# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 5, 2010

Decided November 23, 2010

Before

WILLIAM J. BAUER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 10

‐ 1761

BERALY ESTRADA, Petition for Review of an Order of the

Petitioner, Board of Immigration Appeals

v. No. A 073 545 195

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

O R D E R

Beraly Estrada, a Guatemalan citizen, petitions for review of an order of the Board of

Immigration Appeals denying her motion to reopen removal proceedings. The Board did

not abuse its discretion in denying the motion, so we deny the petition for review.

Estrada entered the United States illegally in 1993 and has lived here for the past 17

years. She initially applied for asylum, claiming that she feared returning to Guatemala

because of the country’s then

‐ ongoing civil war. An immigration judge denied her

application in March 1997 but granted her six months to depart the United States

voluntarily. Estrada appealed. Nearly five years later, in 2002, the Board affirmed the IJ’s

decision and gave her an additional month to depart, warning that if she failed to leave the NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 10

‐ 1761 Page 2

United States by the deadline, the voluntary

‐ departure order would automatically become a

deportation order that would prevent her from applying for certain types of immigration

relief (including permanent residency) for five years. See 8 U.S.C. § 1229c(d).

Estrada ignored the voluntary

‐ departure deadline, and in 2008 immigration officials

found and detained her. The government eventually placed her on supervised release and

scheduled her for removal on March 1, 2010. One month before her scheduled removal,

Estrada notified the Board that she had married a Cuban citizen in 1997 and moved to

reopen her case so that she could adjust her status under the Cuban Adjustment Act, Pub. L.

No. 89

‐ 732, 80 Stat. 1161 (1966). The Act allows (as relevant here) non

‐ Cuban citizens who

marry Cuban nationals to seek lawful permanent residency in the United States based on

their marriage. Estrada acknowledged that her motion was untimely but argued that

exceptional circumstances merited reopening. Specifically, she pointed out that she and her

husband had established a life in the United States (including raising a daughter, owning a

home, and running a successful day

‐ care business), and she argued that denying her motion

would expose her to exceptional hardship. Estrada also asked the Board to exercise its

discretion to reopen the case sua sponte

.

The Board denied Estrada’s motion to reopen, reasoning that she had made the

request long after the expiration of the 90

‐ day filing deadline, and that no exception to this

rule excused the motion’s untimeliness. The Board also refused to reopen the proceedings

sua sponte

.

On appeal, Estrada challenges both of the Board’s decisions and further argues that

the denials amount to a violation of due process. She first argues that the Board abused its

discretion in denying the motion because it did so without giving any reason consistent

with the Cuban Adjustment Act. But the Board did give a reason; it denied the motion

because Estrada gave no legal basis to justify filing the motion 8 years after the 90

‐ day filing

deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i). Estrada suggests that the 90

‐ day filing deadline

should not apply to her because the Cuban Adjustment Act provides a route to permanent

residency “independent” of the Immigration & Nationality Act. This argument is frivolous;

the Cuban Adjustment Act is codified as a historical note to 8 U.S.C. § 1255, which

comprises § 245 of the INA.

Estrada next argues that, even though she filed her motion to reopen many years

late, the Board nonetheless should have reopened her case sua sponte based on her

“exceptional situation.” She asserts that her family ties and her eligibility to seek permanent

residency under the Cuban Adjustment Act are exceptional circumstances that the Board

failed to consider. The government responds by arguing that we lack jurisdiction toNo. 10

‐ 1761 Page 3

consider the question because the Board has unfettered discretion to decide whether or not

to reopen a case sua sponte

.

Before the Supreme Court’s decision in Kucana v. Holder

, 130 S. Ct. 827, 834 (2010), we

had held that “failure to reopen sua sponte is a discretionary decision that is unreviewable.”

Pilch v. Ashcroft

, 353 F.3d 585, 586 (7th Cir. 2003). In Kucana the Supreme Court “express[ed]

no opinion on whether federal courts may review the Board’s decision not to reopen

removal proceedings sua sponte. ” 130 S. Ct. 827, 839 n.18. One of our post

‐ Kucana cases

, took a different approach; we assumed—without reference to Pilch or the relevant part of

Kucana— that we had jurisdiction to review an IJ’s refusal to reopen a case sua sponte and

concluded that the IJ did not abuse her discretion in denying the sua sponte motion to

reopen. Munoz de Real v. Holder

, 595 F.3d 747, 750 (7th Cir. 2010). We later acknowledged

the potential conflict between Munoz and Pilch

, but concluded that we need not “decide

whether sua sponte decisions are reviewed for abuse of discretion (as we assumed in Munoz )

or are not reviewable at all (as we held in [ Pilch ], on the theory that there is no law to

apply).” Kocev v. Holder

, 365 F. App’x 707, 708 (7th Cir. 2010) (nonprecedential)

.

Here too, it is unnecessary for us to resolve the potential conflict. Even if we assume

that we could review sua sponte decisions of the Board for abuse of discretion, the standard

most favorable to aliens, we would deny Estrada’s petition. She has not demonstrated

exceptional circumstances to merit reopening. To the contrary, she married her husband 5

years before the Board issued its merits decision in 2002, and she did not seek reopening

until 2010—when authorities detained her and scheduled her for removal. That her

removal will affect her business or separate her from her family is not exceptional; such a

scenario reflects a risk that she took by living in the United States for 17 years without valid

authorization.

Estrada fares no better on her argument that the Board’s denial of the motion to

reopen violated her right to due process by preventing her from applying for permanent

residency under the Cuban Adjustment Act. To establish that the Board’s refusal to grant

her motion to reopen violated her right to due process, Estrada needs to demonstrate that

the decision “likely affected the result of the proceedings.” See Alimi v. Gonzales

, 489 F.3d

829, 834 (7th Cir. 2007). Estrada asserts that she qualifies for permanent residency under the

Cuban Adjustment Act, and that the Board’s decision prejudiced her ability to pursue that

form of relief. But at this point, Estrada’s eligibility for residency is merely speculative

because she has not produced any documentation to show that she has filed an application

or that one has been granted. And even if Estrada’s eligibility for permanent residency

upon reopening were undisputed, the relief she is seeks is discretionary, see Khan v.

Mukasey

, 517 F.3d 513, 517 (7th Cir. 2008), and “the due process clause does not require the

Board to reopen or reconsider cases previously decided or otherwise provide forNo. 10

‐ 1761 Page 4

discretionary relief,” Zamora

‐ Mallari v. Mukasey

, 514 F.3d 679, 694 (7th Cir. 2008). Since

Estrada cannot show prejudice sufficient to sustain a due

‐ process claim, and since her

arguments regarding the motion to reopen are without merit, we DENY the petition for

review.