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Aparicio-Brito v. Lynch

United States Court of Appeals, Seventh Circuit

May 31, 2016

Luis Aparicio-Brito, Petitioner,
Loretta Lynch, Attorney General of the United States, Respondent.

          Argued January 6, 2016

         Petitions for Review of Orders of the Board of Immigration Appeals. No. A 076-879-145

          Before Posner and Williams, Circuit Judges, and Pallmeyer, District Judge. [*]

          Williams, Circuit Judge.

         Following petitioner Luis Aparicio-Brito's fourth arrest for driving under the influence, the U.S. government commenced deportation proceedings against him. Aparicio-Brito, a native and citizen of Mexico, did not challenge removability; instead, he focused his efforts on suppressing the government's evidence regarding his alienage and applying for cancellation of removal. But an immigration judge (IJ) denied his suppression motions and his application, as well as his request for voluntary departure. In doing so, the IJ concluded that the government sufficiently demonstrated that Aparicio-Brito had entered the United States without inspection, and that cancellation of removal and voluntary departure would be improper because of Aparicio-Brito's inability to demonstrate continuous presence in the United States, good moral character, and extreme hardship on family members upon deportation.

         Aparicio-Brito appealed the IJ's decision to the Board of Immigration Appeals (BIA), arguing that the IJ and the government had violated his due process rights in various ways before and during the proceedings, and challenging the IJ's conclusions regarding alienage, cancellation of removal, and voluntary departure. The BIA dismissed this appeal and denied Aparicio-Brito's later request to reopen proceedings.

         We find that the IJ and the government complied with their statutory responsibilities relating to Aparicio-Brito's removal proceedings. Also, the IJ properly concluded that a summary of Aparicio-Brito's statements to government officials adequately demonstrated his alienage. And the IJ correctly denied Aparicio-Brito's application for cancellation of removal based on his inability to demonstrate ten years of continuous physical presence in the United States. So we deny Aparicio-Brito's petition for review.

          I. BACKGROUND

         Aparicio-Brito entered the United States without inspection sometime in 1998. He has remained in the United States since then, aside from two multi-month trips back to Mexico in the early 2000s. During his residency in the United States, Aparicio-Brito was arrested and convicted four separate times for driving under the influence (DUI). The first three DUI offenses occurred in 1999, 2001, and 2003, respectively. The fourth offense, which occurred in March 2010, attracted the attention of the Department of Homeland Security (DHS).

         Several days after his March 2010 arrest, Aparicio-Brito was transferred into DHS custody. Shortly thereafter, DHS officers filled out a Form I-213, stating that Aparicio-Brito had admitted to being a Mexican citizen and to entering the United States without inspection. DHS then instituted removal proceedings by issuing a Notice to Appear (NTA) that charged Aparicio-Brito with being an immigrant present in the United States without admission or parole under 8 U.S.C. § 1182(a)(6)(A)(i).

         In advance of his removal hearing, Aparicio-Brito stated that he would neither admit nor deny the allegations in the NTA or the charge of removability. He did, however, file an application for cancellation of removal as a non-permanent resident under 8 U.S.C. § 1229b(b), and attached to the application attendance sheets for Alcoholics Anonymous (AA) meetings dating back to 2010 and a letter regarding his church attendance. Aparicio-Brito also filed a motion to suppress any statements he made to law-enforcement officers that appeared in the Form I-213, and a motion for subpoenas to compel the appearance of any officers present when he made these statements.

         At the removal hearing, Aparicio-Brito declined to challenge the accuracy or authenticity of the Form I-213, prompting the IJ to deny both of Aparicio-Brito's motions and to admit the Form into evidence. The IJ also concluded that the Form adequately established Aparicio-Brito's alienage under 8 C.F.R. § 1240.8(c), and sustained the removability charge. After Aparicio-Brito declined to designate a country for removal, the IJ referenced his duty to advise Aparicio-Brito of his right to apply for asylum and withholding of removal. But the IJ said this requirement had been satisfied when, several months earlier, the IJ had instructed Aparicio-Brito to apply for cancellation of removal before the removal hearing. (The IJ apparently viewed this instruction to encompass applications for withholding and asylum, too.) The IJ found that Aparicio-Brito's failure to apply for withholding or asylum alongside cancellation of removal amounted to abandonment of those issues and identified Mexico as the country of removal.

         The hearing then turned to Aparicio-Brito's application for cancellation of removal. Aparicio-Brito testified that his two daughters-both of whom were U.S. citizens-would suffer greatly if he were removed to Mexico. He stated that he was their primary means of financial support but would have difficulty obtaining employment in Mexico, and that he would not take them to Mexico because of violence and inadequate schooling options. Aparicio-Brito also testified that he had remained in the United States continuously since entering in 1998, apart from two separate trips to Mexico to visit his parents, each for approximately three to four months. In addition, Aparicio-Brito acknowledged his four DUI convictions.

         The IJ denied Aparicio-Brito's application for cancellation due to his failure to satisfy three of the eligibility requirements under § 1229b(b)(1) of the Immigration and Nationality Act. Specifically, the IJ found that Aparicio-Brito had failed to establish (1) ten years of "continuous physical presence in the United States, " based on his two trips to Mexico; (2) "exceptional and extremely unusual hardship" for his daughters, based on his wife's employment status and no indication that his daughters suffered from any serious medical conditions; and (3) "good moral character, " based on his four DUI convictions. The IJ also concluded that this lack of good moral character warranted rejection of Aparicio-Brito's request for voluntary departure.

         Aparicio-Brito appealed the IJ's decision to the BIA, arguing, among other things, that the IJ violated his due process rights by asking him questions in an adversarial manner during the removal hearing; that the DHS officers failed to inform him of his right to remain silent before interviewing him; and that the Form I-213, by itself, could not establish alienage. The BIA affirmed the IJ's ruling. In doing so, it concluded that IJs are statutorily authorized to interrogate and cross-examine witnesses; that the DHS officers adequately notified Aparicio-Brito of his rights when they served him with an NTA; and that a Form I-213 is presumed reliable where, as here, there is no evidence of duress or coercion.

         Aparicio-Brito then moved the BIA to reconsider its decision and to reopen the proceedings. The BIA denied both motions, concluding that most of Aparicio-Brito's arguments appeared verbatim in his opening brief on appeal, and that "new controlling authority" he cited-Lopez-Esparza v. Holder, 770 F.3d 606 (7th Cir. 2014)-was distinguishable. Aparicio-Brito later filed a motion to reconsider the ruling, which the BIA denied. This appeal followed.

         II. ANALYSIS

         "Because the [BIA] affirmed the decision of the IJ and added its own reasoning, we review both decisions, bearing in mind that factual and credibility determinations must be supported by substantial evidence, while legal conclusions are reviewed de novo." Lishou Wang v. Lynch, 804 F.3d 855, 858 (7th Cir. 2015) (citations omitted). On appeal, Aparicio-Brito argues that the IJ and the government violated his due process rights. He also claims that the IJ improperly relied on the Form I-213 in determining alienage, and erred in denying his application for cancellation of removal and his request for voluntary departure. In addition, he argues that the BIA erroneously denied his motions for reconsideration and to reopen the removal proceedings. We disagree.

         A. No Violation of Petitioner's Due Process Rights

         Although immigrants in removal proceedings have due process rights under the Fifth Amendment, these rights do not extend to "hearings for discretionary relief, such as those conducted in response to a § 1229b application for cancellation of removal." Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012). But statutory provisions impose procedural requirements on removal proceedings, including the opportunity to examine evidence supplied by the government, present evidence on one's own behalf, and cross-examine ...

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