Simtion, Raducu v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2446
RADUCU SIMTION,
Petitioner,
v.
JOHN ASHCROFT,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A72-122-340
____________
ARGUED AUGUST 3, 2004—DECIDED DECEMBER 29, 2004
____________
Before POSNER, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. After weaving a procedural web
that dates back to 1992, Raducu Simtion now seeks review
of an August 2002 decision of the Board of Immigration
Appeals (“BIA”). But we lack jurisdiction to review that
decision because Simtion did not timely file his petition for
review. Instead, he filed with the BIA a “motion to reopen,”
which the BIA denied in April 2003. Simtion’s May 2003
petition for review is timely to challenge only the BIA’s re-
fusal to reopen. To the extent Simtion is seeking untimely
review of the August 2002 decision, we dismiss his petition,
and to the extent Simtion is seeking review of his motion to
reopen, we deny the petition.
2 No. 03-2446
Simtion, a native of Romania, entered the United States
in June 1992 as a nonimmigrant visitor for pleasure. He was
authorized to remain in the United States until December
1992, but he overstayed his visa. Simtion initially applied
for political asylum in February 1993. We assume he was
denied relief, but the record contains no details. The INS
commenced deportation proceedings against Simtion in
November 1993, and in February 1994 he conceded remov-
ability and obtained a continuance to prepare a second
asylum application.
Simtion testified that if he returned to his native country
he would be persecuted based on his Pentecostal religion
and anti-communist political opinion. He testified that be-
tween 1978 and 1990 he was arrested seven times: five
times on the basis of his religion, once for attempting to
leave the country, and once for taking part in the revolution
in Romania to overthrow Nikolae Ceausescu. Each detention
lasted from a week to a month. Simtion provided limited
details about the detentions, offering that he had been
denied food and water, he had been beaten with a rubber
stick, and he had been pressured to give up his religion.
In April 1995, the Immigration Judge (“IJ”) denied Simtion
relief, saying: “the respondent’s testimony was incredible
and unpersuasive; it was general and vague. The respondent
failed to set forth the kind and degree of specificity that can
support a credible and persuasive asylum application.” On
the issue of past persecution, the IJ reasoned that Simtion
had not provided sufficient testimony to establish that the
beatings he endured were sufficiently severe—he had not
offered any evidence that he was injured, that he required
medical care, or that “his lifestyle was altered in any way.”
The IJ noted specifically that Simtion had continued to
work at a state-controlled factory until he left Romania.
In addition, the IJ concluded that Simtion had not estab-
lished that his arrests were prompted by his faith. (The IJ
did not say whether he thought the arrests were prompted
No. 03-2446 3
by political opinion.) Furthermore, explained the IJ, even if
Simtion had established past persecution, the State Depart-
ment reported in 1994 that “current country conditions have
so altered in the nearly five years since the overthrow of
communism as to remove any presumption that past
mistreatment under Ceausescu or in the chaotic first year
after his death will lead to mistreatment in the future.” See
U.S. Dep’t of State, Romania: Profile of Asylum Claims and
Country Conditions (May 1994). And, the IJ added, Simtion
had not otherwise established a reasonable fear of future
persecution: “[T]he respondent has not shown that any
adverse action has taken place since his departure. He did
not suggest that he is sought by any government official,
that he any [sic] of his ‘brothers’ or political allies have
experienced any adverse treatment, or that the current
Romanian officials would not or could not protect his
interests.”
Simtion appealed to the BIA, but in September 1996 be-
fore the BIA had entered a decision, Simtion moved for a
remand so that he could apply to adjust his status based on
his marriage to a U.S. citizen. The BIA remanded the record
to the IJ to allow Simtion the opportunity to establish his
eligibility for adjustment.
The ensuing details of Simtion’s pursuit to adjust his
status are not ultimately relevant here because Simtion did
not timely petition this court for review of the IJ’s denial of
his motion. The IJ denied the motion because Simtion had
twice failed to appear at scheduled hearings on his motion.
The Board affirmed the IJ’s denial, and in the same decision
turned to Simtion’s appeal of his asylum petition, which had
been on hold for seven years. The Board said: “We affirm
that portion of the Immigration Judge’s decision which
found that the respondent had failed to meet his burden of
proof due to changed country conditions in Romania arising
after the respondent’s 1992 departure from that country.”
4 No. 03-2446
Simtion did not file in this court a timely petition for re-
view of the August 2002 BIA decision affirming the IJ’s de-
nial of his motions to adjust status and denial of his asylum
petition. Instead, Simtion filed with the BIA a pleading he
titled a “motion to reopen,” focusing entirely on the BIA’s
affirmance of the IJ’s April 1995 denial of asylum. In it he
did not include any mention of his attempt to adjust his
status, so we lack jurisdiction to review whether Simtion
should be granted another chance to adjust his status. See
Tittjung v. Reno, 199 F.3d 393, 397 (7th Cir. 2000) (review
of motion to reopen or reconsider confined to issues raised
in that motion.) In his motion Simtion instead argued that
country conditions had changed since the IJ’s 1995 order
denying him asylum; he contended that because the 2000
election “brought former communist secretary, Ion Iliescu,
back to power,” his fears of persecution were realistic again.
Simtion attached to his motion the State Department’s
Country Report on Human Rights Practices for 2001 for
Romania, The State Department’s 2001 Annual Report on
Religious Freedom in Romania, and several articles.
The BIA thought that Simtion’s motion was more properly
characterized as a motion to reconsider, but it analyzed the
motion under both standards. The BIA said that to the
extent that Simtion was seeking reconsideration, he failed
to point to any errors of law or fact to justify relief. And to
the extent that he was seeking to reopen his proceedings,
his motion was barred because he had previously filed a
motion to reopen, and he could not claim the benefit of an
exception allowing an applicant to reapply for asylum based
on new evidence of changed country conditions. The BIA
said that in August 2002 when it affirmed the IJ’s denial of
asylum, it had already considered all of the changed
country conditions that Simtion was raising in his motion.
The matter before us is limited to the BIA’s denial of
Simtion’s “motion to reopen.” See Sankarapillai v. Ashcroft,
330 F.3d 1004, 1005-06 (7th Cir. 2003) (time limit for filing
No. 03-2446 5
petition for review is jurisdictional). The BIA thought it was
really a motion to reconsider, but then analyzed it under
both standards. The two motions are described at 8 C.F.R.
§ 1003.2. A motion to reconsider should specify “errors of
fact or law in the prior Board decision.” 8 C.F.R. § 1003.2(b);
see also Ahmed v. Ashcroft, 388 F.3d 247, 249-50 (7th Cir.
2004). A motion to reopen “shall state the new facts that
will be proven at a hearing to be held if the motion is
granted.” 8 C.F.R. § 1003.2(c); Ahmed, 388 F.3d at 250.
Motions to reopen must be accompanied by an appropriate
application for relief and all supporting documentation. In
his motion Simtion did claim that the BIA erred
in affirming the IJ’s denial of asylum, but his argument
relied entirely on evidence of changed country conditions.
He did not include a new petition for asylum, but he attached
documentation to support his claim that the country condi-
tions in Romania had changed. Because his entire argument
was based on new information and his claim was that the
new information showed his eligibility for asylum, Simtion’s
motion seems to be most properly characterized as he titled
it, a motion to reopen.
The BIA ruled that if Simtion was seeking to have the
asylum proceeding reopened, he would be “barred by the
numerical limitations [sic] on motions.” An alien “may only
file one motion to reopen removal proceedings (whether
before the Board or the Immigration Judge),” see 8 C.F.R.
§ 1003.2(c)(2); see also Joshi v. Ashcroft, 2004 WL 2633297,
No. 02-3592 (7th Cir. Nov. 19, 2004), and Simtion had osten-
sibly moved to reopen his deportation proceedings already.
But although Simtion had previously filed a document with
the BIA titled a “motion to reopen,” after he missed his first
adjustment of status hearing, it is not clear that his
deportation hearings had ever been “closed” such that they
could be “reopened.” Indeed the regulation governing motions
to reopen and reconsider says: “A motion to reopen a deci-
sion rendered by an Immigration Judge . . . that is filed
6 No. 03-2446
while an appeal is pending before the Board, may be deemed
a motion to remand for further proceedings before the
Immigration Judge . . . from whose decision the appeal was
taken.” Id. § 1003.2(c)(4); In re L-V-K, 22 I. & N. Dec. 976,
979 (1999). It appears that Simtion had only filed motions
to remand before, but had never filed a true motion to re-
open. So the BIA’s determination that Simtion was barred
by the numerical limitation on motions appears to be
incorrect.
Still, Simtion was not entitled to have his motion granted.
All motions to reopen must be based on evidence that “could
not have been discovered or presented at the former hear-
ing.” Id. § 1003.2(c)(1). Simtion’s purportedly new evidence
of “changed country conditions” involved the elections in
2000 that put President Ion Iliescu in power. He could have
brought up those changes at some point between the 2000
elections and the BIA’s August 2002 affirmance of the IJ’s
denial of asylum. Cf. Petrovic v. I.N.S., 198 F.3d 1034, 1038
(7th Cir. 2000) (BIA may take administrative notice of
changed country conditions); Balogun v. Ashcroft, No. 02-
4248, 2004 WL 1469402 (7th Cir. July 1, 2004) (suggesting
that petitioner may supplement the record when an appeal
is pending before the BIA). Furthermore, Iliescu was not a
new figure on the Romanian political scene when he came
to power in 2000. He had become the leader of Romania
immediately following the Revolution, and he served as its
first elected president until 1996. So he was the leader of
Romania when Simtion applied for asylum in 1994 and was
denied it in 1995. Simtion did not explain in his motion to
reopen why Iliescu’s return to power created different
conditions in Romania from the ones existing when he
originally applied for asylum. Furthermore, Simtion’s
supporting documentation said that conditions in Romania
were improving, although religious minorities still faced
some discrimination at the local level.
No. 03-2446 7
We therefore DISMISS Simtion’s petition to the extent he
is seeking review of the August 2002 BIA decision and
DENY his petition to the extent he is challenging the denial
of the motion to reopen.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-29-04