NONPRECEDENTIAL DISPOSITION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
Submitted January 29, 2008*
Decided February 22, 2008
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 07‐1516
MIGUEL FLORES‐ARADILLAS, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A75‐826‐581
MICHAEL B. MUKASEY, Attorney
General of the United States,
Respondent.
O R D E R
Miguel Flores‐Aradillas, a citizen of Mexico, entered the United States in 1988 on
a tourist visa and has lived in this country ever since. In 2006 the Department of
Homeland Security began removal proceedings against Flores‐Aradillas based on his
visa overstay and an Illinois conviction for possession of ecstacy. An immigration judge
*
Counsel for the parties waived argument, and thus the appeal is submitted
on the briefs and the record. See FED. R. APP. P. 34(a)(2).
No. 07-1516 Page 2
ordered Flores‐Aradillas removed to Mexico and denied his application for cancellation
of removal because of the drug conviction. The Board of Immigration Appeals affirmed
the IJ’s decision. Flores‐Aradillas petitions for review, arguing that he was denied due
process because the IJ (1) refused to grant him cancellation of removal and (2) never
told him that he might be eligible for voluntary departure. We dismiss the petition for
lack of jurisdiction.
In 1988, when he was eight years old, Flores‐Aradillas crossed the Mexican
border on a tourist visa that permitted him to remain in the United States until June
1989. But he did not leave the United States when his visa expired. In 2000, Flores‐
Aradillas was convicted in an Illinois court of possessing ecstacy and sentenced to two
years’ probation. He later married a United States citizen and fathered a child, though
he is now divorced.
In September 2006 authorities issued a Notice to Appear and a warrant for
Flores‐Aradillas’s arrest. The notice warned him that the Department of Homeland
Security believed he was removable based on his visa overstay and his drug conviction.
The parties appeared before an IJ three times during October and early November, but
each time counsel for Flores‐Aradillas requested additional time to prepare and
obtained a continuance.
In requesting the third continuance, counsel told the IJ that he intended to move
for adjustment of status and file an application for cancellation of removal. The IJ
agreed to accept any application for relief that Flores‐Aradillas wanted to submit, but
warned counsel that it was his “burden to establish” that Flores‐Aradillas’s ecstacy
conviction did not make him ineligible for whatever relief he sought. The IJ then reset
the matter for November 15, 2006, and told counsel to submit any application for relief
by that date. Counsel told the IJ that he would “prepare a bare bones application and
move to supplement at a subsequent hearing,” and the IJ replied that he wasn’t “asking
for anything but an application,” though counsel would need to discuss whether Flores‐
Aradillas was eligible for relief under the statutes. The IJ then personally addressed
Flores‐Aradillas and stated that he would give his lawyer “an opportunity to file the
applications and make any arguments relating to eligibility before we set your case
down for a hearing.” Three days later counsel submitted an application for cancellation
of removal, in which he disclosed the 2000 drug conviction.
When the matter was reconvened on November 15, the IJ noted that Flores‐
Aradillas did not appear to be statutorily eligible for cancellation of removal because of
No. 07-1516 Page 3
the drug conviction and asked counsel to present any argument to the contrary. But
counsel (a different lawyer but from the same firm) was not prepared to address that
question, and instead presented a motion to subpoena the medical records of Flores‐
Aradillas’s ex‐wife. Counsel asserted that the records contained information necessary
to supplement the application for cancellation of removal, but the IJ observed that the
information counsel wanted was irrelevant to whether Flores‐Aradillas’s drug
conviction precluded relief. The IJ thus denied the motion and, because of the drug
conviction, also denied Flores‐Aradillas’s application for cancellation of removal.
Finally, the IJ ordered Flores‐Aradillas removed to Mexico because he had overstayed
his visa by 17 years and because of his ecstacy conviction.
Flores‐Aradillas appealed the IJ’s decision to the Board of Immigration Appeals,
arguing that the IJ had erred in concluding that his drug conviction made him ineligible
for cancellation of removal. The BIA affirmed without opinion, making the IJ’s decision
the final agency determination. Flores‐Aradillas now seeks review in this court.
Because Flores‐Aradillas is removable based on his drug conviction, see 8 U.S.C.
§ 1227(a)(2)(B)(I), our jurisdiction to review the final order of removal is limited. See 8
U.S.C. § 1252(a)(2)(C); Rosales‐Pineda v. Gonzales, 452 F.3d 627, 629 (7th Cir. 2006). We
may consider only constitutional claims and questions of law. See 8 U.S.C. §
1252(a)(2)(D); Hernandez‐Alvarez v. Gonzales, 432 F.3d 763, 765 (7th Cir. 2005).
Flores‐Aradillas presents two constitutional arguments. First, he argues that he
was denied due process “when the Immigration Judge refused to accept the Petitioner’s
application for cancellation.” The short answer is that Flores‐Aradillas misrepresents
the record: the IJ did accept his application for cancellation of removal and denied that
application on the merits. Specifically, the IJ held that Flores‐Aradillas did not qualify
for cancellation of removal because he had been convicted of an offense listed in 8
U.S.C. § 1227(a)(2) and because his drug conviction also prevented him from
establishing his good moral character. See 8 U.S.C. § 1229b(b)(1); Gill v. Ashcroft, 335
F.3d 574, 575 (7th Cir. 2003).
It may be that Flores‐Aradillas really means to argue that the IJ in effect refused to
accept his application for cancellation of removal by not giving him more time to gather
support for it. Flores‐Aradillas suggests that the associate who stood in for his lawyer
on November 15 was blindsided and unprepared because, he insists, the IJ never
previously warned counsel that he should be prepared to present argument on
No. 07-1516 Page 4
cancellation of removal at that time. And because counsel lacked sufficient notice,
Flores‐Aradillas continues, he was denied a “proper opportunity to argue his eligibility
for relief violating his opportunity for a fair removal hearing.” But here again Flores‐
Aradillas misrepresents the record. The IJ had warned counsel that Flores‐Aradillas
bore the burden of showing he was statutorily eligible for relief, and had scheduled the
November 15 hearing specifically to address whether his drug conviction might
preclude discretionary relief altogether. Thus counsel should not have sent his associate
unprepared to address the conviction and its effect on Flores‐Aradillas’s eligibility for
cancellation of removal. More importantly, Flores‐Aradillas does not say what more
time would have accomplished; in this court he does not even assert that the IJ was
wrong to conclude that he has a disqualifying drug conviction, see 8 U.S.C.
§ 1227(a)(2)(B)(i), so he cannot seriously contend that the IJ’s handling of the matter
denied him due process. See Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006)
(rejecting due process claim where record did not show that outcome would change if IJ
had given alien more time to submit evidence); Ambati v. Reno, 233 F.3d 1054, 1061‐62
(7th Cir. 2000) (holding that IJ’s denial of continuance did not violate alien’s right to due
process where there was no evidence that more time would have altered outcome).
In any event, even if Flores‐Aradillas had a colorable argument that the IJ kept
him from applying for cancellation of removal, we lack jurisdiction to entertain the
argument because he did not exhaust his administrative remedies. See 8 U.S.C. §
1252(d)(1); Pjetri v. Gonzales, 468 F.3d 478, 481 (7th Cir. 2006); Hadyat v. Gonzales, 458
F.3d 659, 665 (7th Cir. 2006). Flores‐Aradillas neglected to make a due process
argument before the BIA, instead choosing to attack the IJ’s conclusion that his ecstasy
conviction barred him from cancellation of removal. We have observed that the only
exception to the rule that petitioners must first present claims to the BIA is the case in
which the BIA cannot adequately resolve the issue, for instance when the petitioner
makes a “fundamental constitutional claim.” Pjetri, 468 F.3d at 481; Feto v. Gonzales, 433
F.3d 907, 912 (7th Cir. 2006). Flores‐Aradillas makes a constitutional claim, but it does
not fall within the scope of this exception because where “a due process argument is
based on procedural failings that the BIA is capable of addressing, the petitioner must
exhaust his or her remedies at the BIA before bringing a claim in this court.” Pjetri, 468
F.3d at 481. The alleged due process violation identified by Flores‐Aradillas is precisely
the type of procedural failing that the BIA is well‐equipped to address—the BIA could
have simply remanded the case to the IJ with instructions to hold another hearing, for
instance. See Sharashidze v. Gonzales, 480 F.3d 566, 569‐70 (7th Cir. 2007); Pjetri, 468 F.3d
at 481. Flores‐Aradillas did not exhaust this due process claim, which means that we
cannot review it. See 8 U.S.C. § 1252(d)(1).
No. 07-1516 Page 5
The same holds true for Flores‐Aradillas’s second argument, that as a matter of
due process the IJ was required to inform him that he might be eligible for voluntary
departure. It is doubtful that this argument could succeed on the merits: the IJ stated
without objection from counsel that Flores‐Aradillas had not requested and was not
eligible for any other form of relief, and that comment was probably sufficient to meet
the IJ’s notification responsibilities under 8 C.F.R. § 1240.11(a)(2). See Pede v. Gonzales,
442 F.3d 570, 571 (7th Cir. 2006) (holding that where IJ made preliminary finding that
alien was not eligible for voluntary departure and attorney did not object, any error in
failing to notify alien of possible relief was harmless). Regardless, we have specifically
held that a petitioner cannot bypass the BIA and come directly to this court with a claim
that an IJ’s failure to notify him about voluntary departure denied him due process. See
Pjetri, 468 F.3d at 481. Accordingly, Flores‐Aradillas failed to exhaust his administrative
remedies concerning this claim as well, and we lack jurisdiction to consider it. See 8
U.S.C. § 1252(d)(1).
Because we have jurisdiction to hear only constitutional claims and questions of
law, and because Flores‐Aradillas failed to exhaust his constitutional claims before the
BIA, we DISMISS his petition for lack of jurisdiction.