Jose Zambrano v. Eric Holder, Jr.
725 F.3d 744
| 7th Cir. | 2013Background
- Zambrano‑Reyes, a Mexican national, was a lawful permanent resident convicted in 1993 of two felonies (aggravated sexual abuse of a minor); removal proceedings culminated in a final order of removal in 2000.
- He was removed to Mexico in November 2000 and unlawfully reentered the U.S. in January 2001; he remained undetected until his 2011 arrest, when his 2000 removal order was reinstated.
- After St. Cyr (2001) and Judulang (2011) clarified availability of former INA § 212(c) relief and struck down the Board’s “comparable‑grounds” rule, Zambrano‑Reyes sought to reopen his 2000 removal to apply for § 212(c) relief.
- He filed a motion to reopen in 2012 alleging ineffective assistance of prior counsel (failure to seek § 212(c) relief) and urging reopening in light of intervening Supreme Court and circuit decisions.
- The BIA denied the motion as untimely (filed >11 years after removal), declined equitable tolling, rejected ineffective‑assistance claims, and found that his unlawful reentry barred reopening and § 212(c) relief under 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 1003.44(k)(2).
- The Seventh Circuit held it had jurisdiction to review constitutional and legal challenges under 8 U.S.C. § 1252(a)(2)(D) but denied the petition on the merits because illegal reentry statutorily and regulatory barred reopening and relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review denial of motion to reopen | Zambrano‑Reyes: raises legal and constitutional claims (ineffective assistance/due process), so § 1252(a)(2)(D) permits review | Government: § 1231(a)(5) and other INA provisions limit review of reinstated orders; jurisdiction barred | Court: Jurisdiction exists to review legal/constitutional claims under § 1252(a)(2)(D) and Kucana framework |
| Timeliness / equitable tolling of motion to reopen | Zambrano‑Reyes: St. Cyr and Judulang only clarified availability of relief later; counsel’s failures justify tolling | BIA: motion filed >90‑day limit; petitioner could have acted earlier and did not show due diligence | Court: rejected equitable tolling (BIA’s finding adequate) but did not need to decide because other grounds dispositive |
| Ineffective assistance of counsel / due process | Zambrano‑Reyes: counsel failed to request § 212(c) waiver or advise him, denying due process | BIA: counsel not ineffective; petitioner failed to show prejudice | Court: BIA’s legal determination that counsel was not ineffective reviewed, but outcome unnecessary to deny relief due to reentry bar |
| Effect of unlawful reentry on eligibility for reopening/§ 212(c) relief | Zambrano‑Reyes: changes in law (St. Cyr, Judulang) make him eligible and justify reopening | Government: 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 1003.44(k)(2) bar reopening and discretionary relief after illegal reentry | Court: Held illegal reentry bars reopening and § 212(c) relief; petition denied on merits (remand would be futile) |
Key Cases Cited
- Jideonwo v. I.N.S., 224 F.3d 692 (7th Cir. 2000) (held AEDPA § 440(d) could not be applied retroactively to bar § 212(c) relief for plea reliance)
- I.N.S. v. St. Cyr, 533 U.S. 289 (2001) (held § 212(c) relief available to aliens who pled guilty before AEDPA/IIRIRA)
- Judulang v. Holder, 132 S. Ct. 476 (2011) (invalidated BIA’s "comparable‑grounds" rule as arbitrary)
- Kucana v. Holder, 558 U.S. 233 (2010) (addressed judicial reviewability of BIA denials of motions to reopen)