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United States Court of Appeals, Seventh Circuit.

Jose Luis RODRIGUEZ, Petitioner, v. Jeffrey A. ROSEN, Acting Attorney General, Respondent.

No. 20-2190

Decided: December 29, 2020

Before Frank H. Easterbrook, Circuit Judge, Diane P. Wood, Circuit Judge, Michael B. Brennan, Circuit Judge Matthew Scott Kriezelman, Attorney, Kriezelman Burton & Associates, Chicago, IL, for Petitioner Neelam Ihsanullah, Attorney, Anthony Cardozo Payne, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent


Jose Luis Rodriguez has been ordered removed to Mexico, his native country. He asked for cancellation of removal on the ground that a change of nations would cause hardship to his five-year-old daughter, a citizen of the United States. See 8 U.S.C. § 1229b(b)(1)(D). Both an immigration judge and the Board of Immigration Appeals rejected that request, ruling that petitioner does not meet the statutory standard: “exceptional and extremely unusual hardship to ․ [a] child, who is a citizen of the United States”. The sorts of economic and social hardships that petitioner asserts are ordinary, the IJ and BIA concluded, rather than “exceptional and extremely unusual”.

Petitioner contends in this court that the Board did not “properly consider[ ] the hardship factors.” By this he appears to mean that the Board rendered a substantively incorrect decision. But 8 U.S.C. § 1252(a)(2)(B)(i) forecloses judicial review of such an argument. A proviso in 8 U.S.C. § 1252(a)(2)(D) allows our correction of legal errors, but the Board did not commit one. Petitioner observes that the Board did not mention and analyze all of the many factors arguably pertinent to cancellation of removal. Yet no rule of law requires an administrative adjudicator to traipse mechanically through lists of factors. We have held that the Board must consider arguments presented to it, see Champion v. Holder, 626 F.3d 952, 956 (7th Cir. 2010), but the Board's opinion shows that it understood and resolved the argument that petitioner was making.

Petitioner also contends that the agency should have dismissed the proceeding because the notice to appear, which was issued in August 2011, omitted a date for the initial hearing and was therefore defective under the holding of Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). If petitioner had brought this error to the agency's attention in a timely manner, perhaps it would indeed have dismissed the proceeding (though the agency instead might have fixed the problem, once it had been flagged). But petitioner did not protest in 2011. He duly appeared for the initial hearing, which a separate notice had set for April 2013, and did not complain about the defect until July 31, 2018. The Board held that this lengthy delay forfeited any opportunity to object.

That decision has the support of Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019), which holds that a flaw in the notice to appear is a problem in the administration of a claims-processing rule, not a jurisdictional defect requiring the dismissal of a removal proceeding. The benefit of claims-processing rules can be waived or forfeited. See also Chen v. Barr, 960 F.3d 448 (7th Cir. 2020). Given Ortiz-Santiago and Chen, the Board did not abuse its discretion in holding that petitioner waited too long to raise the issue. He tells us that, until the Supreme Court decided Pereira, it was impossible for aliens to raise this issue, but we rejected that very argument in Ortiz-Santiago, Chen, and other decisions, such as United States v. Manriquez-Alvarado, 953 F.3d 511 (7th Cir. 2020). Because petitioner has forfeited whatever benefit Pereira offers, we need not hold this proceeding for the Supreme Court's decision in Niz-Chavez v. Barr, No. 19–863 (argued Nov. 9, 2020), in which the alien timely raised an issue about combining two documents to make one valid notice to appear; there is no forfeiture problem in Niz-Chavez.

The petition for review is denied to the extent it contends that the removal proceeding should have been closed and is dismissed for lack of jurisdiction to the extent it seeks review of the order denying petitioner's request for cancellation of removal.

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Docket No: No. 20-2190

Decided: December 29, 2020

Court: United States Court of Appeals, Seventh Circuit.

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