Claudia Melesio-Rodriguez v. Jefferson B. Sessions III

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16‐1781 CLAUDIA MELESIO‐RODRIGUEZ, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A075‐877‐715 ____________________ ARGUED FEBRUARY 15, 2018 — DECIDED MARCH 7, 2018 ____________________ Before BAUER, FLAUM, and MANION, Circuit Judges. MANION, Circuit Judge. An immigration judge ordered Pe‐ titioner Claudia Melesio‐Rodriguez removed to Mexico be‐ cause she had committed multiple controlled‐substance of‐ fenses. Petitioner accepted the removal order as final and waived her right to appeal it. Nevertheless, she almost simul‐ taneously appealed to the Board of Immigration Appeals and filed a motion for reconsideration with the immigration 2 No. 16‐1781 judge. Petitioner never asked us to review the Board’s dismis‐ sal of her first appeal. This petition challenges the Board’s eventual dismissal of her reconsideration appeal. Petitioner principally argues that she did not knowingly and intelligently waive her appeal rights in the initial hearing. But because Petitioner is a criminal alien and the waiver ques‐ tion is factual in nature, we lack jurisdiction to answer it un‐ der 8 U.S.C. § 1252(a)(2)(C). That leaves us with no choice but to dismiss her petition. I. Background Petitioner was brought to the United States from Mexico as a child. She became a lawful permanent resident on De‐ cember 7, 1998, when she was 19. However, she was convicted of battery and attempted possession of cocaine in 2003 and of attempted burglary in 2013. As a result, the Department of Homeland Security took Petitioner into custody on June 27, 2014, and served her with a Notice to Appear in removal pro‐ ceedings. DHS charged not only that Petitioner was remova‐ ble as an alien convicted of a controlled‐substance violation under 8 U.S.C. § 1227(a)(2)(B)(i), but also that she had failed to disclose a cocaine‐possession conviction that occurred be‐ fore she was granted permanent resident status. Petitioner’s case was referred to an immigration judge, who granted several continuances to afford her an oppor‐ tunity to find counsel. Nevertheless, she appeared before the judge pro se by video conference from jail on September 11, 2014. Petitioner admitted her Mexican birth and previous con‐ victions, and so the immigration judge found that she was re‐ movable based on the nature of her offenses. The judge also No. 16‐1781 3 advised Petitioner that due to her controlled‐substance of‐ fenses, she was ineligible for adjustment of status or cancella‐ tion of removal. However, the judge noted that Petitioner was eligible to apply for protection based on a legitimate fear of persecution or torture in Mexico. At her next hearing on September 30, Petitioner repre‐ sented that she was afraid to return to Mexico. But when the immigration judge explained that, to be eligible for protec‐ tion, Petitioner’s fear had to be based on a protected charac‐ teristic, Petitioner told the judge she did not wish to apply for protection. Instead, Petitioner expressed interest in applying ...

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