Fornalik, Bugoslaw v. Perryman, Brian ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2442
BOGUSLAW FORNALIK,
Petitioner-Appellant,
v.
BRIAN PERRYMAN, DISTRICT DIRECTOR OF THE
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99-CV-2167--Suzanne B. Conlon, Judge.
Argued December 6, 1999--Decided August 8, 2000
Before Bauer, Diane P. Wood, and Evans, Circuit
Judges.
Diane P. Wood, Circuit Judge. Boguslaw Fornalik
is a seventeen year old whom the Immigration and
Naturalization Service (INS) is trying to deport
to Poland even though his mother, father, and
three brothers are all living in the United
States. (Because other members of his family also
play important parts in this case, we refer to
each individual by his first name.) After
proceeding through various INS administrative
channels, he filed this habeas corpus action,
alleging that he is entitled to immediate
permanent resident status by virtue of his
father’s permanent residency. Meanwhile, he also
filed a petition to proceed as an abused child of
a lawful permanent resident, a status created by
Congress as part of the Violence Against Women
Act of 1994 (VAWA), 42 U.S.C. sec. 13981 et seq.
(1994). The district court dismissed Boguslaw’s
habeas petition after the INS had independently
determined that he had established a prima facie
case under the VAWA, but before it had rendered
a final decision.
Between the district court’s disposition and our
consideration of the case, the Vermont Service
Center of the INS notified Boguslaw that it had
placed his case in deferred action status for at
least fifteen months. At roughly the same time,
the Chicago office of the INS told this court
that it intends to remove him anyway. No Act of
Congress requires us to permit this type of
inconsistent treatment and we will not. We
therefore reverse the judgment of the district
court and remand with instructions to enforce the
order from the Vermont Service Center that places
Boguslaw in deferred status.
I
A.
Boguslaw’s story begins with his father, Ryszard
Fornalik, who participated in the 1995 "Diversity
Immigrant" visa lottery established under 8
U.S.C. sec. 1153(c). This program established
55,000 immigrant visa numbers that are allocable
to citizens of countries that, in recent years,
have not been well represented in the flow of
immigrants to the United States. Citizens of
eligible countries apply and their applications
are chosen at random. In 1995, Poland was an
eligible country. Ryszard took advantage of that
fact, entered the United States, and was
successful in the visa lottery. On August 22,
1995, Ryszard’s status was adjusted to lawful
permanent resident. At this point, Ryszard’s
wife, Helena, and sons, Boguslaw and Kryzsztof,
anticipated that they, too, would come to the
United States as permanent residents. The three
were coming not merely to join Ryszard in the
United States, but also to obtain better medical
care for Kryzsztof, who suffers from
Epidermolysis Bullosa, a rare genetic skin
disorder that requires continuous medication. In
September 1996, all three arrived in the United
States on tourist visas. Thinking that he was
going to stay here, Boguslaw (then 13) enrolled
in a local school and, from all indications,
began living the life of a typical American
teenager.
Ordinarily, when a family intends to immigrate
to the United States, the most difficult hurdle
has been surmounted once one member becomes a
permanent resident (or, better still, a United
States citizen). This is because of a general
principle in United States immigration law that
sets family unity as one of the principal goals
of the statutory and regulatory apparatus. In
fact, the original title of the Immigration Act
of 1990 was the "Family Unity and Employment
Opportunity Immigration Act of 1990." See H.R.
Rep. 101-723(II) (1990), reprinted in 1990
U.S.C.C.A.N. 6779. The Immigration and
Naturalization Act (INA) itself provides that
"[a] spouse or child . . . shall be entitled to
the same status, and the same order of
consideration provided in the respective
subsection, if accompanying or following to join,
the spouse or parent." 8 U.S.C. sec. 1153(d).
Sometimes, however, the complexities of the
immigration laws overwhelm this basic principle.
That is what happened here. The specific
problem lay in the rapid expiration of visa
numbers reserved through the Diversity Visa
program. Under 8 U.S.C. sec. 1154(a)(1)(G)
(ii)(II), these visas expire at the end of the
fiscal year in which they are issued (September
30). Ryszard’s adjustment of status was finalized
on August 22, which meant that he and his family
had only a little more than a month to arrange
their affairs. Apparently, for reasons that are
unclear, Ryszard did not place any requests with
the INS to proceed with his family’s cases at
that time. Boguslaw alleges that Ryszard appeared
personally at the American Consulate in Warsaw at
some point within four months of his adjustment
(but not before September 30), but the record
does not reveal what he tried to do when he was
there. In any event, when the family came to the
United States in 1996, they did not have the
immigrant visas to which they would have been
entitled as derivative beneficiaries of a
successful diversity applicant.
Ordinarily, the fact that Boguslaw did not get
a visa number by September 30, 1995, would be the
end of the story. The INS points out repeatedly
that diversity visa numbers are valid only
through the end of the fiscal year in which they
are issued. But once again, the rules have their
exception. As a result of various administrative
problems in Poland’s 1995 diversity visa program,
Congress carved out a special exception that
applies only to diversity visas, only to Poland,
and only to the 1995 program, which is found in
sec. 637 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA),
110 Stat. 3009-546. That section commands the
Attorney General to grant a diversity visa,
without regard to any numerical or priority
limitations, to any Polish applicant who:
(1) was selected as a diversity immigrant under
such section for fiscal year 1995;
(2) applied for adjustment of status to that of
an alien lawfully admitted for permanent
residence pursuant to section 245 of such Act
during fiscal year 1995, and whose application,
and any associated fees, were accepted by the
Attorney General, in accordance with applicable
regulations;
(3) was not determined by the Attorney General
to be excludable under section 212 of such Act or
ineligible under section 203(c)(2) of such Act;
and
(4) did not become an alien lawfully admitted
for permanent residence during fiscal year 1995.
IIRIRA sec. 637(a).
Boguslaw applied for an adjustment of status to
permanent resident alien under this statutory
provision. The INS district director denied his
request, reasoning that sec. 637 does not apply
to Boguslaw’s case because he did not meet the
requirements of sec. 637(a)(2)--specifically, the
requirement of an application for adjustment of
status some time during fiscal year 1995.
In October 1997, Boguslaw, along with his
mother and brothers, received notices to appear
before an immigration judge. However, as a result
of a variety of INS administrative errors and his
mother’s change of address, the timetable for
removing his mother and brothers has become quite
different from his own, meaning that the Chicago
office of the INS intends to send Boguslaw back
to Poland by himself. The INS is unconcerned
about this, indicating at oral argument that
Boguslaw can receive care from his nonagenarian
grandmother (about whose physical, mental, and
financial condition there is nothing in the
record) and that its interpretation of the
statutes and regulations relating to his case
permits this deportation. Surprisingly, the INS
could not articulate an agency policy regarding
at what age an unaccompanied child would not be
deported alone to a country in which he has not
lived for nearly four years, but the subsequent
course of this case allows that question to be
left for another day.
B.
Facing return to Poland alone, Boguslaw took
two steps that affect the present appeal. First,
on March 26, 1999, he filed a petition under Form
I-360, which is entitled "Petition for Amerasian,
Widow, or Special Immigrant." That petition, as
required by law, was submitted to the INS Vermont
Service Center, which processes all such forms.
Second, on April 1, 1999, he filed his habeas
corpus petition in the United States District
Court for the Northern District of Illinois. The
habeas corpus petition, which we discuss first,
was based on the theory that Boguslaw is entitled
to an immediate adjustment of status, while the
Form I-360 procedure was based on his unfortunate
condition as an abused child of a visa recipient.
In the habeas corpus action, Boguslaw argued
principally that the INS itself is at fault for
his irregular status. In his view, it had a duty
to notify the American Consulate in Warsaw of
Ryszard’s success in the diversity lottery and
subsequent adjustment of status. By failing to do
so, it undermined what would otherwise be
Boguslaw’s clear entitlement to permanent
residency in the United States as a derivative
beneficiary of his father. He points to a 1995
State Department Cable that discusses procedures
for processing "following to join" applicants.
That cable says that "[u]nder current procedures,
INS notifies both NVC [the National Visa Center]
and posts of the adjustment of status of a
principal applicant." The INS counters that it
has no duty to inform derivative beneficiaries of
a principal immigrant’s adjustment of status and
that it notifies consular posts only after being
prompted to do so. Finding no specific statutory
or regulatory command that imposes a duty of
notification, we accept for present purposes the
INS’s position that it did not have a duty to
notify the American Consulate of Ryszard’s
adjustment without any action on the family’s
part (though we make no ruling on the point).
A closer examination of the complex statutes
involved here, however, shows that the underlying
merits do not turn solely on Boguslaw’s failure
to pursue a visa in 1995. Rather, it appears that
the entire fiasco was the result of Ryszard’s
failure to file Form I-824, entitled "Application
for Action on an Approved Application or
Petition," which would have instructed the
Service to inform the American Consulate in
Warsaw that his adjustment of status application
had been approved. Had this happened, then
Boguslaw would be right--the INS would have had
a duty to notify the Consulate, which would in
turn have sent him "Packet Three," the State
Department’s shorthand for the initial materials
containing an application for an immigrant visa.
See Procedural Note 5 to Foreign Affairs Manual
sec. 42.33, reprinted in Gordon, et al.,
Immigration Law and Procedure sec. 992.12 (Rev’d
Ed. 1999); Operations Instructions of the
Immigration and Naturalization Service sec.
245.7(a) (describing procedures for forwarding
principal alien’s adjustment of status form to
consular posts). So, the failure in this case is
attributable not to Boguslaw, who was a boy of
twelve years at the end of fiscal year 1995, but
rather to his father.
This course of events illustrates an
unfortunately common problem with the family-
based immigration regime. Derivative
beneficiaries are just that--derivative--meaning
that they have few rights of their own and
instead depend on the competence and cooperation
of the principal immigrant. That led Congress to
authorize the alternative route Boguslaw took in
his Vermont application. Recognizing that
ordinarily aligned family interests may become
skewed when the principal alien misuses his power
over the immigration status of the derivative
beneficiaries, Congress included a section in the
VAWA that allows abused spouses and children to
petition the INS themselves. 8 U.S.C. sec.
1154(a)(1)(B). (We note that the Supreme Court’s
recent decision in United States v. Morrison, 120
S. Ct. 1740 (2000), holding unconstitutional
another section of the VAWA, 42 U.S.C. sec.
13981, was limited to that particular section of
the statute and did not suggest that it was
striking down the entire law. See id. at 1748.
The section before us now, 8 U.S.C. sec. 1154(a)
(1)(B), rests on Congress’s plenary power over
immigration. See, e.g., Sale v. Haitian Centers
Council, Inc., 509 U.S. 155, 201 (1993);
Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).
Nothing in Morrison casts doubt on its
constitutionality.) To apply for protection under
this provision, a spouse or child files Form I-
360, entitled "Petition for Amerasian, Widow, or
Special Immigrant." INS approval of this petition
allows a formerly dependent potential immigrant
to file on her or his own behalf, thereby
avoiding the problems created by the usual
dependence on the principal alien.
The question that eventually must be resolved
in Boguslaw’s case is how to reconcile these two
statutory regimes--the application requirement of
IIRIRA sec. 637 and the VAWA exception for abused
dependents. No one in this case has yet explored
whether an INS finding of abuse affects the
proper interpretation of the application
requirement of IIRIRA sec. 637, but it was such
a finding that prompted the action of the Vermont
Service Center. Boguslaw details in his brief the
sad deterioration of his family situation.
Arguments degenerated into physical fights, and
Boguslaw himself was the target of physical abuse
from his father. His mother left the household
and obtained a court order of protection against
Ryszard. This issue is not properly before us at
present, but it may be cognizable at some point
if Boguslaw is frustrated again in his effort to
correct his father’s omissions and then takes an
appeal to this court.
The habeas corpus proceedings and the Form I-
360 proceedings have been moving along in tandem.
The district court dismissed the habeas corpus
case, reasoning that under sec. 242(g) of the
IIRIRA, codified at 8 U.S.C. sec. 1252(g), it did
not have subject matter jurisdiction over
Boguslaw’s case. In so ruling, it construed
Boguslaw’s claim as one that arose from a
decision of the Attorney General to "commence
removal proceedings" against him. It further
concluded that, even if subject matter
jurisdiction were present, Boguslaw did not state
a claim because he failed to apply for a visa in
1995, taking his case out of those covered by
sec. 637 of the IIRIRA. After the district
court’s dismissal but before our consideration of
this appeal, the Vermont Service Center rendered
its final decision on Boguslaw’s I-360 petition.
It granted his request, indicating that he now
should either petition for adjustment of status
(if in the United States) or request further
action (if outside). More importantly, the INS
also included a "Notice of Deferred Action,"
which informed Boguslaw that:
In the exercise of its prosecutorial discretion,
the Service has decided to place this case under
deferred action. Deferred action is an
administrative choice to give some cases lower
priority for removal. The Service does not
anticipate instituting action for removal in this
case at this time.
. . .
Deferred action will remain in effect for a
period of fifteen (15) months from the date of
this notice [August 16, 1999], unless terminated
earlier by the Service for reasonable cause and
upon appropriate notice.
The INS did not address this action in its brief
to this court, nor did it consider the notice
relevant when we inquired about it during oral
argument. Since we heard arguments in this case,
the INS granted a similar petition for Boguslaw’s
mother, though it appears she is still on a
different timetable than her son.
II
A.
The essential problem in this case comes from
the interaction (or lack thereof) between the
INS’s August 16 decision to place Boguslaw in
deferred action status after granting his
petition to proceed as a self-petitioning child
of an abusive lawful permanent resident and the
decision of the Chicago office that prompted his
case. Despite having nearly a month to think
about the proper way to reconcile these two
outstanding orders (since the Vermont Service
Center rendered its final decision on August 16
and the INS’s brief to this court was due on
September 14), the INS offered no additional help
in its brief.
At oral argument, the INS finally addressed the
issue, repeatedly maintaining that it is not
proper for us to consider its most recent action,
consisting of the notice sent to Boguslaw
informing him that "[i]n the exercise of its
prosecutorial discretion, the Service has decided
to place this case under deferred action." This
is a very strange claim, especially because the
preliminary determination by the INS notifying
Boguslaw that he had established a prima facie
case under the self-petitioning provisions of the
VAWA was included in the record on appeal. In any
event, this court and at least one other Court of
Appeals have specifically held that we may take
judicial notice of official INS actions. Opoka v.
INS, 94 F.3d 392, 394-95 (7th Cir. 1996) (taking
judicial notice of a motion to reopen BIA
proceedings); Lising v. INS, 124 F.3d 996, 998
(9th Cir. 1997) (holding that court may take
judicial notice of official INS forms). More
generally, it is well-established that executive
and agency determinations are subject to judicial
notice. See Waid v. Merrill Area Public Schools,
130 F.3d 1268, 1272 (7th Cir. 1997) (discussing
court’s discretion to take judicial notice of
agency factfinding); United States v. Eagleboy,
200 F.3d 1137, 1140 (8th Cir. 1999) (allowing
United States to introduce administrative
document on appeal); Don Lee Distributor, Inc. v.
NLRB, 145 F.3d 834, 841 (6th Cir. 1998) (noting
authority of courts to take judicial notice of
agency and judicial decisions).
Determining the effect of the order is a more
difficult task. Ordinarily, deferred action
"recognizes that the Service has limited
enforcement resources and that every attempt
should be made administratively to use these
resources in a manner which will achieve the
greatest impact under the immigration laws." 62
Fed. Reg. 63249, 63253 (November 28, 1997). Given
the strange circumstances of this case, we can
certainly understand why the Vermont Service
Center found little point in aggressively
pursuing the removal of a (then) sixteen year
old. However, given counsel’s assertion at oral
argument that the Chicago office had no intention
of respecting the Vermont determination, the
consequences of the deferral order are not
crystal clear.
At oral argument, the INS offered no help,
simply stating that a notice of deferred action
issued by the Vermont Service Center in St.
Albans, Vermont, could not trump the decision of
the district director in Chicago. We are baffled
by this position--the last we checked, the INS is
one unified agency of the federal government, not
a mare’s nest of competing and autonomous actors.
Furthermore, there is no indication in the
regulations that a district office carries
greater authority than a service center. To the
contrary, the regulations equate district and
service center directors, 8 C.F.R. sec. 1.1(o).
Their delegated functions are also similar and
neither office trumps the other except where
regulations explicitly so provide. Compare 8
C.F.R. sec. 103.1(f)(3)(v) (Service Centers) with
8 C.F.R. sec. 103.1(g)(2)(ii) (Districts).
Most importantly, the INS is the INS, and the
Vermont Service Center had specific notice from
Boguslaw that he was already under an order of
removal. Both his letter accompanying the Form I-
360 and the I-360 itself indicated this fact.
Faced with this petition, the INS (using its
official form for notices of action, Form I-797)
decided to place him in deferred action status
and to invite him to apply for an adjustment of
status or an immigrant visa. It further indicated
that it is not planning to pursue removal for at
least 15 months. Nothing in his notice, which is
entitled "Notice of Action" and bears the heading
"U.S. Department of Justice Immigration and
Naturalization Service," suggests that it is not
the decision of the INS or that it was made
without authority. Moreover, the regulatory
section defining the authority of the service
center director does not appear to preclude such
an action.
Finding the INS’s claim that we should simply
ignore the August 16, 1999, order because "that
is from Vermont and this is Chicago"
unconvincing, we are inclined to follow a simple
decision principle--the last agency action
supplants all prior ones. Where (as in this
case), the last office to act has full knowledge
of the actions taken by other branches of the
same agency, it cannot simply issue a decision
and expect its pronouncement to have no effect.
The Chicago office of the INS may be unhappy with
this result, but it had ample notice of this
problem and could have communicated its concerns
to the Vermont Service Center. The real question
is who should bear the burden of a problem
created because (as the INS conceded at oral
argument) the two branches were not talking to
one another; without a much more convincing
argument than the one that the INS presented, we
decline to place that burden on Boguslaw.
Perhaps there are alternative ways of
reconciling the competing decisions of various
INS offices, but the INS did not offer a
satisfactory one, despite the fact that more than
seven months had passed since counsel for the INS
in this case received service of Boguslaw’s
motion containing the Vermont Service Center’s
prima facie determination. As a result, the INS’s
decision to place Boguslaw in deferred action
"for a period of fifteen (15) months from [August
16, 1999], unless terminated earlier by the
Service for reasonable cause and upon appropriate
notice" must therefore be the baseline from which
all subsequent actions in this case (whether
taken by the INS or Boguslaw) shall begin.
B.
The only conceivable fly in this ointment comes
from 8 U.S.C. sec. 1252(g), the statute on which
the district court relied, which forecloses
challenges to certain decisions and actions of
the Attorney General. This is the principal
argument the INS has made in its effort to defend
the Chicago District Director’s decision. The
statute, which was adopted by Congress as part of
the IIRIRA’s general curtailing of judicial
review in immigration cases, reads: "Except as
provided in this section and notwithstanding any
other provision of law, no court shall have
jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or
action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter."
Perhaps this language could have been construed
as the INS urges, to preclude jurisdiction merely
because Boguslaw is raising a grievance around
the same time that the INS is planning to execute
a removal order. The Supreme Court, however, has
instructed otherwise. In Reno v. American-Arab
Anti-Discrimination Committee (AADC), 525 U.S.
471 (1999), the Court held that sec. 1252(g)
restricts the district courts’ power only in the
three circumstances discussed in the text: when
the alien challenges discretionary actions taken
by the Attorney General to (1) commence
proceedings, (2) adjudicate cases, and (3)
execute removal orders. AADC, 525 U.S. at 482.
See also Bhatt v. Reno, 204 F.3d 744, 747 (7th
Cir. 2000).
This court has held that sec. 1252(g) precludes
jurisdiction even in habeas cases such as this
one, but (perhaps obviously) only where the
statute is applicable--i.e. the three areas that
the Supreme Court noted in AADC. See Singh v.
Reno, 182 F.3d 504, 508-09 (7th Cir. 1999)
(holding sec. 1252(g) applicable to habeas claim
that challenged INS deportation decision). This
case does not fall into any of those categories.
Certainly Boguslaw has filed his habeas petition
because he does not want to go back to Poland,
but that cannot be a sufficient basis for
invoking sec. 1252(g). The INS’s suggested
reading would render AADC entirely meaningless,
since almost every alien who brings a claim to
federal court--whether on appeal from the Board
of Immigration Appeals (BIA), through a habeas
petition, or via some other route--does so
because she is threatened with removal from the
United States. This interpretation might lead to
tension with our earlier decision in Kashani v.
Nelson, 793 F.2d 818 (7th Cir. 1986), in which we
dismissed for failure to exhaust administrative
remedies a case brought by an alien challenging
the district director’s denial of asylum,
reasoning that the alien could raise the same
claim again in removal proceedings. Nothing in
AADC undermines Kashani; to the contrary, AADC
supports the importance of proper use of the
administrative process. As the INS would have it
here, the alien not only would be barred from
raising virtually all claims prior to removal
proceedings (because of exhaustion requirements),
but then sec. 1252(g) would preclude jurisdiction
of all claims brought after removal is
threatened. Such a sweeping reading would be
inconsistent with the narrow interpretation of
sec. 1252(g) that AADC commands. AADC, 525 U.S.
at 487.
AADC holds that sec. 1252(g) precludes the
district courts from acting when the decision
about which the alien is complaining is one of
the three listed in the statute: commencing
proceedings, adjudicating a case, or executing a
removal order. Although sec. 1252(g) is
relatively new, it uses language and a structure
that is very familiar in the jurisdictional
context. Section 1252(g) refers to a "cause or
claim . . . arising from the decision or action
of the Attorney General." This is remarkably
similar to 28 U.S.C. sec. 1331, which gives the
district courts jurisdiction over "all civil
actions arising under the Constitution, laws, or
treaties of the United States." Federal question
jurisdiction does not rest merely on some obscure
relationship between the cause of action and a
federal law. Rather, courts look to whether a
federal question is presented in a "well-pleaded
complaint." Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987); Shegog v. Board of
Education of the City of Chicago, 194 F.3d 836,
838 (7th Cir. 1999); Davis v. Rodriguez, 106 F.3d
206, 208 (7th Cir. 1997). Similarly, sec. 1252(g)
is applicable only where the alien’s well-pleaded
complaint is based on one of sec. 1252(g)’s three
listed factors. This analysis comports not only
with our general understanding of federal
jurisdictional statutes, but also with AADC
itself, which reached its conclusion about the
limited scope of sec. 1252(g) by referring
generally to other statutory provisions
addressing federal courts’ power. AADC, 525 U.S.
at 482.
Here, Boguslaw’s claim that he is entitled to
an adjustment of status to lawful permanent
resident has little to do with a "decision or
action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal
orders." He asserts instead that the district
director’s denial of his December 1996 adjustment
of status application was incorrect as a matter
of law. Since the INS did not issue a Notice to
Appear (the initial filing in a removal case)
until more than ten months later, on October 14,
1997, it is hard to see how we should construe
his complaint as one that requests relief from a
decision to commence proceedings. Similarly,
although Boguslaw obviously wants this court to
stop the execution of a removal order, that fact
comes into the case only incidentally. His claim
is not that the Attorney General is unfairly
executing a removal order, but rather that a
prior, unrelated error makes his removal
improper. This makes our case entirely different
from other decisions of this circuit that have
applied AADC. See, e.g., Fedorca v. Perryman, 197
F.3d 236 (7th Cir. 1999) (challenge to a decision
to execute a removal order), Botezatu v. INS, 195
F.3d 311 (7th Cir. 1999) (challenge to a refusal
to grant humanitarian parole instead of enforcing
removal order). We therefore reject the INS’s
argument that the district court properly invoked
sec. 1252(g) to reject Boguslaw’s claim.
In the alternative, the INS asserts that the
district court could and should have rejected his
habeas corpus petition for failure to exhaust his
administrative remedies. It points out that if
Boguslaw is challenging the 1996 denial of
adjustment of status, then he could have raised
this issue again in his removal proceedings
before the Immigration Judge, who is authorized
by regulation to grant an adjustment of status
for those entitled to one. See 8 C.F.R. sec.
240.1(a)(ii). Boguslaw did appear before the
Immigration Judge, but he acceded to the INS’s
allegations in exchange for voluntary departure.
Moreover, he did not appeal his decision to the
BIA. We agree with the agency that this amounted
to a failure to exhaust administrative remedies.
This in turn means that the district court
correctly refused to consider the particular
arguments about the visa application process that
he was urging. Fedorca, 197 F.3d at 240; Kashani,
793 F.2d at 824.
Boguslaw naturally would like to avoid further
proceedings, and he thus urges us to waive the
exhaustion requirement on grounds of futility and
reach the merits. In the end, he plausibly
asserts, the door to the courthouse would be shut
tight, because 8 U.S.C. sec. 1252(a)(2)(B)(i)
precludes judicial review of a denial of an
adjustment of status. That may be true, but the
implication of the argument is that Congress must
always provide for some judicial review, and such
a proposition is plainly wrong. Carlson v.
Landon, 342 U.S. 524, 537 (1952). If sec. 1252(a)
(2)(B)(i) applies to Boguslaw’s case, there is
nothing that this court is empowered to do for
him. Furthermore, this may be the type of case in
which one would expect to see such a regime. By
its very label, sec. 1252(a)(2)(B) applies to
"denials of discretionary relief" (emphasis
added). On the other hand, Boguslaw’s case may
fall outside its scope because he is challenging
a pure error of law (the interpretation of sec.
637 of the IIRIRA), not an exercise of
discretion). Compare Czerkies v. U.S. Department
of Labor, 73 F.3d 1435, 1439 (7th Cir. 1996) (en
banc) (narrowly interpreting foreclosure
statute). It may also be significant that sec.
637 was added to the IIRIRA in response to State
Department and INS administrative problems during
the 1995 Diversity Lottery. We are skeptical that
Congress, in attempting to "pursu[e] justice for
the thousands of Poles who were the victims of
this bureaucratic bungle," 142 Cong. Rec. E404-01
(March 19, 1996) (statement of Rep. Kleczka),
meant to leave all oversight of this provision in
the hands of the very same bungling bureaucrats.
In the end, however, we leave these difficult
questions for another day, because we conclude
they do not prohibit the limited procedural
review we exercise here.
C.
That review, as we indicated earlier, is
limited to a determination of what action exactly
the INS has taken here. Nothing in 8 U.S.C. sec.
1252(g) precludes this. Looking narrowly at the
August 16 order, one could say that we are
addressing a "decision or action" to "execute [a]
removal order[ ]." But that takes too restricted
a view of the issue here. AADC acknowledges that
we may interpret the action in question (here,
the August 16 order) to see whether there is any
decision made "by the Attorney General" within
the meaning of sec. 1252(g). At this point, the
answer for Boguslaw is that there is no such
decision as a practical matter (unless the
decision is the deferral decision under which he
is entitled to stay). A decision "by the Attorney
General" must be a decision of the agency. It
does not extend to decisions by INS support staff
to ignore decisions of the agency. If Boguslaw
were attacking a discretionary decision by the
INS to remove him, then we would not have
jurisdiction to block his removal. See, e.g.,
Fedorca, 197 F.3d at 240; Botezatu, 195 F.3d at
313. But that is not the situation here--in fact,
this case presents precisely the opposite
problem. In its notice, the INS has indicated
that it is not going to remove Boguslaw from the
United States. That is its decision, and nothing
in sec. 1252(g) or anywhere else precludes us
from holding subsidiary officials in the agency
to it.
III
We Reverse the judgment of the district court and
Remand this case with instructions to the Chicago
office of the INS to respect the deferral
decision currently in effect, unless and until,
through authorized procedures, the agency as a
whole comes to a final decision on Boguslaw
Fornalik’s status.