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Joseph v. Holder

August 27, 2009

ROOME I. JOSEPH, PETITIONER,
v.
ERICH. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. No. A79-286-874

The opinion of the court was delivered by: Wood, Circuit Judge.

ARGUED FEBRUARY 24, 2009

Before ROVNER, WOOD and SYKES, Circuit Judges.

This is the second time that Roome Joseph has appealed a decision of the Board of Immigration Appeals ("BIA") denying her motion to reopen removal proceedings. The stakes are high for Joseph, as in Pakistan she faces either a forced marriage or the prospect of living as a single Christian woman without familial support, a dangerous path in that country.

When we first saw this case, we granted Joseph's petition for review and remanded to the BIA because it failed to consider Joseph's argument that her parents' threat of a forced marriage in Pakistan constituted a changed circumstance that could warrant reopening her removal proceedings. Joseph v. Gonzales, 240 F. App'x 726, 728 (7th Cir. 2007).

On remand, the BIA denied Joseph's motion to reopen. In her new petition for review, Joseph claims that the BIA again failed to consider her arguments, misconstrued relevant legal standards, and misinterpreted 8 C.F.R. § 1003.2(c)(3)(ii), which creates the relevant exception for the filing of an untimely motion to reopen. Because the BIA (acting through a single member) erred in interpreting the governing regulation, we grant the petition for review and remand.

I.

The background facts of this case are detailed in our earlier order, Joseph, 240 F. App'x at 726-27, but we summarize them here. Joseph is a 28-year-old woman who came to the United States from Pakistan with her parents (Indrias and Catherine Joseph) and two brothers (Rabbi and Ravi Joseph) in 1998. Her father went back to Pakistan in 1999, but the rest of the family remained in the United States, overstaying their visitor's visas. Catherine Joseph then applied for asylum in 2001 based on the persecution that Christians face in Pakistan, but her application and subsequent motions to reopen were eventually denied by the BIA. Joseph's mother and two brothers returned to Pakistan in 2005, but Joseph stayed in the United States. Joseph's family have since fled from Pakistan, first to Sri Lanka and then to Nepal.

Joseph's relationship with her family is strained at best. Dating back to 2000, Joseph's younger brother Ravi verbally and physically abused her because of her adoption of American social norms for women and her eventual marriage in 2004 to an American, Darrin Affrunti. (Joseph has since divorced.) Ignoring the U.S. marriage, Joseph's father informed her that he had ar-ranged for her to marry a Pakistani man. Joseph believes that if she refuses, her family would disown her, and she would be forced to live as a single Christian woman in Pakistan. To establish what this would mean for her, Joseph submitted evidence that Christian women in Pakistan who are abandoned by their families in this way often face a life of prostitution, violence, and death.

On June 26, 2006, Joseph filed her own motion to reopen. Ordinarily, such a motion "must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened." 8 C.F.R. § 1003.2(c)(2). Joseph admitted that her motion was untimely, but she believes that she can demonstrate "changed circumstances" that exempt her from the time requirements. 8 C.F.R. § 1003.2(c)(3)(ii). The BIA denied Joseph's motion, but we granted her petition for review and remanded to the BIA because it failed to consider her argument that her parents' threat of forced marriage constituted a changed circumstance in Pakistan. On remand, the BIA again denied Joseph's motion to reopen, and Joseph again petitions this court for review.

II.

We must first address the jurisdictional arguments raised by the Government. This court has jurisdiction over Joseph's petition for review of a BIA discretionary decision under 8 U.S.C. § 1252(a)(1) only if Joseph raises constitutional issues or questions of law; it lacks juris-diction as a result of 8 U.S.C. § 1252(a)(2)(B)(ii) if Joseph does not raise such issues. Kucana v. Mukasey, 533 F.3d 534, 538 (7th Cir. 2008), cert. granted, 129 S.Ct. 2075 (2009). (Prior to Kucana, we reviewed many of the BIA's discretionary decisions for an abuse of discretion.) Both sides agree that there are no constitutional issues in this case, but the parties disagree about the critical question whether Joseph has raised issues of law. In Huang v. Mukasey, 534 F.3d 618 (7th Cir. 2008), we outlined what constitutes a legal issue:

[A]ll the court can decide is whether the Board committed an error of law. That will usually be a misinterpretation of a statute, regulation, or constitutional provision. But it could also be a misreading of the Board's own precedent, or the Board's use of the wrong legal standard, or simply a failure to exercise discretion or to consider factors acknowledged to be material to such an exercise.

Id. at 620 (citations omitted). Even if Joseph can assert an error of law, she faces one additional hurdle. The BIA's decision relied on two grounds for the denial of Joseph's motion to reopen: "she has not shown changed circumstances in Pakistan orthat her application has a likelihood of being granted, if proceedings are reopened." The second ground represents the BIA's conclusion that Joseph has not put forward a prima facie case that her asylum case would succeed. See Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003). If there are two alternative grounds for denying relief, and we lack jurisdiction to review one, then we lack jurisdiction over the whole case. See Ekasinta v. ...


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