Immigration — cancellation of removal

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United States Court of Appeals For the Seventh Circuit

Civil

Immigration — cancellation of removal

Where an alien failed to show that removal would present an exceptional hardship to his children, cancellation of removal was properly denied.

“As the Board pointed out repeatedly, the key date for Cruz-Mayaho is July 17, 2008. This was when the Board denied his application for cancellation of removal. All of his later efforts to reverse the consequences of that decision are affected by it. Cruz-Mayaho had 90 days from that date in which he could file, by right, a motion to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i). (He did file a petition for review within the mandatory 30-day period.) With respect to his first motion to reopen, however, Cruz-Mayaho argues for a different starting point—the date when the Board denied his motion to reconsider the original affirmance. We recently and definitively rejected that position in Sarmiento v. Holder, 680 F.3d 799 (7th Cir. 2012). We did so for good reasons: the time limits would mean nothing if people were free to file one motion to reconsider after another, while they collect new evidence to be used in a motion to reopen. Two of our sister circuits have come to the same conclusion. See Vega v. Holder, 611 F.3d 1168, 1170-71 (9th Cir. 2010); William v. INS, 217 F.3d 340, 342-43 (5th Cir. 2000). There is also no authority for the proposition that the pendency of a petition for review has any effect on these time limits. Since a motion to reconsider does not itself toll the 90-day period, it follows that a petition for review from the denial of such a motion similarly has no such effect. All of this means that the Board was well within its rights to hold as a matter of law that Cruz-Mayaho’s first motion to reopen was untimely, and also that as a matter of fact Cruz-Mayaho was not entitled to reconsideration of that decision. That is enough to resolve case No. 10-1634 with a holding that the legal ruling was correct and that we have no jurisdiction to review the factual determination.”

Petitions Denied.

10-1634, 11-2914 & 11-3512 Cruz-Mayaho v. Holder

Petitions for Review of Orders of the Board of Immigration Appeals, Wood, J.