Mingshui Li v. Alberto R. Gonzales

* The parties waived oral argument in this case; therefore the appeal is
submitted on the briefs and the record. See Fed. R. App. P. 34(f).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 6, 2005*
Decided December 14, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-2135
MINGSHUI LI,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A78-973-297
ORDER
Mingshui Li, a native of China, sought asylum, withholding of removal, and
relief under the Convention Against Torture on the ground that he suffered past
persecution for assisting Falun Gong members and, if returned to China, would face
incarceration and torture. The Immigration Judge denied Li’s request, finding Li
not credible, and the Board of Immigration Appeals affirmed without opinion.
Instead of petitioning for judicial review, Li filed what he titled a “motion to reopen”
with the Board. In his motion, Li reasserted the arguments raised on appeal to the
Board, adding only a generalized claim that the Board erred when it summarily
affirmed the IJ’s decision. The Board construed this filing as a motion to reconsider
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-2135 Page 2
and denied it because it “fail[ed] to establish any error of fact or law in our prior
decision.” The Board also rejected Li’s argument that it erred by summarily
affirming the IJ’s decision. Li then petitioned for review of that denial.
Li challenges the Board’s denial of his motion to reconsider, arguing that the
Board abused its discretion when it “refused to revisit the case even though the
Petitioner specified the errors of fact or law in the BIA’s prior decision.” Without
developing or clarifying this argument, Li then baldly asserts that “[p]etitioner has
a credible fear of persecution” and “[h]e would face persecution in the event he is
removed back to China.” Hence, it appears that Li would like us to review the IJ’s
denial of asylum and the Board’s summary affirmance.
We do not have jurisdiction to review the IJ’s decision or the Board’s initial
order because Li petitioned for review only of the Board’s order denying his motion
to reconsider. Moreover, although Li now asserts that his motion to reconsider
tolled the time for him to seek review of the underlying orders, a motion to
reconsider “does not toll the time for seeking judicial review of the order of which
reconsideration is sought.” Ahmed v. Ashcroft, 388 F.3d 247, 248 (7th Cir. 2004); see
Stone v. INS, 514 U.S. 386, 405 (1995). We therefore confine our review to the
Board’s denial of Li’s motion to reconsider. Stone, 514 U.S. at 405; Ahmed, 388 F.3d
at 248.
The Board was entitled to deny Li’s motion to reconsider without reaching
the merits because the motion merely rehashed arguments that the Board had
previously considered and rejected. See Joshi v. Ashcroft, 389 F.3d 732, 735 (7th
Cir. 2004). A motion to reconsider is a request that the Board reexamine its
decision “in light of additional legal arguments, a change of law, or an argument
that was overlooked earlier.” Hernandez-Baena v. Gonzales, 417 F.3d 720, 724 (7th
Cir. 2005) (internal quotation and citation omitted). Petitioner must do more than
simply rehash previously rejected arguments or raise matters that the Board could
have heard during the pendency of the initial motion. Ahmed, 388 F.3d at 249.
Li’s motion to reconsider was materially identical to the brief he filed on appeal to
the Board with one exception: his motion to reconsider argued that the Board erred
when it affirmed the IJ’s decision without separate opinion. Although Li does not
challenge the Board’s rejection of this argument here, we have instructed that
“[t]here is no impropriety in a ‘blind’ affirmance,” by an appellate tribunal. Ahmed,
388 F.3d at 249. In addition, Li continues to try to challenge the IJ’s underlying
denial of asylum, but that denial is no longer subject to review. See id. at 248.
Thus the Board did not abuse its discretion in denying the motion to reconsider, and
Li’s petition for review is denied.

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