Case Information
*1 Before R OVNER , and W ILLIAMS , Circuit Judges , and S HAH , District Judge . [*]
S HAH , District Judge
. Sergio Isunza seeks judicial review of a decision of the Board of Immigration Appeals denying reconsideration of its dismissal of Isunza’s appeal. Our juris- diction to review such a decision is quite limited because Is- unza did not seek review of the Board’s original dismissal of his appeal and he is removable because he committed a con- trolled substance offense. The Board exercised its discretion not to reconsider its decision and it committed no legal error in applying precedent to Isunza’s appeal. The petition is dismissed in part for lack of jurisdiction and denied in part.
Isunza came to the United States from Mexico when he was seventeen years old in 1978. His parents were lawfully present in the United States, but Isunza did not adjust his status in the country for many years. In 1994, he became a permanent resident through the sponsorship of his wife, a U.S. citizen. In 1998, he was found guilty of possession of 0.1 grams of cocaine and placed on probation. See 720 ILCS 570/410. He successfully renewed his permanent resident card in 2000, and traveled briefly to Mexico without incident in 2000, 2001, 2006, and 2011. Isunza’s luck ran out when he returned to Chicago from Mexico in 2011. Authorities confis- cated his permanent resident card.
The Department of Homeland Security alleged that Isun- za was subject to removal as an alien convicted of a con- trolled substance offense. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Dur- ing his removal proceedings, Isunza conceded the charge of removability, and sought relief from removal. He argued that his continuous residency in the United States after reen- tering in 2000 made him eligible for cancellation of removal. 8 U.S.C. § 1229b(a). The immigration judge found that Isun- za was ineligible for cancellation of removal because the clock for accruing time toward continuous residency stopped when Isunza was convicted in 1998, 8 U.S.C. *3 3 § 1229b(d)(1), and his subsequent departures from and re- turns to the United States did not start the clock again.
Isunza appealed to the Board of Immigration Appeals. It found no error in the immigration judge’s decision, and de- termined that Isunza’s 1998 conviction permanently termi- nated the accrual of time toward continuous residency. It dismissed the appeal. Isunza did not seek judicial review of that decision, but did ask the Board to reconsider it. The Board said that Isunza raised a new argument in his motion that could have been presented in his appeal (namely, that his admission into the United States as a minor should count toward his continuous residency period). A motion to recon- sider is not an opportunity to raise new arguments, and the Board found no error in the rationale for its earlier dismissal of Isunza’s appeal. It denied the motion to reconsider. Isunza then petitioned this court to review his removal. [1]
Only the Board’s ruling on the motion to reconsider is be-
fore us because Isunza did not seek review of the Board’s
dismissal of his appeal within 30 days of that decision.
8 U.S.C. § 1252(b)(1);
Muratoski v. Holder
,
There are two parts to the Board’s decision to deny re- consideration of Isunza’s appeal. First, it decided that Isunza raised a new argument about his admission as a minor that he could have presented earlier, and so it would not recon- sider on that basis. Second, it reaffirmed its decision that Is- unza’s trips outside the country after his drug offense did not restart the clock for accruing time toward continuous presence in the United States. The first decision was a discre- tionary one, not of legal or constitutional dimension, and we therefore have no jurisdiction to review it.
Isunza’s challenge to the second part of the board’s deci-
sion—finding the residency clock permanently stopped with
his 1998 drug crime—is a legal one. His argument is that his
return to the United States in 2000 was, under the applicable
law, an admission into the United States “in any status” and
restarted the clock to determine eligibility for cancellation of
removal under 8 U.S.C. § 1229b(a). We have jurisdiction to
review this argument, giving deference to the board’s con-
struction of the immigration statutes. See
Zivkovic v. Holder
724 F.3d 894, 897 (7th Cir. 2013) (citing
I.N.S. v. Aguirre-
Aguirre
,
The Board reasonably construed the statute, 8 U.S.C.
§ 1229b, to find that commission of a qualifying drug crime
permanently terminated the accrual of time toward continu-
ous residency. In
Matter of Nelson
, 25 I. & N. Dec. 410, 413
(BIA 2011), the Board held that commission of a specified
crime was a terminating event “after which continuous
physical presence or continuous residence could no longer
accrue.” Isunza points out that in
Okeke v. Gonzales
, 407 F.3d
585 (3d Cir. 2005), the court determined that continuous
presence could restart after a reentry into the United States.
But that decision is an outlier and based on distinguishable
facts—the petitioner’s notice to appear for removal proceed-
ings was tied to an overstay of a student visa, not the com-
mission of a crime. After
Okeke
, the Board decided
Nelson
which firmly holds that a qualifying drug crime stops the
clock. The Third Circuit then affirmed
Nelson
, and held that
the Board’s conclusion that reentry did not restart the clock
was reasonable.
Nelson v. Attorney Gen. of U.S.
,
For these reasons, the petition for review is dismissed in part and denied in part.
Notes
[*] Of the Northern District of Illinois, sitting by designation.
[1] Isunza suffers from a genetic heart condition and is a participant in an experimental study at Northwestern University involving a device implanted in his aorta. The Board noted Isunza’s humanitarian argu- ments, but only the Department of Homeland Security can grant a re- quest for the exercise of prosecutorial discretion. At oral argument, gov- ernment counsel reported that Isunza’s requests to the department were denied. The record does not reflect the rationale behind this unfortunate outcome.
[2] Isunza’s remaining arguments about the hardship that his removal would cause him and the immigration judge’s denial of a continuance are outside the scope of our limited jurisdiction to review the Board’s denial of the motion to reconsider.