NONPRECEDENTIAL DISPOSITION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 May 21, 2009*
Decided May 22, 2009
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐2490
EDMUNDUS KAUSPADAS and Petition for Review of an Order of the
EVELINA KAUSPADAS, Board of Immigration Appeals.
Petitioners,
Nos. A99‐607‐608 & A99‐607‐609
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
O R D E R
Edmundus and Evelina Kauspadas, a married couple from Lithuania, ask us to order
immigration authorities to reopen their case (which the Board of Immigration Appeals
refused to do) so that they may seek cancellation of removal. Because we lack jurisdiction
to review the Board’s refusal to reopen under Kucana v. Mukasey, 533 F.3d 534 (7th Cir.
2008), we dismiss the petition.
*
After examining the briefs and the records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2).
No. 08‐2490 Page 2
With the assistance of counsel, Edmundus and Evelina applied for asylum and
withholding of removal in 2006, asserting that they came to the United States in 2000 to
escape persecution directed at Jehovah’s Witnesses like them. On April 10, 2006, they
received notices to appear at a removal hearing. Afterward, the couple conceded
removability and withdrew their applications for asylum and withholding of removal, and
the Immigration Judge granted them three months in which to depart voluntarily. During
those three months and with the help of new counsel, the Kauspadases moved to reopen
their case based on evidence that Edmundus actually entered the United States on May 1,
1996. They argued that Edmundus had accrued at least ten years of continuous presence in
the United States, and that they, consequently, were eligible for cancellation of removal,
relief they desired because of the extreme hardship that removal would work on their two
American‐born sons. See 8 U.S.C. § 1229b(b)(1).
The IJ denied the motion to reopen for two reasons. First, he concluded, the
Kauspadases were not eligible for cancellation relief because Edmundus hadn’t been in the
country for ten full years before the notices to appear were served, stopping the clock on his
continuous physical presence. See 8 U.S.C. § 1229b(d)(1); 8 C.F.R. § 1003.23(b)(3).
Moreover, the IJ continued, reopening was not warranted because the Kauspadases could
have submitted this evidence earlier. See 8 C.F.R. § 1003.23(b)(3).
The Kauspadases appealed to the BIA, proceeding pro se. In a two‐page letter that
also serves as their brief before this court, they contend that their attorneys in the removal
proceedings performed deficiently. Because of that deficiency, they asked the BIA to order
a new hearing in order that they might submit further evidence of the consequences of their
removal. In particular, they detail just how the removal would traumatize their sons and
assert that Evelina’s ex‐husband would attack her and her family if they were returned to
Lithuania. The Board affirmed without opinion.
The Kauspadases’ disagreement with the IJ’s refusal to reopen their case is a
challenge to administrative discretion, see 8 C.F.R. § 1003.23(b)(3), and, hence, outside of our
jurisdiction. In Kucana v. Mukasey, 533 F.3d 534, 536 (7th Cir. 2008), we ruled that through
the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(B)(ii), Congress divested us of jurisdiction to
review the discretionary decisions of immigration authorities unless a legal or constitutional
claim is involved, 8 U.S.C. § 1252(a)(2)(D). The ground for reopening that the Kauspadases
now advance—that their counsel’s alleged deficiencies entitle them to a new hearing—does
not fit within the exception because there is no constitutional, statutory, or administrative
right to effective counsel in immigration proceedings; a claim of ineffective assistance is
No. 08‐2490 Page 3
purely a request for a favorable exercise of discretion. See Jezierski v. Mukasey , 543 F.3d 886,
888‐891 (7th Cir. 2008). Accordingly we must dismiss the petition for lack of jurisdiction.1
In light of the Supreme Court’s recent decision to grant certiorari in Kucana v. Holder,
2009 WL 1107926 (U.S. April 27, 2009), we add that even if we could review whether the IJ
abused his discretion in refusing to reopen their case, the Kauspadases would not prevail.
An IJ possesses “discretion to deny a motion to reopen even if the movant has established a
prima facie case for relief.” 8 C.F.R. § 1003.23(b)(3); see Khrystotodorov v. Mukasey, 551 F.3d
775, 785 (8th Cir. 2008); see also Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004) (explaining
that the BIA “has broad discretion in deciding whether to grant or deny a motion to
reopen”). But the IJ must deny the motion if the new evidence was available and could have
been presented at the prior hearing, or if the movant has not established statutory eligibility
for cancellation of removal as of the date that the notice to appear was served. See 8 C.F.R.
§ 1003.23(b)(3).
In this case, the IJ correctly determined that the Kauspadases were not statutorily
eligible for cancellation of removal. Ten years of continuous physical presence is a statutory
prerequisite for cancellation of removal. See 8 U.S.C. § 1229b(b)(1) (“The Attorney General
may cancel removal in the case of an alien who is inadmissible or deportable from the
United States if the alien has been physically present in the United states for a continuous
period of not less than 10 years immediately preceding the date of such application.”). Yet
the evidence that Edmundus arrived in the United States on May 1, 1996, even if credited,
established that he had not been continuously physically present for ten years before the
notices to appear were served on April 10, 2006, and that is the operative date. See 8 C.F.R.
§ 1003.23(b)(3). In addition, the Kauspadases give no reason why their new evidence was
not available earlier. Accordingly, based on the record before us, the IJ did not abuse his
discretion in denying the motion to reopen. Were we to reach the merits, we would deny
the petition for review.
We DISMISS the petition for lack of jurisdiction.
1
We also note that the Kauspadases did not argue to the IJ in their motion to reopen
that ineffective assistance of counsel jeopardized their cases. We therefore question whether
they have exhausted their administrative remedies, as is also required for our jurisdiction.
See 8 U.S.C. § 1252(d)(1).