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

No. 05-2846
HIFZUR REHMAN,
                                                       Petitioner,
                               v.

ALBERTO R. GONZALES, Attorney General
of the United States,
                                                      Respondent.
                        ____________
               Petition for Review of Orders of the
                 Board of Immigration Appeals
                        ____________
  ARGUED FEBRUARY 23, 2006—DECIDED MARCH 20, 2006
                   ____________


  Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges.
  EASTERBROOK, Circuit Judge. In 1977 Zulfikar Ali Bhutto
was deposed as Prime Minister of Pakistan. General Zia ul-
Haq took over in a coup. Hifzur Rehman was among Zia’s
subordinate officers. Rehman and his family had been, and
remained, friends of the Bhutto family. In 1980 Rehman
made remarks at a military meeting that the presiding
officer construed as criticism of the Zia government; he was
admonished to desist from politics while in military service.
When Rehman made these unwelcome statements he was
a second lieutenant; he retired in 2002 as a major. Having
arrived in the United States on a tourist visa, Rehman
sought asylum on the theory that Zia and his successors
slowed his advancement through the ranks, kept him under
2                                                No. 05-2846

surveillance, and posted him to remote and undesirable
locations. Rehman acknowledged that he had not experi-
enced overt persecution but contended that he was at
greater risk once out of uniform. He contends that since his
arrival in the United States his wife, who remains
in Pakistan, has received telephonic threats. (The record
does not show the substance of the threats.)
  An immigration judge thought that these events fell well
short of persecution entitling an alien to asylum. Rehman
does not mount a serious challenge to the agency’s deci-
sion on the merits. Many military officers (indeed, many
employees in civilian life) think that their skills are under-
appreciated and their careers impeded by jealous rivals
or conniving superiors. That is not a form of “persecution.”
Benazir Bhutto, Zulfikar’s daughter, was Prime Minister
from shortly after Zia’s death in 1988 until 1990, and again
from 1993 to 1996. Yet Rehman’s military career fared no
better when she was in charge than when the Bhuttos’
opponents held sway.
  Rehman does not point to any evidence implying
that friends of the Bhuttos are at risk in contemporary
Pakistan. Benazir is in exile, and her husband served a
term in prison following conviction on corruption charges,
but their political supporters are at liberty. The current
government of Pakistan is long removed from the coup that
overthrew Zulfikar in 1977. Benazir’s tenure ended when
her party lost control of parliament, and the current head
of government (Pervez Musharraf) has no apparent ax to
grind concerning the Bhuttos’ friends.
  Instead of challenging the decision’s substance, Rehman
complains that the immigration judge denied him due
process of law by curtailing the time allotted to the hearing
and interrupting his lawyer’s questioning. It is unclear,
however, whether we may consider even these limited
arguments. The immigration judge rendered his decision on
No. 05-2846                                                  3

February 2, 2004, and Rehman had 30 days to seek review
by the Board of Immigration Appeals. On the 30th day,
however, he filed a motion asking the immigration judge to
reconsider. This motion was denied on March 23, and on
April 16 Rehman filed two appeals: one from the initial
decision of February 2, and the other from the order of
March 23.
   The Board of Immigration Appeals dismissed the first
on February 1, 2005, as untimely, explaining that a mo-
tion to reconsider does not affect the time for appeal. While
the second appeal was under advisement, Rehman asked
the Board to reconsider that decision. On May 26, 2005, the
Board entered a decision that (a) denied the motion
to reconsider the decision of February 1, and (b) resolved
adversely to Rehman, on the merits, his appeal from the
immigration judge’s decision of March 23. Rehman then
filed a petition for judicial review, which is timely only with
respect to the May 26 decision—for a motion asking the BIA
to reconsider one of its decisions does not toll the time to
seek judicial review, Stone v. INS, 514 U.S. 386 (1995), and
the Board’s disposition of February 1 therefore is unassail-
able.
  Despite an order that this court issued before briefing
informing counsel that the Board’s order of May 26 is the
sole administrative action now open to review, most of
Rehman’s brief proceeds as if this were a direct appeal from
the immigration judge’s initial decision on February 2,
2004. None of Rehman’s arguments rests on any fact that
came to light after that date or any new legal development.
Yet motions to reconsider—whether made to an immigra-
tion judge or to the Board—are not replays of the main
event. Reconsideration depends on something new, if not
necessarily new factual developments (motions to reopen in
immigration practice are strictly limited to such post-
decision events, 8 C.F.R. §1003.23(3)) then at least new
arguments showing that the IJ or Board overlooked some-
4                                              No. 05-2846

thing important. See 8 C.F.R. §1003.23(2). Rehman does not
have any new arguments; he is rehashing old ones.
  Stone prevents us from deciding whether the Board’s
order of February 1, 2005, dismissing his direct appeal
was a mistake. All we can consider is whether the stan-
dards for reconsideration have been met. Yet the lack
of new argument or new evidence makes it all but impos-
sible to say that the immigration judge and Board both
abused their discretion in declining to reconsider their
initial decisions.
   Oddly, however, the brief for the agency makes little of
these procedural obstacles. Instead counsel has met the due
process argument on the merits. The Board itself treated
the appeal from the order denying reconsideration just as
if it were an appeal from the IJ’s initial order of removal.
We therefore shall do likewise, without implying that this
would be proper had the Board and its advocate invoked the
alien’s procedural default. Cf. Pasha v. Gonzales, 433 F.3d
530 (7th Cir. 2005).
  The immigration judge gave Rehman three hours to
present his claim and, when counsel’s meandering question-
ing began to fritter away that time, intervened to put
matters on track. Rehman contends that these steps
violated the due process clause of the fifth amendment.
Why counsel should start with the Constitution rather than
the statutes and regulations that govern removal proceed-
ings is beyond us. Non-constitutional arguments always
come first; constitutional contentions must be set aside
until their resolution is unavoidable. See, e.g., New York
Transit Authority v. Beazer, 440 U.S. 568, 582-83 (1979).
Aliens have both statutory, 8 U.S.C. §1229a(b)(4), and
regulatory, 8 C.F.R. §1240.1(c), entitlements to present all
material evidence at impartial hearings. Any proceeding
that meets these requirements satisfies the Constitution as
No. 05-2846                                                5

well. See Galicia v. Gonzales, 422 F.3d 529, 538 (7th Cir.
2005); Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999).
  It would be necessary (and appropriate) to consider
constitutional claims only if Congress had provided for
kangaroo tribunals (in general) or adopted some specific
rule that is open to constitutional doubt. Yet Rehman
does not challenge the validity of any of the many stat-
utes and rules of procedure that govern removal hear-
ings. We have remarked before on the tendency of flabby
constitutional arguments to displace more focused con-
tentions. See Magala v. Gonzales, 434 F.3d 523, 526-27 (7th
Cir. 2005). Leading with an open-ended due process argu-
ment may divert attention from potentially sound
but technical legal points. Aliens should stick with claims
based on the statutes and regulations unless they believe
that one of these rules violates the Constitution or that
lacunae in the rules have been filled with defective pro-
cedures.
   Reframed in statutory language, counsel’s contention
is that he lacked “a reasonable opportunity . . . to pre-
sent evidence on the alien’s own behalf”. 8 U.S.C.
§1229a(b)(4)(B). But if he had been given more time, what
additional evidence would he have presented? Counsel
offers no specifics, which is a fatal shortcoming. When a
court excludes evidence, counsel must make an offer of
proof or otherwise alert the tribunal to the substance
of what the evidence would have been. Fed. R. Evid.
103(a)(2). That rule does not apply directly to administra-
tive proceedings, but its substance still governs—for courts
do not set aside agencies’ decisions unless mistakes cause
prejudice, and how could we ascertain prejudice without an
offer of proof or some substitute? Cf. Alimi v. Ashcroft, 391
F.3d 888, 890-91 (7th Cir. 2004). The Board remarked that
it had no idea what additional evidence Rehman had been
unable to present. Even after the Board’s observation,
Rehman did nothing to supply what is lacking and tell us
6                                               No. 05-2846

why whatever is missing is material—though we may
assume that an affidavit would have sufficed even at this
late date, none has been produced. Counsel’s appellate brief
is maddeningly vague. It is hard to resist the conclusion
that there is nothing more to offer.
  The immigration judge’s questions seem to us designed to
keep the hearing focused on material issues, while counsel’s
questioning implied that he could not distinguish the
material from the irrelevant. Rehman has received the
hearing to which he is entitled. If this is wrong, and the IJ
should have given his lawyer more time, still the record
does not afford reason to think that counsel could have used
that time to supply material evidence in Rehman’s favor.
Accordingly, the petition to set aside the Board’s orders is
denied.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—3-20-06
