In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-1448 & 04-3471

JOSE MARTINEZ-MALDONADO,

Petitioner,

v.

ALBERTO R. GONZALES,

United States Attorney General,

Respondent.

____________

On Petitions for Review of Orders of

The Board of Immigration Appeals.

No. A76-774-223

____________

ARGUED JANUARY 4, 2006—DECIDED FEBRUARY 10, 2006

____________

Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.

CUDAHY, Circuit Judge. Jose Martinez-Maldonado, a

native and citizen of Mexico, appeals from the Board of

Immigration Appeals’ (BIA) denial of his appeal from the

Immigration Judge’s (IJ) denial of removal as well as the

denial of his subsequent motion to reopen and reconsider.

Because we lack jurisdiction of this appeal, we dismiss.

I. Background

Jose Martinez-Maldonado entered the United States in

1996 as a non-immigrant visitor from Mexico and was

authorized to remain in the United States for six months.
2 Nos. 04-1448 & 04-3471

Œ On March 1, 2002, the INS ceased to exist as an independent

agency and the Department of Homeland Security assumed its

functions.

However, he did not return to Mexico as required. During

his time in the United States, Martinez-Maldonado and

his wife, Maria B. Hernandez (a non-U.S. citizen), built

a comfortable life. Martinez-Maldonado obtained a job

at Breanne Inc. in Palatine, Illinois, where he earned

$940 per week. He and his wife resided in Palatine, Illinois,

with his father and three children. Two of the minor

children, Pablo (DOB 7/11/98) and Paula (DOB 8/29/00), are

United States citizens, since they were born in the United

States.

In 1998 Martinez-Maldonado filed an application for

permanent resident status with the Immigration and

Naturalization Service (INS).Œ However, when his application was reviewed by the INS, it was determined

that he was not eligible for permanent resident status

and that he had been in the United States unlawfully.

Consequently, he was served with a notice of removal

proceedings under section 237(a)(1)(B) of the INA, 8 U.S.C.

§ 1227(a)(1)(B), as a non-immigrant alien who had remained longer than permitted. Martinez-Maldonado

initially sought cancellation of removal based upon “exceptional and extremely unusual hardship” to his citizen minor

children.

An evidentiary hearing was held at which MartinezMaldonado testified. He presented information about his

children, his job and his family. His wife resides in the

United States without permission. His children are in

good health and speak Spanish. His oldest daughter, Maria

Jose, is nine years old and arrived in the United States in

1997 with Martinez-Maldonado’s wife. His middle child,

Pablo, is four years old and does not yet attend school. His
Nos. 04-1448 & 04-3471 3

youngest child, Paula Beatriz, is two years old and does not

yet attend school. His only relative (besides his children and

wife) living in the United States is his 71-year-old father

who resides in the United States without permission. His

mother, sister, brother and cousins reside in Mexico. He

also owns a three-bedroom house in Mexico. In the United

States, Martinez-Maldonado owns a time-share in Florida

and two automobiles.

After the completion of the evidentiary hearing, the IJ

on September 27, 2002, denied Martinez-Maldonado’s

application for cancellation because he failed to establish

that his children would suffer exceptional or extremely

unusual hardship if they were removed to Mexico. The

judge did, however, allow Martinez-Maldonado to voluntarily depart the United States. Martinez-Maldonado

appealed the judge’s decision to the BIA on October 28,

2002. On January 26, 2003, the BIA affirmed the judge’s

decision without opinion.

On February 25, 2004, Martinez-Maldonado filed a

motion with the BIA to reopen and reconsider. He argued

that the BIA improperly affirmed without separate opinion because the IJ was incorrect factually and legally

in finding that Martinez-Maldonado could find gainful

employment in Mexico. He argued that the immigration

judge should have taken judicial notice of the extreme

unemployment and depressed economy in Mexico. MartinezMaldonado also argued that his deportation would lead to

the “de-facto deportation of his daughters.” Further, he

believed that he was able to show that his deportation

would lead to irreparable hardship for his children, and he

referred the BIA to two exhibits attached to his motion.

This was additional evidence not presented before the

immigration judge. The evidence was in the form of an

assessment by a clinical psychologist stating that deportation of the petitioner “would have a significant financial,

emotional, and enduring psychological negative effect” on
4 Nos. 04-1448 & 04-3471

Martinez-Maldonado’s children. Martinez-Maldonado also

sought our review of the BIA’s underlying decision on the

same day.

On August 26, 2004, the BIA denied petitioner’s motion to

reopen and reconsider. The BIA found that petitioner failed

to demonstrate any error of fact or law in its prior decision.

It rejected petitioner’s argument that the BIA’s decision to

affirm without separate opinion was barred by the regulations (citing 8 C.F.R. § 1003.2(b)(3)).

Additionally, the Board denied Martinez-Maldonado’s

motion to reopen based on new evidence. The Board

found that Martinez-Maldonado’s evidence of psychological reports discussing petitioner’s role in and relationship with his family did not include a curriculum vitae

or evidence of professional credentials of the reporting

psychologist. The BIA further found that MartinezMaldonado failed to establish that these reports, or similar reports, were unavailable and could not have been

discovered or presented during proceedings before the IJ, as

required by 8 C.F.R. § 1003.2(c)(1). Finally, the BIA found

that the reports did not describe any additional hardships

that would be encountered by Martinez-Maldonado’s United

States citizen children beyond those considered in the

decision of the IJ and by the initial BIA decision. On

September 23, 2004, Martinez-Maldonado sought review by

this court of the rejection of the motion to reopen and the

underlying BIA decision.

II. Discussion

We are only able to decide this case on the merits if

we have jurisdiction over this appeal. The government

argues that we lack jurisdiction to review the BIA’s initial

denial of Martinez-Maldonado’s appeal from the IJ’s

decision denying cancellation of removal as well as the

BIA’s decision to deny his motion to reopen and reconsider.
Nos. 04-1448 & 04-3471 5

The decision whether to cancel an alien’s removal pursuant

to § 1229b(b)(1) is left to the Attorney General’s discretion.

Leyva v. Ashcroft, 380 F.3d 303, 305 (7th Cir. 2004);

Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir. 2003).

Section 1229b(b)(1) requires that in order for an alien to

receive cancellation of removal, he must: (1) be continuously

present for ten years prior to being served with a notice to

appear; (2) display good moral character; (3) not have been

convicted of specified offenses; and (4) demonstrate that

removal would “result in exceptional and extremely unusual

hardship to the alien’s spouse, parent, or child, who is a

citizen of the United States or an alien lawfully admitted

for permanent residence.” 8 U.S.C § 1229b(b)(1) (2000).

The IJ found that Martinez-Maldonado met the first three

requirements, but that he was not able to show that his

United States citizen children would suffer exceptional or

extremely unusual hardship as a result of his removal. The

BIA affirmed this decision without opinion, thus providing

the Attorney General’s final judgment denying relief under

§ 1229b. Kharkhan, 336 F.3d at 604. The BIA subsequently

denied Martinez-Maldonado’s motion to reopen and reconsider. After considering the government’s argument, we

agree that we are not able to reach the merits here because

we lack jurisdiction over this appeal. The statute that limits

our jurisdiction, 8 U.S.C. § 1252(a)(2)(B)(I), provides “no

court shall have jurisdiction to review . . . any judgment

regarding the granting of relief under section . . . 1229b

[cancellation of removal] of this title.” This provision,

together with its companion provision, 8 U.S.C.

§ 1252(a)(2)(B)(ii), bars judicial review of all discretionary

decisions of the Attorney General made in immigration

cases, with a few exceptions, such as asylum cases.

Our Court and others have confirmed that the application

of this statute strips us of jurisdiction in discretionary

cancellation of removal cases. See, e.g., Leyva v. Ashcroft,
6 Nos. 04-1448 & 04-3471

380 F.3d 303, 305 (7th Cir. 2004) (“The meaning of 8 U.S.C.

§ 1252(a)(2)(B)(I) is clear: we may not review the Attorney

General’s judgment regarding whether or not to grant

cancellation of removal under 8 U.S.C. § 1229b(b)(1)”);

Kharkhan v. Ashcroft, 336 F.3d 601, 604 (7th Cir. 2003);

Pilch v. Ashcroft, 353 F.3d 585, 587 (7th Cir. 2003) (“The

thing under review is the agency’s final decision, not the

language of its opinion; and if the final decision is to

withhold certain discretionary remedies, that’s the end . . .

. we lack jurisdiction whether or not the agency made a

factual or legal error on the way to decision.”). See also

Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003)

(Court “lack[s] jurisdiction to review the BIA’s discretionary

determination that an alien failed to satisfy the ‘exceptional

and extremely unusual hardship’ requirement for cancellation of removal”); Gonzalez-Oropeza et al. v. Ashcroft, 321

F.3d 1331, 1332-33 (11th Cir. 2003) (“the exceptional and

extremely unusual hardship determination is a discretionary decision not subject to review”).

Martinez-Maldonado attempts to get around this jurisdictional limitation by arguing that his case can be distinguished in three key ways from those cited above. First, he

argues that even if this court does not have jurisdiction over

the initial BIA decision, it does have jurisdiction over the

BIA’s decision to deny Martinez-Maldonado’s motion to

reopen and reconsider. He cites Singh v. Gonzales, 404 F.3d

1024 (2005) in support of this contention. However, he fails

to discuss a significant factor distinguishing his case from

Singh. In Singh, we did not find that we lacked jurisdiction

over the underlying order; here, we do. We have earlier held

that we lack jurisdiction over motions to reopen and

reconsider in cases where we lack jurisdiction to review the

underlying order. See Dave v. Ashcroft, 363 F.3d 649, 652

(7th Cir. 2004); Nwaokolo v. INS, 314 F.3d 303, 306 (7th

Cir. 2002) (per curiam) (“Ms. Nwaokolo’s motion to reopen

is part and parcel of her deportation proceedings”); Chow v.
Nos. 04-1448 & 04-3471 7

INS, 113 F.3d 659, 664 (7th Cir. 1997) (an order of deportation includes “orders denying motions to reconsider and

reopen”), abrogated on other grounds by LaGuerre v. Reno,

164 F.3d 1035, (7th Cir. 1998).

Other Circuits have come to the same conclusion. See,

e.g., Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir.

2004) (“Only where judicial review of the underlying

order is precluded is denial of a subsequent motion to

reopen also precluded.”); Patel v. United States Att’y Gen.,

334 F.3d 1259, 1261 (11th Cir. 2003) (holding that when

jurisdiction over final order is precluded, court lacked

jurisdiction to review orders denying motions to reopen

such final orders); Rodriguez v. Ashcroft, 253 F.3d 797, 800

(5th Cir. 2001) (“It is axiomatic that if we are divested of

jurisdiction to review an original determination of the

Board that an alien has failed to establish that he

would suffer extreme hardship if deported, we must also be

divested of jurisdiction to review the Board’s denial of a

motion to reopen on the ground that the alien has still

failed to establish such a hardship.”); Sarmadi v. INS, 121

F.3d 1319, 1322 (9th Cir. 1997) (“where Congress explicitly

withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to

reopen deportation proceedings is thereby likewise withdrawn”). Since we do not have jurisdiction to hear the

underlying discretionary hardship issue in MartinezMaldonado’s case, we also do not have jurisdiction to hear

his appeal of the BIA’s decision to deny his motion to reopen

and reconsider.

Martinez-Maldonado further argues that this court has

jurisdiction to consider his challenge to the BIA’s procedure

in affirming without opinion (AWO) the decision of the IJ.

Martinez-Maldonado argues that because he is challenging

not the merits of the BIA decision, but instead the BIA’s

decision to follow the AWO process, we have jurisdiction.

However, when the BIA decides whether or not to stream-
8 Nos. 04-1448 & 04-3471

line a case using the AWO process, the members of the BIA

analyze the IJ’s decision to determine if the decision is

correct, if the factual situation is novel or if any errors were

harmless. See 8 C.F.R. § 1003.1(e)(4). We would have to

invoke a similar analysis of the IJ’s decision in order to

determine if the streamlining factors were appropriately

applied, but we lack jurisdiction to engage in a merits

analysis of the IJ’s decision. Thus, because we lack jurisdiction to review the IJ’s decision on the merits of the hardship

claim, we necessarily lack jurisdiction to review the Board’s

decision to affirm without opinion. See Dave v. Ashcroft, 363

F.3d 649, 653 (7th Cir. 2004) (“[Dave’s] claim that the BIA

violated due process by streamlining his appeal would face

a separate jurisdictional bar, one that prevents us from

reviewing the merits of an IJ’s discretionary decision to

deny an application for cancellation of removal.”). See also

Falcon Carriche et al. v. Ashcroft, 335 F.3d 1009, 1017-18

(9th Cir. 2003) (“To assess whether streamlining was

appropriate, we would necessarily be engaged in a merits

analysis of the hardship claim. Because we lack jurisdiction

to review the merits of the IJ’s discretionary decision

regarding the ‘exceptional and extremely unusual hardship’

requirement—the only aspect of the cancellation of removal

decision at issue in [this case]—we are also without jurisdiction to evaluate whether streamlining was appropriate.”).

Finally, Martinez-Maldonado argued, in his briefs, that

this Court has jurisdiction to remand his case for a new and

complete review of his application based on the class action

settlement in Ramos et al. v. Ridge, et al, Case No. 02 C

8266. This settlement agreement arose from claims that the

Chicago District Office of the INS did not follow the law and

its own regulations when it used information obtained by

aliens petitioning for permanent residence and adjustment

of status to place these applicants into removal proceedings.

This agreement allows class members to apply to the

United States Immigration and Customs Enforcement (ICE)
Nos. 04-1448 & 04-3471 9

to exercise discretionary review to dismiss removal proceedings against the class members. Martinez-Maldonado

argued that the settlement agreement should constitute the

last agency action and, since it changed the position of the

agency regarding his application, we should find that it

controls, and remand the case for review. However, we

cannot even get to the question of whether the settlement agreement would have constituted the latest

agency action because before oral argument the ICE

informed Martinez-Maldonado that it had decided to decline

invoking its prosecutorial discretion in his case to dismiss

the removal proceedings against him. At oral argument,

Martinez-Maldonado conceded that he could no longer

argue that the settlement agreement changed the position

of the agency favorably to him in such a way that this court

should remand his case based on the agreement. The

prosecutorial discretion exercised by the ICE is not at issue

in this appeal and is not reviewable by us, according to the

settlement agreement.

Martinez-Maldonado fails to distinguish his case from

well-established case law supporting the conclusion that we

do not have jurisdiction to review this appeal.

Petition for review dismissed for lack of jurisdiction.
10 Nos. 04-1448 & 04-3471

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-10-06