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NONPRECEDENTIAL DISPOSITION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
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.