Submitted May 5, 2017
to Stay Removal Ordered by the Board of Immigration Appeals.
Bauer, Posner, and Flaum, Circuit Judges.
POSNER, Circuit Judge.
us is a petition for review of the refusal of the Board of
Immigration Appeals to reopen its order removing (i.e.,
deporting) the petitioner, Ricardo Sanchez, and a motion by
the petitioner to stay his removal pending a definitive
ruling on his petition, and finally a statement by the
Department of Justice opposing both the petition and the
illegal immigrant, Sanchez conceded his removability at a
hearing before an immigration judge, but applied for
cancellation of removal for nonpermanent residents. See 8
U.S.C. § 1229b(b). To obtain that relief he had to show
that he had been physically present in the United States for
at least 10 years and that during that period he was a person
of good moral character. Id. He also had to
establish that his removal would result in "exceptional
and extremely unusual hardship" to his U.S.-citizen
children. Id. (He has three children, ages eight
years, six years, and fifteen months, and lives with them and
his wife, who also lacks legal-resident status.)
testified that he was the primary breadwinner for his family,
having worked at the same pizza restaurant for the past
eighteen years, and that he feared that his removal would
wreak extreme hardship on his children because he
wouldn't be able to provide for his family with the wages
that he would earn in Mexico. He admitted having been
convicted four times in the past sixteen years of driving
under the influence, and that he had twice violated
conditions of his bond.
immigration judge concluded that because of the DUI
convictions Sanchez had failed to demonstrate good moral
character. The immigration judge also concluded that Sanchez
had failed to establish that his removal would result in
exceptional and extremely unusual hardship for his children,
because he was unable to answer questions about whether his
family would follow him to Mexico. And so the immigration
judge denied the application for cancellation of removal.
appealed to the Board of Immigration Appeals, which, agreeing
with the immigration judge, dismissed the appeal. Sanchez
filed a timely motion with the Board to reopen his appeal;
represented by new counsel, he argued that his original
counsel had failed to prepare him for his hearing before the
immigration judge. As a result he had failed to testify that
his two older children are native English speakers who speak
little Spanish; that his third child, who had not yet been
born at the time of the removal hearing, has been diagnosed
with delayed motor development, requiring three months of
weekly physical therapy; and that he had filed tax returns
for the preceding several years. Again the Board rejected his
appeal, precipitating the petition and motion now before us
is a threshold question whether this court has jurisdiction
to review the denial of Sanchez's motion to reopen, given
that we would not have jurisdiction over the underlying
request for relief-cancellation of removal. 8 U.S.C. §
1252(a)(2)(B)(i). But we do have jurisdiction to review
questions of law. 8 U.S.C. § 1252(a)(2)(D). And in
Mata v. Lynch, 135 S.Ct. 2150, 2155 (2015), the
Supreme Court said that "whenever the Board [of
Immigration Appeals] denies an alien's statutory motion
to reopen a removal case, courts have jurisdiction to review
its decision." And the First Circuit, citing
Mata, has asserted jurisdiction over a motion to
reopen in a case where the petitioner, as in the present
case, was seeking a form of discretionary relief (a waiver
under 8 U.S.C. § 1182(h)) from removal that would not
otherwise be reviewable by the court. Mazariegos v.
Lynch, 790 F.3d 280, 285 (1st Cir. 2015). The government
has not responded to Sanchez's invocation of
Mata in the present case.
as we do that we have jurisdiction to review the Board's
denial of Sanchez's motion to reopen, we shall exercise
it, and order Sanchez's removal stayed pending our review
of the Board's denial of his motion for reconsideration.
The Board noted that Sanchez had attached to his motion new
evidence in support of his ineffective-assistance-of-counsel
claim, including affidavits from Sanchez and others,
information about his U.S.-citizen children, and records
pertaining to his criminal history. The Board concluded, but
without explanation, that none of the evidence "would
have likely altered the outcome of this case with regard to
the hardship that would accrue to his children."
Although the Board is not required "to write an exegesis
on every contention" of an alien fighting removal, a
blanket rejection of all the alien's evidence precludes
meaningful review of its decision. Ji Cheng Ni v.
Holder, 715 F.3d 620, 625-30 (7th Cir. 2013).
government also failed to respond to Sanchez's argument
that he and his family will suffer irreparable harm if he is
removed to Mexico before his petition to reopen the removal
proceeding is resolved. See Nken v. Holder, 556 U.S.
418, 426 (2009). He is his family's primary breadwinner,
supporting his wife and their three young children. Sanchez
expresses concern that he won't be able to support his
family, who are expected to remain in Ohio, with whatever
wage he can make in Mexico, and that his youngest son will be
unable to continue with the therapy he needs if Sanchez's
wife is forced to go back to work to support the family. He
further argues that his removal should not be a priority for
the Department of Homeland Security because the decision to
remove him was not based on his criminal convictions.
the irreparable harm that Sanchez's removal could inflict
on his minor U.S.-citizen children, we have decided to stay
the order of removal until we rule on his petition for review
of the decision of ...