                            NONPRECEDENTIAL DISPOSITION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

                             On Remand from the Supreme Court*
                                 Decided September 22, 2010

                                              Before

                              DANIEL A. MANION, Circuit Judge

                              MICHAEL S. KANNE, Circuit Judge

                              TERENCE E. EVANS, Circuit Judge

Nos. 07-3701 & 08-1367

JOSE ANAYA-AGUILAR,                                    Petition for Review of an Order of the
      Petitioner,                                      Board of Immigration Appeals.

       v.                                              No. A29-665-793

ERIC H. HOLDER, JR., Attorney General of
the United States,
       Respondent.



                                            ORDER

       Jose Anaya-Aguilar, a citizen of Mexico, entered the United States without
authorization. When removal proceedings commenced against him, he conceded
removability but filed, through his attorney, an application for cancellation of removal. The
Immigration Judge denied the application, and on June 2, 2005, the Board of Immigration
Appeals affirmed that decision. On May 21, 2007, Anaya asked the BIA to reopen his case
claiming that his lawyer, who was no longer representing him, submitted an anemic


       *
         After examining the briefs and record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a)(2)(C).
Nos. 07-3701 & 08-1367                                                                 Page 2


application for cancellation of removal. Anaya asserted that he first learned of the BIA’s
decision on April 18, 2007, and he blamed the delay on his lawyer’s effort to conceal the
consequences of his deficient performance. The BIA denied the motion as untimely and
then denied Anaya’s motion to reconsider that decision. Anaya petitions for review of both
rulings.

        When we first saw these consolidated cases in 2008, we ruled that under Kucana v.
Mukasey, 533 F.3d 534 (7th Cir.2008), we lacked subject-matter jurisdiction to review either
of the BIA’s discretionary decisions. But the Supreme Court later overturned our decision
in Kucana, see Kucana v. Holder, 130 S.Ct. 1281 (2010), and then vacated our dismissals of
Anaya’s petitions for review, see Anaya-Aguilar v. Mukasey, 302 F. App’x 481 (7th Cir. 2008).
Having determined that the briefs originally filed provide enough information for us to
resolve these cases, we now proceed to the merits.

        As we have noted, Anaya filed a motion to reopen a June 2005 BIA decision on May
21, 2007. The deadline for filing a motion to reopen is 90 days after an order is entered. See
8 U.S.C. § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). So Anaya filed his motion 630 days too
late. Thus, the BIA could entertain the motion only if Anaya first established that he
exercised due diligence in trying to determine the status of his appeal and was entitled to
equitable tolling of the deadline. See Gaberov v. Mukasey, 516 F.3d 590, 594 (7th Cir. 2008);
Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006). In his motion to reopen, Anaya alleged
that he heard nothing from his lawyer, Raul Villasuso, Jr., for two years after his
administrative appeal was filed in 2004, despite his “many phone calls” to his lawyer. He
also contended that Villasuso stymied his attempt to consult with another lawyer on the
status of his case in February 2007 (his motion to reconsider says it was February 2006) by
providing him with a copy of his file that did not include the BIA’s 2005 decision; faced
with no evidence that the decision had issued, the lawyer with whom Anaya consulted
opined that the appeal must still be pending. Anaya maintained that he was unaware of the
removal order and thought his appeal was still pending until he received a notice from U.S.
Immigration and Customs Enforcement, dated March 30, 2007, informing him that by
failing to leave the United States he had forfeited the $500 voluntary-departure bond he
posted pending his appeal. Anaya alleged that, when he brought the bond forfeiture to
attorney Villasuso’s attention, the lawyer said that he did not recall having seen a final
decision, but that the bond forfeiture meant that one must have been issued and that relief
had been denied. Anaya maintained that not until April 18 did he finally became certain
that the BIA had closed his appeal. Three days later he retained new counsel, who filed the
motion to reopen on May 21, 2007.
Nos. 07-3701 & 08-1367                                                                  Page 3


         Anaya contended that the BIA should reopen its decision on the ground that the
attorney failed to submit evidence of the health problems that he and his children suffer, the
impact that his removal would have on his children, and the fact that he and his wife own a
home. The BIA ruled that equitable tolling was not justified and declined to reach the
merits of the motion to reopen. The Board observed that Anaya’s motion never directly
asked that the 90-day deadline be equitably tolled. Indeed, Anaya seemed unaware of the
timeliness issue. His objection to Villasuso’s alleged concealment of the BIA’s decision was
that it cost him “the privilege of voluntary departure” and his $500 departure bond, not that
it made his motion late. Furthermore, said the BIA, even if Anaya had asked for equitable
tolling, the facts he presented did not establish that he exercised due diligence. Anaya’s
motion to reopen was accompanied by over 200 pages of supporting documents. Those
papers included the application for cancellation of removal filed by Villasuso and a host of
other records that related to Anaya’s family situation, his health, his children’s health and
schooling, and his economic status. There was also a copy of Anaya’s request that the
Attorney Registration and Disciplinary Commission of Illinois investigate Villasuso. But
there wasn’t anything that documented the actions Anaya took to try to monitor the status
of his case once it went on appeal to the BIA. There wasn’t even any evidence to support
Anaya’s allegations that he made many phone calls and asked for his file. The closest
Anaya got was the seven-page affidavit that immediately followed his motion. Although
most of that document was devoted to Villasuso’s performance in the removal proceedings,
at the end of the third page Anaya began to relate his own efforts to follow up on his
appeal. Unfortunately, the fourth page of the affidavit was missing, and on the fifth page
Anaya resumed his complaints about Villasuso’s performance. The BIA denied the motion
to reopen on the ground that, regardless of Villasuso's alleged deficiencies, the "sketchy
factual allegations" Anaya presented in his motion did not establish that he exercised due
diligence in pursuing reopening.

        Anaya then asked the BIA to reconsider its denial of his motion to reopen. He
attached to his motion to reconsider new evidence not before the BIA when it ruled on his
motion to reopen, including the missing page of his affidavit and a Freedom of Information
Act request he filed in 2006 with Citizenship and Immigration Services for documents about
his appeal. The page from the affidavit reported, consistent with the allegations in the
motion to reopen, that Anaya had made many phone calls to Villasuso and had obtained a
copy of his file, but did not otherwise elaborate on Anaya’s efforts to track his case. He also
clarified that he first requested his file from Villasuso in 2006, not 2007, as reported in the
motion to reopen. The BIA ruled that the motion to reconsider presented no reason why it
should overturn its earlier decision. The Board then mused that the motion to reconsider
might be better construed as a second motion to reopen, given the rule that new evidence
may be attached only to a motion to reopen, not a motion to reconsider, see Mungongo v.
Nos. 07-3701 & 08-1367                                                                    Page 4


Gonzales, 479 F.3d 531, 534-35 (7th Cir. 2007). And if that were the case, the motion would
have to be denied on the ground that an alien is allowed only one motion to reopen, 8 C.F.R.
§ 1003.2(c)(2).

       In this court, Anaya accuses attorney Villasuso of filing a half-hearted application for
cancellation of removal, but whether Villasuso’s performance was adequate is not before us.
The BIA denied Anaya’s motion to reopen his appeal (and to reconsider that decision)
based solely on the untimeliness of the motion to reopen and Anaya’s lack of entitlement to
equitable tolling. Accordingly, our review does not encompass the merits of the underlying
appeal; we ask only whether the BIA abused its discretion in denying the motion to reopen
as untimely and declining Anaya’s request to reconsider that decision. Patel, 442 F.3d at
1016.

        Turning to issues we can consider, Anaya claims that his due diligence is proven by
the fact that he filed his motion to reopen barely a month after he says he learned with
certainty about the adverse decision in the appeal. Due diligence is a factual determination
entrusted to the BIA’s discretion. Id. Moreover, due diligence is a two-part inquiry; we ask,
not just whether Anaya diligently pursued reopening once he was aware that he had lost his
appeal, but also whether he diligently attempted to discover the status of his appeal. See
Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); Sun v. Mukasey, 555 F.3d 802, 806 (9th Cir.
2009). The speed with which he pursued reopening is irrelevant if he did not diligently try
to find out whether the BIA had decided his appeal. And we cannot say that the BIA
abused its discretion in finding that Anaya did not exercise due diligence on that front.
Anaya’s motion to reopen did not assert that he exercised due diligence, and the only
allegations he presented to the BIA at that time that could be construed as suggesting due
diligence were a vague assertion that he made “many phone calls” to his lawyer and his
contention that the file he received from Villasuso sometime in February 2007 did not
contain a copy of the 2005 opinion. Neither of those points was documented in his affidavit
or the other exhibits that accompanied the motion. Anaya later provided more
evidence—the missing page of his affidavit and the FOIA request—but we review the BIA’s
decision in light of the record it had, see Ghebremedhin v. Ashcroft, 392 F.3d 241, 243 (7th Cir.
2004) (citing SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). The BIA did not abuse its
discretion in ruling on his motion without first asking his lawyer to submit the missing page
of his affidavit.

       Anaya also challenges the denial of his motion to reconsider on the ground that the
BIA misconstrued it as an impermissible second motion to reopen and denied it on that
basis. Even accepting Anaya’s characterization of the facts, his argument is without merit.
An agency has discretion to implement its own regulations, and that extends to how it
Nos. 07-3701 & 08-1367                                                                   Page 5


construes motions that are presented to it. See Krougliak v. I.N.S , 289 F.3d 457, 460 (7th Cir.
2002); Iturribarria v. I.N.S., 321 F.3d 889, 894-95 (9th Cir. 2003). A motion to reconsider asks
the BIA to reexamine a decision on the basis of “additional legal arguments, a change of
law, or an argument that was overlooked earlier, while a motion to reopen asks for
reconsideration on the basis of facts or evidence not available at the time of the original
decision, such as changed country conditions.” Patel v. Ashcroft, 378 F.3d 610, 612 (7th Cir.
2004). Anaya submits that, although his second motion featured additional evidence, it was
evidence that was previously available (although not submitted), and not the result of some
new development. He concludes on that basis that the BIA erred in construing his motion
as a motion to reconsider. But a motion that seeks to present evidence that was not
previously in the record is more properly denominated as a motion to reopen. In re Cerna,
20 I. & N. Dec. 399, 400 (B.I.A.1991). The fact that his new evidence was previously
available, though not in the record, doesn’t mean that the submission was a motion to
reconsider; it just means that it wasn’t a meritorious motion to reopen, see 8 C.F.R.
§ 1003.2(c)(1) (stating that a motion to reopen “shall not be granted unless it appears to the
Board that evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing”). Thus, to the extent the BIA
denied the submission as an impermissible second motion to reopen, it did not abuse its
discretion.

       In any event, Anaya mischaracterizes the facts. The BIA denied his motion to
reconsider its earlier decision, as such, commenting that a second look at the evidence it
evaluated in deciding his motion to reopen would not change the outcome. After
announcing that decision, the BIA observed that his motion to reconsider might be better
construed as a second motion to reopen because Anaya attached to it new evidence.

       Accordingly, the petitions for review are DENIED.
