Gavino Cruz-Moyaho v. Eric Holder
703 F.3d 991
| 7th Cir. | 2012Background
- Cruz-Moyaho, a Mexican citizen, entered the U.S. without inspection in 1995 and remained unlawfully.
- Removal proceedings began October 28, 2005, charging him as an alien subject to deportation under INA §212(a)(6)(A)(i).
- He conceded unlawful status on July 6, 2006 and sought cancellation of removal under 8 U.S.C. §1229b(b).
- To qualify, he must show 10 years’ presence, good moral character, no disqualifying offenses, and that removal would cause exceptional and extremely unusual hardship to a qualifying relative (his three U.S.-born children).
- An IJ denied cancellation in October 2009 and the Board affirmed on August 12, 2010.
- Cruz-Moyaho filed petitions for review and a series of motions to reconsider/reopen; the Board issued several orders in 2011 and 2012, including denials of Reconsider #1, Reopen #1, Reconsider #2, and Reopen #2, which Cruz-Moyaho challenged in two consolidated petitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review Board orders on cancellation and motions | Cruz-Moyaho argues we review the IJ/Board de novo. | Board decisions are not reviewable to the extent §1252(a) limits review of cancellation merits. | Court lacks jurisdiction over most challenges; reviews limited to legal/constitutional claims arising from the Board's orders. |
| Whether the Board erred by failing to consider certain evidence in the June 29, 2011 order | Cruz-Moyaho contends the Board ignored evidence on factors like violence in Mexico and family hardship. | Evidence was considered; the Board provided reasons, and omission arguments fail. | No reversible legal error; the Board adequately articulated its considerations and denied the motion to reconsider/reopen. |
| Whether the Board properly denied Reconsider #2 and Reopen #2 under 8 C.F.R. §1003.2 | Crux is that information submitted should have triggered reopening; argues material change standards were met. | Information did not meet material change standards; defenses to reopen were properly denied. | The Board’s determinations about timeliness/number-bar and materiality were proper; no jurisdiction to challenge otherwise. |
| Whether Cruz-Moyaho's and his children's due process and equal protection rights were violated | Equal protection and due process claims; argues disparate treatment and procedural failures. | No protected liberty interest in discretionary relief; no exceptional circumstances to waive procedural rules. | No constitutional violations found; claims waived or insufficient to overcome Board decisions. |
Key Cases Cited
- Delgado v. Holder, 674 F.3d 759 (7th Cir. 2012) (limits review of discretionary relief under §1229b; jurisdictional scope)
- Bachynskyy v. Holder, 668 F.3d 412 (7th Cir. 2011) (lack of jurisdiction over petitions challenging Board orders)
- Mireles v. Gonzales, 433 F.3d 965 (7th Cir. 2006) (review standards for aggregated or negative-claim challenges to Board decisions)
- Ahmed v. Ashcroft, 388 F.3d 247 (7th Cir. 2004) (motions to reconsider/reopen; standards for changing board rulings)
- Ward v. Holder, 632 F.3d 395 (7th Cir. 2011) (guidance on de novo review of legal questions with deference to agency interpretation)
- Kiorkis v. Holder, 634 F.3d 924 (7th Cir. 2011) (legal questions and interpretation of statutes/regulations in asylum context)
- Kebe v. Gonzales, 473 F.3d 855 (7th Cir. 2007) (requirement that Board’s decision be explained so reviewing court can assess)