Barragan-Mora v. Mukasey

276 F. App'x 518
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 9, 2008
DocketNo. 07-1694
StatusPublished

This text of 276 F. App'x 518 (Barragan-Mora v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barragan-Mora v. Mukasey, 276 F. App'x 518 (7th Cir. 2008).

Opinion

ORDER

Jorge Barragan-Mora, a citizen of Mexico, entered the United States illegally in 1971. He became a lawful permanent resident in 1987 and has lived in this country ever since. In 2006 the Department of Homeland Security began removal proceedings against Barragan-Mora based on two Illinois felony convictions. An immigration judge (“IJ”) ordered Barragan-Mora removed to Mexico, and the Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision. Barragan-Mora petitions for review, arguing that the IJ should have granted him a continuance to pursue adjustment of status, that the BIA erred in concluding that his drug conviction was an aggravated felony, and that the BIA erroneously found that he was ineligible for a waiver of removal. We dismiss the petition as to Barragan-Mora’s first two arguments for lack of jurisdiction and reject his third argument.

After Barragan-Mora entered the United States from Mexico illegally as a child in 1971, he became a lawful permanent resident in 1987 under the general amnesty offered by the Immigration Reform and Control Act of 1986. In December 1996 he was convicted in an Illinois court of trafficking phencyclidine (“PCP”). Two years later, he was again convicted of an Illinois crime, this time for unlawfully possessing a weapon as a felon.

In August 2006 the Department of Homeland Security notified him that he was removable because his drug and weapon convictions were both “aggravated felonies” and his drug conviction was for a “controlled substance” violation. At the initial hearing before an immigration judge, Barragan-Mora conceded removability based on his weapon conviction but not for his drug conviction because, he argued, it was neither an aggravated felony nor a controlled-substance violation. The IJ granted the government time to present evidence establishing whether Barragan-Mora’s drug conviction fell within the scope of the federal Controlled Substance Act and gave Barragan-Mora the opportunity to present any applications for relief from removal.

At the final hearing on November 21, 2006, Barragan-Mora requested both cancellation of removal and a waiver under former section 212(c) of the Immigration and Nationality Act (“INA”), which permits permanent resident aliens to request relief from removal under certain circumstances. Alternatively, he requested that the IJ grant a continuance so he could pursue adjustment of status based on his impending marriage. The IJ found him removable because his weapon conviction was an aggravated felony and a firearm offense, see 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(C); 8 U.S.C. § 1101(a)(43)(E), and because his PCP conviction constituted a controlled-substance offense, see 8 U.S.C. § 1227(a)(2)(B)®. The IJ denied Barragan-Mora’s applications for relief from removal because he had been convicted of an aggravated felony — the weapon conviction. [520]*520The IJ also denied Barragan-Mora’s request for a continuance, holding that he was not prima facie eligible to adjust his status because he was not yet married.

While Barragan-Mora’s appeal of the IJ’s decision to the BIA was pending, he married his long-time girlfriend, a United States citizen, on November 28, 2006. The BIA dismissed Barragan-Mora’s appeal on March 20, 2007, focusing solely on the immigration consequences of the PCP conviction. It ruled that his PCP conviction related to a controlled substance because PCP fell within the scope of the Controlled Substances Act, see 21 U.S.C. § 812(c), Schedule 111(b)(7). The BIA also concluded that removal for his PCP conviction could not be waived under section 212(c) because the amendments to that section in the Antiterrorism and Effective Death Penalty Act prohibited aliens removable for aggravated felonies (such as the PCP conviction) from receiving section 212(c) waivers. And the BIA declined to remand the case to the IJ to allow Barragan-Mora to adjust his status because even if Barragan-Mora had married and documented it, his ineligibility for a section 212(c) waiver also made him ineligible to adjust his status. Barragan-Mora sought review of the BIA’s decision in this court on March 28, 2007.

Barragan-Mora also filed a motion to reopen proceedings before the BIA, again requesting time to adjust his status and this time providing documentation of his marriage as well as his wife’s 1-130 petition on his behalf. He also argued that based on a recent Supreme Court decision, Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), his PCP conviction was not an aggravated felony and therefore he was eligible for cancellation of removal. The BIA ruled that regardless of his marriage, he did not merit discretionary adjustment of status because admissibility to the U.S. was a prerequisite for that relief and his criminal convictions made him inadmissible. The BIA also disagreed with Barragan-Mora’s interpretation of Lopez, but observed that aside from Lopez, he remained ineligible for cancellation of removal because his weapon conviction was also an aggravated felony. The BIA therefore declined to reopen Barragan-Mora’s case and ordered him removed to Mexico. Barragan-Mora has not separately petitioned for review of the BIA’s denial of his motion to reopen.

Because the BIA found Barragan-Mora removable based on his aggravated felonies, our jurisdiction to review the final order of removal is limited. See 8 U.S.C. § 1252(a)(2)(C); Rosales-Pineda v. Gonzales, 452 F.3d 627, 629 (7th Cir.2006). We may consider only constitutional claims and questions of law, which we review de novo. See 8 U.S.C. § 1252(a)(2)(D); Hernandez-Alvarez v. Gonzales, 432 F.3d 763, 765 (7th Cir.2005).

Barragan-Mora makes three arguments on appeal, but we have jurisdiction over only one of them. First, he argues that the IJ’s denial of his request for a continuance to seek an adjustment of status violated his right to due process. We have repeatedly held that 8 U.S.C. § 1252(a)(2)(B)(ii) generally precludes judicial review of continuance decisions where the BIA has reached the merits of the status-adjustment question. Wood v. Mukasey, 516 F.3d 564, 568 (7th Cir.2008); Ali v. Gonzales, 502 F.3d 659, 664 (7th Cir.2007). Although there is a limited exception to that general rule when the BIA or IJ provides no reason for denying a continuance, see Subhan v. Ashcroft, 383 F.3d 591

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Related

Immigration & Naturalization Service v. St. Cyr
533 U.S. 289 (Supreme Court, 2001)
Lopez v. Gonzales
549 U.S. 47 (Supreme Court, 2006)
Ismael Hernandez-Alvarez v. Alberto R. Gonzales
432 F.3d 763 (Seventh Circuit, 2005)
Rudite Pede v. Alberto R. Gonzales
442 F.3d 570 (Seventh Circuit, 2006)
Mauricio Rosales-Pineda v. Alberto R. Gonzales
452 F.3d 627 (Seventh Circuit, 2006)
Iqbal Ali v. Gonzales
502 F.3d 659 (Seventh Circuit, 2007)
Wood v. Mukasey
516 F.3d 564 (Seventh Circuit, 2008)
Zamora-Mallari v. Mukasey
514 F.3d 679 (Seventh Circuit, 2008)

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Bluebook (online)
276 F. App'x 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barragan-mora-v-mukasey-ca7-2008.