NONPRECEDENTIAL DISPOSITION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 March 4, 2009
Decided April 3, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐1925
JORGE TORRES ARREOLA, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A 44 333 202
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
O R D E R
Upon returning from a brief trip to Mexico, Jorge Torres Arreola, a lawful permanent
resident of the United States, was charged with inadmissibility on the basis of a twelve‐
year‐old marijuana conviction and placed in removal proceedings. The immigration judge
granted Torres two continuances to apply for a waiver of inadmissibility, but Torres filed
the application too late, and the IJ deemed it abandoned and granted voluntary departure.
Torres appealed the decision to the Board of Immigration Appeals and, while the appeal
was pending, filed a motion to remand, alleging that his former attorney’s ineffective
assistance prevented him from timely filing the application. The Board denied the motion
and affirmed the IJ’s decision. Because we lack jurisdiction, we dismiss the petition.
No. 08‐1925 Page 2
Torres became a lawful permanent resident in 1993, when he was 16 years old. In
September 1997 he was convicted on an Illinois charge of misdemeanor marijuana
possession and sentenced to one year of conditional discharge. In June 2005 Torres traveled
to Mexico to visit his grandparents and when he returned to O’Hare Airport, the
Department of Homeland Security charged him with inadmissibility as an alien convicted
of a controlled‐substance offense, see 8 U.S.C. § 1182(a)(2)(A)(i)(II), and placed him in
removal proceedings.
Torres appeared without counsel for his initial removal hearing in February 2006,
and the immigration judge granted him a continuance to find an attorney and apply for a
waiver of inadmissibility. See 8 U.S.C. § 1182(h). Torres returned to immigration court in
June 2006, represented by attorney Herb Elesh, and admitted that he was inadmissible
because of his controlled‐substance conviction. Torres still had not filed the application for
an inadmissibility waiver, so the IJ granted another continuance and scheduled a final
hearing for approximately one year later. The IJ advised Elesh to file the application at least
six months before the hearing to ensure that Torres had sufficient time to be fingerprinted,
and cautioned both men that he would consider the application abandoned if it was still
incomplete at the next hearing.
In June 2007 Torres and Elesh appeared for the hearing, but the IJ had not received
the waiver application or any supporting documentation, and Torres had not yet been
fingerprinted. Elesh reported that he had been “as diligent as [he] could be” but had been
unable to reach Torres and so had just submitted the application to the DHS processing
center in Texas the week before the hearing. When the IJ asked Torres why he had lost
touch with his attorney, Torres explained that he had been unable to come up with the
funds for the application. The IJ found that Torres had abandoned his waiver application,
see 8 C.F.R. § 1003.47(c), and granted voluntary departure to Mexico.
Torres hired new counsel and appealed the decision to the Board. He also submitted
to the Board a motion to remand the case based on ineffective assistance of counsel. Torres
asserted that he had paid Elesh approximately $3,000 to represent him before the IJ and file
the waiver application, but Elesh had repeatedly ignored his phone calls and failed to
submit the application until it was too late. Complying with the requirements of Matter of
Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), overruled by Matter of Compean, 24 I. & N. Dec. 710
(BIA 2009), Torres informed Elesh of these allegations. Elesh responded, denying that
Torres had paid him $3,000 and insisting that he had attempted to contact Torres regarding
the waiver application approximately twenty times to no avail until Torres finally “waltzed
in” to his office a few weeks before the final hearing.
No. 08‐1925 Page 3
The Board found that the record supported Elesh’s version of the events, noting that
Torres had no proof of approximately half of his alleged payments, and had admitted to the
IJ that he lost touch with Elesh because he could not come up with the money to file the
waiver application. Accordingly, the Board found that there was insufficient evidence of
ineffective assistance of counsel and denied the motion to remand. The Board also affirmed
the IJ’s decision to deny Torres’s request for a continuance to adjudicate the waiver
application.
Torres petitions for review, arguing that the Board abused its discretion by denying
his motion to remand. But under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review
“any final order of removal against an alien who is removable by reason of having
committed a criminal offense covered in” 8 U.S.C. § 1182(a)(2), which includes a violation of
any state law “relating to a controlled substance.” See 8 U.S.C. § 1182(a)(2)(A)(i)(II). This
jurisdictional bar applies not only to the underlying removal order but also to any
subsequent motion to remand, reopen, or reconsider the order. See Zamora‐Mallari v.
Mukasey, 514 F.3d 679, 696 (7th Cir. 2008); Martinez‐Maldonado v. Gonzales, 437 F.3d 679, 683
(7th Cir. 2006); Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004). Thus, because Torres was
ordered removed on the basis of a controlled‐substance conviction, we lack jurisdiction to
review the Board’s denial of his motion to remand. Although Torres responds that
§ 1252(a)(2)(C) does not foreclose our jurisdiction because the IJ never reached the merits of
his application for a waiver of inadmissibility, his argument misses the mark. Torres
conceded at his removal hearing that his marijuana conviction qualifies as a controlled‐
substance offense and therefore renders him inadmissible, and the IJ ordered him removed
on that basis. That is all that is required to strip us of jurisdiction under § 1252(a)(2)(C), so it
is irrelevant that the IJ never reached the merits of the waiver application.1
Congress has crafted an exception to this jurisdictional bar, however, that would still
allow us to review Torres’s petition if it presents a legal or constitutional question. See
8 U.S.C. § 1252(a)(2)(D); Johnson v. Mukasey, 546 F.3d 403, 404 (7th Cir. 2008). Aware of this,
1
The government argues that 8 U.S.C. § 1252(a)(2)(B)(ii), which strips federal courts of
jurisdiction to review discretionary decisions by immigration authorities, also prevents us from
reviewing Torres’s petition. Although we have held that § 1252(a)(2)(B)(ii) precludes our
review of decisions on motions to reopen, see Kucana v. Mukasey, 533 F.3d 534, 535‐38 (7th Cir.
2008), and motions to reconsider, see Johnson v. Mukasey, 546 F.3d 403, 404 (7th Cir. 2008), we
have not yet considered whether it applies to decisions on motions to remand. Because we
independently lack jurisdiction over Torres’s petition under § 1252(a)(2)(C) , we save this issue
for another day.
No. 08‐1925 Page 4
Torres attempts to “shoehorn” his ineffective assistance of counsel claim into the category of
“legal or constitutional question.” See Khan v. Filip, 554 F.3d 681, 689 (7th Cir. 2009). But the
Board’s conclusion that Torres, not his attorney, was to blame for the delinquent filing of his
waiver application involved a question of fact, not law. See Jezierski v. Mukasey, 543 F.3d
886, 890 (7th Cir. 2008).
DISMISSED.