                              NONPRECEDENTIAL DISPOSITION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
                                     Submitted July 25, 2008∗
                                      Decided July 29, 2008


                                               Before

                                FRANK H. EASTERBROOK , Chief Judge

                                MICHAEL S. KANNE , Circuit Judge

                                DIANE P. WOOD, Circuit Judge


No. 07-3245
                                                                Petition for Review of an
SYED RIZVI,                                                     Order of the Board of
      Petitioner,                                               Immigration Appeals.

               v.                                               No. A76-775-569

MICHAEL B. MUKASEY, Attorney General of the
United States,
      Respondent.


                                                Order

      Syed Rizvi (immigration officials call him Q. Rizvi Syed, but we use his own
preference) has been in the United States without legal authority since his visitor’s visa
expired in 1992. When removal proceedings began in 2000, Rizvi did not appear for his
hearing and was ordered removed in absentia. The Board of Immigration Appeals
affirmed, observing that his excuse for the default (that he had not been notified of the
hearing’s date) was unsupported by evidence. Rizvi did not obey the order to leave the
United States. He asked for reopening; the Board of Immigration Appeals denied that


       ∗ After an examination of the briefs and the record, we have concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 07-3245                                                                    Page 3

motion because there was still no evidence that notice had not been given. He filed
another application, this time accompanied by an affidavit that he had not received
notice of the hearing, but the Board denied this motion in 2003 because the statute
allows only one motion to reopen. An alien cannot keep filing until he finally supplies
essential evidence. Again Rizvi defied the order to depart. For unexplained reasons,
immigration officials did not enforce the order.

        In 2007 Rizvi filed a third motion for reopening, addressed not to the notice
question that had occupied the Board on the three earlier occasions (the appeal plus two
motions to reopen), but to a claim that Rizvi would face religious persecution in
Pakistan. That argument was before the Board for the first time. The Board denied this
motion as both untimely and successive. Although the time-and-number limits on
motions to reopen do not apply if country conditions have deteriorated materially since
the last decision, the Board did not reach that issue. Rizvi contended that he will be
persecuted because he is married to a person of Jewish descent and because the radical
Islamic faction in Pakistan, which opposes such marriages, has been gaining adherents.
But the Board noted that Rizvi’s marriage occurred in 2000 and that arguments about
the effect of the marriage could have been presented long before 2007. Rizvi did not
claim asylum before the immigration judge in 2000 (he was well past the one-year-
from-entry limit for seeking asylum), or ask for asylum or withholding of removal in
either of the first two motions to reopen; the Board thought that he lacked any good
reason to wait until 2007, even if country conditions had deteriorated, when the basis of
the motion (his marriage, and the occasional violence in Pakistan between radicals and
moderate Muslims such as Rizvi) dates to 2000 and before.

       Rizvi contends that the Board abused its discretion by denying his third motion
to reopen, but claims of abuse of discretion in dealing with motions to reopen fall
outside this court's jurisdiction. Kucana v. Mukasey, No. 07-1002 (7th Cir. July 7, 2008); Li
Fang Huang v. Mukasey, No. 07-2961 (7th Cir. July 15, 2008).

        Under 8 U.S.C. §1252(a)(2)(D), only statutory and constitutional arguments are
available in this court. In a supplemental memorandum addressed to the effect of
Kucana and §1252(a)(2)(D), Rizvi contends that he has presented a constitutional
argument: That the Board violated the due process clause by failing to resolve the
merits of his claim for asylum. But a decision whether to reopen precedes any
consideration of the merits, which need be discussed only if the case is reopened. A
litigant might as well argue that, before dismissing an appeal as untimely, this court is
constitutionally obliged to decide the case on the merits. Judges, and agencies, are
entitled to deny rehearing or reopening without making a fresh decision on the merits.
A valid procedural ground of decision makes it unnecessary to resolve the merits. See,
e.g., INS v. Bagamasbad, 429 U.S. 24 (1976).

       Rizvi also contends that the Board committed an error of statutory interpretation
when concluding that his motion was untimely. Such an argument is within our
jurisdiction, but the Board did not make a legal error. Section 1229a(a)(c)(7)(C)(i) sets a
90-day limit, and subsection (ii) adds that this limit does not apply if material evidence
No. 07-3245                                                                 Page 3


of changed country conditions was unavailable in time to present it at any earlier
proceeding. The Board understood this. It concluded that Rizvi could have presented
his principal arguments in 2000 or 2001. Whether the Board abused its discretion or
otherwise erred in reaching that conclusion in light of the particular evidence and
arguments that Rizvi adduced is not a matter of statutory construction; instead, for
reasons explained in Kucana, that is the sort of question a court of appeals lacks
jurisdiction to consider.

       Rizvi's brief in this court cites documents that were never presented to the Board,
and his lawyer also asserts (without supporting evidence) that Rizvi has converted to
Judaism and thus would be at considerably greater risk in Pakistan. Arguments and
evidence never presented to the agency are not properly presented to the court either.
(And a change in an alien's personal circumstances is not a proper ground for reopening;
the statute requires proof of changed country conditions.)

       The petition for review is denied to the extent it asserts that the Board
misconstrued 8 U.S.C. §1229a(c)(7)(C)(ii) and otherwise is dismissed for lack of
jurisdiction.
