In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1126

SAMUEL B. JOHNSON,

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. A91-405-136

SUBMITTED AUGUST 21, 2008—DECIDED OCTOBER 1, 2008

Before POSNER, ROVNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge. The petitioner, originally a lawful

permanent resident of the United States, was ordered

removed because of a drug conviction. That was in 1996.

In 2006, the order not having been executed (as is common, because of the limited resources of the immigration

authorities, in cases in which the illegal alien is not a

criminal), he was still in the United States and he filed a

motion both to reopen the removal proceeding and to
2 No. 08-1126

reconsider the order of removal. A motion to reopen

presents new facts bearing on the decision to remove the

alien, while a motion to reconsider points to errors in that

decision. 8 C.F.R. § 1003.2(c)(1) (motion to reopen must

“state the new facts that will be proven”); 8 C.F.R.

§ 1003.2(b)(1) (motion to reconsider “shall state the

reasons for the motion by specifying the errors of fact or

law in the prior Board decision”); Mungongo v. Gonzales,

479 F.3d 531, 534 (7th Cir. 2007); Patel v. Gonzales, 442

F.3d 1011, 1015-16 (7th Cir. 2006); Socop-Gonzalez v. INS,

272 F.3d 1176, 1180 n. 2 (9th Cir. 2001) (en banc).

The Board of Immigration Appeals denied the alien’s

motion and a similar motion that he filed the following

year. He then filed a third motion to reopen and reconsider, but this one was addressed not to the order of

removal but to the denial of his second motion. The Board

denied the third motion as untimely because filed six

weeks after the deadline for filing it, and he has petitioned

us to set aside the denial. Because (as we shall see) he

does not present a question of law or a colorable constitutional claim, the denial of his motion, so far as it seeks

reopening, is outside our jurisdiction to review. Kucana v.

Mukasey, 533 F.3d 534 (7th Cir. 2008). But we have not

had occasion to consider whether the discretionary denial

of a motion to reconsider is similarly outside our jurisdiction.

The Immigration and Nationality Act provides, with

an immaterial exception, that no court has jurisdiction

to review an immigration ruling by either the Attorney

General or the Secretary of Homeland Security “the
No. 08-1126 3

authority for which is specified under this subchapter to

be in the discretion of [either of those officials].” 8 U.S.C.

§ 1252(a)(2)(B)(ii). We held in Ali v. Gonzales, 502 F.3d

659 (7th Cir. 2007), and repeated in Kucana, that the

statute applies to discretionary decisions authorized by

regulations that are based on and implement the Immigration and Nationality Act, as well as by the Act itself. The

regulation that we cited in Kucana as satisfying these

requirements, 8 C.F.R. § 1003.2(a), applies both to motions

to reopen and to motions to reconsider. So far as the

discretionary character of rulings on such motions is

concerned, 8 C.F.R. § 1003.2(a) provides that the Board

of Immigration Appeals’ “decision to grant or deny a

motion to reopen or reconsider is within the discretion of

the Board, subject to the restrictions of this section.” See,

e.g., Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir. 2008);

Vasquez-Salazar v. Mukasey, 514 F.3d 643, 645 (6th Cir. 2008)

(per curiam); Mungongo v. Gonzales, supra, 479 F.3d at 534;

Lenis v. Attorney General, 525 F.3d 1291, 1294 (11th Cir.

2008).

But an error of law, or denial of a constitutional right,

committed in the course of denying a motion to reopen

is judicially reviewable, and likewise such an error or

denial committed in the course of denying a motion to

reconsider. See 8 U.S.C. § 1252(a)(2)(D) (both exceptions);

Iglesias v. Mukasey, No. 07-2910, 2008 WL 3877302, at *2

(7th Cir. Aug. 22, 2008) (motion to reopen); Huang v.

Mukasey, 534 F.3d 618, 620 (7th Cir. 2008) (same); Fadiga v.

Attorney General, 488 F.3d 142, 153-54 (3d Cir. 2007) (same);

Atunnise v. Mukasey, 523 F.3d 830, 836-37 (7th Cir. 2008)

(motion to reconsider); Wu v. INS, 436 F.3d 157, 164 (2d Cir.
4 No. 08-1126

2006) (same); Oh v. Gonzales, 406 F.3d 611, 613-14 (9th Cir.

2005) (same). So if the Board denied a motion to reconsider because it thought the deadline was 10 days rather

than 30 days, 8 C.F.R. § 1003.2(b)(2), we would have

jurisdiction to vacate the Board’s denial. But this is not

such a case.

The 30-day deadline expired, as we said, six weeks before

the petitioner filed his motion. He argues that the Board

should have equitably tolled the deadline, as it indeed

had the power to do. Gao v. Mukasey, 519 F.3d 376, 377 (7th

Cir. 2008); Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir.

2008); Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 845 (9th Cir.

2006); see Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir.

2005); In re Calderon Gutierrez, A91 534 876, 2008 WL

3861940 (BIA July 9, 2008); In re Uche, A72 309 946, 2008 WL

2938454 (BIA July 2, 2008); In re Maknojiya, A78 567 316,

2005 WL 3709280 (BIA Dec. 28, 2005); In re Medina-Herrera,

A29 331 428, 2005 WL 698554 (BIA Feb. 10, 2005). But a plea

to allow an untimely filing requires the tribunal to which

the plea is addressed to weigh intangibles of delay (here,

as a practical matter, eleven years, since the goal of the

alien’s repeated motions to reopen and reconsider is to

quash the removal order), reliance, diligence, excuse, and

prejudice. Gao v. Mukasey, supra, 519 F.3d at 377; Gaberov v.

Mukasey, supra, 516 F.3d at 594; Pervaiz v. Gonzales, supra,

405 F.3d 488, 490; Cada v. Baxter Healthcare Corp., 920 F.2d

446, 451 (7th Cir. 1990); Mendez-Alcaraz v. Gonzales, supra,

464 F.3d at 845. There is no suggestion that the Board

misunderstood the legal standard for equitable tolling; “the

governing rules of law are undisputed.” Viracacha v.

Mukasey, 518 F.3d 511, 516 (7th Cir. 2008). That ends the
No. 08-1126 5

case, because only pure questions of law are reviewable,

and not the application of a legal standard to fact, when a

discretionary determination by the Board is challenged

in court. Cevilla v. Gonzales, 446 F.3d 656, 662 (7th Cir.

2006). The alien’s quarrel is with the application, not the

standard. The petition for review is therefore

DISMISSED.

10-1-08