# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 18, 2009

Decided December 9, 2009

Before

DIANE P. WOOD, Circuit Judge

TERENCE T. EVANS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09

‐ 1882

DIMITRE DJOROV

‐ IVANOV,

Petitioner

,

v.

ERIC HOLDER, JR., Attorney General of

the United States,

Respondent. Petition for Review of an Order of the Board

of Immigration Appeals.

No. A070

‐ 123

‐ 547

O R D E R

Dimitre Djorov

‐ Ivanov, a native and citizen of Bulgaria, was denied asylum and

withholding of deportation in 1994. In 2000, the Board of Immigration Appeals dismissed

his appeal, adopting the immigration judge’s reasoning that Djorov

‐ Ivanov had not

demonstrated a well

‐ founded fear of persecution. Eight years later, Djorov

‐ Ivanov filed a

motion to reopen under the Convention Against Torture (“CAT”). The Board denied the

motion as untimely. Djorov

‐ Ivanov petitions for review, arguing that: (1) his motion to

reopen should not be subject to timeliness regulations, and (2) he is prima facie eligible for

relief under the CAT. For the following reasons, we deny the petition. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 1882 Page 2

Djorov

‐ Ivanov first argues that the Board erred in finding his motion to reopen

untimely because, he contends, he “never had the opportunity to apply for relief” under the

CAT. Regulations implementing the CAT did not become effective until 1999. See 8 C.F.R.

§§ 1208.16

‐ 1208.18. Djorov

‐ Ivanov reads one of these, 8 C.F.R. § 1208.18(b)(1), to excuse

untimely motions to reopen from aliens whose proceedings were pending at the time CAT

regulations went into effect in 1999 from timeliness regulations because § 1208.18(b)(1) does

not itself contain a timeliness provision, a position he claims to be supported by Kay v.

Ashcroft

, 387 F.3d 664 (7th Cir. 2004).

As a threshold matter, we must consider whether we have jurisdiction to review

Djorov

‐ Ivanov ʹ s petition. The government urges us to reach the merits, but motions to

reopen are within the discretion of the Board and this court may not review them unless

they raise legal questions, see 8 U.S.C. § 1252(a)(2)(B)(ii), (a)(2)(D); Kucana v. Mukasey

, 533

F.3d 534, 535

‐ 38 (7th Cir. 2008), cert. granted

, 129 S. Ct. 2075 (2009). The timeliness of a

motion to reopen is generally a factual question beyond the review of the court. See Johnson

v. Mukasey

, 546 F.3d 403, 404

‐ 05 (7th Cir. 2008). But the question whether § 1208.18(b)(1)

exempts Djorov

‐ Ivanov’s petition from timeliness regulations is a legal one, and thus we

may review the petition.

Returning to the merits, Kay does not help Djorov

‐ Ivanov. In that case, we made

clear that Kay’s motion to reopen under the CAT was timely because he filed it before the

deportation order became final, see Kay

, 387 F.3d at 672

‐ 73; Djorov

‐ Ivanov, by contrast,

waited eight years after his proceedings became final before filing his motion. More

importantly, though, Kay makes clear that motions to reopen under the CAT are subject to

general timeliness provisions. See Kay

, 387 F.3d at 671

‐ 73.

Aliens are generally permitted to file one motion to reopen a deportation proceeding

within 90 days of the Board’s decision on appeal, when the order becomes final. 8 C.F.R.

§ 1003.2(c)(2). Though CAT regulations made a limited exception for aliens whose

proceedings became final before the regulations went into effect in 1999, see id.

§ 1208.18(b)(2), no additional exceptions were made for motions to reopen under the CAT,

see id. §§ 1208.16

‐ 1208.18 (regulations implementing the CAT). And contrary to Djorov

‐

Ivanov’s assertion that he never had a chance to apply for relief under the CAT,

Djorov

‐ Ivanov could have filed a motion to reopen under the CAT at any time after the

regulations went into effect in 1999, during the pendency of his appeal to the Board. See 8

C.F.R. §§ 1208.18(b)(1), 1003.2(c)(4); Kay

, 387 F.3d at 671

‐ 72. Once the Board affirmed and

the deportation order became final on August 2, 2000, Djorov

‐ Ivanov had an additional 90

days to file his motion to reopen—until October 31, 2000. He failed to do so and lost his

opportunity.No. 09

‐ 1882 Page 3

While the CAT regulations do not, as Djorov

‐ Ivanov urges, create any special

exception to timeliness regulations, a general exception for motions to reopen does exist for

“changed circumstances arising in the country of nationality.” See 8 C.F.R. § 1003.2(c)(3)(ii);

see also 8 U.S.C. § 1229a(c)(7)(C). But Djorov

‐ Ivanov did not allege changed country

conditions in his motion to reopen, and he concedes on appeal that he doesn ʹ t seek to prove

changed country conditions.

Djorov

‐ Ivanov also contends that his motion to reopen should be granted because he

has presented a prima facie case for relief under the CAT. But the Board denied the motion

on timeliness grounds, noting only in passing that Djorov

‐ Ivanov had not demonstrated a

prima facie case for relief.

Because the Board did not abuse its discretion when it found Djorov

‐ Ivanov’s motion

untimely, the petition for review is DENIED.