NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 5, 2010
Decided November 23, 2010
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10‐1761
BERALY ESTRADA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A 073 545 195
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Beraly Estrada, a Guatemalan citizen, petitions for review of an order of the Board of
Immigration Appeals denying her motion to reopen removal proceedings. The Board did
not abuse its discretion in denying the motion, so we deny the petition for review.
Estrada entered the United States illegally in 1993 and has lived here for the past 17
years. She initially applied for asylum, claiming that she feared returning to Guatemala
because of the country’s then‐ongoing civil war. An immigration judge denied her
application in March 1997 but granted her six months to depart the United States
voluntarily. Estrada appealed. Nearly five years later, in 2002, the Board affirmed the IJ’s
decision and gave her an additional month to depart, warning that if she failed to leave the
No. 10‐1761 Page 2
United States by the deadline, the voluntary‐departure order would automatically become a
deportation order that would prevent her from applying for certain types of immigration
relief (including permanent residency) for five years. See 8 U.S.C. § 1229c(d).
Estrada ignored the voluntary‐departure deadline, and in 2008 immigration officials
found and detained her. The government eventually placed her on supervised release and
scheduled her for removal on March 1, 2010. One month before her scheduled removal,
Estrada notified the Board that she had married a Cuban citizen in 1997 and moved to
reopen her case so that she could adjust her status under the Cuban Adjustment Act, Pub. L.
No. 89‐732, 80 Stat. 1161 (1966). The Act allows (as relevant here) non‐Cuban citizens who
marry Cuban nationals to seek lawful permanent residency in the United States based on
their marriage. Estrada acknowledged that her motion was untimely but argued that
exceptional circumstances merited reopening. Specifically, she pointed out that she and her
husband had established a life in the United States (including raising a daughter, owning a
home, and running a successful day‐care business), and she argued that denying her motion
would expose her to exceptional hardship. Estrada also asked the Board to exercise its
discretion to reopen the case sua sponte.
The Board denied Estrada’s motion to reopen, reasoning that she had made the
request long after the expiration of the 90‐day filing deadline, and that no exception to this
rule excused the motion’s untimeliness. The Board also refused to reopen the proceedings
sua sponte.
On appeal, Estrada challenges both of the Board’s decisions and further argues that
the denials amount to a violation of due process. She first argues that the Board abused its
discretion in denying the motion because it did so without giving any reason consistent
with the Cuban Adjustment Act. But the Board did give a reason; it denied the motion
because Estrada gave no legal basis to justify filing the motion 8 years after the 90‐day filing
deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i). Estrada suggests that the 90‐day filing deadline
should not apply to her because the Cuban Adjustment Act provides a route to permanent
residency “independent” of the Immigration & Nationality Act. This argument is frivolous;
the Cuban Adjustment Act is codified as a historical note to 8 U.S.C. § 1255, which
comprises § 245 of the INA.
Estrada next argues that, even though she filed her motion to reopen many years
late, the Board nonetheless should have reopened her case sua sponte based on her
“exceptional situation.” She asserts that her family ties and her eligibility to seek permanent
residency under the Cuban Adjustment Act are exceptional circumstances that the Board
failed to consider. The government responds by arguing that we lack jurisdiction to
No. 10‐1761 Page 3
consider the question because the Board has unfettered discretion to decide whether or not
to reopen a case sua sponte.
Before the Supreme Court’s decision in Kucana v. Holder, 130 S. Ct. 827, 834 (2010), we
had held that “failure to reopen sua sponte is a discretionary decision that is unreviewable.”
Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003). In Kucana the Supreme Court “express[ed]
no opinion on whether federal courts may review the Board’s decision not to reopen
removal proceedings sua sponte.” 130 S. Ct. 827, 839 n.18. One of our post‐Kucana cases,
took a different approach; we assumed—without reference to Pilch or the relevant part of
Kucana—that we had jurisdiction to review an IJ’s refusal to reopen a case sua sponte and
concluded that the IJ did not abuse her discretion in denying the sua sponte motion to
reopen. Munoz de Real v. Holder, 595 F.3d 747, 750 (7th Cir. 2010). We later acknowledged
the potential conflict between Munoz and Pilch, but concluded that we need not “decide
whether sua sponte decisions are reviewed for abuse of discretion (as we assumed in Munoz)
or are not reviewable at all (as we held in [Pilch], on the theory that there is no law to
apply).” Kocev v. Holder, 365 F. App’x 707, 708 (7th Cir. 2010) (nonprecedential).
Here too, it is unnecessary for us to resolve the potential conflict. Even if we assume
that we could review sua sponte decisions of the Board for abuse of discretion, the standard
most favorable to aliens, we would deny Estrada’s petition. She has not demonstrated
exceptional circumstances to merit reopening. To the contrary, she married her husband 5
years before the Board issued its merits decision in 2002, and she did not seek reopening
until 2010—when authorities detained her and scheduled her for removal. That her
removal will affect her business or separate her from her family is not exceptional; such a
scenario reflects a risk that she took by living in the United States for 17 years without valid
authorization.
Estrada fares no better on her argument that the Board’s denial of the motion to
reopen violated her right to due process by preventing her from applying for permanent
residency under the Cuban Adjustment Act. To establish that the Board’s refusal to grant
her motion to reopen violated her right to due process, Estrada needs to demonstrate that
the decision “likely affected the result of the proceedings.” See Alimi v. Gonzales, 489 F.3d
829, 834 (7th Cir. 2007). Estrada asserts that she qualifies for permanent residency under the
Cuban Adjustment Act, and that the Board’s decision prejudiced her ability to pursue that
form of relief. But at this point, Estrada’s eligibility for residency is merely speculative
because she has not produced any documentation to show that she has filed an application
or that one has been granted. And even if Estrada’s eligibility for permanent residency
upon reopening were undisputed, the relief she is seeks is discretionary, see Khan v.
Mukasey, 517 F.3d 513, 517 (7th Cir. 2008), and “the due process clause does not require the
Board to reopen or reconsider cases previously decided or otherwise provide for
No. 10‐1761 Page 4
discretionary relief,” Zamora‐Mallari v. Mukasey, 514 F.3d 679, 694 (7th Cir. 2008). Since
Estrada cannot show prejudice sufficient to sustain a due‐process claim, and since her
arguments regarding the motion to reopen are without merit, we DENY the petition for
review.