Jeannette Flowers v. Pamela J. Bondi

I.

Flowers, born in Belize City, Belize, unlawfully entered the United States nearly forty years ago, in 1987, at the age of eighteen. Flowers has, by all accounts, established a hard-working, family-centric life in Illinois. She is now a mother of five children, all of whom are United States citizens. Four of them, plus one of her grandchildren, live with her and depend on her as their caretaker. Flowers has maintained continuous employment since at least 2006 and she has never been convicted of a crime. Flowers was also her elderly father's primary caretaker.¹

In 2011, the United States Department of Homeland Security arrested Glen Gillett--Flowers's abusive former partner and the father of two of her children. Flowers was swept up in the raid and DHS charged her with being a removable alien. After DHS initiated removal proceedings, Flowers conceded that she was a removable alien but sought cancellation of removal under 8 U.S.C. § 1229b(b)(1).

II.

Given Flowers's concession of removability, an Immigration Judge ("IJ") concluded that she was removable and scheduled a hearing to consider her application for cancellation of removal.

At the hearing, a different IJ received and reviewed documentary evidence and testimony from Flowers, two of her children, her sister, and her employer. Flowers testified about her entry to the United States in 1987, the life she has built since then, and the many family members who relied on her. She explained that she is the primary caretaker for four of her children and that one of her grandchildren lives with her. Her youngest daughter, then-nine-years old, would have no alternative living situation if Flowers was removed. She explained that she was the sole caretaker for her youngest son, then-seventeen-years-old, who suffered from attention deficit hyperactivity disorder and had been skipping school, work, and counseling in favor of playing video games. Flowers's then-twenty-eight-year-old daughter and then-five- year-old granddaughter lived with her too and were at risk of homelessness should Flowers be removed. She also explained that she was the primary caretaker for her father who was in a nursing home.

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Flowers also testified about two incidents in which she falsely claimed to be a United States citizen. In 2001, she obtained a fake passport and used it to reenter the United States on her way back from a two-week trip to Belize. Then, in 2005, she told a border patrol agent that she was a United States citizen (but did not use the fake passport) at the U.S.-Mexico border. Flowers testified that Gillett traveled with her on both occasions and forced her to leave and reenter the country with him. Neither incident resulted in an arrest or conviction.

Two of Flowers's children, plus her sister, testified on her behalf. They described Flowers's loving care for her family and how her family depended on her. Her sister testified that Flowers was the primary caretaker of her father and children and confirmed that no one else was likely able to take care of her minor children. Flowers's employer testified that he hired Flowers back in 2006 and that she was a full-time employee in his Evanston, Illinois-based restaurant. Over the years, she occupied several roles in the restaurant. He testified that Flowers was "very caring, hardworking, and trustworthy."

After receiving this evidence, the IJ denied relief. The IJ recited the statutory factors that govern eligibility for cancellation of removal, see 8 U.S.C. § 1229b(b)(1), and then noted that Flowers also had to demonstrate that she deserved a favorable exercise of discretion, see id. § 1229a(c)(4)(A). Rather than evaluate the statutory eligibility factors, the IJ concluded that Flowers didn't merit a favorable exercise of discretion. In the IJ's view, Flowers's two false representations of citizenship back in 2001 and 2005 were too "abhorrent and serious" to ignore. The IJ acknowledged Flowers's long residency in the United States, her strong family and community ties, and her long history of employment. The IJ also mentioned (in the background section of its order) Flowers's contention that Gillet caused her to falsely claim citizenship. Even so, the IJ

"denie[d] her application for cancellation of removal as a matter of discretion."

Flowers appealed to the Board of Immigration Appeals, arguing that the IJ's decision failed to account for the role that Gillett's abuse played in her false claims of citizenship. The Board adopted the IJ's decision and affirmed the discretionary denial of relief, noting that the IJ mentioned Gillett's abuse and that the Board considered it too. The Board concluded that there was no need to resolve Flowers's eligibility for relief under the statute because Flowers did not show that she was entitled to a favorable exercise of discretion.

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Flowers then sought to reopen her immigration proceedings for two reasons. First, her child had filed an I-130 petition on her behalf (i.e., had begun the process of obtaining a family-based visa for her). Second, Flowers argued she qualified for relief because her youngest daughter had recently been diagnosed with ADHD. The Board denied her motion to reopen for two reasons. First, Flowers had not provided sufficient documentary support regarding the I-130 petition. Second, Flowers's admissions about having made false claims of citizenship precluded her eligibility for an adjustment of status.

Flowers timely sought review of both the denial of her application for cancellation of removal and the denial of her motion to reopen the proceedings. We consolidated her petitions.

III.

Because the Board adopted and affirmed the IJ's decision and provided its own analysis, we review both decisions. Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013). We review claims of legal error de novo, Meraz-Saucedo v. Rosen, 986 F.3d 676, 684 (7th Cir. 2021), but we review the denial of a motion to reopen for an abuse of discretion, Yusev v. Sessions, 851 F.3d 763, 766 (7th Cir. 2017). The denial of the motion to reopen will be upheld so long as the Board's decision was not "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Cruz-Velasco v. Garland, 58 F.4th 900, 904 (7th Cir. 2023). Our review of the denial of discretionary relief is "very limited." Patel v. Garland,

596 U.S. 328, 332 (2022). We can review constitutional and legal issues, Wilkinson v. Garland, 601 U.S. 209, 218 (2024) (citing 8 U.S.C. § 1252(a)(2)(D)), but we cannot review the decision to grant or deny discretionary relief, Patel, 596 U.S. at 337-38 (citing § 1252(a)(2)(B)(i)); Martinez-Baez v. Wilkinson, 986 F.3d 966, 976 (7th Cir. 2021). Flowers argues that the Board and the IJ erred by failing to analyze her statutory eligibility for cancellation of removal. Cancellation of a removal order is a two-step process involving both statutory eligibility for relief and an exercise of agency discretion. 8 U.S.C. § 1229a(c)(4)(A). In other words, "eligibility only gets a noncitizen so far" because she still "must persuade the immigration judge that [s]he merits a favorable exercise of discretion." Patel, 596 U.S. at 332. But this two-step process need not be followed sequentially. INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (per curiam).

"[I]f the judge decides that denial would be appropriate regardless of eligibility, the

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judge need not address eligibility at all." Patel, 596 U.S. at 332 (citing Bagamasbad, 429 U.S. at 25-26). Accordingly, there was no legal error in determining that Flowers did not warrant a favorable exercise of discretion without first resolving her statutory eligibility.

Flowers next argues that the Board and the IJ erred by ignoring evidence that she obtained the fake passport only due to Gillett's abuse. We lack jurisdiction to review the argument that the agency "failed to conduct a thorough review of the record," but we can consider whether the agency ignored "an entire swath of [pertinent] evidence."

Martinez-Baez, 986 F.3d at 976 (citations omitted). We understand Flowers to be trying to fit her challenge to fall into the latter category. The problem for her is that the IJ and the Board did consider her evidence of abuse but chose not to exercise its discretion in her favor. As a result, her argument boils down to the contention that the IJ and the Board gave her evidence insufficient weight—but we cannot resolve that dispute. Id.; Aparicio- Brito v. Lynch, 824 F.3d 674, 687 (7th Cir. 2016).

Flowers's last argument on appeal is that the Board erred by denying her petition to reopen because she did not provide sufficient evidence that her child filed an I-130 petition on her behalf.²But she does not address the Board's independently dispositive ruling that it would not reopen the proceedings because Flowers was ineligible for an adjustment of status. See 8 U.S.C. § 1182(a)(6)(C)(i), (ii)(I). By ignoring an independently dispositive reason that she lost below, Flowers has waived her challenge to the decision. See Bradley v. Vill. of Univ. Park, 59 F.4th 887, 897 (7th Cir. 2023). Nor has Flowers argued that her new evidence (of the I-130 Petition and her child's ADHD diagnosis) should have been considered by the Board when it exercised its discretion. In any case, Flowers has not shown that the Board's decision lacked a rational basis, departed from existing policies, or rested on an impermissible basis. Cruz-Velasco, 58 F.4th at 904. Waiver aside, we find no legal error in the Board's decision.

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We close with a final observation. It became clear at oral argument that Flowers's appeal mostly comes down to her belief that the IJ and the Board exercised their discretion unfairly. We are not unsympathetic to Flowers's predicament. As the IJ recognized, Flowers has a decades-long track record of being a law-abiding, hard- working, family-supporting, upstanding member of the community who overcame an

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abusive relationship. But Congress has stripped us of the authority to second-guess discretionary denials of relief, no matter our view of the merits. As counsel for the respondent noted at oral argument, it appears that Flowers's last option may depend on prosecutorial discretion.

For these reasons, Flowers's Petitions for Review are DENIED.

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