Dimenski, Dragan v. INS ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2351
Dragan Dimenski,
Petitioner,
v.
Immigration and Naturalization Service,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
Argued December 4, 2001--Decided December 19, 2001
Before Bauer, Posner, and Easterbrook,
Circuit Judges.
Easterbrook, Circuit Judge. Dragan
Dimenski, who entered the United States
as a tourist in 1987, failed to leave
when his visa expired. After being
caught, he filed an application for
asylum. That application was denied on
initial review and then abandoned. Today
he seeks suspension of deportation so
that he can apply for permanent-resident
status as the relative of a U.S. citizen
(his daughter Susana). Suspension of
deportation is not available, however, to
an alien excluded from the United States;
such an alien must return to his native
land and wait ten years before obtaining
a new visa there. 8 U.S.C. sec.1182(a)(9)
(A)(ii). In this petition for review of
the order excluding him, Dimenski
contends that he is not subject to
exclusion (as opposed to deportation)
because he entered the country initially
on a valid visa.
If Dimenski had remained in the United
States continuously since 1987,
deportation would be the appropriate
action. (Proceedings commenced before
April 1, 1997, the effective date of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-
208, 110 Stat. 3009, so we use the
terminology and rules of the former law
rather than the unified removal
proceeding under the new statute.) But he
took a month-long trip outside the United
States in 1993 to visit a sick relative.
Before leaving he sought "advance
parole"--that is, assurance that he would
be readmitted to the United States
notwithstanding the lack of a visa. 8
U.S.C. sec.1182(d)(5). His request was
granted, and he was readmitted without
hassle when he returned. "Without hassle"
differs from "without consequence"; a
person paroled into the United States
(before the effective date of the iirira)
normally is placed into exclusion rather
than deportation proceedings, and the
rights of aliens differ in the two kinds
of proceedings. See Landon v. Plasencia,
459 U.S. 21, 25-27 (1982).
Counsel representing the ins either
believed otherwise initially or just did
not think about the significance of the
parole. The ins opened a deportation
proceeding in September 1994 by issuing
an order to show cause. But in March 1995
the ins filed a motion to dismiss the
deportation proceeding in order to clear
the way for an exclusion proceeding.
Dimenski, represented by counsel, did not
respond to this motion, which the
immigration judge granted in due course.
The Board of Immigration Appeals
dismissed Dimenski’s appeal, observing
that he was not aggrieved by the
termination of the only proceeding then
pending. In November 1996 the ins got
exclusion proceedings under way. Dimenski
did not seek any of the options (such as
asylum) available to aliens in exclusion
proceedings, and an order excluding him
eventually was entered. Once again the
Board of Immigration Appeals dismissed
his appeal, this time stating that
Dimenski had forfeited all opportunity to
resist exclusion when his lawyer failed
to oppose dismissal of the deportation
proceeding in 1995.
Taking a cue from the bia’s decision,
the ins argues that this court lacks
jurisdiction because Dimenski failed to
use all of his administrative remedies.
This is a confused position. Failure to
make the right argument at the right time
before an immigration judge may work a
forfeiture, but it does not divest this
court of jurisdiction when an alien has
filed a timely petition to review a final
administrative decision. We have ample
authority to determine whether an alien
adequately preserved his legal position
in the administrative process; indeed we
have jurisdiction to determine the scope
of our own authority even when the agency
believes that the alien has committed
crimes or otherwise performed an act that
disqualifies him from judicial review of
his substantive position. See Yang v.
INS, 109 F.3d 1185 (7th Cir. 1997).
Likewise the bia was confused. It seems to
have believed that the motion to dismiss
filed in March 1995 put at issue the
propriety of exclusion proceedings. Yet
it did not. The only relief sought was
dismissal of the deportation action,
which Dimenski had no reason to oppose--
after all, if the ins failed to initiate
a new proceeding, then his place in the
United States was secure. The reason the
ins sought dismissal is irrelevant. To see
this consider a criminal prosecution.
Suppose that the prosecutor, having
obtained one indictment, moves to
dismiss, anticipating that the grand jury
later will indict the accused for a
different offense. The accused, delighted
to be free of prosecution, acquiesces in
the motion. Has he forfeited all
opportunity to argue that a new
indictment (if one should be returned) is
defective? Of course not. Nor does a
civil litigant abandon any rights by
remaining silent when his adversary
voluntarily dismisses a lawsuit. Although
the ins could adopt rules that differ from
those governing litigation, it has not
done so; neither the bia nor counsel
representing the ins in this court cited
any regulation requiring an alien to
treat a motion to dismiss a proceeding as
if it were, say, to convert one ongoing
proceeding from deportation to exclusion.
An agency may not bushwhack a private
party by invoking a principle of
forfeiture that is abnormal in litigation
and not required (even hinted at) by
administrative regulations or precedents.
So is exclusion the right device? Yes,
it is, for it is (well, was until 1997)
the administrative response to a person
who enters, or tries to enter, the United
States without a visa. Dimenski had a
visa in 1987 but not in 1993. The point
of parole is to admit someone who lacks a
visa, and the ins has consistently taken
the position, with the support of Leng
May Ma v. Barber, 357 U.S. 185 (1958),
that parolees (which Dimenski became) go
into exclusion rather than deportation
proceedings. About all Dimenski can offer
in response is that the regulation
attempting to make this clear appeared in
a portion of the Code of Federal
Regulations principally concerned with
adjustment of status rather than asylum.
The regulation (since modified, but
applicable in its original form to pre-
iirira cases) provided:
The departure from the United States of
an applicant who is . . . not under
deportation proceedings shall be deemed
an abandonment of his or her application
constituting grounds for termination,
unless the applicant was previously
granted advance parole by the Service for
such absence, and was inspected upon
returning to the United States. If the
application of an individual granted
advance parole is subsequently denied,
the applicant will be subject to the
exclusion provisions of section 236 of
the Act. No alien granted advance parole
and inspected upon return shall be
entitled to a deportation hearing.
8 C.F.R. sec.245.2(a)(4)(ii). Dimenski
departed holding advance parole and was
inspected on his return; his request for
asylum later was denied (and then
abandoned). One would suppose that the
last sentence of this regulation thus
controls: "No alien granted advance
parole and inspected upon return shall be
entitled to a deportation hearing." Even
if, as Dimenski contends, the placement
of this regulation among others dealing
with adjustment of status could be
misleading, a court is obliged to accept
an agency’s plausible reading of its own
regulations. Shalala v. Guernsey Memorial
Hospital, 514 U.S. 87, 94-97 (1995);
Homemakers North Shore, Inc. v. Bowen,
832 F.2d 408, 411-12 (7th Cir. 1987). And
the ins’s view that this language applies
to applications of all sorts, not just
applications for adjustment of status, is
plausible; it is consistent with the norm
(and the holding of Leng May Ma) that a
person paroled into the United States
lands in exclusion proceedings.
Nonetheless, Dimenski insists, it was
improper to exclude rather than deport
him, because the form he filled out to
apply for advance parole did not warn him
that one consequence of the parole device
is to place the returning alien in
exclusion proceedings if his pending
application for discretionary relief
should be denied after his return.
Dimenski does not say that the form he
used misled him or that he failed to
receive the two benefits of advance
parole (easy readmission, and
continuation of the pending asylum
request, which would have been deemed
abandoned had he departed without
notifying the ins). Instead, Dimenski
argues, the form should have alerted him
to the downside of the transaction. He
relies on Navarro-Aispura v. INS, 53 F.3d
233 (9th Cir. 1995), which holds that
notice on the form is essential for all
aliens other than those who were seeking
adjustment of status at the time of their
departure. The ninth circuit did not
trouble to explain why application forms
must contain this information. Nothing in
the immigration statutes requires the ins
to give legal advice, let alone to put
that advice in tiny type on forms.
Perhaps the ninth circuit thought that
the Constitution requires this; during
the 1990s that court held on several
occasions that the due process clause of
the fifth amendment requires public offi
cials to give advice about how private
parties can best use their legal
remedies. But West Covina v. Perkins, 525
U.S. 234 (1999), rejected that view and
held that the Constitution does not
require legal advice about how to use, or
the consequences of using, particular
remedies.
Any other position would have
astonishing sweep. Think for a moment of
tax law. There are endless forms to fill
out, and each decision about how to
classify a transaction may have
substantial effects, yet attempting to
fit the Internal Revenue Code (and the
implementing regulations) onto the forms
would be an absurd project. In
immigration law, as in tax law--and
criminal law, too, where knowledge of the
law is presumed, cf. United States v.
Carlos-Colmenares, 253 F.3d 276 (7th Cir.
2001) (an alien’s reasonable, but
mistaken, belief that he was entitled to
reenter the United States is no defense
to prosecution)--the Constitution permits
the government to leave people to their
own research. Although the ninth
circuit’s approach in Navarro-Aispura is
well-meaning, it accomplishes little.
Suppose the form had told Dimenski that
he would be placed into exclusion
proceedings on his return. Just what good
would that have done him? How many aliens
know the different legal consequences of
deportation versus exclusion? To learn
these, an alien must consult counsel; and
if Dimenski had done this in 1993, he
would have learned about Leng May Ma and
sec.245.2(a)(4)(ii) (more likely, about
their legal effects) no matter what the
form had included or omitted. These days,
with all aliens subjected to unified
removal proceedings, even the advice that
the ninth circuit contemplated would be
pointless. Perhaps the ins should print on
every form in conspicuous type something
like "Consult a lawyer before you file
this!", but neither the statute nor the
Constitution requires such advice.
Affirmed