Ray Fuller v. Matthew G. Whitaker

In the

United States Court of Appeals

For the Seventh Circuit

No. 17-3176

RAY FULLER,

Petitioner,

v.

MATTHEW G. WHITAKER, Acting

Attorney General of the United

States,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals

No. A077-811-635

ARGUED NOVEMBER 1, 2018 — DECIDED JANUARY 23, 2019

Before WOOD, Chief Judge, and MANION and ROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Ray Fuller asked the Board of

Immigration Appeals to exercise its authority to reopen his

removal proceeding sua sponte so that he could present new

2 No. 17-3176

evidence in support of his request to defer his removal from

this country under the Convention Against Torture (“CAT”).1

Fuller contends that he likely will face torture upon return to

his native Jamaica because he is bisexual. The Board previously

had sustained an Immigration Judge’s finding that Fuller had

not presented a credible case as to his alleged sexual orienta-

tion and fear of torture. In support of his motion to reopen,

Fuller submitted to the Board several new letters of support

from acquaintances attesting to prior incidents in which he was

the victim of violence in Jamaica owing to his sexual orienta-

tion. In denying this request, the Board explained that

“[Fuller’s] motion does not challenge our conclusions regard-

ing his credibility or his eligibility for deferral of removal, and

we do not find that his letters of support would materially alter

these findings.” A.R. 3 (internal record citation omitted).

Because the Board’s stated rationale for disposing of Fuller’s

motion reflects a misapprehension of the basis for his request,

and because we cannot be confident that the Board’s mistake

did not taint the exercise of its otherwise unreviewable

discretion over the merits of the motion, we conclude that the

Board committed legal error in denying his request for relief.

On that basis, we grant Fuller’s petition for review and remand

to the Board for further proceedings.

1

We recognize that when the Board acts in response to a litigant’s request,

it is not acting sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir.

2013). We shall nonetheless refer to the Board’s authority to reopen a

proceeding sua sponte in order to distinguish that power from the Board’s

distinct authority to entertain a one-time motion to reopen filed within 90

days of final agency action. Compare 8 C.F.R. § 1003.2(c)(2) with id.

§ 1003.2(a).

No. 17-3176 3

I.

Our summary of the facts may be somewhat abbreviated,

as this is the fourth time that Fuller’s case has come before us.

We refer the reader to our two prior published decisions for

additional background. See Fuller v. Lynch, 833 F.3d 866 (7th

Cir. 2016) (“Fuller I”); Fuller v. Sessions, 879 F.3d 265 (7th Cir.

2018) (“Fuller II”).

Fuller entered the country legally on a fiancé visa in 1999

and married an American citizen the following year. In 2004,

he pleaded guilty to attempted criminal sexual assault and an

Illinois court ordered him to serve a term of 30 months’

probation. After he later violated the terms of his probation,

Fuller was re-sentenced to a prison term of four years.

Following Fuller’s release from prison in 2014, the Depart-

ment of Homeland Security (“DHS”) initiated removal

proceedings against him. The government charged, and the

Board would later agree, that Fuller was removable from the

United States pursuant to 8 U.S.C. § 1227(a)(1)(D)(i) because he

had lost his conditional permanent resident status. (In 2004,

Fuller and his wife, whom he divorced the following year,

failed to appear for a mandatory interview with immigration

officials, triggering the revocation of his conditional residency

status.)2 And because, as the Board would also agree, Fuller’s

conviction for attempted criminal sexual assault constituted a

2

The government alleged that Fuller was removable on other grounds, but

the Board found it unnecessary to reach these other grounds. Fuller does

not contest that he is removable on the ground that he lost his status as a

conditional permanent resident of the United States.

4 No. 17-3176

“particularly serious crime,” he was disqualified from seeking

withholding of removal under both the Immigration and

Nationality Act and the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii).

Fuller instead sought deferral of his removal under the

CAT, alleging that he was likely to be tortured as a bisexual

were he returned to Jamaica. See 8 C.F.R. §§ 208.16(c)(4),

208.17(a).3 In a hearing before the Immigration Judge (“IJ”),

Fuller testified to a history of sexual relationships with both

men and women beginning in his preteen years and continuing

through his (by then dissolved) marriage to a U.S. citizen.

Fuller also recounted a number of incidents in Jamaica in

which he was physically and verbally attacked by those who

perceived him to be gay; one of these incidents involved a

shooting by a homophobic mob in the gay-friendly resort town

of Ocho Rios. Fuller further indicated that his sisters had

disowned him for his sexual orientation. In addition to his

testimony, Fuller presented the IJ with seven letters from his

children and friends, attesting to both his bisexuality and to the

violence he had experienced in Jamaica on account of his

sexual orientation.

The IJ found that Fuller’s testimony was not credible; and

because she disbelieved his testimony and also questioned the

veracity of the letters he had submitted, the IJ concluded that

3

For purposes of the CAT, torture is defined to include “any act by which

severe pain or suffering, whether physical or mental, is intentionally

inflicted on a person … for any reason based on discrimination of any kind,

when such pain or suffering is inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 208.18(a)(1).

No. 17-3176 5

Fuller had not established that he is bisexual and as such faces

a likelihood of torture if he is forced to return to Jamaica. She

consequently denied his request for relief under the CAT. A.R.

181–202. In finding that Fuller’s testimony was not credible, the

IJ cited discrepancies both as to certain basic facts (including

the number and names of sisters, as well as confusing his sister

with his mother in his testimony) and as to the details of the

prior instances of violence he allegedly had experienced in

Jamaica (including a ten-year discrepancy as to the timing of

the Ocho Rios shooting and which of his former boyfriends

was present at the incident, as recounted in his written state-

ment versus his subsequent testimony in court). As for the

supporting letters from Fuller’s friends, the IJ noted that none

of the authors were available to testify although two of them

were former boyfriends who lived in the United States. The

letters also diverged in certain respects from Fuller’s testi-

mony: one letter suggested that Fuller had been shot on

multiple occasions in Jamaica, whereas Fuller had only

described one shooting. And all of the letters contained the

same centered, dotted signature line, which caused the IJ to

doubt their provenance. A.R. 192–96. The IJ summarized:

[Fuller’s] credibility is seriously lacking in this case.

He is unable to recall many of the most important

details of the events that he claims … had an impact

on his life, particularly with respect to his claim of

being bisexual. He has failed to provide the Court

with many documents that could have clarified

many of these inconsistencies, such as medical

records, police reports, corroborating letters of

support or witnesses. The letters that he has pre-

6 No. 17-3176

sented to the Court are given very little weight

because the Court is unable to verify their authentic-

ity and has not had an opportunity to cross-examine

or to even hear testimony from any of the makers of

these statements. The respondent has given very

little corroborative evidence to evaluate his claim

that he is in fact bisexual and that he was in fact

harmed in Jamaica on account of his sexual orienta-

tion in the past.

A.R. 195.

In 2015, the Board affirmed the denial of CAT relief to

Fuller based on the IJ’s adverse credibility findings. A.R. 61–62.

“[Fuller] has shown no clear error in the Immigration Judge’s

detailed findings of fact, to include the findings that the

respondent did not credibly testify and did not establish that

he has ever been bisexual. The respondent’s inconsistent

statements and implausible explanations fully support an

adverse credibility determination.” A.R. 62 (internal record

citation omitted).

Fuller then appealed to this court, but we denied his

petition for review in a divided opinion. Fuller I, 833 F.3d 866.

We concluded in relevant part that the IJ’s adverse credibility

determination, as affirmed by the Board, was supported by

substantial evidence. Id. at 871–72. Although we acknowledged

that some of the IJ’s stated reasons for disbelieving Fuller were

off the mark (including, for example, the citation of his mar-

riage to a woman and multiple other prior heterosexual

relationships as a reason to think he was not bisexual), others

were sound. The latter included the discrepancies between his

No. 17-3176 7

written statement and his oral testimony as to when the Ocho

Rios shooting had occurred, his confusion as to the number

and names of his sisters (and mixing up his mother with his

sister), and a material lie he had told government officials in

2001 in seeking permission to visit Jamaica. We were satisfied

that the IJ’s adverse credibility finding was amply supported

in these respects. Id. We added that if Fuller were able to gather

new evidence demonstrating that the IJ was mistaken as to his

sexual orientation, he could ask the IJ to sua sponte reopen the

proceeding. Id. at 872. The dissent, unpersuaded that these

discrepancies cast doubt on Fuller’s claims that he was bisexual

and had suffered violence as a result, contended that the

petition for review should have been granted. Id. at 872–74.

In January 2017, Fuller filed a motion asking the Board to

reconsider and/or reopen the proceedings. A.R. 48–54. The

principal contention that Fuller advanced in his motion was

that the IJ had erred in rejecting his representation that he is

bisexual and as such faces likely persecution and torture upon

his return to Jamaica. Among other points, Fuller argued that

he had testified without contradiction that he is bisexual and

has been rejected by his family members because of his sexual

orientation; that given the hostility and violence bisexual

individuals experience in Jamaica, he would have no reason to

falsely characterize himself as bisexual; that for the same

reasons, it was difficult for him to locate gay or bisexual

Jamaicans who would put themselves at risk by giving

testimony that would confirm his bisexuality; that the inconsis-

tencies and mistakes in his testimony before the IJ were due to

his fear of being returned to Jamaica; and that the IJ’s rationale

for discrediting his testimony betrayed her own misunder-

8 No. 17-3176

standings about bisexuality. A.R. 50–52, 54. Fuller added that

he had been able to obtain affidavits—actually, letters—from

individuals who supported his claim that had not been

available to him previously. A.R. 53.

The Board denied Fuller’s motion in February 2017. A.R. 43.

The Board noted both that the motion was untimely and that,

although Fuller referenced new affidavits that were unavail-

able to him previously, “he has not submitted such evidence

with the motion, nor has he shown that a different outcome

may be warranted based on the new evidence.” A.R. 43.

On receipt of the Board’s order denying his motion, Fuller

filed what he styled as a “Statement of Notice to Appeal

(motion to reopen).” A.R. 22. In that statement, Fuller chal-

lenged the Board’s declaration that he had not submitted the

new evidence referred to in his motion to reopen, observing,

“The new evidence was the cornerstone of my motion so there

is no way that it would not be sent in with the motion. I think

that this was a clerical mishap that caused this and I am now

making sure the new pieces of evidence are included.” A.R. 22.

Fuller went on to summarize briefly his basis for asking the

Board to reopen his removal proceeding (and on what grounds

he was seeking deferral of removal), and concluded his

statement with the following: “I have new evidence to submit

to the court to help to prove my case. I pray that I will be given

the chance to prove my credibility in court with the help of the

new evidence, and garner a positive outcome to my situation.”

A.R. 22. He attached to the statement copies of the three letters

referred to in his prior motion to reconsider and/or reopen.

No. 17-3176 9

The Board treated Fuller’s “statement” as a second motion

to reopen, and denied that motion. A.R. 3–4. The Board noted

in the first instance that the motion was barred in both number

and untimeliness, and that Fuller had not identified any

applicable exception to those limits. Nor, in the Board’s view,

had Fuller demonstrated that the circumstances of his case

were so exceptional as to warrant the exercise of the Board’s

authority to sua sponte reopen the proceedings. A.R. 3. The

Board explained:

Even accepting [Fuller’s] argument that he previ-

ously submitted his proffered letters of support, we

find no basis on which to alter our October 27, 2015

dismissal of his appeal or our previous denial of his

motion to reopen. [Fuller’s] motion does not chal-

lenge our conclusions regarding his credibility or his

eligibility for deferral of removal, and we do not

find that his letters of support would materially alter

these findings. …

A.R. 3 (internal record citations omitted).

Fuller then filed the instant petition for review of the

Board’s order, along with a request that we stay his removal

pending resolution of the merits of his petition. After first

denying Fuller a stay, see Fuller II, 879 F.3d 265, we ultimately

agreed to stay his removal and appointed counsel to represent

him. With the benefit of briefing and argument, we now

proceed to the merits of Fuller’s petition for review.

10 No. 17-3176

II.

We begin by addressing the limits of our jurisdiction. With

exceptions not applicable here, a petitioner is limited to one

motion to reopen filed within 90 days of the Board’s final

administrative decision. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i);

8 C.F.R. § 1003.2(c)(2). Fuller sought reopening long after the

90-day time limit had expired and, consequently, his only

recourse was to ask the Board to exercise its authority to

reopen the removal proceeding sua sponte, see 8 C.F.R.

§ 1003.2(a) (“The Board may at any time reopen on its own

motion any case in which it has rendered a decision.”), a power

the Board has said it will reserve for “exceptional situations,”

In re J– J–, 21 I. & N. Dec. 976, 984 (B.I.A. 1997); see also In re

G– D–, 22 I. & N. Dec. 1132, 1133–34 (B.I.A. 1999). Because the

governing regulation permits but does not require the Board

to exercise this power and there is no law defining what

situations will qualify as “exceptional,” there is no meaningful

standard by which to evaluate the exercise of the Board’s

discretion, and consequently the merits of the Board’s decision

to deny a motion to reopen sua sponte are unreviewable. Anaya-

Aguilar v. Holder, 683 F.3d 369, 372 (7th Cir. 2012) (“Anaya-

Aguilar I”) (collecting cases); see also Fuller II, 879 F.3d at 268.

But we do possess the authority to recognize and address

constitutional transgressions and other legal errors that the

Board may have committed in disposing of such a motion, see

8 U.S.C. § 1252(a)(2)(D); Fuller II, 879 F.3d at 268; Zambrano-

Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Anaya-Aguilar

v. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012) (clarifying Anaya-

Aguilar I on denial of rehearing), including whether Board’s

stated rationale for denying such a motion indicates that it

No. 17-3176 11

ignored evidence that the alien tendered in support of his

request, Fuller II, 879 F.3d at 268 (citing Joseph v. Lynch, 793 F.3d

739, 741–42 (7th Cir. 2015)). Contrary to the government’s

argument, the REAL ID Act of 2005, which stripped us of the

authority to review various discretionary decisions of the

Board, did not alter our ability to address such legal errors. See

§ 1252(a)(2)(D); Cevilla v. Gonzales, 446 F.3d 658, 660 (7th Cir.

2006).4

Fuller charges the Board with two legal errors in disposing

of his motion to reopen. He contends first that the Board

misapprehended the thrust of his motion to reopen and the

significance of the additional letters of support he submitted in

support of the motion. The Board understood Fuller not to be

challenging its conclusions as to his credibility or his eligibility

for deferral of removal. But that understanding cannot be

squared with the substance of his motion, which was a direct

challenge to these conclusions, Fuller argues. Fuller also

contends that the Board’s summary rejection of his new

evidence as “insufficient to materially alter” its adverse

findings was so perfunctory as to preclude confirmation that

the Board gave meaningful consideration to his evidence.

4

At oral argument, the government’s counsel suggested that because Fuller

is seeking reopening in order to renew his request for relief under the CAT,

and because a denial of relief under the CAT itself is reviewable by this

court, see Teneng v. Holder, 602 F. App’x 340, 347 (7th Cir. 2015) (non-

precedential decision); Wani Site v. Holder, 656 F.3d 590, 593 (7th Cir. 2011),

section 1252(a)(2)(D) does not apply to the Board’s refusal to exercise its

authority to sua sponte reopen the proceedings. Because that contention was

not raised in the government’s brief, we deem it waived. E.g., Pope v. Perdue,

889 F.3d 410, 417 n.4 (7th Cir. 2018).

12 No. 17-3176

Because we agree with Fuller that the Board mischaracterized

the basis for his motion, and because we can have no confi-

dence that its error did not taint the exercise of its discretion as

to the merits of the motion, we will remand the matter to the

Board on that basis, without deciding whether the Board,

absent that error, was obligated to say more than it did in

denying Fuller’s request that it reopen the removal proceeding

sua sponte.

We should note at the outset that we regard Fuller’s

“Statement of Notice to Appeal (motion to reopen),” which the

Board treated as a second motion to reopen sua sponte, simply

as an effort to supplement the record with the three new letters

of support that were somehow missing from Fuller’s prior

motion. The “Statement,” as we read it, did not purport to

make any new arguments in favor of reopening or even to

address the Board’s rationale in denying his prior motion,

beyond tendering the letters that the Board had said were

missing from Fuller’s prior submission. Certainly it was within

the Board’s authority to characterize Fuller’s “Statement” as a

second motion to reopen; we do not mean to suggest other-

wise. But, in determining whether the Board committed any

legal error, we shall evaluate the Board’s order disposing of

that second motion in light of the arguments Fuller advanced

both in his “Statement” and in his first motion to reopen, which

were of one piece.

The Board said in its order that Fuller was not challenging

its prior conclusions regarding his credibility or his eligibility

for deferral of removal; but that declaration cannot be recon-

ciled with either the letter or the spirit of Fuller’s request for

relief. Nowhere in either his motion to reopen or in his follow-

No. 17-3176 13

up “Statement” did Fuller purport to forgo a challenge to the

IJ’s finding (as sustained by the Board) that he was not credible

as to his sexual orientation and history of persecution in

Jamaica and that, consequently, he could not claim eligibility

for deferral of removal under the CAT as a bisexual who was

likely to be tortured. Indeed, considering that the Board’s 2015

order had deemed Fuller ineligible for deferral of removal on

the strength of the IJ’s finding that he was not credible as to his

purported sexual orientation, it would be surprising if Fuller’s

motion did not challenge the Board’s conclusions as to his

credibility and, in turn, his eligibility for deferral of removal. It

is true that Fuller made statements in his motion to reopen to

the effect that the IJ’s adverse credibility determination “cannot

and does not preclude him from being a bisexual” and “does

not change the fact that [t]he Respondent is bisexual.” A.R. 51.

But such statements cannot reasonably be construed as

accepting, even for the sake of argument, the IJ’s credibility

finding. The entire thrust of the motion to reopen was that

Fuller is, in fact, bisexual and has in fact, experienced violence

in Jamaica as a result of his sexual orientation; that the IJ’s

rationale in discrediting him on these points was suspect; and

that the new letters of support tendered in support of his

request to reopen would eliminate any doubt as to the likeli-

hood that he will be tortured if forced to return to Jamaica. If

Fuller did not say so expressly, it was nonetheless clear from

the substance of his arguments that he meant to challenge the

adverse credibility determination and the resulting finding that

he had no basis on which to seek deferral of removal. See A.R.

51 (“The pertinent facts should be that [Fuller] testified without

contradiction that he [is] bisexual, [and] he was rejected by his

14 No. 17-3176

family because of this.”); A.R. 54 (“The Immigration Judge’s

assertion that [Fuller] was not in danger if removed to Jamaica

is clearly a decision made with the lack of in-depth investiga-

tion by the fact-finders in this case.”). And, indeed, Fuller

ultimately did say this expressly in his “Statement”: “I have

new evidence to submit to the court to help to prove my case.

I pray that I will be given the chance to prove my credibility in

court with the help of the new evidence … .” A.R. 22.

So the Board’s understanding of Fuller’s motion to

reopen—and of what challenges he was purportedly forgo-

ing—was erroneous. And to the extent that misunderstanding

necessarily affected how the Board exercised its discretion as

to the merits of his motion, it amounts to a legal error that

entitles him to relief. We have repeatedly said that the Board

commits a legal error within our jurisdiction to address when

it ignores, misapplies, or fails to meaningfully consider the

evidence an alien has submitted in support of his motion to

reopen sua sponte. See Arej v. Sessions, 852 F.3d 665, 667 (7th Cir.

2017); Ni v. Holder, 715 F.3d 620, 630 (7th Cir. 2013); Moosa v.

Holder, 644 F.3d 380, 386 (7th Cir. 2011). Contrary to the

government’s suggestion, our ability to recognize such an error

is not dependent on the particular reasons why an alien is

asking the Board to exercise its sua sponte authority, be it a

subsequent change in the law, see In re G– D–, supra, 22 I. & N.

Dec. at 1135, or (as here) the availability of new evidence

supporting the alien’s claim for relief. When the Board

mischaracterizes the evidence tendered or misapprehends the

purpose for which it is offered, it has not complied with its

duty to recognize and consider the basis on which the alien has

No. 17-3176 15

asked the Board to exercise its regulatory authority to reopen

the proceedings sua sponte. See Arej, 852 F.3d at 667.

We acknowledge that the Board, after stating that Fuller

was not challenging its findings as to his credibility and

eligibility for deferral of removal, added that “we do not find

that his letters of support would materially alter these find-

ings,”(A.R. 3); but that addition does not convince us that we

should deny Fuller’s petition for review. Having misappre-

hended or mischaracterized what findings Fuller was or was

not challenging in his motion to reopen, we cannot be confi-

dent that the Board’s additional half-sentence as to the import

of Fuller’s new evidence represents an independent and well-

considered alternative ground for the Board’s judgment. We

might have more assurance in that regard had the Board said

something more about the letters of support and why the

Board did not think they would materially alter its assessment

of whether he is entitled to deferral of removal. But the Board’s

failure to elaborate on this point leaves us with no assurance

that the Board’s exercise of discretion was unaffected by its

error in appreciating the purpose of Fuller’s new evidence. To

be clear, our point is not that the Board must say enough to

convince us that the Board exercised its discretion “correctly”

on Fuller’s motion to reopen; the merits of its ruling are of

course beyond the limited scope of our review. But in the

immediate wake of a grave mischaracterization of the basis for

Fuller’s motion, the Board’s additional boilerplate observation

that Fuller’s new letters would not materially alter its prior

adverse findings cannot eradicate doubt as to whether the

Board actually considered Fuller’s evidence and understood

what he was arguing based on that evidence. Wholly apart

16 No. 17-3176

from the question of how much the Board was obligated in the

first instance to say in disposing of Fuller’s motion, the glaring

error in what it did say suggests it may never have given

meaningful consideration to Fuller’s evidence. The Board’s

order as written leaves us in the same position we would be if

its stated rationale indicated that it had altogether ignored the

evidence and arguments Fuller put before it. See Joseph, 793

F.3d at 741–42; Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir.

2011); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).

The merits of Fuller’s case for the sua sponte reopening of

his removal proceeding are for the Board and the Board alone

to judge. Nothing in our opinion should be construed as a

signal that we believe Fuller is entitled to reopening; our views

on that question are, in any event, irrelevant. Suffice it to say

that the Board in this case plainly misapprehended the basis for

Fuller’s motion and then dispensed with the merits of the

motion in a perfunctory half-sentence, giving us no assurance

that it genuinely exercised its discretion as to what Fuller was

actually arguing. The Board’s legal error compels us to return

the matter to the Board for reconsideration.

III.

We GRANT the petition for review and REMAND the case

to the Board for further proceedings consistent with this

opinion.

17  No. 17‐3176

MANION,  Circuit  Judge,  dissenting.  The  court’s  opinion

admirably attempts to toe the thin line between reviewing a

decision  of  the  Board  of  Immigration  Appeals  to  ensure  it

exercised its discretion and reviewing the Board’s exercise of

discretion itself. But it strays from the former into the latter.

Therefore, I respectfully dissent.

I.

An immigration judge (IJ) found Ray Fuller lacked credi‐

bility  and  denied  him  relief  under  the  Convention  Against

Torture. The Board affirmed the decision, concluding Fuller

failed  to  show  clear  error  concerning  the  IJ’s  credibility  de‐

termination. A.R. 62 (“[Fuller’s] inconsistent statements and

implausible explanations fully support an adverse credibility

determination.”). We denied Fuller’s petition for review. See

Fuller v. Lynch (Fuller I), 833 F.3d 866, 872 (7th Cir. 2016). In

accord  with  the  deferential  standard  of  review  we  apply  in

these  cases,  we too concluded there was sufficient  evidence

to support the IJ’s credibility determination. Specifically, we

considered “Fuller’s inability to  recall significant details”  of

his  alleged  shooting  (such  as  the  decade  in  which  it  oc‐

curred), his confusion concerning his sisters and his mother,

the suspiciousness of his letters of support, and his lie on his

2001 immigration application. Id. at 869–71.

Fuller then asked the Board to exercise its sua sponte au‐

thority to reopen  his removal proceedings,  claiming he had

attached new evidence to the motion. See 8 C.F.R. § 1003.2(a).

The Board declined, noting Fuller had not attached any new

evidence  to  his  motion.  Fuller  made  another  motion,  this

time  definitely  attaching  three  new  letters  in  support  of  his

claims. The Board declined again. The critical sentence of the

Board’s second decision is as follows: “The respondent’s mo‐

No. 17‐3176                                                                                      18

tion does not challenge our conclusions regarding his credi‐

bility or his eligibility for deferral of removal, and we do not

find  that  his  letters  of  support  would  materially  alter  these

findings.”  A.R.  3  (internal  record  citations  omitted).  Fuller

petitions us again.

II.

Appellate  review of the  Board’s decisions concerning its

sua sponte authority is severely limited. We have jurisdiction

only  to  review  for  legal  or  constitutional  errors.  Anaya‐

Aguilar v. Holder, 697 F.3d 1189, 1190 (7th Cir. 2012); see also

Arej  v.  Sessions,  852  F.3d  665,  668  (7th  Cir.  2017)  (Sykes,  J.,

concurring  in  the  judgment)  (“[W]e  lack  jurisdiction  to  re‐

view how the [Board] evaluated and weighed [the petition‐

er’s]  evidence  or  to  test  its  decision  for  abuse  of  discretion;

we may review its decision only for errors of law and consti‐

tutional  infirmities.”).  We  have  defined  “legal  error”  to  in‐

clude  the  Board’s  failure  “to  exercise  discretion  at  all  by

completely  ignoring  an  argument.”  Iglesias  v.  Mukasey,  540

F.3d 528, 530–31 (7th Cir. 2008).

And that is the legal error the court finds here. The court

grants Fuller’s petition because of the Board’s statement that

Fuller was not challenging the Board’s “conclusions regard‐

ing  his  credibility  or  his  eligibility  for  deferral.”  The  court

calls  this  “a  grave  mischaracterization”  that  “cannot  be  rec‐

onciled with either the letter or the spirit of Fuller’s request

for relief.” Majority Op. at 12, 15. I disagree.

First,  Fuller’s  second  motion1  did  not  clearly  challenge

the  Board’s  conclusions.  Fuller’s  pro  se  motion  (his  “State‐

1 The court treats Fuller’s first and second motions to reopen as “of

one piece.” Majority Op. at 12. But the court accepts the Board was well

19  No. 17‐3176

ment”)  contains  three  paragraphs.  In  the  first  paragraph,

Fuller  asserts  he  attached  the  letters  to  the  first  motion  and

states there must have been a clerical error. The second par‐

agraph reiterates what he has said all along in these proceed‐

ings (he says he is bisexual, that he has experienced violence

in  Jamaica,  and  that  he  will  experience  more  if  he  returns)

and asks the Board to overturn the judgment in his case. The

final paragraph asks for an opportunity “to present [his] case

to  the  immigration  court”  and  to  “be  given  the  chance  to

prove [his] credibility in court with the help of the new evi‐

dence.” A.R. 22. Apart from that last statement, Fuller never

mentions  his  credibility  and  never  directly  addresses  his

credibility  issues, which were the  basis for the denial  of  his

petition  for  deferral  of  removal.  For  instance,  he  does  not

explain why his assertions should be trusted when he could

not  keep  straight  whether  he  got  shot  in  the  1980s  or  the

1990s or when he has previously lied on an immigration ap‐

plication.  Neither  does  the  restatement  of  his  allegations

necessarily  amount  to  a  “challenge”  to  the  Board’s  earlier

determinations.  The  IJ  found  Fuller  did  not  testify  credibly,

and  the  Board  concluded  there  was  no  clear  error  in  that

finding.  The  Board  was  not  required  to  treat  Fuller’s  re‐

statement  of  a  summary  of  his  own  testimony  as  a  “chal‐

lenge” to that conclusion. Cf. Anderson v. Hardman, 241 F.3d

544, 545–46 (7th Cir. 2001) (dismissing a pro se appeal where

the  appellant  “offer[ed]  no  articulable  basis  for  disturbing

within its power to treat Fuller’s second filing as an independent motion.

Id. If it was acceptable for the Board to do that, then we should not make

it unacceptable by treating the two as one for the purposes of our review.

Therefore, I treat the second motion on its own.

No. 17‐3176                                                                                      20

the district court’s judgment” and “simply repeat[ed] certain

allegations of his complaint and cite[d] one irrelevant case”).

So  Fuller’s motion is ambiguous about whether  it “chal‐

lenges”  the  Board’s  determinations,  and  this  brings  me  to

my next point: we should not be in the business of interpret‐

ing “the spirit” of motions made to the Board. The resolution

of ambiguities is a power that should lie with the entity ex‐

ercising discretion, not the one exercising an extremely lim‐

ited power of review. We are, after all, only concerned with

whether  the  Board  completely  ignored  Fuller’s  motion,  not

with  how  the  Board  interpreted  it.  See  Joseph  v.  Lynch,  793

F.3d  739,  742  (7th  Cir.  2015)  (“Joseph’s  disagreement  with

the  Board  about  the  significance  of  his  and  his  brother’s

statements  is  simply  an  argument  about  how  those  state‐

ments  were  weighed.  It  does  not  clear  the  jurisdictional

bar … .”).2  And  the  Board’s  determination  that  Fuller’s  mo‐

tion  did  not  challenge  the  Board’s  earlier  conclusions  is  a

reasonable  interpretation  of  the  ambiguous  pro  se  motion.3

Accordingly, there has been no showing the Board completely

ignored Fuller’s motion or arguments.

2 The majority in Arej v. Sessions conflated these considerations and

held the Board ignored the petitioner’s evidence because the Board

reached a conclusion the majority deemed incorrect. 852 F.3d at 667 (ma‐

jority opinion). We should not allow that faulty rational to continue.

3 If the Board’s decision showed an absolute lack of understanding

concerning the contents of the motion, it would be appropriate for this

court to question whether the Board actually considered the motion. But

I conclude that is not what happened here.

21  No. 17‐3176

III.

The court returns this case to the Board for it to exercise

its discretion in resolving the merits—the court acknowledg‐

es it has no authority to direct how the Board should exercise

that  discretion.  I  completely  agree  with  that  description  of

our  power.  However,  as  I  conclude  the  Board  has  already

demonstrated it exercised its discretion in resolving Fuller’s

motion, I respectfully dissent.