Seventh Circuit Grants Stay of Removal Pending Review of BIA Denial of Motion to Reopen

 

Introduction: Sanchez v. Sessions, —- F.3d —— (7th Cir. 2017)

On May 24, 2017, the United States Court of Appeals for the Seventh Circuit issued a decision for publication titled Sanchez v. Sessions, —- F.3d —— (7th Cir. 2017) [PDF version]. In the decision, authored by Judge Richard Posner, the Seventh Circuit issued a stay of removal until it could rule on an alien's petition of review of the Board of Immigration Appeals (BIA's) denial of his motion to reopen. The alien sought reopening in order to pursue non-lawful permanent resident (LPR) cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA).

In this article, we will examine the Seventh Circuit decision in Sanchez v. Sessions.

Exceptional and extremely unusual hardship

Facts and Procedural History in Sanchez v. Sessions

The petitioner, Ricardo Sanchez, a native and citizen of Mexico, was in the United States without any legal authorization. In removal proceedings, he conceded his removability at a hearing before an immigration judge. However, Sanchez applied for cancellation of removal for non-LPRs under section 240A(b) of the INA. In order to establish eligibility for cancellation of removal, Sanchez was required to show that he had been physically present in the United States for the ten years preceding his application, that he had been a person of good moral character during the statutory period, and that his removal would result in “exceptional and extremely unusual hardship” to his U.S. citizen children.

Sanchez argued that his removal would result in exceptional and extremely unusual hardship to his three U.S. citizen children. To support this claim, he testified the following:

  • That he was the primary breadwinner for his family (he had worked at the same pizza restaurant for the previous eighteen years); and
  • That he would not be able to support his families with the wages he would earn in his native Mexico.

Sanchez admitted that he had been convicted four times of driving under the influence (DUI) in the previous sixteen years. Furthermore, he had twice violated the conditions of his bond.

The Immigration Judge ultimately denied the respondent's application for cancellation of removal for the following reasons:

  1. He failed to demonstrate good moral character for the statutory period due to his DUI convictions; and
  2. He failed to establish that his removal would result in “exceptional and extremely unusual hardship” to his children because he was unable to answer questions regarding whether his family would follow him to Mexico in the event that he was removed.

Sanchez appealed to the BIA. The Board agreed with the Immigration Judge that Sanchez did not merit cancellation of removal, and dismissed his appeal.

Sanchez filed a timely motion with the Board to reopen his appeal. He was represented by new counsel on the motion to reopen. To support his motion to reopen, Sanchez argued that his previous counsel had failed to prepare him for his hearing before the Immigration Judge. Sanchez argued that the insufficient preparation had led to his failing to testify that:

  • His two older children are native English speakers who speak little Spanish;
  • His third child, who had not yet been born at the time of the removal hearing, was diagnosed with delayed motor development requiring physical therapy; and
  • That he had filed tax returns for the preceding several years.

The Board rejected the respondent's motion to reopen. The respondent appealed to the Seventh Circuit regarding the motion and seeking a stay of removal.

Seventh Circuit Decision in Sanchez v. Sessions

To begin, Judge Posner addressed whether the Seventh Circuit had jurisdiction to review Sanchez's appeal of the Board's denial of his motion to reopen. Judge Posner acknowledged that the Seventh Circuit would not have jurisdiction over Sanchez's request for cancellation of removal under section 242(a)(2)(B)(i) of the INA.

Judge Posner noted that the Seventh Circuit has jurisdiction to review questions of law under section 242(a)(2)(D) of the INA. Furthermore, in Mata v. Lynch, 133 S.Ct. 2150 (2015) [PDF version] [see article], the Supreme Court of the United States held that courts have jurisdiction to review the statutory denial of a motion to reopen in an immigration case (even where petition was denied for being time-barred). Judge Poster also noted that, in Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) [PDF version], the United States Court of Appeals for the First Circuit asserted its jurisdiction to review the Board's denial of a motion to reopen in a case where the court would not have had jurisdiction to review the alien's underlying application for relief under section 212(h) of the INA.

Judge Posner concluded that the Seventh Circuit had jurisdiction over the Board's denial of Sanchez's motion to reopen. The three-judge panel of the Seventh Circuit opted to exercise its jurisdiction to review, and it stayed Sanchez's removal pending its review of the Board's denial of his motion to reopen.

Judge Posner explained that while the Board had acknowledged that Sanchez had attached new evidence supporting his motion to reopen to the motion. However, the Board stated that none of the evidence “would have likely altered the outcome of this case with regard to the hardship that would accrue to his children.” Judge Posner noted that the Board is not required to address every contention of an alien who is fighting removal. However, citing to the Seventh Circuit's own published decision in Ji Cheng Ni v. Holder, 715 F.3d 620, 625-30 (7th Cir. 2013) [PDF version], Judge Posner stated that “a blanket rejection of all the alien's evidence precludes meaningful review of its decision.”

Additionally, Judge Poster observed that the government did not offer any response to Sanchez's argument that he and his family would suffer irreparable harm if he were to be removed to Mexico before his petition to reopen was fully adjudicated. This argument was based both on the claims he made to support his “exceptional and extremely unusual hardship” to his children claim before the Immigration Judge and the arguments he had offered in support of his motion to reopen. Furthermore, he argued that he should not be a priority for removal due to the fact that his removal was not based on his criminal convictions. Judge Posner did not address the final point in granting the stay.

In conclusion, the Seventh Circuit stayed the order of removal until it could rule on his petition for review of the BIA's decision denying his motion to reopen. This decision was based on the “irreparable harm that Sanchez's removal could inflict on his minor U.S. citizen children…”

Conclusion

Sanchez v. Sessions presents an interesting case and decision regarding review of BIA denials of motions to reopen. Although courts do not have jurisdiction to review most applications for relief from removal, they do have jurisdiction in many cases to review whether the denial of a motion to reopen was error as a question of law. Here, the Seventh Circuit did not render a decision on the denial itself. Rather, it found that, between the Board having not offered specific reasons for denying the motion to reopen and the hardship that Sanchez's children would suffer were he to be removed before review could be completed, a stay of Sanchez's removal pending full review was warranted. The decision in no way guarantees — or even makes it likely — that Sanchez will ultimately be granted relief. However, the decision highlights the appellate process at work, and Sanchez's removal will be stayed so that his case may be considered further.

In general, it is crucial for aliens facing removal to hire an experienced immigration attorney. This case highlights that the removal process and immigration appeals are highly complex and based on a web of statutes, regulations, and precedent. An experienced attorney will be able to assess each case individually and determine which, if any, options are available to fight removal.