Ahmed v. Ashcroft, No. 03-2620.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Posner
• Citation: 388 F.3d 247
• Parties: Nuradin AHMED, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Decision Date: 26 October 2004
• Docket Number: No. 03-2620.

388 F.3d 247 Nuradin AHMED, Petitioner,
v.
John ASHCROFT, Attorney General of the United States, Respondent. No. 03-2620. United States Court of Appeals, Seventh Circuit. Argued October 1, 2004. Decided October 26, 2004.

Petition for review from the Board of Immigration Appeals.

Page 248

Marian S. Ming (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Chicago, IL, Jennifer Paisner, Thomas Tousley (argued), Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and BAUER and POSNER, Circuit Judges.

POSNER, Circuit Judge.

An immigration judge ordered Nuradin Ahmed removed (deported). He appealed to the Board of Immigration Appeals, which affirmed without an opinion. Rather than petition for judicial review Ahmed moved the Board to reconsider its decision. 8 C.F.R. § 1003.2(b). The motion was materially identical to the brief he had filed in his appeal to the Board. The Board denied the motion on the ground that Ahmed "failed to specifically identify any error, either factual or legal, in our prior decision, and instead reiterates arguments already considered by this Board. Therefore, we decline to reconsider our prior decision." Ahmed asks us to reverse the denial of reconsideration. It is much too late for him to ask us to reverse the Board's original order, affirming the immigration judge; the filing of a motion for reconsideration does not toll the time for seeking judicial review of the order of which reconsideration is sought. Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 542-43 (9th Cir. 2004); De Jimenez v. Ashcroft, 370 F.3d 783, 788-89 (8th Cir.2004); Zhang v. INS, 348 F.3d 289, 292 and n. 2 (1st Cir.2003); cf. Patel v. Ashcroft, 378 F.3d 610, 612 (7th Cir.2004).

The Board's explanation for denying the petition for reconsideration leaves something to be desired; indeed, it appears to be a piece of boilerplate mindlessly affixed to a case to which it's irrelevant. The Board having affirmed the immigration judge without issuing an opinion and thus without giving any reason for its action, Ahmed could hardly have "specifically identif[ied] any error, either factual or legal, in [the Board's] prior decision [i.e., the affirmance of the immigration judge]," other than to repeat the arguments in his appeal brief. Maybe the Board meant by its "prior decision" the immigration judge's decision. But, if so, it was mistaken. Although it had affirmed that decision without issuing an opinion and by doing so had, as it stated in its order, made his decision the "final agency determination," this was not an adoption of the immigration judge's decision. "Such an order approves the result reached in the decision below; it

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does not necessarily imply approval of all of the reasoning of that decision, but does signify the Board's conclusion that any errors in the decision of the immigration judge or the Service were harmless or nonmaterial." 8 C.F.R. § 1003.1(e)(4)(ii).

Despite the Board's bobble, no useful purpose would be served by vacating the denial of reconsideration and remanding the case for further consideration. As it was and is obvious that the motion for reconsideration would be denied, the Board's error in articulating the ground for denial was harmless.

To be within a mile of being granted, a motion for reconsideration has to give the tribunal to which it is addressed a reason for changing its mind. Such a motion "is a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked." In re Cerna, 20 I. & N. Dec. 399, 402 n. 2 (BIA 1991); see also Zhang v. INS, supra, 348 F.3d at 293. Therefore it "shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority." 8 C.F.R. § 1003.2(b)(1).

This is not a special rule for immigration cases; it is the rule governing motions for reconsideration in general. A motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind. It's as if the movant, when he appealed, had filed two copies of his appeal brief, and when his appeal was rejected asked us to read the second copy. "Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). "The repetition of...