Samuel Johnson v. Michael Mukasey ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1126
S AMUEL B. JOHNSON,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A91-405-136
S UBMITTED A UGUST 21, 2008—D ECIDED O CTOBER 1, 2008
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The petitioner, originally a lawful
permanent resident of the United States, was ordered
removed because of a drug conviction. That was in 1996.
In 2006, the order not having been executed (as is com-
mon, because of the limited resources of the immigration
authorities, in cases in which the illegal alien is not a
criminal), he was still in the United States and he filed a
motion both to reopen the removal proceeding and to
2 No. 08-1126
reconsider the order of removal. A motion to reopen
presents new facts bearing on the decision to remove the
alien, while a motion to reconsider points to errors in that
decision. 8 C.F.R. § 1003.2(c)(1) (motion to reopen must
“state the new facts that will be proven”); 8 C.F.R.
§ 1003.2(b)(1) (motion to reconsider “shall state the
reasons for the motion by specifying the errors of fact or
law in the prior Board decision”); Mungongo v. Gonzales,
479 F.3d 531, 534 (7th Cir. 2007); Patel v. Gonzales, 442
F.3d 1011, 1015-16 (7th Cir. 2006); Socop-Gonzalez v. INS,
272 F.3d 1176, 1180 n. 2 (9th Cir. 2001) (en banc).
The Board of Immigration Appeals denied the alien’s
motion and a similar motion that he filed the following
year. He then filed a third motion to reopen and recon-
sider, but this one was addressed not to the order of
removal but to the denial of his second motion. The Board
denied the third motion as untimely because filed six
weeks after the deadline for filing it, and he has petitioned
us to set aside the denial. Because (as we shall see) he
does not present a question of law or a colorable con-
stitutional claim, the denial of his motion, so far as it seeks
reopening, is outside our jurisdiction to review. Kucana v.
Mukasey, 533 F.3d 534 (7th Cir. 2008). But we have not
had occasion to consider whether the discretionary denial
of a motion to reconsider is similarly outside our juris-
diction.
The Immigration and Nationality Act provides, with
an immaterial exception, that no court has jurisdiction
to review an immigration ruling by either the Attorney
General or the Secretary of Homeland Security “the
No. 08-1126 3
authority for which is specified under this subchapter to
be in the discretion of [either of those officials].” 8 U.S.C.
§ 1252(a)(2)(B)(ii). We held in Ali v. Gonzales, 502 F.3d
659 (7th Cir. 2007), and repeated in Kucana, that the
statute applies to discretionary decisions authorized by
regulations that are based on and implement the Immigra-
tion and Nationality Act, as well as by the Act itself. The
regulation that we cited in Kucana as satisfying these
requirements, 8 C.F.R. § 1003.2(a), applies both to motions
to reopen and to motions to reconsider. So far as the
discretionary character of rulings on such motions is
concerned, 8 C.F.R. § 1003.2(a) provides that the Board
of Immigration Appeals’ “decision to grant or deny a
motion to reopen or reconsider is within the discretion of
the Board, subject to the restrictions of this section.” See,
e.g., Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir. 2008);
Vasquez-Salazar v. Mukasey, 514 F.3d 643, 645 (6th Cir. 2008)
(per curiam); Mungongo v. Gonzales, supra, 479 F.3d at 534;
Lenis v. Attorney General, 525 F.3d 1291, 1294 (11th Cir.
2008).
But an error of law, or denial of a constitutional right,
committed in the course of denying a motion to reopen
is judicially reviewable, and likewise such an error or
denial committed in the course of denying a motion to
reconsider. See 8 U.S.C. § 1252(a)(2)(D) (both exceptions);
Iglesias v. Mukasey, No. 07-2910, 2008 WL 3877302, at *2
(7th Cir. Aug. 22, 2008) (motion to reopen); Huang v.
Mukasey, 534 F.3d 618, 620 (7th Cir. 2008) (same); Fadiga v.
Attorney General, 488 F.3d 142, 153-54 (3d Cir. 2007) (same);
Atunnise v. Mukasey, 523 F.3d 830, 836-37 (7th Cir. 2008)
(motion to reconsider); Wu v. INS, 436 F.3d 157, 164 (2d Cir.
4 No. 08-1126
2006) (same); Oh v. Gonzales, 406 F.3d 611, 613-14 (9th Cir.
2005) (same). So if the Board denied a motion to recon-
sider because it thought the deadline was 10 days rather
than 30 days, 8 C.F.R. § 1003.2(b)(2), we would have
jurisdiction to vacate the Board’s denial. But this is not
such a case.
The 30-day deadline expired, as we said, six weeks before
the petitioner filed his motion. He argues that the Board
should have equitably tolled the deadline, as it indeed
had the power to do. Gao v. Mukasey, 519 F.3d 376, 377 (7th
Cir. 2008); Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir.
2008); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 845 (9th Cir.
2006); see Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir.
2005); In re Calderon Gutierrez, A91 534 876, 2008 WL
3861940 (BIA July 9, 2008); In re Uche, A72 309 946, 2008 WL
2938454 (BIA July 2, 2008); In re Maknojiya, A78 567 316,
2005 WL 3709280 (BIA Dec. 28, 2005); In re Medina-Herrera,
A29 331 428, 2005 WL 698554 (BIA Feb. 10, 2005). But a plea
to allow an untimely filing requires the tribunal to which
the plea is addressed to weigh intangibles of delay (here,
as a practical matter, eleven years, since the goal of the
alien’s repeated motions to reopen and reconsider is to
quash the removal order), reliance, diligence, excuse, and
prejudice. Gao v. Mukasey, supra, 519 F.3d at 377; Gaberov v.
Mukasey, supra, 516 F.3d at 594; Pervaiz v. Gonzales, supra,
405 F.3d 488, 490; Cada v. Baxter Healthcare Corp., 920 F.2d
446, 451 (7th Cir. 1990); Mendez-Alcaraz v. Gonzales, supra,
464 F.3d at 845. There is no suggestion that the Board
misunderstood the legal standard for equitable tolling; “the
governing rules of law are undisputed.” Viracacha v.
Mukasey, 518 F.3d 511, 516 (7th Cir. 2008). That ends the
No. 08-1126 5
case, because only pure questions of law are reviewable,
and not the application of a legal standard to fact, when a
discretionary determination by the Board is challenged
in court. Cevilla v. Gonzales, 446 F.3d 656, 662 (7th Cir.
2006). The alien’s quarrel is with the application, not the
standard. The petition for review is therefore
D ISMISSED.
10-1-08