Opinion
23-3271
09-13-2024
JOSE JESUS CONTRERAS ORTIZ, Petitioner, v. MERRICK B. GARLAND, Respondent.
NONPRECEDENTIAL DISPOSITION
Submitted September 11, 2024 [*]
Petition for Review of an Order of the Board of Immigration Appeals. No. A205-830-127
Before DIANE S. SYKES, Chief Judge MICHAEL B. BRENNAN, Circuit Judge CANDACE JACKSON-AKIWUMI, Circuit Judge
ORDER
An immigration judge ("IJ") denied Jose Jesus Contreras Ortiz's application for cancellation of removal. The IJ found that Conteras Ortiz was not statutorily eligible for cancellation of removal and, even if he were eligible, he would not merit relief as a matter of discretion. The Board of Immigration Appeals upheld the IJ's discretionary decision without addressing eligibility. Contreras Ortiz now petitions for review, but because he does not raise a question of law, we lack jurisdiction over his petition and must dismiss it.
Contreras Ortiz is a Mexican citizen who entered the United States in September 1994, at age 16. In February 2015 the Department of Homeland Security charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without being admitted or paroled. Contreras Ortiz conceded that he was subject to removal and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
The immigration judge denied relief, first finding that Contreras lacked good moral character and therefore did not meet the statutory requirements for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(B). The IJ noted that Contreras Ortiz had been charged with driving under the influence of alcohol three times since 2010 and that, each time, his blood alcohol content was significantly above the legal limit. The IJ also observed that the third arrest occurred after removal proceedings were initiated. Contreras Ortiz had pleaded guilty to the first two charges and told the IJ that he intended to plead guilty to the third charge.
The IJ further concluded that, even if Contreras Ortiz were statutorily eligible for cancellation of removal, he did not merit a favorable exercise of discretion because of his criminal record. The IJ determined that the severity of his criminal history (which also included a public-intoxication conviction and a probation violation) and lack of successful rehabilitation from alcoholism outweighed any favorable factors, such as his long-term residency in the United States, his record of working and paying taxes, and his longstanding support of his mother (a lawful permanent resident) and six children (all United States citizens). After denying Contreras Ortiz's application, the IJ found that he was eligible for voluntary departure and granted that relief. As a condition of his voluntary departure, Contreras Ortiz was required to pay a departure bond within five business days, but he did not.
On appeal the Board of Immigration Appeals upheld the IJ's determination that Contreras Ortiz did not merit a favorable exercise of discretion and dismissed his appeal. The Board also denied a motion to remand for adjustment of status, which Contreras Ortiz had submitted while his appeal was pending. In that motion he argued that he was eligible to adjust his status on two grounds. First, his adult son, a United States citizen, had received preliminary approval of an I-130 petition for him; this permits an eligible relative of a citizen to apply to immigrate to the United States and request permanent residency. See 8 U.S.C. § 1255(i). But, the Board concluded, Contreras Ortiz did not make a prima facie case of eligibility. Second, he claimed he was the derivative beneficiary of an approved visa petition his aunt had filed on behalf of his mother in April 2001. See 8 U.S.C. §§ 1101(b)(1), 1153(d), 1255(i). But only persons under age 21 can be derivative beneficiaries, and he was 22 when his aunt filed the petition. In any event, the Board explained, it would deny relief as a matter of discretion based on his criminal history. Finally, the Board did not reinstate the voluntary departure period because Contreras Ortiz did not submit proof that he had paid the bond; the Board therefore ordered him removed.
Contreras Ortiz raises only two arguments in his petition for review: (1) that he meets the qualifications for cancellation of removal and warranted a favorable exercise of discretion; and (2) that his case should have been remanded for adjudication of his son's immediate-relative visa petition. By raising only these two arguments, he has waived any challenge to the rulings on voluntary departure or the visa petition from 2001. See Porosh v. Garland, 56 F.4th 1120, 1125 (7th Cir. 2023).
As for the arguments before us, we cannot address them because the challenged decisions were based on discretion. We generally "lack jurisdiction to review 'any judgment regarding the granting of relief under section ... 1229b,' which includes cancellation of removal." Ndlovu v. Garland, 99 F.4th 997, 998 (7th Cir. 2024) (quoting 8 U.S.C. § 1252(a)(2)(B)(i)). We have jurisdiction under § 1252(a)(2)(D) to review constitutional claims or questions of law raised in a petition for review of a § 1229b determination. See 8 U.S.C. § 1252(a)(2)(D). But Contreras Ortiz argues only that the Board (and IJ) did not place enough weight on his positive factors, which plainly challenges the Board's discretionary ruling on cancellation. See Ndlovu, 99 F.4th at 999.
We also lack jurisdiction over Contreras Ortiz's challenge to the Board's denial of his motion to remand. The Board explained that, even if Contreras Ortiz were eligible for adjustment of status, his application for legal residency would be denied for the same discretionary reasons he did not warrant cancellation of removal. We lack jurisdiction to review a denial of adjustment of status based on discretionary factors except when the petitioner raises a constitutional or legal question. See Kithongo v. Garland, 33 F.4th 451, 455 (7th Cir. 2022). Contreras Ortiz raises no such issue, and appealing the denial of his remand motion is not a way to obtain review of the Board's decision that adjustment of status is foreclosed. See Reynoso v. Garland, 108 F.4th 919, 924 (7th Cir. 2024). Therefore, we lack jurisdiction to review the Board's decision that Contreras Ortiz would not be entitled to an adjustment of status or any factual findings that informed its discretionary decision. See Patel v. Garland, 596 U.S. 328, 347 (2022).
The petition is DISMISSED.
[*] We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. p. 34(a)(2)(C).