In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2935

EUGENE O. JOSEPH,

Petitioner,

v.

LORETTA E. LYNCH,∗

Attorney General of the

United States,

Respondent.

____________________

Petition for Review of an Order of the 

Board of Immigration Appeals

No. A074 104 543

____________________

ARGUED APRIL 29, 2015 — DECIDED JULY 14, 2015

____________________

Before BAUER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. In 2008 an immigration judge 

ordered Nigerian citizen Eugene Joseph removed from the 

 ∗ We have substituted as respondent Attorney General Loretta E. 

Lynch for Eric H. Holder, Jr., the former Attorney General. See Fed. R. 

App. Pro. 43(c)(2).
2 No. 14-2935

United States. The Board of Immigration Appeals upheld 

that decision, and we dismissed his petition for review. Joseph v. Holder, 321 F. App’x 505 (7th Cir. 2009). Since then Joseph has tried eight times to have the order of removal rescinded. The Board rejected all eight of those motions to reopen the removal proceedings. Joseph asked us to review 

only one of the Board’s first seven orders; we dismissed that 

petition for review. Joseph v. Holder, 436 F. App’x 632 (7th Cir. 

2011).

Joseph now petitions for review of the Board’s eighth order, but as he concedes our jurisdiction to review that decision is limited to legal or constitutional questions. Joseph

presents neither, so we dismiss the petition for review for 

lack of jurisdiction.

We presume familiarity with our previous decisions but

summarize briefly. Joseph entered the United States unlawfully in 1991 and was placed in removal proceedings after 

convictions for theft in Illinois and bank fraud in federal 

court. He conceded his unlawful status but cited his marriage to a United States citizen as a basis for adjusting that 

status. He also sought a waiver of inadmissibility on the 

ground that removal would cause “extreme hardship” to his 

family. See 8 U.S.C. § 1182(h)(1)(B).

At the removal hearing Joseph’s wife called him her 

“support system” and testified that his departure would 

strain their marriage emotionally and financially. Joseph 

added that removing him would cause their asthmatic sons

to suffer. But the immigration judge concluded that any 

hardship the boys faced would be no worse than that confronted by any child whose parent is deported and so could 
No. 14-2935 3

not be characterized as “extreme.” The Board of Immigration 

Appeals agreed.

Joseph’s current motion to reopen is his eighth overall

but his third premised on the Violence Against Women Act. 

See 8 U.S.C. § 1229a(c)(7)(C)(iv). As amended in 2000, that 

legislation (“VAWA,” for ease of reference) extends to one 

year (from the usual 90 days) the deadline for a motion to 

reopen asserting that the alien facing removal is a victim of 

domestic violence. § 1229a(c)(7)(C)(i). That longer deadline 

can be waived by the Attorney General if the battered alien 

“demonstrates extraordinary circumstances or extreme 

hardship to the alien’s child.” § 1229a(c)(7)(C)(iv)(III). Despite the name of VAWA, these provisions apply to aliens of 

either sex who are victims of domestic violence.

The first of Joseph’s three motions invoking VAWA 

missed the one-year deadline by nearly four years. In that 

motion Joseph tried to convince the Board of Immigration 

Appeals that he was a victim of spousal abuse and should be 

granted a waiver of inadmissibility because of hardship to

his children. Joseph attached to this motion a copy of his 

then-pending Form I-360 (known formally as a “Petition for 

Amerasian, Widow(er) or Special Immigrant”), which an alien files with U.S. Citizenship and Immigration Services 

when seeking relief under VAWA. Joseph also submitted an 

affidavit claiming that his wife had been both physically and 

emotionally abusive.

The Board denied this motion to reopen, noting Joseph’s 

failure to corroborate his claim of being the victim of spousal 

abuse as well as his failure to submit any evidence that removing him from the United States would cause unusual 

hardship to his children. (His affidavit said nothing about 
4 No. 14-2935

the effect of the alleged abuse on the children.) Later the 

Board denied Joseph’s second, nearly identical motion to reopen invoking VAWA. Joseph did not petition for review of

either of those Board rulings.

That brings us to the present case. In June 2014, Joseph 

filed a third motion to reopen invoking VAWA. This time he 

supplied medical records for his two asthmatic sons (currently ages 8 and 14) and an affidavit from his brother attesting to the severity of the boys’ illness and the brother’s belief 

that his nephews had not received appropriate medical 

treatment after Joseph was detained and the boys were left 

in their mother’s care.

The Board of Immigration Appeals denied this motion as 

both “time and number-barred.” The Board added that Joseph’s evidence, which came from “interested parties” and 

contradicted testimony from his removal hearing about the 

strength of his marriage, failed to establish cause to set aside 

either of those statutory bars. The Board led off its discussion of the latter point by saying that the “only evidence regarding the claimed potential harm to the respondent’s children are statements from himself and his brother.”

In his petition for review, Joseph contends that this “only

evidence” comment must mean that the Board ignored his 

sons’ newly submitted medical records. Because the decision 

whether to waive the time limit on a motion to reopen that

invokes VAWA is committed by statute to the Attorney General’s discretion, see 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), we lack 

subject-matter jurisdiction to review an exercise of that discretion. See Kucana v. Holder, 558 U.S. 233, 237 (2010). We 

have jurisdiction, however, to ensure that the Board considered all relevant evidence before exercising its discretion.
No. 14-2935 5

See 8 U.S.C. § 1252(a)(2)(D); Ji Cheng Ni v. Holder, 715 F.3d 

620, 625 (7th Cir. 2013); Kiorkis v. Holder, 634 F.3d 924, 928 

(7th Cir. 2011).

Joseph has framed his claim to try to take advantage of 

this jurisdictional path. But while he has accused the Board 

of disregarding particular evidence, his claim is not really 

about that evidence. Joseph’s claim hinges on the erroneous 

assumption that medical records documenting his sons’

treatment for asthma—which has never been contested—

also prove that the boys will experience “extreme hardship” 

if Joseph is removed. To the contrary, any conclusion that the 

boys will be worse off if Joseph is removed—asthma or no—

depends entirely on the statements of Joseph and his brother, just as the Board said. Joseph’s disagreement with the 

Board about the significance of his and his brother’s statements is simply an argument about how those statements

were weighed. It does not clear the jurisdictional bar of

§ 1252. See Jawad v. Holder, 686 F.3d 400, 404 (7th Cir. 2012); 

Khan v. Filip, 554 F.3d 681, 689 (7th Cir. 2009).

As a fallback, Joseph points out that his Form I-360 was 

approved in January 2014 and that his current motion to reopen, filed four months later, is the only one of the eight to 

follow that approval. The petition’s approval, Joseph now 

asserts, qualifies as an “extraordinary circumstance” that the 

Board of Immigration Appeals overlooked entirely.

Until this petition for review, however, Joseph characterized the petition’s approval simply as “new evidence.” We 

are skeptical about the weight this approval might warrant, 

since it is the product of only an ex parte review of documents, in this case written affidavits from Joseph and his 

brother. We need not reach a conclusion about this issue, 
6 No. 14-2935

however, because Joseph never argued to the Board that approval of the Form I-360 constituted an “extraordinary circumstance.” Joseph cannot contend for the first time in this 

court that the Board overlooked evidence offered in support 

of an argument he never made. See Khan v. Holder, 766 F.3d 

689, 696 (7th Cir. 2014); Cruz-Moyaho v. Holder, 703 F.3d 991, 

998 (7th Cir. 2012). As it pertains to our jurisdiction, Joseph 

cannot make a colorable claim of legal error based on his 

own omission. Cruz-Moyaho, 703 F.3d at 998.

The Board also noted in its decision that even if Joseph 

had offered a legal basis for his motion to reopen, “given the 

adverse factors of record, we also conclude that reopening is 

not appropriate in the exercise of discretion.” The adverse 

factors of record include Joseph’s criminal record and serious 

credibility problems. We would not have jurisdiction to review that discretionary decision by the Board, which provided an independent basis for denying relief.

Accordingly, the petition for review is DISMISSED for 

lack of jurisdiction.