Eugene Joseph v. Loretta E. Lynch
793 F.3d 739
| 7th Cir. | 2015Background
- Eugene Joseph, a Nigerian national, was ordered removed in 2008 after criminal convictions; the BIA and this Court previously upheld removal and denied earlier petitions.
- Joseph has filed eight motions to reopen; the BIA denied all; this petition challenges the BIA’s eighth denial invoking VAWA-based reopening.
- VAWA (as amended) provides a one-year filing window for motions to reopen for domestic-violence victims, with a discretionary waiver for "extraordinary circumstances" or "extreme hardship to the alien’s child."
- Joseph’s prior VAWA motions were untimely; the current (third VAWA) motion submitted medical records for his two asthmatic sons and an affidavit from his brother claiming inadequate treatment when Joseph was detained.
- The BIA denied the motion as time- and number-barred, finding the new evidence came from interested parties (Joseph and his brother) and did not establish cause to excuse the statutory bars; it also noted adverse factors on the record (criminal history and credibility problems).
Issues
| Issue | Joseph's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review BIA’s discretionary denial to waive VAWA time limit | Joseph contends the BIA ignored new medical records and thus failed to consider relevant evidence, which this Court can review | The government says discretionary waiver decisions are committed to the AG and mostly unreviewable; only consideration of evidence is reviewable | Court: Jurisdiction limited; will review only for failure to consider relevant evidence, not disagreement over how evidence was weighed |
| Whether the BIA ignored or failed to consider the sons' medical records | Joseph says the BIA’s phrase about "only evidence" shows it disregarded medical records | Government says BIA considered the record and reasonably found the alleged hardship depended on statements by interested witnesses | Court: The medical records do not, by themselves, establish extreme hardship; Joseph’s claim rests on his and his brother’s statements, so no reviewable error shown |
| Whether approval of Form I-360 constitutes an "extraordinary circumstance" the BIA overlooked | Joseph argues the I-360 approval (post-hearing) is an extraordinary circumstance and justifies reopening | Government notes the I-360 approval is ex parte and does not compel waiver; BIA was not asked to treat it as an extraordinary circumstance | Court: Joseph failed to raise this argument before the BIA, so he cannot present it for the first time here; waiver argument forfeited |
| Whether the BIA’s alternate discretionary denial (adverse factors) is reviewable | Joseph challenges denial of reopening | Government relies on BIA’s discretionary determination based on criminal record and credibility | Court: That discretionary denial is unreviewable, providing an independent basis to dismiss |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (establishes limits on review of discretionary reopening decisions)
- Ji Cheng Ni v. Holder, 715 F.3d 620 (Seventh Circuit: courts may review whether the BIA considered relevant evidence)
- Kiorkis v. Holder, 634 F.3d 924 (Seventh Circuit: scope of review over BIA's consideration of evidence)
- Jawad v. Holder, 686 F.3d 400 (Seventh Circuit: disagreement over evidence weighting does not overcome jurisdictional bar)
- Khan v. Filip, 554 F.3d 681 (Seventh Circuit: limits on review of discretionary immigration decisions)
- Khan v. Holder, 766 F.3d 689 (Seventh Circuit: issues forfeited when not raised before the BIA)
- Cruz-Moyaho v. Holder, 703 F.3d 991 (Seventh Circuit: litigants cannot raise new claims in court that were not presented to the BIA)