Immigration Removal Order.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: Haiyan Chen v. William P. Barr

Case No.: 19-2375

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Immigration Removal Order

Haiyan Chen, a citizen of China, entered the United States without inspection (that is, by stealth) in 2004. She was detected in 2010, and immigration officials opened removal proceedings. The charging document is called a "Notice to Appear," and a form with that caption was dated April 27, 2010. The form did not meet the statutory requirements for a Notice to Appear, however, because it omitted the time and place for a hearing. See 8 U.S.C. 1229(a)(1)(G)(i); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Immigration officials sent Chen a separate document, dated July 29, 2010, with that information. Chen appeared as ordered, and many other hearings followed. She asked for asylum, which an immigration judge denied on the ground that 8 U.S.C. 1158(a)(2)(B) gives aliens only one year after entering the United States to request that relief. The Board of Immigration Appeals dismissed her appeal on March 28, 2017, and we denied a petition for review. Chen v. Sessions, No. 17-1797 (7th Cir. Jan. 4, 2018) (nonprecedential).

In September 2018 Chen filed a motion asking the Board to reopen her case so that she could seek cancellation of removal, a remedy available to some aliens who have lived in the United States for a decade. She recognized that the motion was untimelya statute allows only 90 days after the Board's original decision, see 8 U.S.C. 1229a(c)(7)(C)(i)but asked for the benefit of equitable tolling. She also recognized that she had not sought cancellation of removal during the original proceedings, even though they continued past the tenth anniversary of her arrival. She contended that, until the Supreme Court issued Pereira in June 2018, neither she nor her lawyers recognized that she might be eligible for that relief. Pereira opened their eyes, and Chen contended that she should receive its benefit.

Exhaustion of administrative remedies provides an example. Exhaustion is a condition of judicial review in immigration cases, 8 U.S.C. 1252(d)(1), but not a subject within the scope of Chenery. When an alien fails to raise an issue on time, in the right way, or at all, before the Immigration Judge and the Board of Immigration Appeals, the court denies the petition for review under 1252(d)(1) without sending the proceeding back to ask the...