In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2910

RAUL E . IGLESIAS,

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. A96-166-433

____________

ARGUED MAY 8, 2008—DECIDED AUGUST 22, 2008

____________

Before MANION, EVANS, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Petitioner Raul Eduardo Iglesias

claims the Board of Immigration Appeals (“BIA”) abused

its discretion when it denied Iglesias’s motion to reopen

his immigration case because it completely ignored the

evidence he presented regarding his marriage to an

American citizen. Although we generally lack jurisdiction

over claims that the BIA abused its discretion in denying
2 No. 07-2910

a motion to reopen, see Kucana v Mukasey, No. 07-1002,

2008 WL 2639039, at *3 (7th Cir. July 7, 2008), we conclude

that Iglesias’s allegation (if true) necessarily implies that

the BIA committed a legal error, which is something this

court can review. See Huang v. Mukasey, Nos. 07-2961 et al.,

2008 WL 2738067, at *4 (7th Cir. July 15, 2008); see also

8 U.S.C. § 1252(a)(2)(D). However, we deny Iglesias’s

petition because the alleged legal error, ignoring evidence

of his marriage, was harmless.

I. BACKGROUND

Iglesias is a 52-year-old citizen and native of Colombia.

On July 19, 2002, Iglesias came to the United States on a

non-immigrant visitor visa and was authorized to stay

until January 17, 2003. On that deadline, he applied for

political asylum, claiming he was an agricultural specialist

whose life would be in danger if he were sent back to

Colombia.

On February 25, 2003, the Department of Homeland

Security (“DHS”) issued a Notice to Appear and began

removal proceedings against Iglesias. On November 23,

2005, an immigration judge (“IJ”) held a hearing on

Iglesias’s applications for asylum, withholding of removal,

and protection under the United Nations Convention

Against Torture. The following month, the IJ denied the

requested relief and ordered Iglesias to be removed to

Colombia. Iglesias timely appealed to the BIA.

While his appeal was pending, Iglesias married Marie

Diaz, a United States citizen, on August 18, 2006. Four
No. 07-2910 3

months later, she filed an I-130 immediate relative petition

on behalf of Iglesias to allow him to remain in the country. DHS scheduled the couple to be interviewed in June

2007 on the petition.

Before the interview could occur, however, the BIA

dismissed Iglesias’s appeal on April 27, 2007. Iglesias did

not petition us for review of the BIA’s order. Instead,

Iglesias moved to reopen his removal proceedings based on

the BIA’s decision in Matter of Velarde, 23 I&N Dec. 253

(BIA 2002), which allows certain aliens to receive an

adjustment of status based on marriage to an American

citizen. Iglesias submitted numerous documents in support

of his motion to show that he was married to Marie and

that his marriage was bona fide (a requirement under

Velarde). DHS opposed Iglesias’s motion.

In a one-page decision, the BIA agreed with DHS that

Iglesias had not presented “clear and convincing” evidence

to show that his marriage was bona fide. The decision did

not mention any of the evidence that Iglesias had presented. Iglesias then filed this petition for review.

II. ANALYSIS

A. Jurisdiction exists because of an implied legal error.

Iglesias argues that the BIA abused its discretion in

denying his motion to reopen because it completely

ignored the evidence he presented, as demonstrated by the

lack of reasoned analysis in its decision. Recently, we

held that the REAL ID Act of 2005 stripped this court of

jurisdiction over “discretionary reopening decisions” made
4 No. 07-2910

by the BIA. See Kucana, 2008 WL 2639039, at *3. But Kucana

also reiterated that the REAL ID Act permits “discretionary

decisions [to] be reviewed when they entail ‘constitutional

claims or questions of law . . . .’ ” See id. (quoting 8 U.S.C.

§ 1252(a)(2)(D)). So we can review Iglesias’s petition only

if he has raised an argument that the BIA committed a

constitutional or legal error. Compare Huang, 2008 WL

2738067, at *4 (exercising jurisdiction, though ultimately

denying relief, in cases where petitioners raised arguments that the BIA might have legally erred in denying

motions to reopen), with An Na Huang v. Mukasey, 525 F.3d

559, 563 (7th Cir. 2008) (declining jurisdiction over an

asylum claim where a petitioner mischaracterized a

factual finding as a legal error).

We first note that Iglesias does not phrase his arguments

in terms of “constitutional claims or questions of law”;

instead, his brief argues only that the BIA “abused its

discretion.” Iglesias submitted his briefs before we decided

Kucana, which abrogated earlier precedent indicating that

we generally had jurisdiction to review denials of motions

to reopen. See Singh v. Gonzales, 404 F.3d 1024, 1026-27 (7th

Cir. 2005) (overruled in part by Kucana). Now that Kucana

is the law, the question is whether we can review Iglesias’s

arguments even though he labeled them under the “abuse

of discretion” category.

Kucana itself suggests the answer. It implies that even

when a petitioner phrases all of his arguments in terms

of “abuse of discretion” (which is exactly what the petitioner in Kucana did), we can review an argument that

necessarily implicates a claim of legal error, such as an
No. 07-2910 5

allegation that the BIA failed to exercise discretion at all by

completely ignoring an argument. See Kucana, 2008 WL

2639039, at *4 (“The Board must exercise discretion; only

when it has done so is its decision sheltered [from our

review].”). So a claim labeled as challenging an abuse of

discretion might also encompass a genuine claim of legal

error, just as a legal or constitutional claim might disguise what is in reality just a factual allegation. See Vasile

v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005) (rejecting

petitioner’s attempt to “shoehorn” a factual claim into

the “question of law” category). Here, we must determine

whether Iglesias’s allegation that the BIA completely

ignored the evidence he presented necessarily implicates

a claim of constitutional or legal error.

Any plausible constitutional claim would be grounded

in due process. Because we have held that “a petitioner

has no liberty or property interest in obtaining purely

discretionary relief,” such as the reopening of a case,

Iglesias’s due process rights were not implicated here. See

Hamdan v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005); see

also Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006).

Nonetheless, a claim that the BIA has completely ignored

the evidence put forth by a petitioner is an allegation of

legal error. We assumed without deciding in Kucana that

“ignoring a potentially dispositive issue is an error of

law that would allow review under [the REAL ID Act].”

Kucana, 2008 WL 2639039, at *4; see also Kebe v. Gonzales, 473

F.3d 855, 857 (7th Cir. 2007) (“[A]lthough the BIA does not

have to write an exegesis on every contention, it must

consider the issues raised, and announce its decision in
6 No. 07-2910

terms sufficient to enable a reviewing court to perceive that

it has heard and thought and not merely reacted.” (internal

quotation marks omitted)). We have since held that a

“failure to exercise discretion or to consider factors acknowledged to be material to such an exercise”—such

as the “wholesale failure to consider evidence”—would

be an error of law for purposes of reviewing a motion to

reopen. See Huang, 2008 WL 2639039, at *1 (second quotation from Hanan v. Mukasey, 519 F.3d 760, 764 (8th Cir.

2008)). And we fail to see how the BIA can make a reasoned decision denying a motion to reopen if it completely ignores the evidence that a petitioner presents. See

8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings

shall not be granted unless it appears to the Board that

evidence sought to be offered is material and was not

available and could not have been discovered or presented

at the former hearing . . . .”). So we conclude that Iglesias’s

allegation that the BIA completely ignored the evidence

he presented is a good faith claim of legal error that we

can review. See Kucana, 2008 WL 2639039, at *4 (noting

that the Board has “an obligation to consider every argument made to it”).

B. The alleged legal error, ignoring evidence, was

harmless.

Turning to the merits of Iglesias’s claim, the analysis

section of the BIA’s decision states in its entirety:

In its opposition, the DHS provides that the respondent

has failed to submit sufficient evidence to indicate a

strong likelihood that his marriage is bona fide. In
No. 07-2910 7

particular, the DHS argues that the respondent has not

submitted an affidavit prepared by himself, evidence

of a joint insurance policy, copies of joint billing

statements, copies of joint bank statements, or copies

of joint credit card bills. We agree that the respondent

has not presented “clear and convincing” evidence to

establish that the marriage is bona fide. Accordingly,

the respondent’s motion is denied.

While restating the evidentiary deficiencies highlighted

by DHS, the BIA’s decision neglects to even mention any

of the substantial evidence that Iglesias produced, which

included a marriage certificate and wedding pictures;

documents relating to Iglesias’s I-130 petition; a cursory

letter from a personal banker indicating that Iglesias

shared an account with Marie; Illinois drivers’ licenses

and ID cards for both Iglesias and Marie listing the

same home address; a receipt from the Social Security

Administration indicating Marie had applied for a new

Social Security card under her married name; and onepage form affidavits from a friend, Marie’s mother, and

Marie. Had the BIA at least mentioned this evidence, we

could have some confidence that these materials had been

considered. Unfortunately, the brevity of the decision

leaves us with the impression that the BIA committed

legal error by completely ignoring this evidence. Cf.

Kucana, 2008 WL 2639039, at *4 (“Sometimes an opinion

addressing one subject . . . while not mentioning

another . . . may imply that the latter has been overlooked

rather than decided.”).

The BIA is saved, however, because most of Iglesias’s

documentary evidence only goes to show that he is mar-
8 No. 07-2910

ried, not that his marriage is bona fide, as required under

Velarde. See, e.g., Ilic-Lee v. Mukasey, 507 F.3d 1044, 1051 (6th

Cir. 2007) (rental agreement, cable and energy bills, a joint

bank statement, and an affidavit from a petitioner’s

spouse constituted “minimal and insufficient” evidence

that, “while at best . . . might demonstrate a legal marriage,” does not suggest a bona fide one); Malhi v. INS, 336

F.3d 989, 994 (9th Cir. 2003) (“[T]o qualify for the bona

fide marriage exemption, an applicant must offer evidence that is probative of the motivation for marriage, not

just the bare fact of getting married.”). And although

Iglesias submitted a brief letter from his personal banker,

the BIA would have been within its discretion in concluding that this evidence was not enough to show that

the couple is financially hitched. See 8 C.F.R.

§ 204.2(a)(1)(3)(iii)(B) (providing non-exclusive examples

of documents a petitioner may submit to show a marriage is bona fide, including “documentation showing

commingling of financial resources”).

Moreover, the single-page affidavits that Iglesias presented contained very little information from which to

conclude that the marriage is bona fide. For example, there

is only one line in the friend’s affidavit that could support

a finding that the marriage is bona fide: “That they

[Iglesias and Marie] are a happily married couple who

spend all their time together and that their families approved of the marriage.” This line was not written by

the friend but is part of the form affidavit (and is common

to all three affidavits here). The BIA would have been

within its discretion in concluding that the affidavit was

not “clear and convincing” evidence that the marriage is
No. 07-2910 9

bona fide. Cf. Fu Xing Yu v. Gonzales, 213 Fed. Appx. 72, 74

(2d Cir. 2007) (unpublished) (“The BIA was reasonable

in its determination that [a petitioner’s] and her

husband’s mere attestations in their affidavits that their

marriage was bona fide were insufficient to show, by clear

and convincing evidence, the bona fide nature of their

marriage.”); see also 8 C.F.R. § 204.2(a)(1)(3)(iii)(B) (“The

affidavit must contain complete information and details

explaining how the person acquired his or her knowledge of the marriage.”).

Had Iglesias’s evidence been more persuasive, we might

have needed to remand to ensure that the BIA had considered this evidence in its decision. But because the BIA

could have reasonably concluded that Iglesias’s evidence

was not “clear and convincing” proof of a bona fide

marriage, we need not remand because the alleged legal

error was harmless. See Tariq v. Keisler, 505 F.3d 650, 657

(7th Cir. 2007).

III. CONCLUSION

The petition for review is DENIED.

8-22-08