Petition for Review of an Order of the Board of Immigration Appeals. No. A96-166-433.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before MANION, EVANS, and WILLIAMS, Circuit Judges.
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 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.
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 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.
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 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 ...