                           In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-1635
MARTINA L. MUNGONGO,
                                                      Petitioner,
                               v.

ALBERTO R. GONZALES,
                                                     Respondent.
                       ____________
                Petition for Review of an Order of
               the Board of Immigration Appeals.
                         No. A76-851-766
                       ____________
    ARGUED JANUARY 4, 2007—DECIDED MARCH 15, 2007
                       ____________


 Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.
  RIPPLE, Circuit Judge. Martina Mungongo asks us to
review the Board of Immigration Appeals’ (“BIA” or
“Board”) denial of her motion to reconsider an earlier
denial of a motion to reopen her removal proceedings. For
the reasons set forth in this opinion, we must deny her
petition.
2                                             No. 06-1635

                            I
                    BACKGROUND
                            A.
  Ms. Mungongo is a native and citizen of Tanzania. She
came to the United States, with her family, in 1994 on a
Fulbright Fellowship. She overstayed her visa and, in
1998, was served with a notice to appear before an Im-
migration Judge (“IJ”). At her removal hearing, Ms.
Mungongo admitted removability, but sought asylum and
withholding of removal. She testified that, in Tanzania,
she had been denied promotions in the medical field
because of her refusal to join the Chama Cha Mapinduzi
Revolutionary Party, the ruling party in Tanzania. She
also claimed that she feared sexual advances by her
superiors because they had made such overtures to her
in the past. The IJ found that Ms. Mungongo had testified
credibly, but that she had not established her entitlement
to relief. However, the IJ granted her voluntary departure.
In 2002, the BIA affirmed the IJ’s decision and, in the
same order, denied Ms. Mungongo’s motion to reopen her
removal proceedings to apply for relief under the Con-
vention Against Torture (“CAT”). Ms. Mungongo peti-
tioned this court to review the decision of the BIA, but
later requested that we dismiss the petition.


                            B.
  Ms. Mungongo did not voluntarily depart. In 2005,
she was stopped by local police for a traffic violation.
When her immigration status was ascertained, she was
taken into custody by the Department of Homeland
Security (“DHS”). She later moved to reopen her removal
No. 06-1635                                              3

proceedings. In her motion, Ms. Mungongo submitted
that “exceptional and compelling circumstances, sup-
ported by new evidence,” warranted reopening of her
removal proceedings. A.R. Supp. at 141. Specifically, she
recounted that, after the last hearing in her earlier re-
moval proceeding, her husband had been diagnosed with
spleen cancer. The disease had advanced so far that he
could no longer work; consequently, Ms. Mungongo was
her family’s sole means of financial support. Furthermore,
she continued, because of the limited medical resources
in Tanzania, her husband would be unable to obtain the
extensive treatment he required.
  Ms. Mungongo further submitted that her children
were acculturated in the United States, that she had
purchased property in the United States, that she is well-
educated, that her skills and experience would qualify
her for an employment-based adjustment of status (which
her current employer was in the process of pursuing) and
that she was a person of good moral character. Ms.
Mungongo asked that the BIA grant her motion to reopen,
stay the execution of the removal order against her and
grant administrative closure of her removal proceedings
so that she could pursue adjustment of status in the
United States.


                            C.
   In an order dated October 19, 2005, the BIA denied the
motion to reopen the removal proceedings. The BIA first
held that Ms. Mungongo’s motion was untimely because
it was submitted more than two years after the Board’s
decision, well after the 90-day time period for such mo-
tions. See 8 C.F.R. § 1003.2(c)(2). The Board further noted
4                                              No. 06-1635

that Ms. Mungongo had not identified any specific ad-
ministrative relief for which she might be eligible. She
was barred from seeking adjustment of status, noted the
Board, because she had failed to depart from the United
States under the Board’s grant of voluntary departure.
Moreover, the BIA continued, even if Ms. Mungongo’s
failure to depart voluntarily had not barred her from
seeking adjustment of status, reopening was not war-
ranted because Ms. Mungongo had not established prima
facie evidence of eligibility for adjustment of status; she
had “neither procured an approved visa petition nor
submitted an application for adjustment of status.” A.R.
Supp. at 125.
  Notably, the BIA did recognize the “various humanitar-
ian factors” Ms. Mungongo cited in her motion. Id. It
concluded, however, that it had no “authority to unilater-
ally craft relief from removal for which the respondent
has not demonstrated eligibility.” Id.


                            D.
   After the denial of her motion to reopen, Ms. Mungongo
filed a motion to reconsider that decision. Much of this
motion reiterated the contents of the motion to reopen.
However, Ms. Mungongo also included new informa-
tion. She informed the BIA that, in addition to spleen
cancer, her husband had been diagnosed with AIDS and
that he had applied for asylum and withholding of removal
on the ground that he would face persecution in Tanzania
because of his AIDS diagnosis. She further noted that
Tanzania had denied her husband a passport and had
refused to admit him into the country, presumably be-
cause of his AIDS diagnosis.
No. 06-1635                                                 5

   The BIA denied Ms. Mungongo’s motion to reconsider.
It noted that “[a] motion to reconsider shall specify the
errors of fact or law in the prior Board decision and shall be
supported by pertinent authority.” A.R. Supp. at 2. Ms.
Mungongo’s motion had not met this requirement because
it did “not identify or establish any factual or legal error
in th[e] Board’s October 19, 2005, decision.” Id. Finally,
the BIA stated that it had “reviewed the other argu-
ments made by [Ms. Mungongo] in her motion” and had
“considered these arguments before rendering a decision
in this case” and “decline[d] to revisit them.” Id. Ms.
Mungongo timely petitioned this court for review of the
BIA’s order denying her motion to reconsider.


                             II
                      DISCUSSION
                             A.
  We begin our assessment of this appeal by setting forth
the principles that must govern our decision. We review
the BIA’s denial of a motion to reconsider for an abuse
of discretion. See Patel v. Gonzales, 442 F.3d 1011, 1016 (7th
Cir. 2006). We shall not find that the BIA has abused its
discretion unless its decision “was made without a rational
explanation, inexplicably departed from established
policies, or rested on an impermissible basis, such as
invidious discrimination against a race or particular
group.” Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir.
2005) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260,
1265 (7th Cir. 1985)) (internal quotation marks omitted).
  Motions to reopen and motions to reconsider serve
distinct functions. See Patel, 442 F.3d at 1015. Motions to
6                                                No. 06-1635

reopen ask the BIA to reconsider its earlier decision based
on “facts or evidence not available at the time of the
original decision,” id.; they do not challenge the correctness
of an earlier decision based on the existing record, see In re
Cerna, 20 I. & N. Dec. 399, 403 (B.I.A. 1991). By contrast,
the basis of a motion to reconsider is a contention that
“the original decision was defective in some regard.” Id. at
402. Motions to reconsider ask the BIA to reexamine its
earlier decision “in light of additional legal arguments, a
change of law, or an argument that was overlooked.” Patel,
442 F.3d at 1015 (quoting Patel v. Ashcroft, 378 F.3d 610, 612
(7th Cir. 2004)). Therefore, in considering such motions,
the Board places itself “back in time and consider[s]
the case as though a decision in the case on the record
before [it] had never been entered.” In re Cerna, 20 I. & N.
Dec. at 402.
  The regulations governing motions to reconsider and
motions to reopen reflect their distinct function. A mo-
tion to reopen must “state the new facts that will be
proven at a hearing to be held if the motion is granted and
shall be supported by affidavits or other evidentiary
material.” 8 C.F.R. § 1003.2(c)(1) (emphasis added). A
motion to reopen is therefore the proper mechanism by
which a movant may request to submit new evidence. Cf.
In re Cerna, 20 I. & N. Dec. at 400. By contrast, a motion to
reconsider must direct the BIA’s attention to the defect in
the earlier decision “by specifying the errors of fact or law
in the prior Board decision . . . supported by pertinent
authority.” 8 C.F.R. § 1003.2(b)(1).


                             B.
  We now consider Ms. Mungongo’s petition to review
the BIA’s denial of her motion to reconsider. Ms.
No. 06-1635                                                   7

Mungongo maintains that the BIA abused its discretion in
denying her motion to reconsider on several grounds. She
maintains that her family circumstances warrant a favor-
able exercise of discretion by the Board and that she
may be eligible for asylum as a dependent under her
husband’s application. She asks the BIA to reassess the
factors that she presented in the earlier motion to
reopen and to reevaluate its determination not to exercise
discretion in her favor. Additionally, Ms. Mungongo asks
the BIA to consider her husband’s HIV status in deter-
mining whether it should exercise favorably its discretion.
  Ms. Mungongo’s submission presents no argument that
could warrant relief. She points to no errors of fact or law
in the Board’s denial of her motion to reopen. Although
Ms. Mungongo does request the BIA to reassess the factors
she had presented in her motion to reopen, she does not
claim that the BIA either failed to consider a fact previously
presented or applied an incorrect legal standard. Nor
does she point to a change in the applicable law that
would warrant reconsideration by the BIA. Further-
more, prior to filing the motion to reconsider, Ms.
Mungongo did not raise her husband’s AIDS diagnosis as
a basis for a favorable exercise of discretion. New evidence
may not be submitted in a motion to reconsider.1 Cf. In
re Cerna, 20 I. & N. Dec. at 400. Because this argument was
not presented to the Board as a basis for reopening Ms.


1
  Such evidence can be considered in a motion to reopen,
assuming it meets other requirements of the rule. However,
because Ms. Mungongo failed to raise these facts in her original
motion to reopen, she may not raise these facts in a subsequent
motion to reopen, as she is limited by regulations to one motion
to reopen. See 8 C.F.R. § 1003.2(c)(2).
8                                               No. 06-1635

Mungongo’s removal proceedings at the time of her motion
to reopen, the BIA’s failure to consider such information
cannot constitute a defect in the process by which it
reached its decision to deny Ms. Mungongo’s motion to
reopen.
  Accordingly, we must conclude that Ms. Mungongo’s
motion to reconsider did not present any “additional
legal arguments, a change of law, or an argument that
was overlooked” by the BIA in denying her motion to
reopen. Patel, 442 F.3d at 1015 (quoting Patel v. Ashcroft,
378 F.3d at 612). For that reason, the BIA did not abuse its
discretion in denying Ms. Mungongo’s motion to recon-
sider.
  As we have noted earlier, the Board, while denying
Ms. Mungongo’s motion to reopen, noted the strong
humanitarian concerns presented by her case and noted
that it had no authority to construct unilaterally a solu-
tion to the situation. We similarly pause to note the con-
siderable humanitarian concerns at stake in this case. Like
the Board, we do not have the legal authority to address
these concerns. That authority is vested in the political
branches of our national government. It appears that a
number of potential avenues of relief still remain open to
Ms. Mungongo. It is within the power of Congress to enact
a private bill permitting her to remain in the United States.
Further, Ms. Mungongo may apply to the DHS district
director for an administrative stay of her removal order; a
decision which remains within the district director’s
discretion. See 8 C.F.R. § 241.6(a). Lastly, it appears that
Ms. Mungongo may qualify for asylum as a derivative
asylee, should her husband’s application for asylum be
granted, see 8 U.S.C. § 1158(b)(3)(A), an avenue that re-
mains open, even if Ms. Mungongo did not join initially
in her husband’s application, see 8 C.F.R. § 208.21(c).
No. 06-1635                                              9

                      Conclusion
  The BIA did not abuse its discretion when it denied Ms.
Mungongo’s motion to reconsider. Accordingly, the peti-
tion for review must be denied.
                                           PETITION DENIED

A true Copy:
       Teste:

                        _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                  USCA-02-C-0072—3-15-07
