Mihai Fedorca v. MICHAEL B. MUKASEY, Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 19, 2008
Decided December 9, 2008
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2274
MIHAI FEDORCA,
Petitioner,
v.
MICHAEL B. MUKASEY,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A71‐028‐071
O R D E R
Mihai Fedorca, a citizen of Romania, petitions for review of an order by the
Board of Immigration Appeals denying his motion to reconsider its decision in his
removal proceedings. The first question for us is whether we have jurisdiction to
review his petition.
Fedorca entered the United States without inspection in 1990. Five years later an
immigration judge rejected his application for asylum but granted him the privilege of
voluntary departure. Fedorca did not appeal that decision, nor did he depart. Ten
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐2274 Page 2
years and several intervening procedural steps later, he applied for a continuance of the
proceedings based on his marriage to an American citizen. The IJ ruled that (1) Fedorca
had not proved the marriage was bona fide, (2) in any event, his failure to depart made
him ineligible for relief, and (3) the denial of his asylum claim was final because
Fedorca never appealed it. The IJ ordered him removed, and the BIA upheld the
decision for the same three reasons. Fedorca moved the BIA to reconsider, but his
motion, which cited no authority and simply reiterated his earlier arguments, was
denied. It is this decision we are asked to review.
Discretionary decisions by immigration authorities are immune from judicial
review unless they raise “constitutional claims or questions of law.” See 8 U.S.C. §
1252(a)(2)(B)(ii), (a)(2)(D); Kucana v. Mukasey, 533 F.3d 534 (7th Cir. 2008). Motions to
reconsider are within the discretion of the BIA, 8 C.F.R. § 1003.2(a), and so are generally
unreviewable, save those that present constitutional or legal questions. Johnson
v. Mukasey, 2008 WL 4414599, at *1 (7th Cir. Oct. 1, 2008).
Fedorca has not tried to identify any legal questions. His only contention is that
the BIA abused its discretion in denying his motion to reconsider because, he says, the
underlying asylum hearing in 1990 was unfair. But that question has nothing to do
with his motion to reconsider, in which he argued that his failures to depart and to
appeal the asylum decision should not have prevented him from appealing the IJ’s
denial of a continuance. The BIA denied that motion because Fedorca made the same
arguments on his appeal. Thus, the only conceivable legal issue is whether the BIA
misread its own precedent when it rejected Fedorca’s attempt to reprise his arguments.
See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir. 2008) (explaining that a misreading of
the BIA’s own precedent would be a question of law subject to review). In fact, the
BIA’s precedent requires it to reject a motion to reconsider based on arguments that
were or could have been brought earlier, see In re O‐S‐G, 24 I. & N. Dec. 56 (BIA 2006),
and Fedorca does not even contend otherwise.
We therefore DISMISS Fedorca’s petition for lack of jurisdiction.

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