Appellate Law

Seventh Circuit Lacks Jurisdiction To Hear Illegal Immigrant?s Due Process Claim

By Steven R. Merican

When she was still a teenager living in Guatemala, Aura Chavez-Vasquez?s uncle was kidnapped from her home. Aura was raped, and her life was threatened. Then 17 in 1991, Aura left her home and entered the United States as an illegal immigrant.

Aura was living in Missouri with her two children when her illegal residency status was discovered. She was turned over to the Department of Homeland Security, which initiated a removal proceeding against her.

At the administrative hearing, Aura asked for her removal to be canceled. But the Immigration Judge ruled that she carried the day on only three of four required elements. She did not, the IJ ruled, prove that her removal would cause her American-born children ??exceptional and extremely unusual hardship.?? So her request to cancel the removal was denied.

Aura appealed that decision to the Bureau of Immigration Appeals, which upheld the IJ?s decision. Aura then appealed the Bureau?s decision to the Seventh Circuit Court of Appeals. In the Seventh Circuit, Auro argued that her due process rights were violated because (1) the IJ?s decision was not sufficiently thorough and (2) the IJ did not consider her evidence of the conditions in Guatemala.

The Seventh Circuit Court of Appeals ruled that it did not have jurisdiction to hear the first due process argument because it was not raised in the appeal to the Bureau.

As a threshold matter, we lack jurisdiction to resolve this issue because Ms. Chavez-Vasquez did not exhaust her administrative remedies ? She did not raise her due process argument before the BIA. We may not hear an unexhausted claim unless it presents an issue that the BIA cannot decide adequately such as a claim involving ?fundamental constitutional violations.? ? Ms. Chavez-Vasquez's due process claim is ?based on procedural failings that the BIA is capable of addressing.? ? The BIA was capable of correcting any procedural errors made by the IJ; if warranted, the BIA could have simply remanded the case to the IJ with instructions to hold a longer, more comprehensive hearing ? Because Ms. Chavez-Vasquez did not exhaust the due process claim, we cannot review it ?

The court disposed of Aura?s second argument by characterizing it as a complaint that the IJ did not give sufficient weight to Aura?s evidence. ?Because this argument does not present a question of law, we lack jurisdiction to entertain it.?

Read the whole opinion, Chavez-Vasquez v. Mukasey, No. 08-1652 (12/8/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on January 06, 2009 (boomark / email).