WHITEFOOT v. BARR (2020)

Order

More than three years after the entry of a final removal order, Radica Whitefoot asked the Board of Immigration Appeals to reopen her proceedings and grant cancellation of removal, see 8 U.S.C. § 1229b, on the basis of ten years’ presence in the United States plus the Supreme Court’s opinion in Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), which according to Whitefoot shows that the Notice to Appear that began the removal proceeding is invalid.

The Board stated that, even if it were willing to accept an untimely motion (a question it did not resolve), it would not afford Whitefoot any relief. It gave two reasons: first, that Pereira does not make Whitefoot eligible for cancellation of removal; second, that even if Whitefoot were eligible, she would not receive that benefit because she has not shown that her removal would cause the necessary degree of hardship to a qualifying relative in the United States.

Whitefoot’s petition for review addresses only the first of these issues. Yet someone who loses on two grounds must contest both, because otherwise a legal ruling on the sole contested ground is just an advisory opinion that cannot affect the outcome. Moreover, we have held that the Board’s hardship rulings with respect to petitions under § 1229b are not subject to judicial review. See Cruz-Moyaho v. Holder, 703 F.3d 991 (7th Cir. 2012). (We recognize that Whitefoot’s brief mentions this subject at page 10, but it neither develops an argument nor explains how review would be compatible with Cruz-Moyaho.)

Even if the eligibility aspect of the Board’s decision were open to review independent of the hardship aspect, Whitefoot could not benefit. We held in Chen v. Barr, 960 F.3d 448 (7th Cir. 2020), that an alien who delays making an argument about the adequacy of the Notice to Appear until a motion to reopen had forfeited whatever benefit Pereira might have offered.

The petition for review is denied.