ISMAEL HERNANDEZ-ALVAREZ, Petitioner, v. WILLIAM P. BARR, Attorney General of the United States, Respondent.
No. 20-1459
United States Court of Appeals For the Seventh Circuit
December 16, 2020
Petition for Review of an Order of the Board of Immigration Appeals. No. A043-789-540. Argued November 6, 2020.
ST. EVE, Circuit Judge. Mexican citizen Ismael Hernandez-Alvarez was a permanent resident of the United States when, in 2002, he was convicted in Illinois of indecent solicitation of a child. The Department of Homeland Security (“DHS“) initiated removal proceedings on the grounds that his conviction constituted an aggravated felony. Though Hernandez-Alvarez argued that his solicitation conviction did not qualify as
Fifteen years later, Hernandez-Alvarez moved for the Board to reconsider its decision and reopen his removal proceedings in light of two recent Supreme Court decisions: Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), and Pereira v. Sessions, 138 S. Ct. 2105 (2018). He argued that his motion was timely because it merited equitable tolling; alternatively, he requested that the Board invoke its authority to reopen his proceedings sua sponte.1 The Board denied his statutory motion to reconsider and reopen, concluding that equitable tolling was not warranted because Hernandez-Alvarez failed to show due diligence. It also rejected his argument based on Pereira that the IJ did not have jurisdiction over his removal proceedings and declined to exercise its power to reopen the proceedings sua sponte. Because the Board did not abuse its discretion in denying Hernandez-Alvarez‘s statutory motiоn to
I. Background
A. Removal Proceedings
In 2002, when he was 20 years old, Hernandez-Alvarez was charged and convicted of indecent solicitation of a child in Illinois as part of an undercover operation. He conversed in an internet chat room with an adult undercover investigator, whom he believed to be a 15-year-old girl named “Katie.” He made plans to meet “Katie” for sex and was arrested the next morning en route to meet her. He was convicted under
A person of the age of 17 years and upwards commits the offense of indecent solicitation of a child if the person, with the intent that the offense of aggravated criminal sexual assault, criminal sexual assault, predatory criminal sexual assault of a child, or aggravated criminal sexual abuse be committed, knowingly solicits a child or one whom he or she believes to be a child to perform an act of sexual penetration or sexual conduct as dеfined in Section 12-12 of this Code.
The statute defined “child” as “a person under 17 years of age.”
The issued notice to appear did not include a date and time of the initial agency hearing and stated that it would occur on a date and time to be set. On April 18, 2003, the immigration court issued Hernandez-Alvarez a notice of hearing informing him that the hearing would take place on April 22, 2003.
Hernandez-Alvarez appeared with counsel at the April 22, 2003 hearing and at a subsequent hearing held on May 8, 2003. He moved to terminate his removal proceedings on the grounds that his conviction under
Hernandez-Alvarez appealed his rеmoval to the Board. On January 9, 2004, the Board adopted the IJ‘s rationale and denied his appeal. Hernandez-Alvarez then moved for the Board to reconsider, but before it could reach his motion, he was removed to Mexico. The Board subsequently determined that his removal constituted a withdrawal of his motion under
Hernandez-Alvarez filed a petition for review of the Board‘s decision to uphold his removal, which we denied. Hernandez-Alvarez v. Gonzales, 432 F.3d 763 (7th Cir. 2005). He argued that his solicitation conviction did not qualify as an attempt to commit sexual abuse of a minor because the person sоlicited was an adult investigator rather than a child. Id. at 765. We disagreed, reasoning that solicitation is “a partially completed offense similar to an attempt” and so Hernandez-Alvarez‘s conviction falls within the definition of “sexual abuse of a minor.” Id. at 766. Even though his offense did not involve an actual minor, we determined that impossibility did not preclude Hernandez-Alvarez‘s conviction from being characterized as an aggravated felony because under both Illinois and federal law, “[t]he impossibility of completing the offense attempted is not a defense.” Id. at 766-67 (citation omitted).
B. Motion to Reopen and Reconsider
Fifteen years lаter, on May 3, 2019, Hernandez-Alvarez filed a motion to reopen and reconsider with the Board based on two recent Supreme Court decisions. In Esquivel-Quintana, the Court addressed the question of “whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor” under the Immigration and Nationality Act and held that “it does not.” 137 S. Ct. at 1567. Because “the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16,” the state statute at issue did “not categoricаlly fall within that definition” and so “a conviction pursuant to it is not an aggravated felony under
In Pereira, the Supreme Court examined a provision that allows nonpermanent residents who have accrued 10 years of continuous physical presеnce in the United States to be eligible for cancellation of their removal. According to the “stop-time rule,” the “period of continuous physical presence is ‘deemed to end... when the alien is served a notice to appear.‘” 138 S. Ct. at 2109 (quoting
Hernandez-Alvarez acknowledged that a motion to reconsider generally must be filed within 30 days of a final administrative order of removal,
The Board denied Hernandez-Alvarez‘s motion to reconsider and reopen. Regarding his statutory motion to reconsider its 2004 decision, the Board determined that equitable tolling was not warranted. The Board acknowledged that Hernandez-Alvarez had submitted a timely motion to reconsider in 2004, which it deemed withdrawn after he was removed. In 2010, we determined that the Board has jurisdiction to consider motions even after an alien has been removed. Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010). Nonetheless, the Board noted that nine years had elapsed between our decision in Marin-Rodriguez and Hernandez-Alvarez‘s motion to reconsider, and so equitable tolling was not warranted because Hernandez-Alvarez had failed to show he diligently pursued his rights. The Board also stated that even if it were to reach the merits of Hernandez-Alvarez‘s motion to
The Board then considered Hernandez-Alvarez‘s motion to reopen proceedings based on the Supreme Court‘s decisions in Esquivel-Quintana and Pereira. Regarding his argument based on Esquivel-Quintana, the Board declined to equitably toll the filing deadline. It noted that the Court‘s decision in Esquivel-Quintana had occurred almost two years before Hernandez-Alvarez had submitted his motion and he had failed to show he exercised due diligence. Regarding his argument based on Pereira, the Board did not reach the issue of timeliness. Rather, it concluded our recent decision in Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), foreclosed his argument that the defective notice to appear stripped the immigration court of jurisdiction.
The Board further declined to invoke its sua sponte authority to reopen Hernandez-Alvarez‘s removal proceedings. It noted that it only sparingly invokes its sua sponte authority and views it as a remedy reserved for truly exceptional situations. The Board stated that after considering the circumstances presented and Hernandez-Alvarez‘s arguments, it did not find the situational so exceptional that it warranted reopening the removal proceedings. Hernandez-Alvarez then submitted a timely petition for review of the Board‘s decision.
II. Discussion
In his petition, Hernandez-Alvarez challenges the denial of his motion to reconsider and reopen on several grounds. He argues that the Board should have found his statutory motion to reconsider to be timely because it relates back to his 2004 motion. Alternatively, he asserts that the Board erred
A. Statutory Motion to Reconsider
We first turn to the Board‘s denial of Hernandez-Alvarez‘s statutory motion to reconsider. “A motion to reconsider contends that the original decision was somehow erroneous” and “asks [the Board] to revisit its decision in light of ‘additional legal arguments, a change of law, or an argument that was overlooked earlier.‘” Victor v. Holder, 616 F.3d 705, 709 (7th Cir. 2010) (quoting Patel v. Gonzales, 442 F.3d 1011, 1015 (7th Cir. 2006)). “[I]n considering such motions, the Board places itself ‘back in time and consider[s] the case as though a decision in the case on the record before [it] had never been entered.‘” Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007) (quoting In re Cerna, 20 I. & N. Dec. 399, 402 (B.I.A. 1991)). Generally, an alien is limited to one motion to reconsider that must be filed within 30 days of the date of entry of a final administrative order of removal. See
Hernandez-Alvarez contends that the Board erred in denying his motion to reconsider for two reasons. He asserts that the Board should have considered his motion timely because the 2019 motion relates back to the still-pending 2004 motion. He further contends that even if his 2019 motion does not relate back to the 2004 motion and is therefore untimely, the Board abused its discretion when it determined that equitable tolling was not warranted. We address each of these arguments.
1. Relation Back
Hernandez-Alvarez contends that, because the Board never reached the merits of his 2004 motion to reconsider, his 2019 motion should be considered timely because it relates back to the still-pending 2004 motion. There is no dispute that Hernandez-Alvarez timely filed a motion to reсonsider in 2004. Once he was removed, however, the Board determined that his motion had been withdrawn under
Hernandez-Alvarez failed to exhaust his administrative remedies because he did not raise this argument before the
Hernandez-Alvarez makes two unpersuasive arguments as to why we should find that he exhausted his administrative remedies. First, he argues that he raised the issue before the Board because his motion cited Marin-Rodriguez and argued that the Board had jurisdiction to consider his 2019 motion despite his removal from the United States. Yet this brief reference to Marin-Rodriguez occurs in a section labeled “Standards for a Motion to Reconsider and a Motion to Reopen Removal Proceedings” — 13 pagеs before he argues that his motion is timely — and falls far short of arguing that his 2019 motion is timely because it relates back to his still-pending 2004 motion. Alternatively, Hernandez-Alvarez argues that even if he did not raise the issue to the Board, the Board nevertheless addressed the status of his 2004 motion to reconsider because it referenced Marin-Rodriguez when denying his 2019 motion. In support for this argument, Hernandez-Alvarez relies on two unpublished opinions in which we concluded that “when the [Board] sua sponte denies relief on a ground not raised by the alien, the failure to raise that argument to the [Board] does nоt preclude our review.” Cisneros-Cornejo v. Holder, 330 F. App‘x 616, 618 (7th Cir. 2009); see also Mei Mei Liu v. Mukasey, 264 F. App‘x 530, 533 (7th Cir. 2008). Nonetheless, here the Board‘s decision did not engage with the precise question of whether Marin-Rodriguez means that Hernandez-Alvarez‘s motion — which was administratively withdrawn six years before we decided Marin-Rodriguez — was still pending or whether his motion to reconsider related back to it.
Accordingly, Hernandez-Alvarez failed to exhaust his remedies before the Board for his argument that his 2019 motion is timely because it relates back to his 2004 motion, and “consequently he failed to preserve his right to judicial review.” Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008)
2. Equitable Tolling
Hernandez-Alvarez alternatively argues that the Board abused its disсretion when it determined that his motion to reconsider did not warrant equitable tolling. While generally an alien has 30 days to file a motion to reconsider, this filing deadline is a “non-jurisdictional claim-processing rule[], subject to the doctrine of equitable tolling.” Ramos-Braga v. Sessions, 900 F.3d 871, 876 (7th Cir. 2018) (per curiam). “In order to succeed on a claim for equitable tolling, a petitioner must demonstrate due diligence.” El-Gazawy v. Holder, 690 F.3d 852, 859 (7th Cir. 2012). This is satisfied “if the petitioner can show that ‘he could not have reasonably been expected to file earlier.‘” Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir. 2017) (quoting El-Gazawy, 690 F.3d at 859).
The Board determined that Hernandez-Alvarez‘s motion to reconsider did not mеrit equitable tolling because nine years elapsed between our decision in Marin-Rodriguez — which overturned the basis on which the Board had previously deemed his motion withdrawn — and when he filed his
Even assuming that Hernandez-Alvarez could not have been reasonably expected to bring his motion prior to the decision in Esquivel-Quintana, he nevertheless fails to show that the Board abused its discretion in determining that equitable tolling was not warranted. In resolving his motion to reopen, the Board determined that Hernandez-Alvarez had failed to show that he had exercised due diligence in bringing his motion, given that he did not file his motion for almost two years after the Court‘s decision in Esquivel-Quintana. On appeal, Hernandez-Alvarez concedes it took him and his attorney a “long period of time” to prepare and file his motion, but argues that equitable tolling is nonetheless warranted because geographic separation and the passage of time made the motion difficult to prepare. Other than these conclusory assertions, Hernandez-Alvarez fails to offer any evidence that he diligently pursued his rights in the two years following Esquivel-Quintana. See El-Gazawy, 690 F.3d at 860 (upholding the Board‘s determination that a petitioner did not demonstrate due diligence when he failed “to offer any support for his claim that he acted diligently to preserve his rights” during a two-year period). We thus cannot conclude that the Board abused its discretion in determining that equitable tolling was not warranted.
B. Statutory Motion to Reopen
We next turn to the Board‘s denial of Hernandez-Alvarez‘s statutory motion to reopen. Unlike motions to reconsider, “[m]otions to reopen ask the [Board] to reconsider its earlier decision based on ‘facts or evidence not available at the time of the original decision.‘” Mungongo, 479 F.3d at 534 (quoting Patel, 442 F.3d at 1015). While a motion to reopen generally must be filed within 90 days of the date of entry of a final administrative order,
Hernandez-Alvarez based his motion to reopen on the Court‘s decisions in Esquivel-Quintana and Pereira. As discussed above, the Board did not abuse its discretion in determining that the motion was untimely and did not merit equitable tolling. Unlike his motion to reopen based on Esquivel-Quintana, the Board reached the merits of his Pereira claim, and determined that our decision in Ortiz-Santiago foreclosed his argument that the immigration court did not have jurisdiction. In Ortiz-Santiago, we held that the requirement that a notice to appear include the date and time of the removal proceeding is not jurisdictional in nature and is instead a claims-processing rule. 924 F.3d at 965. Relief based on a defective nоtice to appear is available only “for those who make timely objections, as well as those whose timing is excusable and who can show prejudice.” Id. On appeal, Hernandez-Alvarez contends that the Board failed to assess his argument that his timing was excusable and he suffered prejudice from the
Even assuming that Hernandez-Alvarez‘s late objection is excusable, he has not put forth any plausible argument as to why he was prejudiсed by his defective notice to appear. Hernandez-Alvarez argues that the prejudice to him is “obvious” because, under Esquivel-Quintana, he was not convicted of an aggravated felony and so was not removable. But this argument misses the mark because Ortiz-Santiago‘s prejudice inquiry does not focus on prejudice derived from the removal proceedings generally; rather, it focuses specifically on prejudice suffered at the time of the hearing. Accordingly, we look, for example, to whether the defects in the notice to appear deprived the aliеn of the ability to attend or prepare for the hearing, including the ability to secure counsel. See Chen v. Barr, 960 F.3d 448, 451 (7th Cir. 2020) (determining that respondent could not show prejudice because she did not “contend she lacked actual knowledge of the time and place for the hearing” and she appeared with counsel); Vidinski v. Barr, 790 F. App‘x 816, 820 (7th Cir. 2019) (noting that it was “unlikely that Vidinski could establish prejudice” given that he received the notice to appear, contested the charge of removability, attended the hearing, and was represented by a lawyer); Ortiz-Santiago, 924 F.3d at 964-65 (“This is not a case in which the Notice of Hearing never reached him, or it came so quickly that he had trouble preparing for the hearing.“). While Hernandez-Alvarez‘s notice to appear initially lacked the date and time of the initial agency hearing, he received a notice of hearing shortly afterward that included the required information. He secured counsel before attending the hearing, and did not argue that he “was prejudiced by the delivery of the
Despite his failure to advance any relevant arguments that he was prejudiced by the defective notice to appear, Hernandez-Alvarez urges us to remand the case to the Board so that it can determine whether he satisfies Ortiz-Santiago‘s inquiry in the first instance. We decline to do so. When a petitioner fails to raise any plausible argument as to why he was prejudiced, we have determined that remand is unnecessary. Chen, 960 F.3d at 451 (declining to remand where the petitioner failed to advance a plausible argument that she suffered prejudice); Shojaeddini v. Barr, 781 F. App‘x 545, 548 (7th Cir. 2019) (denying a petition for review rather than remanding where the petitiоners did not show, or even attempt to show, “that they were prejudiced by having received the time and date of their hearing in a separate document“); Ortiz-Santiago, 924 F.3d at 965 (determining that no “discernable prejudice” occurred without remanding to the Board). Accordingly, remand is unnecessary.
C. Motion for the Board to Reopen Proceedings Sua Sponte
Finally, we turn to Hernandez-Alvarez‘s contention that the Board erred by declining to reopen proceedings sua sponte. The Board has discretion to reopen a case on its motion at any time,
The Board concluded that Hernandez-Alvarez‘s situation was not exceptional enough to warrant exercising its authority to reopen his proceedings. On appeal, Hernandez-Alvarez asserts that the Board committed legal error in declining to reopen his case sua sponte because it stated that even if it were to reach the merits of his statutory motion to reсonsider, it was “not convinced of any error in [its] application of the law at that time.” Hernandez-Alvarez interprets this statement to mean that the Board determined that Esquivel-Quintana would not change the outcome in his case, which he argues is legally erroneous because Esquivel-Quintana compels the conclusion that his solicitation conviction was not an aggravated felony.
Hernandez-Alvarez‘s argument misinterprets the Board‘s decision. A close reading of the decision reveals that the Board did not reach the question of whether Esquivel-Quintana applies to Hernandez-Alvarez‘s сonviction. In his motion to the Board, Hernandez-Alvarez argued that the Board had erred when it found that his conviction qualified as an aggravated felony. In making this argument, he first argued why Esquivel-Quintana compels the conclusion that his conviction should not have been considered an aggravated felony. Second, he
Hernandez-Alvarez further argues that the Board erred in not invoking its inherent authority to reopen his case because Esquivel-Quintana means that the Board got it wrong in 2004, and so his case is by definition “exceptional.” Hernandez-Alvarez relies on a concurrence from Matter of J-J-, 21 I. & N. Dec. 976, 985 (B.I.A. 1997) (Villageliu, Board Member, cоncurring), which stated that “exceptional situations ... must include cases where the courts have reversed the underlying basis for the Board‘s legal conclusions in a case after the 30-day limitation for motions to reconsider has expired.” Apart from this concurrence — whose position was not reflected in the
The Board‘s explanation for why it declined to reopen the рroceedings sua sponte did not contain or imply any legal error. “Judicial review accordingly is unavailable.” Malukas v. Barr, 940 F.3d 968, 971 (7th Cir. 2019).
III. Conclusion
To the extent that the Board denied the statutory motion to reconsider and reopen, the petition for review is denied. To the extent that the Board declined to reopen the proceedings sua sponte, the petition for review is dismissed for want of jurisdiction.