Judges: Per Curiam
Filed: Mar. 03, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 25, 2009* Decided March 3, 2009 Before FRANK H. EASTERBROOK, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08-2750 RAUFDEEN MOHINUDEEN, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. ERIC H. HOLDER, JR., Attorney General No. A76-766-478 of th
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted February 25, 2009* Decided March 3, 2009 Before FRANK H. EASTERBROOK, Chief Judge ILANA DIAMOND ROVNER, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08-2750 RAUFDEEN MOHINUDEEN, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. ERIC H. HOLDER, JR., Attorney General No. A76-766-478 of the..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 25, 2009*
Decided March 3, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2750
RAUFDEEN MOHINUDEEN, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v.
ERIC H. HOLDER, JR., Attorney General No. A76‐766‐478
of the United States,
Respondent.
O R D E R
Raufdeen Mohinudeen, a native of Sri Lanka, petitions for review of an order by the
Board of Immigration Appeals denying his motion to reconsider its decision in his removal
proceedings. Because this court lacks jurisdiction to review discretionary decisions by the
Board, see Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008), we dismiss the petition for lack of
jurisdiction.
*
After examining the briefs and the records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and the records. See FED. R. APP.
P. 34(a)(2).
No. 08‐2750 Page 2
At a hearing in 2006 before an Immigration Judge, Mohinudeen agreed to depart
voluntarily, pay his way back, and waive his appeal in exchange for the government’s
assurance that it would not pursue fraud charges against him. Despite waiving his appeal,
he subsequently did appeal to the BIA, claiming that the IJ erred in its earlier finding that
his claims did not rise to the level of persecution for purposes of asylum or withholding of
removal. After reviewing his appeal waiver, the Board dismissed the appeal for lack of
jurisdiction. The Board explained that Mohinudeen had made no argument that his waiver
was neither knowing or intelligent, and that the IJ’s decision granting voluntary departure
was administratively final. Mohinudeen did not appeal the dismissal.
Mohinudeen filed a motion to reconsider and argued for the first time that his
waiver of appeal was not knowing and intelligent. The BIA denied the motion. The Board
noted that Mohinudeen did not include the appropriate fee or fee waiver request within 30
days of the dismissal. (Although Mohinudeen argued that he paid the fee to the local
immigration office, the Board ruled that this action did not comply with its regulations.)
Even if it had accepted the motion to reconsider sua sponte, the Board added, the motion
would be denied because Mohinudeen did not identify any material error of fact or law.
In this court, Mohinudeen mounts no argument regarding the timeliness of his
motion to reconsider, asserting instead that the BIA’s denial was generally an abuse of
discretion. He reiterated his arguments concerning persecution in the underlying
proceeding, and reasserted that the Board erred in finding his appeal waiver was knowing
and voluntary.
Motions to reconsider are generally committed to the discretion of the Board. See 8
C.F.R. § 1003.2. Discretionary decisions by immigration authorities are immune from
judicial review unless they raise constitutional claims or questions of law (i.e., a misreading
of the Boardʹs own precedent, the Boardʹs use of the wrong legal standard, or a failure to
exercise discretion), see 8 U.S.C. § 1252(a)(2)(D); Johnson v. Mukasey, 546 F.3d 403, 404 (7th
Cir. 2008); Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir. 2008); Kucana, 533 F.3d at 538, and
Mohinudeen has identified no such challenge here. The Board’s determination that the
motion was untimely is a factual question that we may not review. Johnson, 546 F.3d at 404‐
05. To the extent that Mohinudeen also asks us to review other aspects of his earlier
proceedings, those too are unreviewable because his petition is untimely as to the earlier
agency decisions. See 8 U.S.C. § 1252(b)(1); Asere v. Gonzales, 439 F.3d 378, 380 (7th Cir.
2006).
The petition for review is DISMISSED for lack of jurisdiction.