Ahmed, Nuradin v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2620
NURADIN AHMED,
Petitioner,
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A 77 654 519
____________
ARGUED OCTOBER 1, 2004—DECIDED OCTOBER 26, 2004
____________
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
2 No. 03-2620
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 reconsid-
eration. 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 reconsider-
ation is sought. Stone v. INS, 514 U.S. 386 (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 with-
out 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 de-
cision” 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 de-
cision. “Such an order approves the result reached in the
decision below; it 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 nonma-
terial.” 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 re-
No. 03-2620 3
manding 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 re-
consideration has to give the tribunal to which it is ad-
dressed 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 mo-
tion.” Caisse Nationale de Credit Agricole v. CBI Industries, Inc.,
90 F.3d 1264, 1270 (7th Cir. 1996). “The repetition of pre-
vious arguments is not sufficient to prevail.” United States v.
$23,000 in U.S. Currency, 356 F.3d 157, 165 n. 9 (1st Cir.
2004).
Ahmed has made no effort to convince us that the Board
of Immigration Appeals acted unreasonably in denying the
petition for reconsideration. His brief reads as if the order
that he is asking us to review were not the denial of re-
4 No. 03-2620
consideration but instead the original order affirming the
immigration judge’s removal order. In other words, the
petitioner is using the motion for reconsideration as a ve-
hicle for a belated appeal from the order of removal. This is
improper, especially since the 30-day deadline for filing a
petition to review orders by the Board of Immigration
Appeals is jurisdictional, Sankarapillai v. Ashcroft, 330 F.3d
1004 (7th Cir. 2003) (per curiam); Nahatchevska v. Ashcroft,
317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam); Malvoisin
v. INS, 268 F.3d 74, 75-76 (2d Cir. 2001), indicating a strong
legislative policy of discouraging untimely appeals. And re-
member that the filing of a motion for reconsideration does
not toll the time for seeking judicial review of the original
order.
At oral argument Ahmed’s lawyer suggested that the
basis for the motion for reconsideration was the Board’s
action in affirming the immigration judge’s removal order
without any statement of reasons. But it is quite common for
an appellate tribunal to affirm the decision of the first-line
adjudicator without issuing an opinion explaining its
reasons. There is no impropriety in a “blind” affirmance, es-
pecially by a tribunal such as the Board of Immigration
Appeals that is overwhelmed by cases. And so there is no
basis for reconsideration of such a decision unless there has
been a change in law or material new evidence not reason-
ably discoverable earlier has come to light, though in the case
of an affirmance that is accompanied by an opinion another
possible basis of reconsideration is that the opinion shows
that the tribunal misunderstood the facts, or the issues, or
the parties’ arguments.
Ahmed might have argued that because the decision that
he is asking us to reconsider was a blind affirmance, he is
perforce limited to pointing out the errors in the decision
that the tribunal affirmed. That is incorrect; for something
No. 03-2620 5
might have happened after the affirmance to warrant recon-
sideration. Patel v. Ashcroft, supra, 378 F.3d at 612; Nunes
v. Ashcroft, 375 F.3d 805, 807-08 (9th Cir. 2004); Ciralsky
v. CIA, 355 F.3d 661, 671-72 (D.C. Cir. 2004); Virgin Atlantic
Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992); In re Cerna, supra, 20 I. & N. Dec. at 402 n. 2;
Board of Immigration Appeals Practice Manual § 5.7(a), p. 77
(2004); 11 James Wm. Moore, Moore’s Federal Practice
§ 56.30[8][e] (3d ed. 2004). (If, however, new facts come to
light after the time to appeal a decision by the Board of
Immigration Appeals has expired, the proper vehicle for
reconsideration is a motion to reopen, corresponding to a
motion to vacate judgment under Fed. R. Civ. P. 60(b)(2) in
an ordinary civil case, rather than a motion for reconsider-
ation. 8 C.F.R. § 1003.2(c)(1).) That is to be distinguished
from a case in which all the grounds for a possible appeal
were available to the losing party when the case was de-
cided against him. Zhang v. INS, supra, 348 F.3d at 293; Bally
Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir. 1986).
In such a case it makes no sense for the party to forgo an ap-
peal and instead file a motion for reconsideration, especially
since review of the denial of a motion for reconsideration is
highly deferential. Dandan v. Ashcroft, 339 F.3d 567, 575 (7th
Cir. 2003); Tittjung v. Reno, 199 F.3d 393, 396 (7th Cir. 1999);
Hossain v. Ashcroft, 381 F.3d 29, 31 (1st Cir. 2004). (This again
is the standard rule rather than one limited to immigration
cases. E.g., Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368
(7th Cir. 2003); Douglas v. York County, 360 F.3d 286, 290 (1st
Cir. 2004).)
What is true is that a blind affirmance gives the losing
party less of a hook on which to hang a motion for reconsid-
eration because he cannot point to errors made in an opin-
ion, just as a jury’s general verdict provides less of a hook
on which to hang an appeal than a judge’s findings of fact
and conclusions of law issued pursuant to Fed. R. Civ. P.
6 No. 03-2620
52(a). That is no reason to permit a losing party to refile his
brief on appeal as a motion for reconsideration and take an
appeal from that denial months or even years after the time
for appealing the decision sought to be reconsidered had
expired. See Zhang v. INS, supra, 348 F.3d at 293. To permit
that tactic to succeed would wreak havoc with the deadlines
for seeking judicial review of agency action. We call it a
“tactic,” but no doubt it is more often a consequence of
attorney error. The attorney accidentally allowed the time to
appeal to expire; or he had decided originally that there was
no ground for an appeal but later thought better of
his decision. These may be forgivable mistakes. But juris-
dictional limitations are unforgiving.
It is true that “a motion for reconsideration, even if it raises
no new grounds but ‘simply rehashes arguments heard at
trial’, may be made under Rule 59(e).” Sierra On-Line, Inc. v.
Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir. 1984). But
this is because a timely motion under that rule, but not
under the corresponding rule for immigration appeals, tolls
the time for appealing. The Rule 59(e) movant doesn’t have
to choose between the appeal route and the reconsideration
route. But Ahmed had to choose, because his motion for
reconsideration did not toll the time for appealing. Since an
appellate court is more likely to correct an error than the
tribunal that made the error is (human nature being what it
is), it does not make any sense to forgo an appeal in favor of
a motion for reconsideration in a pure “rehash” case such as
this.
All this is not to say that the Board lacks jurisdiction to
reconsider a decision on the basis of a motion to reconsider
that consists simply of the movant’s original appeal brief.
Like any tribunal it can reconsider its decisions within a
reasonable time even if no one asks it to and there has been
no change in law or other compelling ground for reconsider-
No. 03-2620 7
ation. 8 C.F.R. § 1003.2(a); Lucacela v. Reno, 161 F.3d 1055,
1058-59 (7th Cir. 1998); United States v. Emenogha, 1 F.3d 473,
479 (7th Cir. 1993); Hemstreet v. Greiner, 378 F.3d 265, 268-69
(2d Cir. 2004); Cole v. U.S. District Court, 366 F.3d 813, 823
n. 14 (9th Cir. 2004). But it is not required to; no more is it
required to grant a motion for reconsideration that merely
“rehash[es] previously rejected arguments or argu[es] mat-
ters that could have been heard during the pendency of the
previous motion.” Caisse Nationale de Credit Agricole v. CBI
Industries, Inc., supra, 90 F.3d at 1270; see also Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000);
Matosantos Commercial Corp. v. Applebee’s Int’l, Inc., 245 F.3d
1203, 1212-13 (10th Cir. 2001); Derrington-Bey v. District of
Columbia Dept. of Corrections, 39 F.3d 1224, 1226-27 (D.C. Cir.
1994).
The petition to review the denial of the petition for re-
consideration is therefore
DENIED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-26-04