Monday, May 3, 2010

Rescission of lawful permanent resident status-7th Cir. 2010 Estrada v. Holder, No. 08-1226

Petition for review of the BIA's affirmance of an IJ's refusal to examine a Mexican citizen's challenge to the validity of a 1996 rescission of his lawful-permanent-resident status by the INS is granted and the rescission order vacated and remanded as petitioner's challenge to the sufficiency of the notice he received before the agency rescinded his permanent resident status was reviewable in his removal proceedings. However, district court's decision to dismiss petitioner's complaint for lack of subject matter jurisdiction is affirmed as the complaint filed in district court is the equivalent to a challenge to an order of removal within the meaning of 8 U.S.C. section 1252(a)(5), which permits judicial review only via a petition for review in the court of appeals.

Domingo Cueto Estrada, a native of Mexico, entered the United States illegally in 1987. Thanks to the Special  Agriculture Worker (“SAW”) program, 8 U.S.C. § 1160,  Cueto Estrada was granted lawful-permanent-resident  status in 1990. But the government soon suspected that  Cueto Estrada received his permanent-resident status by  fraudulent means. Domingo Luna, who helped Cueto  Estrada prepare his SAW application, was convicted of  filing false statements on other SAW applications in  violation of 8 U.S.C. § 1160(b)(7)(A)(ii). The government  believed Cueto Estrada likewise purchased fraudulent  employment documents from Luna to support his  SAW application.

In 1995 immigration authorities initiated proceedings  that led to the rescission of Cueto Estrada’s status as  a legal permanent resident. The INS sent Cueto Estrada  notice of its intent to rescind his permanent-resident  status; the notice was sent via certified mail to Cueto Estrada’s last-known address. Had Cueto Estrada responded to the notice, he would have been entitled to a hearing before an immigration judge to contest the rescission.  See 8 C.F.R. § 246.3. But the immigration agency never heard from Cueto Estrada, and in 1996 the INS rescinded  his peramanent resident status without a hearing as permitted by 8 C.F.R. § 246.2.

Cueto Estrada claims he never received the 1995 notice  and says he first learned that he had lost his permanent- resident status in 2005 when the Department of Homeland  Security initiated removal proceedings against him. Although he applied for cancellation of removal  under 8 U.S.C. § 1229b(a), his claim hinged on his ability  to show that he was a lawful permanent resident; if he  is not a lawful permanent resident, Cueto Estrada  admits he would be statutorily ineligible for cancellation  of removal under § 1229b(b). To make the required  showing, Cueto Estrada argued that the 1996 rescission  of his permanent-resident status was invalid because  he did not receive proper notice of the INS’s intent to  rescind. Had he been given proper notice, Cueto Estrada. Cueto Estrada was convicted of possessing heroin in 1999, a  violation of Illinois law. For purposes of this case, the Attorney  General alleges that Cueto Estrada could be removed via   proceedings under 8 U.S.C. § 1229a because he had committed  a state-law controlled-substance offense and because Cueto  Estrada arrived in the United States illegally. See 8 U.S.C.  § 1182(a)(2)(A)(i)(II), (a)(6)(A)(i). Cueto Estrada concedes he  can be removed on account of his drug conviction under  § 1182(a)(2)(A)(i)(II).

The IJ rejected this argument by relying on Rodriguez- Esteban, in which the BIA concluded that immigration  courts may not review a decision to rescind permanent-resident status made by the INS. The IJ thought that  Rodriguez-Esteban prohibited him from either revisiting  the merits of the INS’s decision to rescind Cueto  Estrada’s status or considering whether the rescission  order was invalid because the INS did not comply with its regulatory obligation to provide adequate notice of  the agency’s intent to institute rescission proceedings. Accordingly, since Cueto Estrada was no longer a lawful permanent resident, he was statutorily ineligible for  cancellation of removal under 8 U.S.C. § 1229b(a). The IJ  ordered Cueto Estrada removed. The BIA adopted and  affirmed the IJ’s decision in 2008, and Cueto Estrada  filed a petition for review in this court.

In early 2007, while these removal proceedings were  underway, Cueto Estrada asked the U.S. Citizenship and  Immigration Service (“USCIS”) to reconsider its 1996  decision to rescind his permanent-resident status,  arguing that the rescission was improper because he  never received notice of the INS’s intent to rescind.

The USCIS denied his request in April 2007, treating his  motion as untimely since it had been filed  years after  the 1996 decision was made, well outside the 30-day  period for filing reconsideration requests under 8 C.F.R.  § 103.5(a)(1)(i). At the time of the USCIS’s decision, the  IJ had not yet ordered Cueto Estrada removed, and  the USCIS observed that any relief Cueto Estrada  sought “may be raised with the [IJ] during your removal  proceeding.” Cueto Estrada filed a petition for review  of the USCIS decision with this court in 2007, but we dismissed it for lack of jurisdiction. Accordingly, Cueto  Estrada challenged the USCIS order by filing a complaint  with the district court. Although he claimed that  the USCIS’s refusal to revisit its 1996 rescission order  violated the Administrative Procedure Act (“APA”) and his due-process rights, the district court treated Cueto  Estrada’s complaint as a challenge to a removal order and dismissed his case for lack of jurisdiction. Cueto Estrada appealed this dismissal, and we consolidated his appeal with his petition for review.

We acknowledge that on remand Cueto Estrada  could win his battle against the 1996 rescission order but lose his campaign to stay in this country. Cueto  Estrada remains statutorily ineligible for cancellation of  removal under 8 U.S.C. § 1229b(a) unless he can restore  his permanent-resident status. If Cueto Estrada convinces  the immigration agency that the rescission order  is invalid, that  only means he becomes statutorily  eligible for cancellation of removal under § 1229b(a); it does not entitle him to relief from removal. A decision  to cancel removal—regardless of whether the alien is a lawful permanent resident—is a discretionary one,  Bakarian v. Mukasey, 541 F.3d 775, 785 (7th Cir. 2008), and  the BIA might decide against granting Cueto Estrada  the relief he seeks. In an effort to persuade us that  remand would be futile, the Attorney General has identified  several reasons why the agency would not likely  cancel removal in this case. But the decision to grant  Cueto Estrada relief lies with immigration officials  who are charged with balancing the factors identified  in Matter of Marin, 16 INA Dec. 581, 584-87 (BIA 1978),  and we will not assume that they would decline to cancel removal.

Estrada v. Holder (Sykes)
Oral Argument | Full Text

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