403 F. App'x 87
7th Cir.2010Background
- Estrada, a Guatemalan citizen, entered the United States illegally in 1993 and has lived here for 17 years.
- She initially sought asylum due to fear of Guatemala's civil war; an IJ denied asylum in 1997 but granted voluntary departure.
- The Board affirmed in 2002, extending the departure deadline and warning that failure would convert to a deportation order affecting relief for five years.
- Estrada ignored the voluntary-departure deadline; she was detained in 2008 and scheduled for removal in March 2010.
- One month before removal, she moved to reopen the case to seek adjustment of status under the Cuban Adjustment Act based on marriage to a Cuban citizen; the Board denied the motion as untimely and refused sua sponte reopening.
- On appeal, Estrada asserts Board error in denying reopening and due process violations; the court denies the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board abused its discretion in denying the motion to reopen for untimeliness. | Estrada argues exceptional circumstances justify reopening. | Board maintained untimeliness and declined to excuse it. | Denied; Board did not abuse discretion due to untimeliness and lack of exceptional justification. |
| Whether the Board should have reopened sua sponte based on exceptional circumstances. | Estrada contends exceptional family ties and Cuban Adjustment Act eligibility warranted sua sponte reopening. | Board has unfettered discretion on sua sponte reopening; jurisdictional questions aside, reopening not warranted. | Denied; even assuming review, no exceptional circumstances demonstrated. |
| Whether the denial violated due process by preventing Cuban Adjustment Act relief. | Board's denial prejudiced ability to pursue permanent residency under the CAA. | CAA-based relief is discretionary and Estrada has not shown prejudice. | Denied; no demonstrated prejudice or entitlement to mandatory reopening. |
| Whether the court has jurisdiction to review the Board's sua sponte decision and the Board's discretion. | Estrada seeks review of Board discretion in reopening sua sponte. | Board’s sua sponte decisions are discretionary and broadly unreviewable. | Assuming review is available, the petition still fails on merits. |
Key Cases Cited
- Pilch v. Ashcroft, 353 F.3d 585 (7th Cir.2003) (failure to reopen sua sponte is discretionary and not reviewable in some contexts)
- Munoz De Real v. Holder, 595 F.3d 747 (7th Cir.2010) (assumed review of IJ's denial to reopen sua sponte; discussed jurisdictional issues)
- Kocev v. Holder, 365 Fed.Appx. 707 (7th Cir.2010) (nonprecedential; discusses review of sua sponte reopening decisions)
- Alimi v. Gonzales, 489 F.3d 829 (7th Cir.2007) (due process requires prejudice to sustain claim in discretionary relief decisions)
- Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir.2008) (due process not required to reopen discretionary relief absent prejudice)
- Khan v. Mukasey, 517 F.3d 513 (7th Cir.2008) (discretionary relief and due process considerations in reopening)
- Kucana v. Holder, 130 S. Ct. 827 (2010) (Supreme Court; addressed reviewability of Board’s sua sponte actions)