* Counsel for the parties waived argument, and thus the appeal is submitted

on the briefs and the record. See F ED

. R. A PP

. P. 34(a)(2)

. 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 29, 2008 *

Decided February 22, 2008

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 07

‐ 1516

MIGUEL FLORES

‐ ARADILLAS,

Petitioner

,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals

No. A75

‐ 826

‐ 581

O R D E R

Miguel Flores

‐ Aradillas, a citizen of Mexico, entered the United States in 1988 on

a tourist visa and has lived in this country ever since. In 2006 the Department of

Homeland Security began removal proceedings against Flores

‐ Aradillas based on his

visa overstay and an Illinois conviction for possession of ecstacy. An immigration judge NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07-1516 Page 2

ordered Flores

‐ Aradillas removed to Mexico and denied his application for cancellation

of removal because of the drug conviction. The Board of Immigration Appeals affirmed

the IJ’s decision. Flores

‐ Aradillas petitions for review, arguing that he was denied due

process because the IJ (1) refused to grant him cancellation of removal and (2) never

told him that he might be eligible for voluntary departure. We dismiss the petition for

lack of jurisdiction.

In 1988, when he was eight years old, Flores

‐ Aradillas crossed the Mexican

border on a tourist visa that permitted him to remain in the United States until June

1989. But he did not leave the United States when his visa expired. In 2000, Flores

‐

Aradillas was convicted in an Illinois court of possessing ecstacy and sentenced to two

years’ probation. He later married a United States citizen and fathered a child, though

he is now divorced.

In September 2006 authorities issued a Notice to Appear and a warrant for

Flores

‐ Aradillas’s arrest. The notice warned him that the Department of Homeland

Security believed he was removable based on his visa overstay and his drug conviction.

The parties appeared before an IJ three times during October and early November, but

each time counsel for Flores

‐ Aradillas requested additional time to prepare and

obtained a continuance.

In requesting the third continuance, counsel told the IJ that he intended to move

for adjustment of status and file an application for cancellation of removal. The IJ

agreed to accept any application for relief that Flores

‐ Aradillas wanted to submit, but

warned counsel that it was his “burden to establish” that Flores

‐ Aradillas’s ecstacy

conviction did not make him ineligible for whatever relief he sought. The IJ then reset

the matter for November 15, 2006, and told counsel to submit any application for relief

by that date. Counsel told the IJ that he would “prepare a bare bones application and

move to supplement at a subsequent hearing,” and the IJ replied that he wasn’t “asking

for anything but an application,” though counsel would need to discuss whether Flores

‐

Aradillas was eligible for relief under the statutes. The IJ then personally addressed

Flores

‐ Aradillas and stated that he would give his lawyer “an opportunity to file the

applications and make any arguments relating to eligibility before we set your case

down for a hearing.” Three days later counsel submitted an application for cancellation

of removal, in which he disclosed the 2000 drug conviction.

When the matter was reconvened on November 15, the IJ noted that Flores

‐

Aradillas did not appear to be statutorily eligible for cancellation of removal because ofNo. 07-1516 Page 3

the drug conviction and asked counsel to present any argument to the contrary. But

counsel (a different lawyer but from the same firm) was not prepared to address that

question, and instead presented a motion to subpoena the medical records of Flores

‐

Aradillas’s ex

‐ wife. Counsel asserted that the records contained information necessary

to supplement the application for cancellation of removal, but the IJ observed that the

information counsel wanted was irrelevant to whether Flores

‐ Aradillas’s drug

conviction precluded relief. The IJ thus denied the motion and, because of the drug

conviction, also denied Flores

‐ Aradillas’s application for cancellation of removal.

Finally, the IJ ordered Flores

‐ Aradillas removed to Mexico because he had overstayed

his visa by 17 years and because of his ecstacy conviction.

Flores

‐ Aradillas appealed the IJ’s decision to the Board of Immigration Appeals,

arguing that the IJ had erred in concluding that his drug conviction made him ineligible

for cancellation of removal. The BIA affirmed without opinion, making the IJ’s decision

the final agency determination. Flores

‐ Aradillas now seeks review in this court.

Because Flores

‐ Aradillas is removable based on his drug conviction, see 8 U.S.C.

§ 1227(a)(2)(B)(I), our jurisdiction to review the final order of removal is limited. See 8

U.S.C. § 1252(a)(2)(C); Rosales

‐ Pineda v. Gonzales

, 452 F.3d 627, 629 (7th Cir. 2006). We

may consider only constitutional claims and questions of law. See 8 U.S.C. §

1252(a)(2)(D); Hernandez

‐ Alvarez v. Gonzales

, 432 F.3d 763, 765 (7th Cir. 2005).

Flores

‐ Aradillas presents two constitutional arguments. First, he argues that he

was denied due process “when the Immigration Judge refused to accept the Petitioner’s

application for cancellation.” The short answer is that Flores

‐ Aradillas misrepresents

the record: the IJ did accept his application for cancellation of removal and denied that

application on the merits. Specifically, the IJ held that Flores

‐ Aradillas did not qualify

for cancellation of removal because he had been convicted of an offense listed in 8

U.S.C. § 1227(a)(2) and because his drug conviction also prevented him from

establishing his good moral character. See 8 U.S.C. § 1229b(b)(1); Gill v. Ashcroft

, 335

F.3d 574, 575 (7th Cir. 2003).

It may be that Flores

‐ Aradillas really means to argue that the IJ in effect refused to

accept his application for cancellation of removal by not giving him more time to gather

support for it. Flores

‐ Aradillas suggests that the associate who stood in for his lawyer

on November 15 was blindsided and unprepared because, he insists, the IJ never

previously warned counsel that he should be prepared to present argument onNo. 07-1516 Page 4

cancellation of removal at that time. And because counsel lacked sufficient notice,

Flores

‐ Aradillas continues, he was denied a “proper opportunity to argue his eligibility

for relief violating his opportunity for a fair removal hearing.” But here again Flores

‐

Aradillas misrepresents the record. The IJ had warned counsel that Flores

‐ Aradillas

bore the burden of showing he was statutorily eligible for relief, and had scheduled the

November 15 hearing specifically to address whether his drug conviction might

preclude discretionary relief altogether. Thus counsel should not have sent his associate

unprepared to address the conviction and its effect on Flores

‐ Aradillas’s eligibility for

cancellation of removal. More importantly, Flores

‐ Aradillas does not say what more

time would have accomplished; in this court he does not even assert that the IJ was

wrong to conclude that he has a disqualifying drug conviction, see 8 U.S.C.

§ 1227(a)(2)(B)(i), so he cannot seriously contend that the IJ’s handling of the matter

denied him due process. See Rehman v. Gonzales

, 441 F.3d 506, 509 (7th Cir. 2006)

(rejecting due process claim where record did not show that outcome would change if IJ

had given alien more time to submit evidence); Ambati v. Reno

, 233 F.3d 1054, 1061

‐ 62

(7th Cir. 2000) (holding that IJ’s denial of continuance did not violate alien’s right to due

process where there was no evidence that more time would have altered outcome).

In any event, even if Flores

‐ Aradillas had a colorable argument that the IJ kept

him from applying for cancellation of removal, we lack jurisdiction to entertain the

argument because he did not exhaust his administrative remedies. See 8 U.S.C. §

1252(d)(1); Pjetri v. Gonzales

, 468 F.3d 478, 481 (7th Cir. 2006); Hadyat v. Gonzales

, 458

F.3d 659, 665 (7th Cir. 2006). Flores

‐ Aradillas neglected to make a due process

argument before the BIA, instead choosing to attack the IJ’s conclusion that his ecstasy

conviction barred him from cancellation of removal. We have observed that the only

exception to the rule that petitioners must first present claims to the BIA is the case in

which the BIA cannot adequately resolve the issue, for instance when the petitioner

makes a “fundamental constitutional claim.” Pjetri

, 468 F.3d at 481; Feto v. Gonzales

, 433

F.3d 907, 912 (7th Cir. 2006). Flores

‐ Aradillas makes a constitutional claim, but it does

not fall within the scope of this exception because where “a due process argument is

based on procedural failings that the BIA is capable of addressing, the petitioner must

exhaust his or her remedies at the BIA before bringing a claim in this court.” Pjetri

, 468

F.3d at 481. The alleged due process violation identified by Flores

‐ Aradillas is precisely

the type of procedural failing that the BIA is well

‐ equipped to address—the BIA could

have simply remanded the case to the IJ with instructions to hold another hearing, for

instance. See Sharashidze v. Gonzales, 480 F.3d 566, 569

‐ 70 (7th Cir. 2007); Pjetri

, 468 F.3d

at 481. Flores

‐ Aradillas did not exhaust this due process claim, which means that we

cannot review it. See 8 U.S.C. § 1252(d)(1).No. 07-1516 Page 5

The same holds true for Flores

‐ Aradillas’s second argument, that as a matter of

due process the IJ was required to inform him that he might be eligible for voluntary

departure. It is doubtful that this argument could succeed on the merits: the IJ stated

without objection from counsel that Flores

‐ Aradillas had not requested and was not

eligible for any other form of relief, and that comment was probably sufficient to meet

the IJ’s notification responsibilities under 8 C.F.R. § 1240.11(a)(2). See Pede v. Gonzales

,

442 F.3d 570, 571 (7th Cir. 2006) (holding that where IJ made preliminary finding that

alien was not eligible for voluntary departure and attorney did not object, any error in

failing to notify alien of possible relief was harmless). Regardless, we have specifically

held that a petitioner cannot bypass the BIA and come directly to this court with a claim

that an IJ’s failure to notify him about voluntary departure denied him due process. See

Pjetri

, 468 F.3d at 481. Accordingly, Flores

‐ Aradillas failed to exhaust his administrative

remedies concerning this claim as well, and we lack jurisdiction to consider it. See 8

U.S.C. § 1252(d)(1).

Because we have jurisdiction to hear only constitutional claims and questions of

law, and because Flores

‐ Aradillas failed to exhaust his constitutional claims before the

BIA, we DISMISS his petition for lack of jurisdiction.