Mungongo v. Gonzales

• Decision Date: 15 March 2007
• Docket Number: No. 06-1635.,06-1635.
• Citation: 479 F.3d 531
• Parties: Martina L. MUNGONGO, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

479 F.3d 531

Martina L. MUNGONGO, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-1635.

United States Court of Appeals, Seventh Circuit.

Argued January 4, 2007.

Decided March 15, 2007.

Farah M. Jean-Simon (argued), Kearns & Associates, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Mary J. Candaux, Jennifer L. Lightbody (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Martina Mungongo asks us to review the Board of Immigration Appeals' ("BIA" or "Board") denial of her motion to reconsider an earlier denial of a motion to reopen her removal proceedings. For the reasons set forth in this opinion, we must deny her petition.

I BACKGROUND

A.

Ms. Mungongo is a native and citizen of Tanzania. She came to the United States, with her family, in 1994 on a Fulbright Fellowship. She overstayed her visa and, in 1998, was served with a notice to appear before an Immigration Judge ("IJ"). At her removal hearing, Ms. Mungongo admitted removability, but sought asylum and withholding of removal. She testified that, in Tanzania, she had been denied promotions in the medical field because of her refusal to join the Chama Cha Mapinduzi Revolutionary Party, the ruling party in Tanzania. She also claimed that she feared sexual advances by her superiors because they had made such overtures to her in the past. The IJ found that Ms. Mungongo had testified credibly, but that she had not established her entitlement to relief. However, the IJ granted her voluntary departure. In 2002, the BIA affirmed the IJ's decision and, in the same order, denied Ms. Mungongo's motion to reopen her removal proceedings to apply for relief under the Convention Against Torture ("CAT"). Ms. Mungongo petitioned this court to review the decision of the BIA, but later requested that we dismiss the petition.

B.

Ms. Mungongo did not voluntarily depart. In 2005, she was stopped by local police for a traffic violation. When her immigration status was ascertained, she was taken into custody by the Department of Homeland Security ("DHS"). She later moved to reopen her removal proceedings. In her motion, Ms. Mungongo submitted that "exceptional and compelling circumstances, supported by new evidence," warranted reopening of her removal proceedings. A.R. Supp. at 141. Specifically, she recounted that, after the last hearing in her earlier removal proceeding, her husband had been diagnosed with spleen cancer. The disease had advanced so far that he could no longer work; consequently Ms. Mungongo was her family's sole means of financial support. Furthermore, she continued, because of the limited medical resources in Tanzania, her husband would be unable to obtain the extensive treatment he required.

Ms. Mungongo further submitted that her children were acculturated in the United States, that she had purchased property in the United States, that she is well-educated, that her skills and experience would qualify her for an employment-based adjustment of status (which her current employer was in the process of pursuing) and that she was a person of good moral character. Ms. Mungongo asked that the BIA grant her motion to reopen, stay the execution of the removal order against her and grant administrative closure of her removal proceedings so that she could pursue adjustment of status in the United States.

C.

In an order dated October 19, 2005, the BIA denied the motion to reopen the removal proceedings. The BIA first held that Ms. Mungongo's motion was untimely because it was submitted more than two years after the Board's decision, well after the 90-day time period for such motions. See 8 C.F.R. § 1003.2(c)(2). The Board further noted that Ms. Mungongo had not identified any specific administrative relief for which she might be eligible. She was barred from seeking adjustment of status, noted the Board, because she had failed to depart from the United States under the Board's grant of voluntary departure. Moreover, the BIA continued, even if Ms. Mungongo's failure to depart voluntarily had not barred her from seeking adjustment of status, reopening was not warranted because Ms. Mungongo had not established prima facie evidence of eligibility for adjustment of status; she had "neither procured an approved visa petition nor submitted an application for adjustment of status." A.R. Supp. at 125.

Notably, the BIA did recognize the "various humanitarian factors" Ms. Mungongo cited in her motion. Id. It concluded, however, that it had no "authority to unilaterally craft relief from removal for which the respondent has not demonstrated eligibility." Id.

D.

After the denial of her motion to reopen, Ms. Mungongo filed a motion to reconsider that decision. Much of this motion reiterated the contents of the motion to reopen. However, Ms. Mungongo also included new information. She informed the BIA that, in addition to spleen cancer, her husband had been diagnosed with AIDS and that he had applied for asylum and withholding of removal on the ground that he would face persecution in Tanzania because of his AIDS diagnosis. She further noted that Tanzania had denied her husband a passport and had refused to admit him into the country, presumably because of his AIDS diagnosis.

The BIA denied Ms. Mungongo's motion to reconsider. It noted that "[a] motion to reconsider shall specify the errors of fact or law in the prior Board decision and shall be supported by pertinent authority." A.R. Supp. at 2. Ms. Mungongo's motion had not met this requirement because it did "not identify or establish any factual or legal error in th[e] Board's October 19, 2005, decision." Id. Finally, the BIA stated that it had "reviewed the other arguments made by [Ms. Mungongo] in her motion" and had "considered these arguments before rendering a decision in this case" and "decline[d] to revisit them." Id. Ms. Mungongo timely petitioned this court for review of the BIA's order denying her motion to reconsider.

II DISCUSSION

A.

We begin our assessment of this appeal by setting forth the principles that must govern our decision. We review the BIA's denial of a motion to reconsider for an abuse of discretion. See Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir.2006). We shall not find that the BIA has abused its discretion unless its decision "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis, such as invidious discrimination against a race or particular group." Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir.2005) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.1985)) (internal quotation marks omitted).

Motions to reopen and motions to reconsider serve distinct functions. See Patel, 442 F.3d at 1015. Motions to reopen ask the BIA to reconsider its earlier decision based on "facts or evidence not available at the time of the original decision," id.; they do not challenge the correctness of an earlier decision based on the existing record, see In re Cerna, 20 I. & N. Dec. 399, 403 (B.I.A.1991). By contrast, the basis of a motion to reconsider is a contention that "the original decision was defective in some regard." Id. at 402. Motions to reconsider ask the BIA to reexamine its earlier decision "in light of additional legal arguments, a change of law, or an argument that was overlooked." Patel, 442 F.3d at 1015 (quoting Patel v. Ashcroft, 378 F.3d 610, 612 (7th Cir.2004)). Therefore, in considering such motions, the Board places itself "back in time and consider[s] the case as though a decision in the case on the record before [it] had never been entered." In re Cerna, 20 I. & N. Dec. at 402.

The regulations governing motions to reconsider and motions to reopen reflect their distinct function. A motion to reopen must "state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material." 8 C.F.R. § 1003.2(c)(1) (emphasis added). A motion to reopen is therefore the proper mechanism by which a movant may request to submit new evidence. Cf. In re Cerna, 20 I. & N. Dec. at 400. By contrast, a motion to reconsider must direct the BIA's attention to the defect in the earlier decision "by specifying the errors of fact or law in the prior Board decision . . . supported by pertinent authority." 8 C.F.R. § 1003.2(b)(1).

B.

We now consider Ms. Mungongo's petition to review the BIA's denial of her motion to reconsider Ms. Mungongo maintains that the BIA abused its discretion in denying her motion to reconsider on several grounds. She...