Szczesny, Zbigniew v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1047
ZBIGNIEW SZCZESNY,
Petitioner,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order from
the Board of Immigration Appeals.
No. A73-355-471
____________
ARGUED NOVEMBER 12, 2003—DECIDED FEBRUARY 12, 2004
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Zbigniew Szczesny, a native
citizen of Poland, entered the United States in 1989 on
a six-month visitor’s visa. But then after winning the
Diversity Immigrant Lottery in 1995, he applied for and
received an adjustment of status from lawful nonimmigrant
visitor to permanent resident. According to the government,
however, an INS district director issued a notice of intent to
rescind the favorable change in status in March 1995 after
concluding that Szczesny had submitted multiple petitions
for the 1995 lottery in violation of INS regulations. See 22
C.F.R. § 42.33(a)(4) (1995). The district director never
2 No. 03-1047
received a response to the notice, and accordingly he
rescinded Szczesny’s permanent resident status without a
hearing pursuant to 8 C.F.R. § 246.2 (1995). Szczesny
asserts that he was unable to respond because he never
received notice of the proposed action. Instead, says
Szczesny, the first communication he received from the
district director was notification that his permanent
resident status had been rescinded. In 1996, with
Szczesny’s permanent resident status now revoked, the INS
initiated deportation proceedings by ordering him to show
cause why he should not be deported for overstaying his
visa.
Szczesny filed a motion to terminate the deportation
proceedings, claiming that he should not be deported be-
cause he never received notice of the district director’s
intent to rescind his status as required by INS regulations,
and because the notice that the agency purportedly sent did
not comply with 8 C.F.R. § 246.1, the INS regulation
governing the content of a notice of intent to rescind.
An immigration judge held several hearings on Szczesny’s
motion. At the hearings the IJ expressed concern over the
district director’s alleged failure to provide Szczesny with
notice, and observed that due process would be violated
if Szczesny could not obtain review of the director’s decision.
However, in a 2001 decision the IJ ultimately denied
Szczesny’s motion to terminate the deportation proceedings
without reaching the merits of Szczesny’s claims, opining
that, on the basis of Matter of Rodriguez-Esteban, 20 I&N
Dec. 88, 90 (BIA 1989), he lacked jurisdiction to review the
district director’s rescission order. The IJ subsequently
denied Szczesny leave to file an application for suspension
of deportation but granted his request for voluntary
departure. Szczesny appealed the IJ’s decision to the Board
of Immigration Appeals, which summarily affirmed the
decision of the IJ, making the IJ’s decision the decision of
the agency for purposes of appellate review. Georgis v.
Ashcroft, 328 F.3d 962, 966-67 (7th Cir. 2003).
No. 03-1047 3
Szczesny claims that the IJ and the BIA erred in refusing
to reach the merits of his motion to terminate the deporta-
tion proceedings and argues that the district director’s
rescission of his adjustment of status without notice
violated his right to due process. However, in presenting his
due process argument, Szczesny’s counsel waited until oral
argument in this court to assert that Szczesny may have
had a meritorious argument against the rescission. But
arguments made for the first time at oral argument are
waived, Awe v. Ashcroft, 324 F.3d 509, 512-13 (7th Cir.
2003), and so this delay cost Szczesny the ability to dem-
onstrate that the outcome of his case could have been
different even if we were to accept as true that he was not
provided with adequate notice of the district director’s
intent to rescind. Accordingly, we are necessarily left to
conclude that Szczesny’s due process claim is meritless
because he never established that he was prejudiced by the
lack of notice, see Roman v. INS, 233 F.3d 1027, 1033 (7th
Cir. 2000) (asylum applicants claiming violation of due
process must show that improperly excluded testimony
could have affected outcome of case); Shahandeh-Pey v.
INS, 831 F.2d 1384, 1389 (7th Cir. 1987) (petitioner claim-
ing violation of due process must present evidence showing
that violation potentially affected outcome of deportation
proceedings), and we see no reason to remand the case on
the basis of administrative error if further proceedings pose
no possibility of success for Szczesny, see Keys v. Barnhart,
347 F.3d 990, 994 (7th Cir. 2003) (doctrine of harmless
error is fully applicable to review of administrative deci-
sions); Ghaly v. INS, 48 F.3d 1426, 1438 (7th Cir. 1995)
(Posner, J., concurring) (“There is no point in remanding an
administrative decision . . . if the decision on remand is a
foregone conclusion, or for further evidentiary proceedings
if the outcome of these proceedings is equally foreor-
dained.”). Accordingly, we DENY the petition for review.
4 No. 03-1047
In light of this conclusion, we have no occasion to address
the government’s argument that the IJ and the BIA had no
jurisdiction to review the content of the district director’s
notice of rescission.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-12-04