Juan Santiago Lopez v. Merrick Garland

105 F.4th 907

• Court: Court of Appeals for the Seventh Circuit
• Decided: June 24, 2024
• Docket: 23-2081
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2081 JUAN SANTIAGO LOPEZ, Petitioner, v.

MERRICK B. GARLAND, Attorney General of the United States, Respondent. ____________________

Petition for Review of an Order of the Board of Immigration Appeals. No. A205-153-310 ____________________

ARGUED JANUARY 18, 2024 — DECIDED JUNE 24, 2024 ____________________

Before RIPPLE, BRENNAN, and SCUDDER, Circuit Judges. SCUDDER, Circuit Judge. Juan Santiago Lopez, a native and citizen of Mexico, seeks our review of an immigration judge’s denial of his request for cancellation of removal. Pointing to his family circumstances—especially the obligation that would befall his wife to care for their four young children— Santiago Lopez contends that the equities favored cancella- tion. Because the record before us shows that this position roots itself entirely in a challenge to the immigration judge’s 2 No. 23-2081

exercise of discretion, we must dismiss his petition for lack of jurisdiction. The Supreme Court’s decision earlier this year in Wilkinson v. Garland makes clear that we lack jurisdiction to review any substantive challenge to an immigration judge’s discretionary decision denying cancellation of removal. We also reject Santiago Lopez’s separate argument that missing time and date information in his Notice to Appear requires termination of removal proceedings. I A Santiago Lopez’s immigration troubles began more than a decade ago in Wisconsin. Shortly after he received his third criminal conviction for operating a vehicle while intoxicated in 2012, the Department of Homeland Security initiated re- moval proceedings against him. Santiago Lopez attended his first master calendar hearing in March 2013, at which point the immigration judge continued the case to allow more time for the retention of counsel. At the next hearing in January 2014, counsel for Santiago Lopez objected to a substantive deficiency in the Notice to Ap- pear but raised no concern over the document omitting time and date information. After the Department cured the sub- stantive deficiency, Santiago Lopez conceded his removabil- ity under 8 U.S.C. § 1227(a)(1)(B) but applied for cancellation- of-removal relief under 8 U.S.C. § 1229b. The final hearing on the cancellation request took place in March 2018. Santiago Lopez testified that he entered the United States in 2001. He took a job at a pork company in Wis- consin, and remained in the country past the seven-month limit on his H-2B visa. He explained that he worked at the No. 23-2081 3

pork company for many years while his wife, Eulalia, stayed home to care for the couple’s four young children—ages one, three, four, and six at the time of the 2018 hearing. Santiago Lopez then testified that removal would force his wife to find employment despite having no family members in the area who could help care for his children. Nor was relocating his family to Mexico much of an option because finding work in his hometown of Oaxaca would be difficult (most likely farm- ing work). He added that his father, mother, and siblings worked so much that they would not be able to help his wife and children transition to a new way of life in a new country. But there are less sympathetic facts. Since arriving in the United States, Santiago Lopez has accumulated three convic- tions in Wisconsin for driving while intoxicated. He received his first conviction in 2009 after swerving off a highway—ap- parently leaving his car at the scene of the accident and failing to report the incident to police until the following day. The second conviction came in 2011, prompting Santiago Lopez to profess that he would not drive drunk again. But less than a year later came a third conviction for drunk driving and for failing to install a court-ordered ignition breathalyzer device. The record also shows that Santiago Lopez never sought treat- ment for his drinking problem. At the March 2018 hearing both he and his wife insisted that he stopped drinking in 2012 and has since avoided any encounters with the police. B The immigration judge denied Santiago Lopez’s request for cancellation-of-removal relief but granted his request for voluntary departure in lieu of removal. The immigration judge’s reasoning was clear: “Assuming arguendo that the re- spondent has established the statutory eligibility for 4 No. 23-2081

cancellation of removal, the court would deny relief as a mat- ter of discretion.” After listing “the factors which must be considered to de- termine whether a favorable exercise of discretion is war- ranted” under Matter of Marin, 16 I&N Dec. 581 (BIA 1978), the immigration judge highlighted the equities in Santiago Lopez’s favor: Several factors in the respondent’s case support a favorable exercise of discretion. The respond- ent has been in the United States for nearly twenty years. He has worked for the same com- pany for most of that time and has filed federal income tax returns. The respondent’s four chil- dren are United States citizens. But from there the immigration judge underscored that Santiago Lopez’s “record of drinking and driving in the United States outweighs these positive equities.” The judge emphasized the serious nature of the offenses and Santiago Lopez’s failure to seek any treatment for his drinking prob- lem. In the final analysis, then, the immigration judge ex- plained that “[w]eighing the respondent’s positive equities in the United States against his dangerous history of drinking and driving, driving without a valid license, general disre- gard for the laws of the United States, and disregard for the lives of others, coupled with his failure to pursue any coun- seling or alcohol education or rehabilitation classes, the court concludes that he does not merit a favorable exercise of dis- cretion.” The Board of Immigration Appeals affirmed, finding no reason to question the immigration judge’s reasoning. The No. 23-2081 5

Board separately rejected Santiago Lopez’s contention that the missing date and time information in the initial Notice to Appear stripped it of jurisdiction over the removal proceed- ings. Santiago Lopez then petitioned for our review. II A Non-citizens in active removal proceedings may apply for a type of discretionary relief called “cancellation of removal.” See 8 U.S.C § 1229b. A non-citizen can demonstrate eligibility for cancellation by establishing ten years of continuous phys- ical presence in the United States, good moral character, no disqualifying criminal convictions, and extreme hardship if removed. See id. § 1229b(b)(1). The analysis then proceeds to a second step, at which the petitioner must persuade the im- migration judge that he “merits a favorable exercise of discre- tion.” Id. § 1229a(c)(4)(A)(ii); see also Wilkinson v. Garland, 601 U.S. 209, 213 (2024) (outlining the same statutory criteria and sequential analysis). B Recall that the immigration judge assumed Santiago Lopez’s eligibility for cancellation of removal. This had a con- sequence—it left Santiago Lopez with only one adverse deci- sion to challenge on appeal: the discretionary denial of relief at step two. See Patel v. Garland, 596 U.S. 328, 332 (2022) (ex- plaining that the judge “need not address eligibility at all” upon “decid[ing] that denial would be appropriate regardless of eligibility”). In targeting that decision, Santiago Lopez con- tends that his family circumstances weighed in favor of an 6 No. 23-2081

exercise of discretion to grant his request for cancellation of removal. Beyond conveying that much, however, Santiago Lopez’s petition lacks clarity. At times he seems to contend that the immigration judge made a substantive error in weighing the equities at step two, yet he also seems to make the different point that the immigration judge committed a procedural er- ror at step two by altogether ignoring evidence bearing on his family circumstances. Even at oral argument, Santiago Lopez’s counsel could not tell us whether he intended to press a substantive or procedural argument. The distinction matters. We lack jurisdiction to review cancellation-of-removal decisions that do not involve “consti- tutional claims or questions of law.” See 8 U.S.C. § 1252(a)(2)(B), (D) (emphasis added). Procedural arguments, we have ex- plained, are “questions of law.” See Martinez-Baez v. Wil- kinson, 986 F.3d 966, 976, 978 (7th Cir. 2021) (explaining that a “procedural” contention “that the [Board] has completely ig- nored the evidence put forth by a petitioner” amounts to an allegation of “legal” error for purposes of § 1252(a)(2)(D) (in- ternal quotation marks omitted)). In grappling in recent years with the meaning of “ques- tions of law” under § 1252(a)(2)(D), the Supreme Court has clarified that certain categories of challenges do not count. In Patel, for example, the Court held that federal courts lack ju- risdiction to review facts found as part of removal proceed- ings. See 596 U.S. at 347. And, even more on point here, the Supreme Court made clear in Wilkinson v. Garland—a decision issued while Santiago Lopez’s petition was pending—that the “discretionary determination on whether or not to grant can- cellation of removal in [a] particular case is not reviewable as No. 23-2081 7

a question of law.” 601 U.S. 209, 225 n.4 (2024) (emphasis re- moved). The stakes are high, then, in terms of deciding whether Santiago Lopez brings a substantive or procedural challenge to the immigration judge’s step two determination that he does not merit a favorable exercise of discretion. If he is chal- lenging the step two determination from a procedural stand- point, we have authority to review his petition. But not so if his petition presses a substantive challenge to the immigra- tion judge’s exercise of discretion to deny cancellation of re- moval. We see Santiago Lopez’s challenge as substantive—as a challenge to the immigration judge’s exercise of discretion at step two. Foremost, Santiago Lopez never identifies what ev- idence the immigration judge allegedly ignored in assessing whether his family circumstances warranted cancellation of removal. Nor has our own review demonstrated any such procedural error. To the contrary, the immigration judge grappled with the facts Santiago Lopez presented in his testi- mony while also considering the particulars of his criminal history. There was no mischaracterization or omission of evi- dence. See Martinez-Baez, 986 F.3d at 976 (emphasizing that “the [Board] does not commit an error of law every time an item of evidence is not explicitly considered or is described with imperfect accuracy”) (internal quotation marks omit- ted)). In the final analysis, we have no authority to review San- tiago Lopez’s petition because, read most fairly, he is asking us to disagree with the immigration judge’s discretionary as- sessment of his family circumstances. Congress reserved that 8 No. 23-2081

decision for the Executive Branch, and Wilkinson eliminates any doubt on the question. See 601 U.S. at 225 n.4. C We also reject Santiago Lopez’s contention that we must terminate his removal proceedings because the Notice to Ap- pear lacked a time and date for the initial hearing. Our case law is clear that the statutory requirement that a NTA include this information is a claim-processing rule, not a limit on our jurisdiction. This means that an objection to a violation of the rule can be forfeited if not raised in a timely manner. See Ortiz-Santiago v. Barr, 924 F.3d 956, 958 (7th Cir. 2019); see also Arreola-Ochoa v. Garland, 34 F.4th 603, 607 (7th Cir. 2022) (es- tablishing that an untimely objection to a deficient NTA will be excused only if the petitioner provides “an excuse for the delay as well as [a showing of] prejudice from the lack of prompt information about time, place, or both”). Santiago Lopez did not object to the time and date omis- sions in his NTA until his appeal to the Board of Immigration Appeals. See Arreola-Ochoa, 34 F.4th at 608 (suggesting that the “outer limits” of timeliness “must fall between the earliest day possible after receipt of the Notice, on the one end, and the conclusion of proceedings before the immigration court, on the other”). And even then he did not attempt to excuse the untimeliness of the objection. Nor does Santiago Lopez at- tempt to explain how he suffered prejudice as a result of the defective NTA. See id. at 610 (explaining that “[p]rejudice in this situation does not have to be much (i.e., a petitioner need not go so far as to show that the IJ’s ultimate decision would have been different absent the defect), but it must be some- thing”). No. 23-2081 9

For these reasons, we DENY the petition for review.