Stroe, Angela v. INS ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2934
Angela Stroe and Marin Stroe,
Petitioners,
v.
Immigration and Naturalization Service,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
Argued February 21, 2001--Decided June 26, 2001
Before Posner, Kanne, and Diane P. Wood,
Circuit Judges.
Posner, Circuit Judge. An immigration
judge ordered the Stroes deported
("removed" is the current term) because
they were deportable and were ineligible
for asylum. They appealed to the Board of
Immigration Appeals from the denial of
asylum, but the Board dismissed their
appeal because they failed to file a
brief. They moved the Board to reopen the
case and decide their appeal, but the
Board denied their motion. They ask us to
reverse the denial.
When the Stroes filed their original
appeal with the Board they were
represented by a lawyer named Larry
E.Adkison. The brief was due on January
23, 1995, but Adkison requested an
extension of 30 or 60 days and received a
30-day extension, to February 23. Adkison
did not file the brief, however, until
May 30 and the Board did not receive it
until June 6--the day after the Board had
dismissed the appeal because the brief
hadn’t been filed. The motion to reopen,
presented by new counsel, accused Adkison
of having rendered ineffective assistance
in failing to file the brief within the
extended deadline for doing so.
The Stroes argue that the Board denied
due process of law when it dismissed the
appeal for failure to file a timely brief
without having notified them of the
possibility that dismissal might be a
consequence of such a failure. The
argument borders on the frivolous. The
appeal was dismissed more than three
months after the extended deadline for
filing a brief had passed. Adkison had
asked for a 30- or a 60-day extension of
time for filing the brief and had gotten
30 days, which should have contented him
and apparently did, for he requested no
further extension. The Board was under no
duty, either constitutional or statutory,
to send him periodic reminders. An
appellant’s failure to file a brief is a
serious procedural default, and, at least
when the appellant is represented by
counsel, as in the present case, or
declines an offer of counsel, dismissal
is an appropriate sanction. This is
recognized in numerous immigration cases,
e.g., Perez-Rodriguez v. INS, 3 F.3d
1074, 1080 (7th Cir. 1993); Castaneda-
Suarez v. INS, 993 F.2d 142, 146 (7th
Cir. 1993); Huicochea-Gomez v. INS, 237
F.3d 696, 700-01 (6th Cir. 2001); Nazakat
v. INS, 981 F.2d 1146, 1148-49 (10th Cir.
1992); Toquero v. INS, 956 F.2d 193, 196-
97 (9th Cir. 1992), though denied in a
few others, in particular Medrano-
Villatoro v. INS, 866 F.2d 132, 134 (5th
Cir. 1989), and Escobar-Ramos v. INS, 927
F.2d 482, 483-84 (9th Cir. 1991).
The Stroes also argue that their motion
should have been granted because the
assistance that Adkison had given them
was ineffective. The parties do not
discuss the source or nature of a right
to effective counsel in deportation
proceedings. Expressly left open in our
recent decision in Chowdhury v. Ashcroft,
241 F.3d 848, 854 (7th Cir. 2001), the
existence of the right is assumed in a
number of cases, e.g., Henry v. INS, 8
F.3d 426, 440 (7th Cir. 1993); Hernandez
v. Reno, 238 F.3d 50, 55 (1st Cir. 2001);
Iavorski v. INS, 232 F.3d 124, 128 (2d
Cir. 2000); Dearinger v. Reno, 232 F.3d
1042, 1045 (9th Cir. 2000); Mejia
Rodriguez v. Reno, 178 F.3d 1139, 1146
(11th Cir. 1999); Michelson v. INS, 897
F.2d 465, 468 (10th Cir. 1990), but only
Iavorski actually reversed the denial of
relief on this ground. The statements in
the other opinions are dicta.
The right assumed in the cases is not
absolute, but is limited to situations in
which the denial of effective counsel
results in a denial of due process. Even
the limited right stands on weak ground,
however. Deportation proceedings are
civil, and so, as all the cases that we
have cited recognize, the Sixth Amendment
is not in play. Ambati v. Reno, 233 F.3d
1054, 1061 (7th Cir. 2000). The general
rule, certainly, is that civil litigants
have no constitutional right to the
assistance of counsel, Forbes v. Edgar,
112 F.3d 262, 264 (7th Cir. 1997); Young
v. Murphy, 90 F.3d 1225, 1235 (7th Cir.
1996); DeSilva v. DiLeonardi, 181 F.3d
865, 868 (7th Cir. 1999), and therefore
no constitutional right to effective
assistance of counsel. E.g., Coleman v.
Thompson, 501 U.S. 722, 753-54 (1991);
Anderson v. Cowan, 227 F.3d 893, 901 (7th
Cir. 2000); Bell v. Eastman Kodak Co.,
214 F.3d 798, 802 (7th Cir. 2000);
Barkauskas v. Lane, 946 F.2d 1292, 1294
(7th Cir. 1991); Prihoda v. McCaughtry,
910 F.2d 1379, 1386 (7th Cir. 1990);
United States v. 87 Blackheath Rd., 201
F.3d 98 (2d Cir. 2000) (per curiam). So
the fact that like other civil litigants
an alien in a deportation proceeding is
allowed to hire a lawyer at his own
expense, 8 U.S.C. sec. 1362, gives him no
right to complain if the lawyer he hires
is ineffective.
The nonright to effective assistance of
counsel in civil cases is the rule even
when the proceeding though nominally
civil involves liberty or even life, as
in a capital habeas corpus case, where
the Supreme Court has held that there is
no right to effective assistance of
counsel. Murray v. Giarratano, 492 U.S. 1(1989); see also Pennsylvania v. Finley,
481 U.S. 551 (1987). None of the cases
that assume there is a right to effective
assistance of counsel in deportation
proceedings considers the bearing of
Murray or Finley (which seem,
incidentally, to have cut back on earlier
cases according a Fifth Amendment right
to counsel when physical liberty is at
stake in a noncriminal proceeding, see
Lassiter v. Dept. of Social Services, 452
U.S. 18, 31-32 (1981); In re Gault, 387
U.S. 1, 36 (1967)) or of any of the other
decisions that hold that civil litigants
have no right to effective assistance of
counsel beyond what the law of legal
malpractice grants them. The discussion
of the source of the assumed right in the
deportation cases is distinctly
perfunctory.
It may help to distinguish two
situations. In one the immigration
bureaucracy finds a lawyer for an alien.
It may have an obligation to find a
competent lawyer, as we suggested in
DeSilva v. DiLeonardi, supra, 181 F.3d at
869, in the same way that a state that
puts a child in a foster home has to
choose competent foster parents even
though it may have no legal obligation to
help the child in the first place. In the
second situation, which is the usual and
the present case, the alien finds his own
lawyer. Then one would think that as in
other civil cases the lawyer’s
shortcomings would be imputed to the
client, Link v. Wabash R.R., 370 U.S.
626, 633-34 (1962), leaving the latter
with a malpractice action rather than a
right to continue litigating against the
original adversary (the INS). In criminal
cases, it is true, the distinction is
erased; the Sixth Amendment is
interpreted to impute even a retained
lawyer’s goof-ups to the state, Cuyler v.
Sullivan, 446 U.S. 335, 342-45 (1980)--
but then the Sixth Amendment creates a
right to counsel, whereas all that the
due process clause requires, so far as
procedure is concerned, is notice and an
opportunity for a hearing. Nothing in the
clause implies a guarantee that the
litigant or his lawyer will take good
advantage of the opportunity.
We suggested in DeSilva v. DiLeonardi,
supra, 181 F.3d at 869, an extradition
case, that it might be arguable that more
process and protection are due when the
INS acts as a "prosecutor" in deportation
cases. Cf. Cuyler v. Sullivan, supra, 446
U.S. at 343. That may be thought the
outermost limit of moving the Fifth
Amendment in the direction of the Sixth.
The Stroes’ situation, however, does not
involve any issue on which the INS bears
the burden of persuasion. They concede
deportability and seek a favorable
exercise of discretion with respect to
asylum.
This discussion shows that the question
whether there is ever a constitutional
right to counsel in immigration cases is
ripe for reconsideration. But not in this
case. The Board of Immigration Appeals
has decided that ineffective assistance
of counsel is a valid ground for
reopening a deportation case in
"egregious circumstances." In re Lozada,
19 I&N 637 (BIA), aff’d, 857 F.2d 10 (1st
Cir. 1988); In re B-B, Interim Decision
3367, 1998 WL 694640 (BIA 1998). We may
assume, without having to decide because
the issue is not raised, that the Board’s
decision to allow aliens to claim
ineffective assistance of counsel as a
basis for reopening deportation
proceedings is within the scope of the
Board’s discretionary authority even
though it probably is not compelled by
statute or the Constitution. The Board’s
failure to give any reason for the
decision troubles us, however; we worry
that the Board may not be cognizant of
the relevant precedents governing the
right to counsel in civil cases. But
that, too, is an issue for another day.
Concerned, however, with the use of
delay as a common tactic in resisting
deportation, because the longer the alien
is in this country the more likely he is
to accrue "equities" that will make it
more difficult to deport him, INS v.
Rios-Pineda, 471 U.S. 444, 450 (1985);
Stone v. INS, 514 U.S. 386, 399-400
(1995); INS v. Doherty, 502 U.S. 314, 323
(1992); Guan v. INS, 49 F.3d 1259, 1262-
63 (7th Cir. 1995); Rhoa-Zamora v. INS,
971 F.2d 26, 33 (7th Cir. 1992); Lara v.
Trominski, 216 F.3d 487, 496 (5th Cir.
2000); Bernal-Vallejo v. INS, 195 F.3d
56, 64 (1st Cir. 1999); Stewart v. INS,
181 F.3d 587, 595 (4th Cir. 1999); Shaar
v. INS, 141 F.3d 953, 957 (9th Cir.
1998); Saiyid v. INS, 132 F.3d 1380, 1384
(11th Cir. 1998), the Board in In re
Lozada, supra, created an ingenious
screen to prevent strategic invocation of
ineffective assistance. The screen
requires that a motion to reopen
deportation proceedings because of
ineffective assistance of counsel be
accompanied by (1) an affidavit detailing
the agreement between the movant and
counsel; (2) a showing that the
allegations of ineffective assistance
were communicated to counsel and that he
was given an opportunity to respond to
them; and (3) a statement as to whether a
complaint was filed against counsel with
the appropriate disciplinary authorities
and if not why not. The courts, ours
included, have uniformly approved this
initiative of the Board’s. Henry v. INS,
supra, 8 F.3d at 440; Hernandez v. Reno,
supra, 238 F.3d at 55; Lara v. Trominski,
supra, 216 F.3d at 497-98; Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000);
Bernal-Vallejo v. INS, supra, 195 F.3d at
64; Anin v. Reno, 188 F.3d 1273, 1275
(11th Cir. 1999) (per curiam); Stewart v.
INS, supra, 181 F.3d at 596; Esposito v.
INS, 987 F.2d 108, 110-11 (2d Cir. 1993).
The Board held that the Stroes in moving
to reopen the deportation proceeding on
the basis of Adkison’s alleged
ineffective assistance had satisfied (1),
but not (2) or (3). Regarding (2), the
Stroes had notified Adkison with regard
to his failure to file the brief on time,
but not with regard to other claims of
ineffective assistance on which they
based the motion to reopen, including
failure to present essential facts
bearing on the Stroes’ claim for asylum--
their only defense to being deported. By
not giving Adkison an opportunity to
comment on this claim, the Stroes denied
the Board of Immigration Appeals an
opportunity to evaluate the significance
of Adkison’s failure to file a brief.
Suppose Adkison had good reasons not to
present additional facts to the
immigration judge. Then, even if Adkison
had filed a timely brief, it might be
clear that the appeal would have failed
for want of a solid factual basis for the
claim for asylum.
Regarding (3), the Stroes point out
correctly that they explained why they
had not filed a complaint with the bar
disciplinary authorities, and they argue
that that is all that the third
requirement of Lozada requires. They said
(and remember they were represented by
new counsel) that Adkison "did prepare
and file a brief in our case, albeit sev
eral months past the deadline. He did
formally request an extension of the
deadline from the Office of the
Immigration Judge, but he did not receive
a response. We feel that while he was
negligent in not pursuing his request for
an extension of time, he did perform the
service that we paid him to do." This
sounds fishy. Adkison did not perform the
service for which the Stroes had paid
him. They had paid him to brief the
appeal. By filing an untimely brief,
which became the basis of the Board’s
dismissal of the appeal without reaching
the merits, he defeated the purpose of
his retention. The second sentence quoted
above, about his not receiving a response
to his request for an extension, makes no
sense, because he received an extension
of 30 days. Had he not received a
response, he would have had either to
inquire about the status of his request
or file the brief by January 23, neither
of which he did.
So the Board was entitled to reject the
Stroes’ explanation for not filing a
complaint against Adkison. It was not a
good explanation. The Stroes point out
that, interpreted literally, the third
requirement of Lozada doesn’t require a
good explanation for the failure to file
a disciplinary complaint, just an
explanation. And that is true--literally.
But the requirement would be empty,
indeed senseless, if it could be
satisfied by a bad explanation. Suppose
the Stroes had said they hadn’t filed a
complaint because Adkison had told them
that by not filing a brief he had
actually helped them by setting the stage
for their seeking a further appeal on the
basis of his ineffective assistance.
According to the logic of the Stroes’
position, that explanation would satisfy
Lozada.
Yet if the Board, by refusing to accept
the explanation that the Stroes did give,
violated any of the rules that it had
laid down in Lozada, it would be no
defense to the Board’s action that the
rule was dumb. Although an administrative
agency is permitted to change rules it
created in common law fashion, that is,
as a byproduct of adjudication--and that
is the character of the Lozada rules--by
the same, common law method, it is not
permitted to do so without a reasoned
explanation for its change of mind. E.g.,
Motor Vehicle Mfrs. Ass’n v. State Farm
Mutual Automobile Ins. Co., 463 U.S. 29,
42 (1983); Miami Nation of Indians of
Indiana, Inc. v. U.S. Dept. of Interior,
No. 00-3465, slip op. at 8-9 (7th Cir.
June 15, 2001); Castaneda-Suarez, supra,993 F.2d at 146; Schurz Communications,
Inc. v. FCC, 982 F.2d 1043, 1053 (7th
Cir. 1992); Salameda v. INS, 70 F.3d 447,
450 (7th Cir. 1995); Wisconsin Valley
Improvement Co. v. FERC, 236 F.3d 738,
748 (D.C. Cir. 2001); Henry v. INS, 74
F.3d 1, 6 (1st Cir. 1996). That is, the
agency cannot, as a legislature can,
reverse course without any explanation;
its about-faces must be reasoned; in this
respect, the legislative-judicial hybrid,
which is what an administrative agency
is, is assimilated to a court, which,
under the doctrine of stare decisis, is
likewise required to give reasons for
abandoning a precedent. Therefore, since
the Board in this case purported to be
applying rather than changing the Lozada
rules, its denial of the motion to reopen
cannot be sustained if that denial
violated the rules. See, e.g., Allentown
Mack Sales & Service, Inc. v. NLRB, 522
U.S. 359, 374 (1998); Morton v. Ruiz, 415
U.S. 199, 235 (1974); Andershock’s
Fruitland, Inc. v. U.S. Dept. of
Agriculture, 151 F.3d 735, 736 (7th Cir.
1998); Pope v. Shalala, 998 F.2d 473, 486
(7th Cir. 1993), overruled on other
grounds, Johnson v. Apfel, 189 F.3d 561(7th Cir. 1999); Gonzalez v. Reno, 212
F.3d 1338, 1349 (11th Cir. 2000).
The rules were not violated, even if
we ignore the fact that they required the
Board to deny the motion simply because
the Stroes had failed to comply with the
second rule. The third rule requires an
explanation that the Board unless
unreasonable would accept, Lara v.
Trominski, supra, 213 F.3d at 498;
Esposito v. INS, supra, 987 F.2d at 111;
In re Rivera-Claros, Interim Decision
3296, 1996 WL 580694 (BIA 1996)--
requires, in short, a good explanation,
not any old explanation. The explanation
the Stroes (represented, be it
remembered, by counsel) offered for not
having complained about Adkison’s
stunning default was unsatisfactory and
allowed the Board to suspect collusion
between them and him.
We are mindful that some cases allow an
alien who has not complied with the
Lozada rules to establish an infringement
of the supposed due process right to
effective assistance of counsel
nevertheless. See Castillo-Perez v. INS,
212 F.3d 518, 526 (9th Cir. 2000);
Escobar-Grijalva v. INS, 206 F.3d 1331,
1335 (9th Cir. 2000); Figeroa v. INS, 886
F.2d 76, 78-79 (4th Cir. 1989); see also
Lopez v. INS, 184 F.3d 1097, 1099-1100
(9th Cir. 1999). These are mainly Ninth
Circuit cases; that court’s hostility to
the Board of Immigration Appeals is well
known, see Victor Romero, "On Elian and
Aliens: A Political Solution to the
Plenary Power Problem," 4 N.Y.U. J.
Legis. & Pub. Pol’y 343, 347 n. 23 (2000-
2001); David McKinney, "Congressional
Intent, the Supreme Court and Conflict
Among the Circuits Over Statutory
Eligibility for Discretionary Relief
Under Immigration and Naturalization Act
sec. 212(c)," 26 U. Miami Inter-Am. L.
Rev. 97, 110 n. 78 (1994); Peter Schuck &
Theodore Hsien Wang, "Continuity and
Change: Patterns of Immigration
Litigation in the Courts, 1979-1990," 45
Stan. L. Rev. 115, 175-76 (1992), and
doubtless explains the large number of
Ninth Circuit immigration cases reversed
by the Supreme Court. See, e.g., INS v.
Aguirre-Aguirre, 526 U.S. 415 (1999);
Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999); INS v. Yang,
519 U.S. 26 (1997); Reno v. Flores, 507
U.S. 292 (1993); INS v. Elias-Zacarias,
502 U.S. 478 (1992); INS v. National
Center for Immigrants Rights, Inc., 502
U.S. 183 (1991); INS v. Pangilinan, 486
U.S. 875 (1988); INS v. Abudu, 485 U.S.
94 (1988); INS v. Rios-Pineda, supra; INS
v. Lopez-Mendoza, 468 U.S. 1032 (1984);
INS v. Delgado, 466 U.S. 210 (1984); INS
v. Phinpathya, 464 U.S. 183 (1984);
Landon v. Plasencia, 459 U.S. 21 (1982);
INS v. Miranda, 459 U.S. 14 (1982) (per
curiam); INS v. Jong Ha Wang, 450 U.S.
139 (1981) (per curiam). But that is an
aside. Given the doubts about whether
there is any right to counsel in
deportation cases save as the Board in
its discretion may recognize, we have
difficulty understanding how an alien who
fails to comply with the Board’s criteria
can succeed in challenging its decision.
In any event, the Stroes argue only that
they did comply with the Lozada rules.
The third Lozada rule, by the way, has
a further purpose beyond just deterring
collusion between the alien and his or
her lawyer. The deficiencies of the
immigration bar are well known, see,
e.g., Lara v. Trominski, supra, 216 F.3d
at 497; Escobar-Grijalva v. INS, supra,
206 F.3d at 1335; Katy Motiey, "Ethical
Violations by Immigration Attorneys: Who
Should Be Sanctioning?" 5 Geo. J. Legal
Ethics 675, 676-80 (1992); cf. Hilary
Sheard, "Ethical Issues in Immigration
Proceedings," 9 Geo. Immigration L.J.
719, 739 (1995), and a major purpose of
the third rule is to enlist the clients
of that bar in efforts to raise its
ethical standards by putting pressure on
immigrants to report to the appropriate
disciplinary authorities conspicuous
failures of the immigration bar to comply
with minimum norms of professional
conduct. Adkison’s booting of the appeal
fell well below those norms and should
certainly have been brought to the
attention of the bar disciplinary
authorities. We shall send a copy of our
opinion to the Illinois Attorney
Registration and Disciplinary Commission
for appropriate action, Adkison being a
member of the Illinois bar.
Affirmed.
DIANE P. WOOD, Circuit Judge, concurring
in the judgment. While I agree with the
ultimate outcome the majority reaches,
and I further agree with its
interpretation and application of the
rule announced in In re Lozada, 19 I. &
N. Dec. 637 (BIA 1988), aff’d, 857 F.2d
10 (1st Cir. 1988), I cannot associate
myself with the majority’s dicta with
respect to the due process dimension of
the right to counsel in immigration
proceedings, nor with its rather pointed
criticism of the Ninth Circuit’s
immigration jurisprudence. The majority
acknowledges, ante at 4, that the issue
of a constitutional right to counsel in
immigration cases is not ripe in this
case, and I agree. In my opinion, that
renders the subsequent discussion of that
point unnecessary and, indeed,
undesirable. I find its comments about
the Ninth Circuit to be equally beside
the point. Whatever the Ninth Circuit may
think about the Lozada rules, it is clear
that this court has approved them in the
past. See Henry v. INS, 8 F.3d 426, 440
(7th Cir. 1993). As long as we are
content to adhere to our own prior
jurisprudence, we need not delve deeply
into the views of our sister circuits.
Moreover, all manner of games are
possible with statistics, and I note that
even if there have been several Ninth
Circuit immigration cases reversed by the
Supreme Court, that Circuit hears about
half of this country’s INS-related
claims. (According to the Administrative
Office of the United States Courts, the
Ninth Circuit heard 910 of the 1723 INS
cases docketed in the United States
Courts of Appeals between October 1, 1999
and September 30, 2000, while our court
heard just 60). That court’s win/loss
record in the Supreme Court thus may not
be probative of very much.
The right to counsel point, as the INS
itself has recognized, is more complex. I
do not understand the majority to be
taking the unsupportable position that
the due process clauses of the Fifth and
Fourteenth Amendments do not apply to
civil cases, or (in the case of the Fifth
Amendment) to immigration proceedings.
Such a position would obviously be flatly
inconsistent with a long line of Supreme
Court decisions. See, e.g., American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 49-50 (1999); Gilbert v. Homar, 520
U.S. 924, 931-32 (1997); United States v.
James Daniel Good Real Property, 510 U.S.
43, 53 (1993); Mathews v. Eldridge, 424
U.S. 319, 340-49 (1976). The only
question therefore is whether, under some
narrow set of circumstances, matters
relating to the existence or quality of
legal representation may ever rise to the
level of a due process violation. I have
no quarrel with the well established
proposition that the Sixth Amendment
"right to counsel," and hence the test of
Strickland v. Washington, 466 U.S. 668(1984), does not apply in non-criminal
proceedings. But, as the Supreme Court
constantly reminds us, due process is a
flexible concept, and I see no reason to
make a categorical assumption that it
will never be implicated in a counsel-
related problem in an immigration case.
The labels "civil" and "criminal" for
cases are imprecise in any event. While
we might recognize a suit under the
Federal Tort Claims Act as definitely
"civil," and a drug prosecution for
distribution of cocaine as definitely
"criminal," there are many areas of
federal law where this distinction
becomes blurred. Habeas corpus is one,
civil forfeitures in conjunction with
criminal prosecutions is another, and
immigration cases may well be a third. I
note as well that our usual assumption
about the ease with which someone
dissatisfied with legal representation
may bring a legal malpractice action is
contestable in the kind of case the
Stroes theoretically have. At best, they
must conduct it from foreign shores. Most
foreign plaintiffs might be able to
travel to the United States to
participate in their own lawsuit and to
assist later counsel, but that option
will not be available to the Stroes
unless or until they obtain a new right
to enter this country (a high hurdle, in
their case). I see nothing unreasonable
about the INS’s recognition that, lurking
in some small number of its cases, there
might be a genuine due process problem of
constitutional dimension, and not just a
problem of agency practice.
In any event, as the majority ultimately
concedes, this is a debate for another
day. As I noted earlier, I agree that the
INS’s Lozada rule is a legally acceptable
screen for weeding out cases of alleged
ineffective assistance of counsel that
cannot possibly rise to the level of a
due process violation. I also agree that
petitioners must do more than come up
with any reason at all for their failure
to file a complaint with bar authorities;
their reason must be a good one, and the
Board was entitled to conclude that the
reason the Stroes gave did not meet that
standard. For those reasons, I concur in
the judgment of the court.