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Cisneros v. Lynch

United States Court of Appeals, Seventh Circuit

August 25, 2016

José Antonio Cisneros, Petitioner,
v.
Loretta E. Lynch, Attorney General of the United States, Respondent.

          Argued May 26, 2016

         Petition for Review of an Order of the Board of Immigration Appeals No. A073-393-696.

          Before Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.

          WOOD, CHIEF JUDGE.

         Jose Antonio Cisneros, who had been a lawful permanent resident of the United States since 1996, had the bad judgment to commit unarmed robbery in 2012. This is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii), and so one result of his conviction was the loss of his legal permanent resident status. His conviction also made him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) - that is, unable to adjust his status back to that of a lawful permanent resident-because robbery is a crime of moral turpitude. In order to regain eligibility for relief from removal through adjustment of status, Cisneros needed to deal with the problem of his inadmissibility. He therefore applied for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(h)(1)(B), which gives the Attorney General the discretionary power to waive inadmissibility based on several grounds, including a crime of moral turpitude, if the person is a spouse, parent, or child of a U.S. citizen who would suffer "extreme hardship" if removed.

         The Attorney General has promulgated regulations implementing this authority. The regulations state that with respect to inadmissibility based on "violent or dangerous crimes, " she "in general, will not favorably exercise discretion under section 212(h)(2) of the Act ... to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances." 8 C.F.R. § 1212.7(d). The regulation identifies, as one example of such extraordinary circumstances, "cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship." Id.

         An immigration judge granted Cisneros's application for a waiver and adjustment of status, finding that his U.S.-citizen family would suffer "exceptional and extremely unusual hardship" as a result of his removal. The Department of Homeland Security appealed, and the Board of Immigration Appeals ("the Board") overturned that decision and revoked the waiver. Cisneros now petitions for review from the Board's decision. Our authority, however, extends only to legal or constitutional issues, not discretionary determinations. Finding no cognizable error, we deny the petition for review.

         I

         Cisneros came to the United States in 1988 at age 17 and stayed after the expiration of his visa. In 1995, he married U.S. citizen Melissa Cisneros, and in 1996 his status was adjusted to lawful permanent resident. They were divorced in 2002, but remained on good terms. Cisneros's oldest child, Maria Esmeralda, was 24 years old at the time of the removal proceeding; Marissa, his first child with Melissa, was 17 years old; and Marsea, their second daughter, was 15. Cisneros also has two stepsons from Melissa's previous marriage. Maria had three children of her own, only two of whom are now living. According to the testimony, Cisneros consistently supported the children financially and supported Melissa after their divorce.

         On a darker note, Cisneros has a history of alcoholism and a criminal record that includes robbery, battery, a 1998 DUI, and assorted convictions for driving without a license. He has enrolled in rehabilitation programs several times, most recently in 2008. The immigration judge described his testimony about the 2012 conviction:

[H]e was depressed, his car was broken, so he went on a bicycle and tried to look for a used car, something that was inexpensive that maybe his family can lend him some money, or some friends, in order to buy a new vehicle. As he was riding his bicycle, he passed by a bank that he had not entered before and told the teller to give him all her money. She gave him all the money. He then walked out of the bank and rode back to his home.

         The probable-cause affidavit for Cisneros's arrest adds that his demand for money was on a written note that he handed the teller that read, "Give me all the money." Cisneros represents that he got just $75.

         The immigration judge heard testimony from Cisneros and Melissa. Maria was unable to appear at the proceeding, for the grim reason that her boyfriend at the time had beaten her three-year-old daughter Anabel, Cisneros's granddaughter, to death on December 23, 2014, and Maria herself was in jail on felony neglect charges. The judge described Cisneros's history with alcoholism and his attempts to get better, as well as his close relationships with his children, stepchildren, grandchildren, and ex-wife. She went through the details of his prior convictions. She examined the circumstances that led up to the 2012 robbery. She noted his current sobriety and church attendance. She concluded, given his earning potential, the recent family tragedy, and the fact that all of the U.S. citizen family members would remain in the United States even if Cisneros was removed, that the "profound and far reaching" "economic and emotional hardship" that would result from his removal warranted an exercise of discretion in his favor. Cisneros's removal, the immigration judge concluded, "would result in exceptional and extremely unusual hardship to his qualifying relatives, particularly his young children."

         The Board disagreed. It held that 8 C.F.R. § 1212.7(d) applies to Cisneros's conviction because, despite the absence of any weapon or harm caused to anyone, "the potential for a physical altercation in committing" robbery renders it a dangerous crime. The Board found that Cisneros's younger daughters-the oldest, Maria, was not a child within the meaning of the Act and therefore not a qualifying family member-would "suffer the emotional and financial hardship of separation from their father, " but it would not be exceptional or extremely unusual. The children would soon be old enough to visit him on their own, the Board added. The Board also explained that hardship is only one factor, ...


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