Iglesias v. Mukasey (7th Cir. 8/22/08)

WILLIAMS Evans Manion

In responding to a Motion to Reopen for Adjustment (via a not-yet-approved spousal I-130), the Board refused to reopen, but didn't discuss any evidence presented to show the bona fides of the marriage.

1. Fact that brief was written arguing an "abuse of discretion," whereas Kucana limits mtn to reopen jurisdiction to questions of law, wasn't dispositive - just as alleged errors of law may really be discretionary issues, alleged abuses of discretion can really be legal errors.

2. Cannot be any constitutional claim re discretionary relief: "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)."

3. CtApp had jurisdiction to consider a "wholesale failure to consider evidence" under question of law standard.

[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. * * * 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”).

4. But Board's failure to consider the evidence was harmless here: "[B]ecause 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)." [CR - but is that the harmless error standard? Shouldn't the Court more properly have asked whether the Board could have concluded that there was enough evidence to show that marriage was bona fide]

Read opinion here: 

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.