In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2444
JOSE A. M UNOZ-P ACHECO ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A031-404-290.
A RGUED JANUARY 25, 2011—D ECIDED M ARCH 14, 2012
Before B AUER, P OSNER, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. The petitioner, a Mexican
citizen who has lived in the United States for many
years and is a lawful permanent resident of this country,
was ordered removed (deported) because of two Illinois
convictions for possessing and trafficking in cocaine.
He sought cancellation of removal, which the Attorney
General (actually the Board of Immigration Appeals, as
2 No. 11-2444
his delegate) may order if the applicant has been a
lawful permanent resident of the United States for at
least five years and has resided here for at least seven
years and has not been convicted of an aggravated
felony. 8 U.S.C. § 1229b(a). The petitioner satisfies
these prerequisites—even the last, because, as the parties
stipulated, although his two Illinois drug convictions
were for felonies, they were not aggravated felonies
within the meaning of section 1229b(a). See Carachuri-
Rosendo v. Holder, 130 S. Ct. 2577, 2589 (2010); Lopez v.
Gonzales, 549 U.S. 47, 60 (2006). But the Board denied
the application, affirming the immigration judge and
citing, as had the immigration judge, the petitioner’s
long history of arrests and convictions. He asks us to
vacate the denial of his application on the ground that
the Board ignored a critical mitigating factor.
Cancellation of removal is discretionary, and the
petition for review presents us with the recurring and
as yet not fully resolved issue of when a court of appeals
has jurisdiction to review a discretionary ruling in a
cancellation of removal proceeding, or in some other
proceeding seeking discretionary relief from removal.
The Board has ruled that the exercise of discretion in
these contexts requires a balancing of aggravating and
mitigating factors, and that one of the mitigating factors
that the Board must consider if asked to do so by the
applicant is hardship to members of the applicant’s
family. In re C-V-T, 22 I. & N. Dec. 7, 11 (BIA 1998);
Estrada v. Holder, 604 F.3d 402, 407 (7th Cir. 2010). The
petitioner’s parents, wife, and children all live in the
No. 11-2444 3
United States and are U.S. citizens, and they do not plan
to relocate to Mexico if the petitioner is sent back there.
There is uncontradicted testimony—which so far as we
can determine neither the Board nor the immigration
judge disbelieved—that the parents would be afraid to
visit the petitioner in his hometown in Mexico, to
which he will return if removed, because Mexico’s en-
demic drug-related violence is especially prevalent there.
The town is referred to in the record as “West Collantes.”
But as far as we’ve been able to determine, there is no
such town—neither a “West Collantes” nor a “Collantes”—
and certainly no such town that has “more than one
million people,” as the petitioner’s father testified. The
petitioner’s sister testified that the family’s hometown
“is a small hometown . . . called West Collantes.” In fact
the petitioner’s birthplace and that of his parents and
thus his and their hometown is Aguascalientes, which is
a big city—its population exceeds 600,000—and we are
guessing that “West Collantes” is a neighborhood of
Aguascalientes. There apparently is a great deal of
violence in Aguascalientes, even by Mexican standards.
See, e.g., U.S. Department of State, Bureau of Consular
Affairs, “Travel Warning: Mexico,” Feb. 8, 2012,
http://travel.state.gov/travel/cis_pa_tw/tw/tw_5665.html;
Hugo Martin, “U.S. Travel Warning on Mexico Is More
Precise on Violent Areas,” Los Angeles Times, Feb. 9, 2012,
p. B4, www.latimes.com/business/money/la-fi-mo-travel-
warning-20120209,0,3903495.story; Todd Bensman,
“Gunrunners’ Land of Plenty,” San Antonio Express-News,
Nov. 30, 2008, p. 1A, www2.mysanantonio.com/gun_run/
index.html; Alfredo Corchado, “More Mexicans Flee
4 No. 11-2444
to Texas,” Chicago Tribune, Oct. 15, 2009, p. C23,
http ://articles.chicagotribune.com /2009-10-15/new s/
0910150259_1_mexicans-drug-traffickers-flee (all visited
Mar. 3, 2012). Neither the Board nor the immigration
judge suggested that the petitioner could or should
relocate to a safer part of Mexico, if there is a safer part.
The immigration judge and the Board acknowledged
that forcing the petitioner to return to Mexico would
impose a hardship on his family, but the immigration
judge mentioned only in passing, and the Board not at all,
the hardship to the parents of being unable to visit the
petitioner because of the violent conditions in the
locale to which he’d be returning. We must decide
whether we have jurisdiction to review the Board’s
refusal to cancel the petitioner’s removal because of the
Board’s oversight, which possibly was the immigra-
tion judge’s as well. For while she mentioned the
testimony about the parents’ being deterred by fear of
violence from ever visiting the petitioner in Mexico, she
did not discuss the issue—did not say that it was or was
not a significant hardship, but only that in any event it
was, along with the other hardships testified to, out-
weighed by his formidable criminal record and other
negative factors, including a propensity (in tension
with the testimony about the hardship to his family if he
is sent back to Mexico) to domestic violence not fully
reflected in his lengthy record of arrests and convictions.
That this should be a question of our jurisdiction
rather than of the merits of the petition for review
derives from 8 U.S.C. § 1252(a)(2)(B), which read in con-
No. 11-2444 5
junction with subsection (D) precludes judicial review of
the denial of cancellation of removal unless the petition
presents “constitutional claims or questions of law.”
Subsection (B) is captioned “Denials of discretionary
relief,” and so we have to distinguish between a denial
of discretionary relief that is, and one that is not, based
upon a question of law presented to us (or a constitu-
tional claim, but the petitioner doesn’t make such a claim).
The usual standard of judicial review of discretionary
determinations is abuse of discretion or, the equivalent
term (see Morales v. Yeutter, 952 F.2d 954, 957-58 (7th Cir
1991); also EuroPlast, Ltd. v. NLRB, 33 F.3d 16, 17 n.* (7th
Cir. 1994)) used when the determination is made by an
administrative law judge or administrative agency
rather than by a district judge, lack of substantial
evidence on the record considered as a whole. Vahora v.
Holder, 626 F.3d 907, 912-13 (7th Cir. 2010); Milanouic v.
Holder, 591 F.3d 566, 571 (7th Cir. 2010); Floroiu v. Gonzales,
481 F.3d 970, 975-76 (7th Cir. 2007) (per curiam). Therefore
abuse of discretion cannot be a question of law within
the meaning of 8 U.S.C. § 1252(a)(2)(B), for then sub-
section (B) would have no force at all; the scope
of judicial review would be the same as it would be
if subsection (B) did not exist—substantial evidence on
the record considered as a whole.
Should it make a difference if the error complained of
consists in failing to consider a pertinent issue duly
raised by the party asking us to review the administrative
agency’s decision? Is such an error an error “of law”?
We said in Champion v. Holder, 626 F.3d 952, 956 (7th
Cir. 2010), that the petitioner’s “allegation that the BIA
6 No. 11-2444
ignored the evidence she presented concerning [her ex-
husband’s] potential deportation was a good faith claim
of legal error that we may review.” That’s been this
court’s consistent position, see Kiorkis v. Holder, 634
F.3d 924, 928-29 (7th Cir. 2011); Iglesias v. Mukasey, 540
F.3d 528, 530-31 (7th Cir. 2008); Huang v. Mukasey, 534
F.3d 618, 620 (7th Cir. 2008); Kucana v. Mukasey, 533 F.3d
534, 538-39 (7th Cir. 2008), reversed on other grounds
under the name Kucana v. Holder, 130 S. Ct. 827 (2010). It
has support in other circuits as well, see Alzainati v. Holder,
568 F.3d 844, 850 (10th Cir. 2009); Mocevic v. Mukasey, 529
F.3d 814, 817 (8th Cir. 2008) (per curiam); cf. Ramadan v.
Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam),
though others, disagreeing, confine “questions of law” to
claimed misinterpretations of statutes or precedents.
Ettienne v. Holder, 659 F.3d 513, 517 (6th Cir. 2011); Lutaaya
v. Mukasey, 535 F.3d 63, 69 (1st Cir. 2008); Arias v. Attorney
General, 482 F.3d 1281, 1284 (11th Cir. 2007) (per curiam);
Jarbough v. Attorney General, 483 F.3d 184, 189 (3d Cir. 2007).
The petitioner in Champion had sought cancellation
of removal to Nigeria on the basis of hardship, and a
major element of the alleged hardship—the element the
Board of Immigration Appeals overlooked—was that her
ex-husband, the father of her children, was also facing
removal to Nigeria. The removal of both parents would
have been an extreme hardship to the children because
they were going to remain behind in the United States
(or so the Board assumed). The father was a physician
and therefore, unless removed, “could conceivably
provide continued financial support” and “the two chil-
dren would likely have the companionship and assistance
No. 11-2444 7
of their father and two aunts, all of whom live either
with or near them.” 626 F.3d at 956. The Board
had ignored the fact that the father was in removal pro-
ceedings.
The question is not the relative gravity of the over-
sights in the two cases; it is the scope of our review of
such lapses. The key statement in the Champion opinion
is that “we lack jurisdiction over the BIA’s ultimate deter-
mination that Champion was ineligible for cancellation
of removal.” Id. (emphasis added). Discretion comes
into play when the Board has to balance the factors
that weigh in favor of removal against those, such as
hardship, that weigh against it. And while “the existence
of discretion implies a license to make mistakes,” since
“an exercise of official discretion is reversible by a court
only when the official can be said to have abused his
discretion, implying conduct not merely mistaken in
retrospect but unreasonable,” Brandt v. Board of Education,
480 F.3d 460, 468 (7th Cir. 2007), this presupposes that
discretion was exercised. Failure to exercise discretion
is not exercising discretion; it is making a legal mistake.
See Patel v. Holder, 563 F.3d 565, 568-69 (7th Cir. 2009);
Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008).
Overlooking relevant evidence is not exercising discre-
tion either; if you forget an appointment, you don’t
explain your forgetfulness by saying that you must
have been exercising discretion. Getting the facts back-
ward, as in Champion, or simply overlooking a fact
pressed on the Board by the applicant for cancellation
of removal, is an exercise not of discretion, but of laxity.
8 No. 11-2444
The statute could be better drafted—could for example
make clear, as indicated perhaps too briefly in the
second passage we quoted from Champion (“we lack
jurisdiction over the BIA’s ultimate determination that
Champion was ineligible for cancellation of removal”), that
what the courts can’t review is the Board’s weighing of
the factors pro and con cancellation of removal and
other discretionary relief. A statute which said that
would not be leaving, as the present statute does, an
unexplained gap between weighing pros and cons, which
the court can’t review, and answering questions of law,
which it can. Champion closed the gap by assimilating
failure to consider material factors to a mistake of law;
assuredly such a failure is not a weighing of pros and
cons, which is the essence of a discretionary judgment.
The petitioner hasn’t convinced us, however, that any
argument or evidence was overlooked. The immigration
judge was aware of the argument that violence in
Mexico would increase the hardship to the petitioner’s
family in America, especially his parents. She could
have been clearer. But she did recite the testimony of the
petitioner’s father that he believed the petitioner’s “re-
moval would present hardships to other family mem-
bers” and that “the hardships would mean the family
members not being able to see the [petitioner] for a
number of years.” More pointedly the petitioner’s sister
testified that “neither of the [petitioner’s] parents would
visit the [petitioner] in Mexico because of the violent
situation in that country.” The Board in its reference to
hardship cited the pages of the immigration judge’s
opinion that evinced her awareness of the argument.
No. 11-2444 9
It is apparent that both the judge and the Board were
heavily influenced by the petitioner’s formidable history
of criminal activities stretching over a period of 15 years,
which included not only drug felonies but also gun of-
fenses and a number of serious domestic batteries.
They did not think his criminal tendencies offset by
the hardship to his family. It would be nitpicking to
require the Board to dot every i and cross every t when
the direction of its thinking can be inferred with rea-
sonable confidence from the record and from what the
Board and the immigration judge did say.
The immigration judge and the Board considered
only the hardship to the parents of not being able (because
of their fear of violence) to visit their son in Mexico, and
not the hardship to the parents should they overcome
their fears, visit him, and be attacked by Mexican crim-
inals. The two arguments—hardship because they will
not visit him, and hardship because they will visit him
and get set upon by criminals—are inconsistent, and only
the first was pressed at the administrative level and
has support in the administrative record. Moreover, the
parents can avoid the second by embracing the first, the
lesser hardship of not seeing their son. That hardship the
administrative agency considered and found wanting,
and we cannot reverse its weighing of it against the con-
siderations favoring removal. Any error in failing to
mention the greater hardship was therefore harmless.
The petition for review is
D ENIED.
3-14-12