In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2611

OTAR SHARASHIDZE,

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. A77-857-926

____________

ARGUED JUNE 4, 2008—DECIDED SEPTEMBER 8, 2008

____________

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. Otar Sharashidze is a native

of Georgia (the country in the Caucasus, not the U.S.

state) who was given asylum in the United States on

October 25, 1999. Less than three years later, Sharashidze

was charged with and convicted of indecent solicitation

of a sex act from a minor—a crime punishable as a misdemeanor under Illinois law, see 720 ILCS 5/11-14.1, but
2 No. 07-2611

considered an aggravated felony for immigration purposes, see 8 U.S.C. § 1101(a)(43)(A). Because he had

committed an aggravated felony, Sharashidze was subject

to removal under 8 U.S.C. § 1227(a)(2)(A)(iii). On January

26, 2006, an Immigration Judge (IJ) found Sharashidze

removable and terminated his grant of asylum, thereby

rendering him ineligible to adjust his status to that of a

permanent resident.

Sharashidze appealed the IJ’s decision to the Board of

Immigration Appeals (BIA). The BIA affirmed on May 25,

2006, and this court denied his petition for review on

March 16, 2007, at the same time dismissing his due

process claim for failure to exhaust. See generally

Sharashidze v. Gonzales, 480 F.3d 566, 570 (7th Cir. 2007).

Although Sharashidze wanted to assert that the IJ did not

allow him to present evidence regarding the “countervailing equities” against removing him from the United

States, he did not make that argument until too late.

On May 8, 2007, Sharashidze moved to reopen the

proceedings on the ground of ineffectiveness of counsel; he

also presented an argument for withholding removal under

the Convention Against Torture (CAT). This petition was

untimely, but Sharashidze argued that he was entitled

under principles of equitable tolling to have the time

while his earlier petition for review was pending in this

court disregarded. The BIA denied this motion on June 12,

2007, concluding that Sharashidze was not diligent

enough to deserve equitable tolling, that it would not

reopen the proceedings on its own, and that there were

no changed circumstances in Georgia to warrant a dif-
No. 07-2611 3

ferent disposition of his case. Sharashidze petitioned for

review on July 11, 2007.

Sharashidze’s petition suffers from multiple jurisdictional defects. Regardless of the merits of his complaints

about the earlier process he received, we must dismiss

his petition for want of jurisdiction.

Initially, we must identify the issues that are properly

before this court. This court may entertain petitions for

review from final orders of removal, including denials of

motions to reopen, 8 U.S.C. § 1252(a); if the petitioner is

removable as an aggravated felon, however, that review is

limited to consideration of jurisdiction, constitutional

issues, and issues of law, 8 U.S.C. § 1252(a)(2)(C) & (D).

Here, the only decision that we may review is the June 12,

2007, denial of Sharashidze’s motion to reopen. We therefore have nothing to say about the arguments that

Sharashidze has presented, and we have already rejected,

that reach back to the claims he asserted against the IJ

in his petition challenging the revocation of his asylee

status and the denial of his application for adjustment

of status. See Sharashidze, 480 F.3d at 570.

Sharashidze argues that the fact that he is arguing that

his due process rights were violated somehow exempts

him from the ordinary time limits that apply, but he is

wrong: 8 U.S.C. § 1252(a)(2)(D), which authorizes this court

to decide constitutional claims and questions of law, is

explicitly constrained by the 30-day time limit in

§ 1252(b)(1). See Hussain v. Keisler, 505 F.3d 779, 784 (7th

Cir. 2007) (“Section 1252(a)(2)(D) plainly states that other

limitations on judicial review in ‘this section’—that is,
4 No. 07-2611

section 1252—still apply.”). Unless some other principle

confers jurisdiction upon this court, we may review the

denial of the motion to reopen (and only for legal, jurisdictional, and constitutional error) but not the underlying denial of the petition for review of the IJ’s decision.

See Asere v. Gonzales, 439 F.3d 378, 380-81 (7th Cir. 2006).

The jurisdictional bar against factual arguments defeats

most of Sharashidze’s other arguments. See Kucana v.

Mukasey, No. 07-1002, 2008 WL 2639039 (7th Cir. July 7,

2008). To the extent we have jurisdiction to review any

of these claims, it is only for legal error of the kind we

have already described.

First, Sharashidze argues that the BIA incorrectly failed

to grant him equitable tolling because an appeal was

pending before this court. His petition for review of the

removal order was denied on May 25, 2006, and he filed his

motion to reopen almost a year later, on May 8, 2007. The

usual time limit is 90 days, see 8 U.S.C. § 1229a(c)(7)(A) &

(C)(i). Sharashidze says that the clock should start from

this court’s disposition of his appeal on March 16, 2007,

which would bring his petition within the 90-day limit.

Equitable tolling is fundamentally about diligence, not

waiting out administrative processes. We will not comment directly on whether Sharashidze was diligent,

because that is a matter of fact that is outside this court’s

jurisdiction. See Patel v. Gonzales, 442 F.3d 1011, 1016 (7th

Cir. 2006); 8 U.S.C. § 1252(a)(2)(C). Pressed at oral argument to articulate exactly what legal questions are presented in the current petition, Sharashidze’s counsel was

unable to help us. Sharashidze did not have to wait until
No. 07-2611 5

this court ruled to know whether his lawyer had or had

not properly filed documents as early as nine months

earlier: the facts substantiating his claim should have been

available much earlier than March 2007. Aside from a

frivolous due process argument, Sharashidze suggests

no legal norm that the BIA violated.

Sharashidze argues that changed conditions in his

home country of Georgia justify reopening the proceedings. Petitioners may raise changed country conditions

regardless of the 90-day deadline “if such evidence is

material and was not available and would not have been

discovered or presented at the previous proceeding.”

8 U.S.C. § 1229a(c)(7)(C)(ii). But once again, this is a

question of fact that is beyond review by this court. See

Patel, 442 F.3d at 1016; 8 U.S.C. § 1252(a)(2)(C).

Whether or not the IJ cut some corners in regard

to Sharashidze’s right to present evidence on the countervailing equities is also a question we cannot reach.

Sharashidze waived this argument by failing to raise it

until he reached this court the first time around. It was

too late then, and it is even later now. The questions

Sharashidze wants us to review are factual: whether

he was diligent enough to warrant application of equitable tolling and whether the BIA correctly found that

conditions in Georgia had not changed sufficiently

to warrant withholding of removal. Because we lack

jurisdiction to address these questions, his petition is

DISMISSED.

9-8-08