NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2009
Decided December 9, 2009
Before
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐1882
DIMITRE DJOROV‐IVANOV, Petition for Review of an Order of the Board
Petitioner, of Immigration Appeals.
v. No. A070‐123‐547
ERIC HOLDER, JR., Attorney General of
the United States,
Respondent.
O R D E R
Dimitre Djorov‐Ivanov, a native and citizen of Bulgaria, was denied asylum and
withholding of deportation in 1994. In 2000, the Board of Immigration Appeals dismissed
his appeal, adopting the immigration judge’s reasoning that Djorov‐Ivanov had not
demonstrated a well‐founded fear of persecution. Eight years later, Djorov‐Ivanov filed a
motion to reopen under the Convention Against Torture (“CAT”). The Board denied the
motion as untimely. Djorov‐Ivanov petitions for review, arguing that: (1) his motion to
reopen should not be subject to timeliness regulations, and (2) he is prima facie eligible for
relief under the CAT. For the following reasons, we deny the petition.
No. 09‐1882 Page 2
Djorov‐Ivanov first argues that the Board erred in finding his motion to reopen
untimely because, he contends, he “never had the opportunity to apply for relief” under the
CAT. Regulations implementing the CAT did not become effective until 1999. See 8 C.F.R.
§§ 1208.16‐1208.18. Djorov‐Ivanov reads one of these, 8 C.F.R. § 1208.18(b)(1), to excuse
untimely motions to reopen from aliens whose proceedings were pending at the time CAT
regulations went into effect in 1999 from timeliness regulations because § 1208.18(b)(1) does
not itself contain a timeliness provision, a position he claims to be supported by Kay v.
Ashcroft, 387 F.3d 664 (7th Cir. 2004).
As a threshold matter, we must consider whether we have jurisdiction to review
Djorov‐Ivanovʹs petition. The government urges us to reach the merits, but motions to
reopen are within the discretion of the Board and this court may not review them unless
they raise legal questions, see 8 U.S.C. § 1252(a)(2)(B)(ii), (a)(2)(D); Kucana v. Mukasey, 533
F.3d 534, 535‐38 (7th Cir. 2008), cert. granted, 129 S. Ct. 2075 (2009). The timeliness of a
motion to reopen is generally a factual question beyond the review of the court. See Johnson
v. Mukasey, 546 F.3d 403, 404‐05 (7th Cir. 2008). But the question whether § 1208.18(b)(1)
exempts Djorov‐Ivanov’s petition from timeliness regulations is a legal one, and thus we
may review the petition.
Returning to the merits, Kay does not help Djorov‐Ivanov. In that case, we made
clear that Kay’s motion to reopen under the CAT was timely because he filed it before the
deportation order became final, see Kay, 387 F.3d at 672‐73; Djorov‐Ivanov, by contrast,
waited eight years after his proceedings became final before filing his motion. More
importantly, though, Kay makes clear that motions to reopen under the CAT are subject to
general timeliness provisions. See Kay, 387 F.3d at 671‐73.
Aliens are generally permitted to file one motion to reopen a deportation proceeding
within 90 days of the Board’s decision on appeal, when the order becomes final. 8 C.F.R.
§ 1003.2(c)(2). Though CAT regulations made a limited exception for aliens whose
proceedings became final before the regulations went into effect in 1999, see id.
§ 1208.18(b)(2), no additional exceptions were made for motions to reopen under the CAT,
see id. §§ 1208.16‐1208.18 (regulations implementing the CAT). And contrary to Djorov‐
Ivanov’s assertion that he never had a chance to apply for relief under the CAT,
Djorov‐Ivanov could have filed a motion to reopen under the CAT at any time after the
regulations went into effect in 1999, during the pendency of his appeal to the Board. See 8
C.F.R. §§ 1208.18(b)(1), 1003.2(c)(4); Kay, 387 F.3d at 671‐72. Once the Board affirmed and
the deportation order became final on August 2, 2000, Djorov‐Ivanov had an additional 90
days to file his motion to reopen—until October 31, 2000. He failed to do so and lost his
opportunity.
No. 09‐1882 Page 3
While the CAT regulations do not, as Djorov‐Ivanov urges, create any special
exception to timeliness regulations, a general exception for motions to reopen does exist for
“changed circumstances arising in the country of nationality.” See 8 C.F.R. § 1003.2(c)(3)(ii);
see also 8 U.S.C. § 1229a(c)(7)(C). But Djorov‐Ivanov did not allege changed country
conditions in his motion to reopen, and he concedes on appeal that he doesnʹt seek to prove
changed country conditions.
Djorov‐Ivanov also contends that his motion to reopen should be granted because he
has presented a prima facie case for relief under the CAT. But the Board denied the motion
on timeliness grounds, noting only in passing that Djorov‐Ivanov had not demonstrated a
prima facie case for relief.
Because the Board did not abuse its discretion when it found Djorov‐Ivanov’s motion
untimely, the petition for review is DENIED.