as a matter of law to satisfy the No. 21 1642 7 good moral character standard. Guerrero Lasprilla and Arre ola Ochoa hold that this situation is covered by section 1252(a)(2)(D), and nothing in Patel requires a di erent result. Because we have jurisdiction over the Board’s underlying determination of good moral character, we also have jurisdic tion over the Board’s denial of Cruz Velasco’s motion to reo pen. On to the merits. B We review the Board’s denial of a motion to reopen for abuse of discretion. Victor v. Holder, 616 F.3d 705, 708 (7th Cir. 2010) (citing Kucana v. Holder, 130 S. Ct. 827, 834 (2010)). Relief is appropriate only if the decision “was made without a ra tional explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. (quot ing Achacoso Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir. 1985)). Applying this highly deferential standard, we see no rea son for disturbing the Board’s good moral character determi nation. Cruz Velasco drove drunk while his two young sons were in the car. The Board was entitled to label this as a seri ous o ense. Despite its gravity, Cruz Velasco was again ar rested for driving while intoxicated only three years later. The Board’s position that these convictions reflected a lack of good moral character did not amount to an abuse of discretion. Moreover, the Board did not (as Cruz Velasco contends) fail to consider the significance of his long period of sobriety. To the contrary, the Board specifically recognized that Cruz Velasco “completed each obligation ordered by the criminal court; stopped drinking; and continued to work, pay taxes, 8 No. 21 1642 and help support his sons and granddaughter.” At that point, the Board relied on Matter of Castillo Perez to hold that Cruz Velasco’s rehabilitation did not overcome the presumed lack of good moral character. Its decision to weigh the evidence consistently with the Attorney General’s opinion lay comfort ably within its discretion. Furthermore, even assuming that the Board had ignored Matter of Castillo Perez, it was entitled to assign “substantial weight to a single incident of drunk driving [had] the facts persuade[d] it to do so.” See Meza v. Garland, 5 F.4th 732, 736– 37 (7th Cir. 2021). It follows that the Board had some leeway to hold that Cruz Velasco lacks good moral character based exclusively on his first o ense for driving under the influence with his children in the car. The Board also reasonably could have thought that Cruz Velasco’s second o ense bolstered that conclusion. In his reply brief, Cruz Velasco claimed that the Board erred in retroactively applying Matter of Castillo Perez to his criminal convictions. But Cruz Velasco waived this claim by raising it for the first time in his reply brief. See United States v. Cruse, 805 F.3d 795, 818 n.7 (7th Cir. 2015). III Finally, we address the Board’s decision not to exercise its sua sponte authority to reopen Cruz Velasco’s case. “The Board may at any time reopen or reconsider a case in which it has rendered a decision on its own motion ….” 8 C.F.R. § 1003.2(a) (2020). “[T]he merits of the Board’s decision not to reopen a case sua sponte are unreviewable” unless it was tainted by a legal error. Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir. 2019). No. 21 1642 9 Without much explanation, Cruz Velasco argues that the Board erred in relying on Matter of H Y Z , 28 I.&N. Dec. 156 (B.I.A. 2020), when it refused to exercise its sua sponte author ity. The Board cited that case for the following proposition: new grounds for relief that accrue while the person remains illegally in the country do not demonstrate the kind of excep tional situation required for sua sponte reopening. That is, even if Cruz Velasco had met the statutory criteria—which he did not—the Board was still entitled to refuse to exercise its sua sponte authority. It relied on Matter of H Y Z only to ex plain the applicable legal framework; the facts were otherwise beside the point. Given the exceptionally broad discretion that the Board enjoys with respect to its sua sponte authority, we see nothing objectionable—and certainly no legal error— here. What Cruz Velasco really wants is plenary review of the merits of the Board’s decision to reopen. We lack the authority to do so, however, absent extraordinary circumstances. * * * We DENY the petition for review.
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