Shaohua He v. Holder

• Citation: 781 F.3d 880
• Decision Date: 27 March 2015
• Docket Number: No. 14–3104.,14–3104.
• Parties: SHAOHUA HE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

781 F.3d 880

SHAOHUA HE, Petitioner

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 14–3104.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 27, 2015.

Decided March 27, 2015.

Scott I. Yu, Scott Yu and Associates Limited, Chicago, IL, for Petitioner.

Anthony P. Nicastro, Oil, Department of Justice, Washington, DC, for Respondent.

Before POSNER, SYKES, and HAMILTON, Circuit Judges.

Opinion

HAMILTON, Circuit Judge.

Shaohua He, a citizen of China, petitions for review from the denial of his motion to reconsider the denial of his application for asylum and withholding of removal based on his fear of future persecution because he is a practicing Christian. His petition, however, focuses on only the underlying denial of his application for asylum and withholding—a ruling that is not properly before us. Because He has not even tried to show that the denial of his motion to reconsider was erroneous, we deny his petition for review.

He testified that he entered the United States in 2007 in circuitous fashion through Indonesia and Canada before arriving in New York. He came to Chicago a year later, he said, to retain an attorney to apply for asylum based on mistreatment (arrest and beatings, though the details are unclear) that he had suffered in Fujian Province on account of his Christian beliefs. A month after he filed his application, the Department of Homeland Security charged him with removability as an alien present in the United States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i).

At his removal hearing, He testified about the mistreatment he experienced because of his membership in a Christian house-church movement known as the Shouters, which the Chinese government has branded an “evil cult.”¹ In June 2006 he was arrested while trying to recruit new members with fellow Shouters. He was held at a detention center for two weeks, during which he says he was beaten four times. He says he was bailed out with the help of a fellow churchgoer and later sought medical attention for injuries to his face. After his release he was required to report to the police every two weeks. Aided by “snakeheads,” he departed China in 2006, leaving behind a wife and three children. About a year after arriving, he applied for asylum, withholding of removal, and relief under the Convention Against Torture.

The immigration judge denied He all relief. The judge found that He's testimony was not credible and that he failed (in this case under the REAL ID Act) to provide corroborating evidence to support his claim. The judge found He's testimony incredible because it was “extremely vague,” “internally inconsistent” with respect to several details (including the date when he became a Shouter and the number of police officers who entered the house church to arrest him), and incomplete regarding basic aspects of his claim. The judge found He statutorily ineligible for asylum because he did not file his application within one year of his arrival in the United States. (The judge refused to credit He's account of when he arrived because of his “materially inconsistent statements regarding his time, place, and manner of entry.”) The judge also found He ineligible for withholding or CAT protection because he failed to show it is more likely than not that his life would be threatened or that he would be tortured in China. The Board of Immigration Appeals upheld the immigration judge's ruling.

He then hired his current attorney, Scott Yu, who filed a motion to reconsider with the Board, arguing that the Board had erred in upholding the judge's findings regarding He's lack of credibility and corroboration. The Board denied the motion on August 26, 2014. He then filed this petition for review, but he had not filed a timely petition for review of the underlying denial of relief.

In his brief in support of this petition for review of the denial of his motion to reconsider, He targets the underlying denial of his application, arguing that he should be granted asylum, withholding of removal, and protection under the CAT because he met his burden to qualify for each form of relief. He also contests the agency's rulings that he was not credible and did not provide sufficient corroborating evidence. The petition and brief do not contest the Board's denial of his motion to reconsider.

He's target is wrong because we have jurisdiction to review only the denial of his motion to reconsider. See 8 U.S.C. § 1252(b)(1). “[T]he case law could not be clearer on this issue; a motion to reconsider does not toll the initial 30–day filing deadline for seeking judicial review of the underlying removal order. The finality of a removal order ‘is not affected by the subsequent filing of a motion to reconsider.’ ” Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir.2006), quoting Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). He's September 24, 2014 petition for review was untimely with regard to the Board's underlying order denying relief dated May 27, 2014, thus depriving us of jurisdiction to review that order. Because He did not challenge the denial of his motion to reconsider, he has waived any arguments he might have made to challenge the only decision over which we have jurisdiction. See Tian v. Holder, 745 F.3d 822, 827 (7th Cir.2014) ; Asere, 439 F.3d at 380–81.

This case highlights the consequences of misusing a motion to reconsider before the Board. Such motions “are not replays of the main event,” Khan v. Holder, 766 F.3d 689, 696 (7th Cir.2014) (internal quotation marks and citation omitted), and should not be used to argue what was or could have been raised on an initial appeal. See Raghunathan v. Holder, 604 F.3d 371, 378 (7th Cir.2010) ; Ahmed v. Ashcroft, 388 F.3d 247, 249, 251 (7th Cir.2004) ; Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) ; Strato v. Ashcroft, 388 F.3d 651, 655 (8th Cir.2004). The Board will deny a motion to reconsider that has not “identified specific factual or legal errors in [its] prior ruling.” See 8 C.F.R. § 1003.2(b)(1) ; In re O–S–G, 24 I & N Dec. 56, 58 (BIA 2006). Rather than revisit matters that were already covered (or should have been covered) in a prior appeal to the Board, the...