David Bernardo-De La Cruz v Merrick GarlandDavid Bernardo-De La Cruz v Merrick Garland
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-1621 DAVID BERNARDO-DE LA CRUZ, Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent. ____________________
LEE, Circuit Judge. Petitioner David Bernardo-De La Cruz has lived in the United States without legal authorization for the past nineteen years. After he was pulled over for speeding in 2014, he conceded removability from the country but applied for cancellation of removal. The Immigration Judge (IJ) denied this discretionary relief but allowed Petitioner to voluntarily depart from the country under
Board of Immigration Appeals (BIA) affirmed the decision. Petitioner now challenges that ruling, arguing that: the agency exceeded its authority when promulgating
I. Background
Bernardo-De La Cruz was born in Mexico and entered the United States illegally when he was seventeen. Since arriving here nineteen years ago, he has lived in Indiana where he has worked at a factory and a family farm. Petitioner has two daughters, both of whom are U.S. citizens. He is a senior pastor of his church and an active father to his daughters. He also sends money to his family in Mexico. Although he is separated from the mother of his daughters, the parents share custody and jointly pay for their daughters’ needs.
In 2014, Petitioner was pulled over for speeding and subsequently received a notice to appear before an IJ due to his immigration status. In 2017, Petitioner conceded removability during the immigration proceeding, but applied for cancellation of that removal under
denied the application, explaining that, although Petitioner had met the first three elements of
The appeal was heard by temporary Appellate Immigration Judge (TAIJ) Gabriel Gonzalez. In denying the appeal, TAIJ Gonzalez upheld the IJ’s findings and concluded that the record established Petitioner’s daughters would remain in the United States after his removal. As for the daughters’ educational needs, the TAIJ acknowledged the evidence in the record indicating that they might require special assistance, but he did not engage with Petitioner’s argument challenging the IJ’s treatment of this issue. In the end, the TAIJ affirmed the IJ’s determination and reinstated the IJ’s grant of voluntary
noncitizen must be a person of good moral character during that time period and must not have been convicted of certain offenses.
departure. In doing so, he warned Petitioner that if he challenged the ruling, he would be subject to immediate removal pursuant to
II. Standard of Review
Where, as here, the BIA affirms an IJ’s decision and adds its own reasoning, we examine both decisions on appeal. See Khan v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Georgieva v. Holder, 751 F.3d 514, 519 (7th Cir. 2014). We review factual and credibility determinations under the substantial evidence standard, reversing only “if the facts compel an opposite conclusion.” Minghai Tian v. Holder, 745 F.3d 822, 828 (7th Cir. 2014) (emphasis in original). We review constitutional claims
If, prior to departing the United States, the alien files a petition for review pursuant to section 242 of the Act (
and questions of law de novo. See Antia-Perea v. Holder, 768 F.3d 647, 658–59 (7th Cir. 2014).
III. Analysis
Petitioner raises three arguments here. First, he challenges the agency’s authority to promulgate
A. Voluntary Departure
If an IJ orders a noncitizen to be removed from the country, that noncitizen may apply to depart voluntarily instead. See
Section 1229c bestows upon the Attorney General the authority to “by regulation limit eligibility for voluntary departure … for any class or classes of aliens.”
and the removal order “shall immediately take effect.”
But there is an exception. If a noncitizen departs the country “no later than 30 days following the filing of a petition for review,” then that individual “will not be deemed to have departed under an order of removal.”
Petitioner argues that, by promulgating
In considering his argument, we start (as we always do) with the statutory language. Section 1229c states that “[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal.”
Until recently, we have applied the familiar framework from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to determine whether a regulation is a permissible exercise of agency authority. Under Chevron, if “Congress has directly spoken to the precise question at issue,” that is the end of the inquiry, and the unambiguously expressed intent of Congress controls. Id. at 842–43. But “if the statute is silent or ambiguous with respect to the specific issue,” courts must decide “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.
In applying the Chevron framework to this issue, a number of our sister circuits have found that
But Chevron is no longer the law. See Loper Bright Enters. v. Raimondo, 603 U.S. ___, No. 22-1219, slip op. at 35 (2024) (“Chevron is overruled.”). In place of Chevron’s familiar two-step test, the Supreme Court now instructs us to “exercise [our] independent judgment in deciding whether an agency has acted within its statutory authority.” Id. We must also be mindful that “when a particular statute delegates authority to an agency consistent with constitutional limits, [we] must respect the delegation, while ensuring that the agency acts within it.” Id. Applying Loper, we have little trouble concluding that
Congress has granted the Attorney General broad discretion over voluntary departure procedures. See
B. Temporary Board Member
Petitioner next asserts that the TAIJ, who denied his appeal, was unlawfully appointed in violation of the Constitution’s Appointments Clause. That clause states
regulation permits the EOIR Director, who is not an agency head, to appoint a TAIJ, the process is unconstitutional.
Even if we assume (as Respondent does) that a TAIJ is an “inferior officer” for the purposes of the Appointments Clause, agency documents show that TAIJ Gonzalez was appointed by the Acting Attorney General, not the EOIR Director.5 To this, Petitioner retorts, the regulations only permit the EOIR Director to appoint a TAIJ, and the Attorney General has “no lawful role in the process.” But this is a crabbed reading of the relevant regulations.
Section
temporary Board members for renewable terms not to exceed six months.”
2351, 2024 WL 3309265, at *2 (8th Cir. July 5, 2024) (“Temporary Board members are still Board members.”).
Furthermore, Congress expressly allowed the Attorney General to delegate his various powers. See
Here, the Acting Attorney General appointed Gonzalez, who was referred to him by the EOIR Director. And, under the Vacancies Reform Act, the Acting Attorney General has the same authority as the Attorney General and possesses the constitutional power to fill lower offices.
Thus, Gonzalez’s appointment did not violate the Constitution or agency regulations.
C. The IJ’s Hardship Analysis
Finally, Petitioner contests the legal adequacy of the agency’s findings. To obtain cancellation of removal under
Although we may not review the agency’s exercise of discretion to grant or deny cancellation of removal, see Martinez-Baez v. Wilkinson, 986 F.3d 966, 976 (7th Cir. 2021), we retain jurisdiction to review constitutional claims and questions of law.
Here, Petitioner argues that, when examining the hardship his family would suffer upon his removal, the IJ failed to make any factual finding regarding where his daughters would reside after Petitioner left the country. But this ignores the record.
In his Application for Cancellation of Removal, Petitioner unequivocally stated that his children would stay in the United States if he were removed. And he reiterated this position during the immigration hearing, leading the IJ to write, “[i]f ordered removed to Mexico, [Petitioner] testified that his daughters would remain in the United States with their mother, which he believes would create emotional hardship upon their separation as well as financial hardship.” The IJ then discussed relevant precedent and concluded that there was “insufficient evidence of record to indicate that the emotional or psychological impact of [Petitioner’s] departure upon [his] (qualifying relative(s)) would create exceptional and extremely unusual hardship.”
To Petitioner, these statements merely recited the record and do not constitute actual findings of fact. But the IJ considered the undisputed fact that Petitioner’s children would remain in the United States and then evaluated the hardship that would result from their separation. We see no legal error in this analysis.
Petitioner next claims that the IJ ignored two key pieces of hardship evidence. As we have stated, it is “serious legal error” for an IJ to do so. Arej v. Sessions, 852 F.3d 665, 667 (7th Cir. 2017). And where the IJ and BIA “virtually ignore[]” evidence pertaining to a “critical component of the hardship analysis,” remand is appropriate. Champion v. Holder, 626 F.3d 952, 956–57 (7th Cir. 2010).
To support his claim of hardship, Petitioner presented evidence that his daughters required special educational services. Such circumstances, if significant, may make a petitioner a “strong applicant” for relief from deportation. Martinez-Baez, 986 F.3d at 975 (quoting In re Monreal-Aguinaga, 23
I. & N. Dec. at 63). Petitioner’s daughters received Leveled Literacy Instruction at school to increase fluency and reading comprehension. In particular, the older daughter, W., was (in Petitioner’s own words) “a little slow” and had difficulty reading. The IJ discussed this evidence in two sentences (the typographical error in the second sentence is in the original):
Here, the record indicates that neither of the respondent’s daughters have any health problems or special educational needs. Although [Petitioner] testified that his older daughter, [W.], has difficulty reading, there is no evidence that she requires special attention (such as through an Individualized Educational Plan) other [sic] after-school classes.
Focusing on his older daughter, Petitioner believes the IJ gave short shrift to W.’s educational difficulties. In support, he points to letters from W.’s school that discuss her educational needs as well as her participation in after-school classes. Petitioner argues the IJ not only ignored these letters but inexplicably came to the opposite conclusion, construing the IJ’s second sentence to read “there is no evidence that she requires special attention … [or] other after-school classes.”
But we do not think the IJ “completely ignored” evidence of W.’s educational needs. Iglesias, 540 F.3d at 531. While the IJ’s treatment of the evidence could have been more thorough, he “at least mentioned this evidence,” leaving us with “some confidence that [the relevant] materials [were] considered.” Id. at 532. In this way, this case is distinguishable from Martinez-Baez, where the IJ and Board summarily stated that the evidence did not “adequately establish” the presence of educational difficulties for the petitioner’s daughter, even though
such evidence was “well covered in the record.” 986 F.3d at 976.6
Finally, Petitioner contends that the IJ failed to consider a letter from his wife stating that she was not working and was therefore reliant on Petitioner for financial support. Although the IJ did not note this letter in the opinion, he cited Petitioner’s own testimony that his wife was in fact employed. This is sufficient evidence for the IJ’s finding that Petitioner’s wife worked, and we are constrained from concluding otherwise. See Patel v. Garland, 596 U.S. 328, 333 (2022) (noting that federal courts do not have jurisdiction to review questions of fact).
For these reasons, we DENY the petition for review.