* This successive appeal has been submitted to the original panel under Operating

Procedure 6(b). After examining the briefs and the record, we have concluded that oral

argument is unnecessary. Thus the appeal is submitted on the briefs and the record. See

F ED

. R. A PP

. P. 34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 11, 2008 *

Decided September 2, 2008

Before

FRANK H. EASTERBROOK, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 07

‐ 3058

VALENTINA MITREVA, et al.,

Petitioners

,

v.

MICHAEL B. MUKASEY,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals

Nos. A79

‐ 562

‐ 008

A79

‐ 562

‐ 009

A79

‐ 562

‐ 010

A79

‐ 562

‐ 011

ORDER

Valentina Mitreva, a Bulgarian citizen, came to the United States in 2000. She

applied for asylum, with her husband and two children as derivative applicants, claiming

that she suffered persecution at the hands of Bulgarian police because of her Romani NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1Appeal No. 07

‐ 3058 Page 2

ethnicity. The IJ denied her application and the BIA affirmed, finding that Mitreva had not

proven that the police singled her out because of her ethnicity rather than because she was a

suspect in a burglary, as the police charged. We upheld that ruling because the record did

not compel a contrary conclusion. Mitreva v. Gonzales

, 417 F.3d 761, 763

‐ 64 (7th Cir. 2005).

The BIA also sua sponte raised and rejected the possibility that there existed in

Bulgaria a “pattern and practice” of persecution toward Roma, see 8 C.F.R. § 208.13(b)(2)(iii).

It explained that the record evidence showed that the Bulgarian government had instituted

reforms meant to improve educational and employment opportunities for Roma and had

taken steps to investigate and prosecute acts of violence against them by private actors. We

upheld that ruling as well, Mitreva

, 417 F.3d at 765

‐ 66, because a pattern or practice of

persecution exists only when a “‘systematic, pervasive, or organized’ effort to kill, imprison,

or severely injure members of the protected group” is “perpetrated or tolerated by state

actors,” id. at 765 (quoting Lie v. Ashcroft

, 396 F.3d 530, 537 (3d Cir. 2005)). Although Roma

unquestionably faced (and continue to face) incidents of discrimination and harassment in

Bulgaria—attacks by private citizens, job discrimination, arbitrary arrest, and forced

evictions—the conditions did not rise to the level of a pattern or practice of persecution. Id.

at 765

‐ 66.

More than three years after losing her original appeal, Mitreva filed a motion to

reopen her case, to which she attached several documents. These documents purportedly

showed materially changed conditions in Bulgaria and rebutted the BIA’s finding that theAppeal No. 07

‐ 3058 Page 3

Bulgarian government had made efforts to ameliorate discrimination against Romani

citizens. Two of the documents Mitreva submitted were public documents released before

her original administrative proceedings ended. The other six primarily concerned housing

discrimination and forced eviction of Romani families from certain neighborhoods. The

BIA denied Mitreva’s motion to reopen as untimely because it was filed well outside the 90

‐

day deadline for such motions. See 8 C.F.R. § 1003.2(c)(2). It also ruled that Mitreva’s

evidence was cumulative of evidence in the original administrative record and did not

show the sort of changed country conditions that would excuse the belated filing of the

motion. See id. § 1003(c)(3)(ii).

Mitreva devotes much of her brief on appeal to challenging our decision in her

original appeal. We considered and rejected many of her arguments when we denied her

petition for panel rehearing and en banc rehearing several years ago, Mitreva v. Gonzales

, No.

04

‐ 1707 (7th Cir. Dec. 23, 2005), and we will not revisit the merits of her original asylum

claim in this appeal.

Mitreva’s only other developed argument is that the BIA violated her right to due

process by refusing to analyze some of the documentary evidence she submitted with her

motion to reopen. But a decision whether to reopen is discretionary, and we have no

jurisdiction to review such denials unless a genuine question of law is presented. See Huang

v. Mukasey

, Nos. 07

‐ 2961, 07

‐ 3322, 07

‐ 3673, 07

‐ 3840, 2008 WL 2738067, *1 (7th Cir. July 15,

2008); Kucana v. Mukasey

, No. 07

‐ 1002, 2008 WL 2639039, *3 (7th Cir. July 7, 2008).Appeal No. 07

‐ 3058 Page 4

Discretionary denials of relief cannot be recast as constitutional violations if, as in this case,

the record does not support even a colorable claim of such a violation. See Zamora

‐ Mallari v.

Mukasey

, 514 F.3d 679, 696 (7th Cir. 2008). Mitreva likens her case to Kaczmarczyk v. I.N.S.

,

933 F.2d 588 (7th Cir. 1991), in which we held that “the due process clause of the fifth

amendment requires that petitioners be allowed an opportunity to rebut officially noticed

facts,” particularly when those facts are crucial to the outcome of the administrative

proceeding. Id. at 596. Though Mitreva contends that the BIA took administrative notice of

improving country conditions in Bulgaria in her first appeal, she is incorrect. On the

contrary, the Board relied for those findings on a document Mitreva herself introduced into

the record: the Department of State’s Bulgaria: Country Reports on Human Rights Practices

— 2001 (Mar. 2, 2002). Kaczmarczyk does not apply, and under Kucana we have no

jurisdiction to review the Board’s discretionary denial of relief.

The petition for review is DISMISSED.