Johnson v. Mukasey
Decision Date | 01 October 2008 |
Docket Number | No. 08-1126.,08-1126. |
Citation | 546 F.3d 403 |
Parties | Samuel B. JOHNSON, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent. |
Court | U.S. Court of Appeals — Seventh Circuit |
Samuel B. Johnson, Baton Rouge, LA, pro se.
Thomas B. Fatouros, Jeffrey R. Meyer, Terri J. Scadron, Anh-Thu P. Mai, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before POSNER, ROVNER, and WOOD, Circuit Judges.
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 common, 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 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) ( ); 8 C.F.R. § 1003.2(b)(1) ( ); 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 reconsider, 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 constitutional 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 jurisdiction.
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 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 Immigration 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, 540 F.3d 528 (7th Cir.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.2006) (same); Oh v. Gonzales, 406 F.3d 611, 613-14 (9th Cir.2005) (same). So if the Board denied a motion to reconsider 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.
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