Jose Jesus Contreras Ortiz v. Merrick B. Garland

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 11, 2024 *
Decided September 13, 2024
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-3271
JOSE JESUS CONTRERAS ORTIZ,
Petitioner,
v.
MERRICK B. GARLAND,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A205-830-127
O R D E R
An immigration judge (“IJ”) denied Jose Jesus Contreras Ortiz’s application for
cancellation of removal. The IJ found that Conteras Ortiz was not statutorily eligible for
cancellation of removal and, even if he were eligible, he would not merit relief as a
matter of discretion. The Board of Immigration Appeals upheld the IJ’s discretionary
decision without addressing eligibility. Contreras Ortiz now petitions for review, but
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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because he does not raise a question of law, we lack jurisdiction over his petition and
must dismiss it.
Contreras Ortiz is a Mexican citizen who entered the United States in
September 1994, at age 16. In February 2015 the Department of Homeland Security
charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the
United States without being admitted or paroled. Contreras Ortiz conceded that he was
subject to removal and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
The immigration judge denied relief, first finding that Contreras lacked good
moral character and therefore did not meet the statutory requirements for cancellation
of removal. See 8 U.S.C. § 1229b(b)(1)(B). The IJ noted that Contreras Ortiz had been
charged with driving under the influence of alcohol three times since 2010 and that,
each time, his blood alcohol content was significantly above the legal limit. The IJ also
observed that the third arrest occurred after removal proceedings were initiated.
Contreras Ortiz had pleaded guilty to the first two charges and told the IJ that he
intended to plead guilty to the third charge.
The IJ further concluded that, even if Contreras Ortiz were statutorily eligible for
cancellation of removal, he did not merit a favorable exercise of discretion because of
his criminal record. The IJ determined that the severity of his criminal history (which
also included a public-intoxication conviction and a probation violation) and lack of
successful rehabilitation from alcoholism outweighed any favorable factors, such as his
long-term residency in the United States, his record of working and paying taxes, and
his longstanding support of his mother (a lawful permanent resident) and six children
(all United States citizens). After denying Contreras Ortiz’s application, the IJ found that
he was eligible for voluntary departure and granted that relief. As a condition of his
voluntary departure, Contreras Ortiz was required to pay a departure bond within five
business days, but he did not.
On appeal the Board of Immigration Appeals upheld the IJ’s determination that
Contreras Ortiz did not merit a favorable exercise of discretion and dismissed his
appeal. The Board also denied a motion to remand for adjustment of status, which
Contreras Ortiz had submitted while his appeal was pending. In that motion he argued
that he was eligible to adjust his status on two grounds. First, his adult son, a United
States citizen, had received preliminary approval of an I-130 petition for him; this
permits an eligible relative of a citizen to apply to immigrate to the United States and
request permanent residency. See 8 U.S.C. § 1255(i). But, the Board concluded, Contreras
Ortiz did not make a prima facie case of eligibility. Second, he claimed he was the

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derivative beneficiary of an approved visa petition his aunt had filed on behalf of his
mother in April 2001. See 8 U.S.C. §§ 1101(b)(1), 1153(d), 1255(i). But only persons under
age 21 can be derivative beneficiaries, and he was 22 when his aunt filed the petition. In
any event, the Board explained, it would deny relief as a matter of discretion based on
his criminal history. Finally, the Board did not reinstate the voluntary departure period
because Contreras Ortiz did not submit proof that he had paid the bond; the Board
therefore ordered him removed.
Contreras Ortiz raises only two arguments in his petition for review: (1) that he
meets the qualifications for cancellation of removal and warranted a favorable exercise
of discretion; and (2) that his case should have been remanded for adjudication of his
son’s immediate-relative visa petition. By raising only these two arguments, he has
waived any challenge to the rulings on voluntary departure or the visa petition from
2001. See Porosh v. Garland, 56 F.4th 1120, 1125 (7th Cir. 2023).
As for the arguments before us, we cannot address them because the challenged
decisions were based on discretion. We generally “lack jurisdiction to review ‘any
judgment regarding the granting of relief under section … 1229b,’ which includes
cancellation of removal.” Ndlovu v. Garland, 99 F.4th 997, 998 (7th Cir. 2024) (quoting
8 U.S.C. § 1252(a)(2)(B)(i)). We have jurisdiction under § 1252(a)(2)(D) to review
constitutional claims or questions of law raised in a petition for review of a § 1229b
determination. See 8 U.S.C. § 1252(a)(2)(D). But Contreras Ortiz argues only that the
Board (and IJ) did not place enough weight on his positive factors, which plainly
challenges the Board’s discretionary ruling on cancellation. See Ndlovu, 99 F.4th at 999.
We also lack jurisdiction over Contreras Ortiz’s challenge to the Board’s denial of
his motion to remand. The Board explained that, even if Contreras Ortiz were eligible
for adjustment of status, his application for legal residency would be denied for the
same discretionary reasons he did not warrant cancellation of removal. We lack
jurisdiction to review a denial of adjustment of status based on discretionary factors
except when the petitioner raises a constitutional or legal question. See Kithongo v.
Garland, 33 F.4th 451, 455 (7th Cir. 2022). Contreras Ortiz raises no such issue, and
appealing the denial of his remand motion is not a way to obtain review of the Board’s
decision that adjustment of status is foreclosed. See Reynoso v. Garland, 108 F.4th 919, 924
(7th Cir. 2024). Therefore, we lack jurisdiction to review the Board’s decision that
Contreras Ortiz would not be entitled to an adjustment of status or any factual findings
that informed its discretionary decision. See Patel v. Garland, 596 U.S. 328, 347 (2022).
The petition is DISMISSED.

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