In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1781
CLAUDIA MELESIO‐RODRIGUEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the Board of Immigration Appeals.
No. A075‐877‐715
____________________
ARGUED FEBRUARY 15, 2018 — DECIDED MARCH 7, 2018
____________________
Before BAUER, FLAUM, and MANION, Circuit Judges.
MANION, Circuit Judge. An immigration judge ordered Pe‐
titioner Claudia Melesio‐Rodriguez removed to Mexico be‐
cause she had committed multiple controlled‐substance of‐
fenses. Petitioner accepted the removal order as final and
waived her right to appeal it. Nevertheless, she almost simul‐
taneously appealed to the Board of Immigration Appeals and
filed a motion for reconsideration with the immigration
2 No. 16‐1781
judge. Petitioner never asked us to review the Board’s dismis‐
sal of her first appeal. This petition challenges the Board’s
eventual dismissal of her reconsideration appeal.
Petitioner principally argues that she did not knowingly
and intelligently waive her appeal rights in the initial hearing.
But because Petitioner is a criminal alien and the waiver ques‐
tion is factual in nature, we lack jurisdiction to answer it un‐
der 8 U.S.C. § 1252(a)(2)(C). That leaves us with no choice but
to dismiss her petition.
I. Background
Petitioner was brought to the United States from Mexico
as a child. She became a lawful permanent resident on De‐
cember 7, 1998, when she was 19. However, she was convicted
of battery and attempted possession of cocaine in 2003 and of
attempted burglary in 2013. As a result, the Department of
Homeland Security took Petitioner into custody on June 27,
2014, and served her with a Notice to Appear in removal pro‐
ceedings. DHS charged not only that Petitioner was remova‐
ble as an alien convicted of a controlled‐substance violation
under 8 U.S.C. § 1227(a)(2)(B)(i), but also that she had failed
to disclose a cocaine‐possession conviction that occurred be‐
fore she was granted permanent resident status.
Petitioner’s case was referred to an immigration judge,
who granted several continuances to afford her an oppor‐
tunity to find counsel. Nevertheless, she appeared before the
judge pro se by video conference from jail on September 11,
2014. Petitioner admitted her Mexican birth and previous con‐
victions, and so the immigration judge found that she was re‐
movable based on the nature of her offenses. The judge also
No. 16‐1781 3
advised Petitioner that due to her controlled‐substance of‐
fenses, she was ineligible for adjustment of status or cancella‐
tion of removal. However, the judge noted that Petitioner was
eligible to apply for protection based on a legitimate fear of
persecution or torture in Mexico.
At her next hearing on September 30, Petitioner repre‐
sented that she was afraid to return to Mexico. But when the
immigration judge explained that, to be eligible for protec‐
tion, Petitioner’s fear had to be based on a protected charac‐
teristic, Petitioner told the judge she did not wish to apply for
protection. Instead, Petitioner expressed interest in applying
for a U‐visa, a status change for which she was potentially el‐
igible because she had been the victim of domestic violence.
The judge informed Petitioner that only United States Citizen‐
ship and Immigration Services had jurisdiction over the U‐
visa process. Since Petitioner had indicated that she didn’t
want to apply for any kind of relief the judge could grant, the
judge indicated that he would be issuing an order of removal
and asked if Petitioner understood. She said she understood
“really clearly” and confirmed twice that she wished to accept
the order as final rather than reserve an appeal. The judge
then entered a written removal order reflecting that both par‐
ties had waived appeal.
Petitioner then retained counsel and, on October 6, filed a
motion to reconsider the immigration judge’s ruling and a re‐
quest for stay of removal. She argued that (1) the immigration
judge had not fully apprised her of her rights in the removal
proceeding; (2) one of her convictions was not a “conviction”
for immigration purposes; (3) she was eligible for a U‐visa; (4)
she feared torture in Mexico; and (5) the removal proceedings
were unfair and violated the Fifth and Eighth Amendments.
4 No. 16‐1781
After the previous immigration judge retired, a new judge
granted a stay of removal, but eventually denied the motion
on November 4, 2015. The new judge rejected all Petitioner’s
arguments, concluding that the proceedings were fair, she
was given an opportunity to obtain counsel, knowingly and
intelligently waived her appellate rights, and declined to ap‐
ply for protection from torture. With respect to the U‐visa, the
judge noted that there was nothing to reconsider as no appli‐
cation had been filed at the time of the original decision and,
in any event, immigration courts lack jurisdiction over U‐visa
applications.
At the same time she was pursuing the motion to recon‐
sider, Petitioner also appealed the initial removal order to the
Board of Immigration Appeals. She argued in her appeal that
the judge erred by not further continuing her case to allow her
to retain counsel and not permitting her to fill out various ap‐
plications for protection. Petitioner also claimed that the pro‐
ceedings violated due process and that the judge erred in
finding her removable. The Board dismissed the appeal on
December 10, 2014, holding that Petitioner had waived her ap‐
peal rights by accepting the judge’s decision as final. Peti‐
tioner did not file a petition for judicial review in this court.
Finally, on March 15, 2016, the Board dismissed Peti‐
tioner’s appeal of the denial of her motion to reconsider. The
Board adopted the immigration judge’s decision and found,
on de novo review, that Petitioner knowingly and intelligently
waived her appeal rights in the initial proceeding. Further, the
Board said that most of the legal issues Petitioner raised were
not properly before it because they could have been raised in
the initial proceedings. Petitioner then filed a petition for ju‐
dicial review.
No. 16‐1781 5
II. Analysis
Because Petitioner is a criminal alien, 8 U.S.C. §
1252(a)(2)(C) significantly limits our jurisdiction. We may
only review “constitutional claims or questions of law” pre‐
sented in a criminal alien’s petition for review. Id. §
1252(a)(2)(D); see also Sharashidze v. Mukasey, 542 F.3d 1177,
1178 (7th Cir. 2008). That presents a significant problem for
Petitioner. In order to overcome her waiver of appeal rights,
she would have to show that it was not knowingly and intel‐
ligently made. But that is not a question of law, but rather a
fact‐intensive inquiry. See Henderson v. DeTella, 97 F.3d 942,
946 (7th Cir. 1996) (“Whether a petitioner actually waived his
Miranda rights, and whether he did so freely, knowingly, and
intelligently, are fact‐dependent issues … .”). Therefore, we
lack the authority to disturb the Board of Immigration Ap‐
peals’ finding that Petitioner knowingly and intelligently
waived her appeal rights.1
The fact that Petitioner waived her right to appeal is fatal
to our jurisdiction over the entire petition. But even if she
hadn’t waived her appeal rights, none of her other arguments
have been properly presented to this court. Petitioner has pe‐
titioned only from the dismissal of her appeal of the denial of
her motion for reconsideration. Such a petition “presents only
1 We also cannot consider Petitioner’s argument, made for the first time
here, that the Board’s waiver regulations are ultra vires. See Arobelidze v.
Holder, 653 F.3d 513, 517 (7th Cir. 2011) (the obligation to exhaust admin‐
istrative remedies “usually forecloses a petitioner from raising an issue in
federal court that was not raised before the immigration tribunal.”). And
even if we could, it would be unavailing. United States v. Worthen, 842 F.3d
552, 554 (7th Cir. 2016) (“Generally speaking, appeal waivers are enforce‐
able and preclude appellate review.”).
6 No. 16‐1781
the denial of the motion to reopen,” not the initial removal
decision. Ajose v. Gonzales, 408 F.3d 393, 394–95 (7th Cir. 2005).
Motions for reconsideration “‘are not replays of the main
event’ and should not be used to argue what was or could
have been raised on an initial appeal.” Shaohua He v. Holder,
781 F.3d 880, 882 (7th Cir. 2015) (quoting Khan v. Holder, 766
F.3d 689, 696 (7th Cir. 2014)). Petitioner claims that: (1) she’s
not removable because her initial cocaine‐related conviction
isn’t a “conviction” for immigration purposes; and (2) her in‐
itial hearing wasn’t fairly conducted. She could have raised
both of these arguments in an initial appeal and a petition to
this court. But she neglected to file such a petition, so she “has
waived any arguments [s]he might have made to challenge
the only decision over which we have jurisdiction.” Id.
III. Conclusion
For the foregoing reasons, the petition for review is
DISMISSED.