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Cordova-Soto v. Holder

United States Court of Appeals, Seventh Circuit

October 15, 2013

Gabriela CORDOVA-SOTO, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Argued July 10, 2013.

Page 790

Brian J. Murray, Attorney, Jones Day, Chicago, IL, for Petitioner.

Aaron D. Nelson, Attorney, Office of Immigration Litigation, Department of Justice, Washington, DC, for Respondent.

Karen Cassandra Tumlin, Attorney, National Immigration Law Center, Los Angeles, CA, for Amicus Curiae.

Before BAUER, TINDER, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner Gabriela Cordova-Soto is a Mexican citizen whose parents brought her to the United States at the age of nine months. She eventually became a lawful permanent resident. In 2005 at age 27, however, she signed a written stipulation agreeing to removal to Mexico after she was convicted in state court for possession of methamphetamine. She believed, she says, based on legal advice from an immigration officer that she had no way to stay in the United States lawfully after that conviction.

Immediately after her removal, though, Cordova-Soto returned to the United States unlawfully. After she was discovered in 2010, her earlier removal order from 2005 was reinstated. See 8 U.S.C. § 1231(a)(5). She was again removed to Mexico. After that second removal, Cordova-Soto sought in 2011 to reopen the removal order entered back in 2005. An immigration judge and then the Board of Immigration Appeals denied her motion to reopen the 2005 removal order. Cordova-Soto has petitioned for judicial review. We conclude that her illegal reentry after her 2005 removal permanently bars reopening that earlier removal order. See 8 U.S.C. § 1231(a)(5). Accordingly, we deny her petition.

I. Factual and Procedural Background

Cordova-Soto entered the United States in 1978 as an infant and became a lawful permanent resident in 1991 at the age of 13. After moving to Kansas, she worked at fast food restaurants to support her family and eventually received her high school equivalency degree. In her late teens, she started using drugs and ran into trouble with the law. She was sentenced to six months in prison in 2002 for theft, served 60 days in prison in 2003 for passing a worthless check, and was given a 20-month suspended sentence in 2005 for possessing methamphetamine— a felony under state law. See Kan. Stat. § 65-4160 (2005).

As a result of those convictions, immigration authorities in 2005 acted to remove Cordova-Soto on three related but legally distinct grounds: (1) commission of an aggravated felony; (2) commission of two crimes involving moral turpitude; and (3) commission of a controlled substance offense. See 8 U.S.C. § 1227(a)(2)(A)(ii), (a)(2)(A)(iii), and (a)(2)(B)(i). At the time of these immigration charges, the circuit courts of appeals had split on whether a drug possession conviction like Cordova-Soto's that was a felony under state law

Page 791

but that would be a misdemeanor under federal law should be treated as an aggravated felony for purposes of federal immigration law. See 8 U.S.C. § 1101(a)(43); Lopez v. Gonzales, 549 U.S. 47, 52 & n. 3, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) (resolving circuit split and holding that such convictions were not aggravated felonies under immigration law). We ruled in early 2006 that state convictions for drug possession without intent to distribute were not aggravated felonies for immigration purposes. Gonzales-Gomez v. Achim, 441 F.3d 532, 535 (7th Cir.2006).

According to Cordova-Soto, though, during her removal proceedings in 2005 an immigration officer said that she " did not have any way to stay in the United States," and she received similar advice from a legal aid organization. Believing that her case was hopeless, she signed a " Stipulated Request for Issuance of Final Order of Removal, [and] Waiver of Appearance and Hearing." This form included an admission of the factual allegations in her Notice to Appear, a waiver of " any right to make application for any relief from removal including ... cancellation of removal," and an acknowledgment that she signed the form " voluntarily, knowingly, and intelligently."

Based on the stipulation, and without a hearing, an immigration judge ordered Cordova-Soto removed to Mexico in November 2005. According to the National Immigrant Law Center, which filed an amicus curiae brief in this case, immigration officers routinely give detained immigrants like Cordova-Soto misleading information about their legal rights when offering them stipulated orders of removal. We do not know this is so, but we will assume it is for purposes of this case.

Just three weeks after her removal, Cordova-Soto returned to the United States illegally and moved back to Kansas to live with her four U.S.-born children (then ages 9, 8, 8, and 1) and their U.S.-citizen father, whom she later married in 2009. As understandable as her illegal return may have ...


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