7th Cir: 1252(a)(2)(B)(ii) applies to motions to reconsider as well as motions to reopen

7th Cir: 1252(a)(2)(B)(ii) applies to motions to reconsider as well as motions to reopen
Thursday, 02 October 2008

Johnson v. Mukasey (7th Cir. 10/1/08)

POSNER Rovner Wood

The 7th Cir held that motions to reconsider, like motions to reopen, are covered by the bar at 1252(a)(2)(B)(ii) to judicial review.

We held in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), and repeated in Kucana, that the statute applies to discretionary decisions authorized by regulations that are based on and implement the Immigration and Nationality Act, as well as by the Act itself. The regulation that we cited in Kucana as satisfying these requirements, 8 C.F.R. § 1003.2(a), applies both to motions to reopen and to motions to reconsider.

Petitioner argued that BIA should have equitably tolled his time to move for reconsideration. But CtApp found that the Board hadn't misunderstood its power to permit equitable tolling - and the decision of whether to equitably toll required the application of law to fact, which is not a "pure" question of law for which review is permitted by 1252(a)(2)(D). Therefore, no jurisdiction.

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