Magala, Olga v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2819
OLGA MAGALA,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
ARGUED NOVEMBER 2, 2005—DECIDED DECEMBER 27, 2005
____________
Before COFFEY, EASTERBROOK, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. In July 1999 an Immigra-
tion Judge ordered Olga Magala to be removed to her native
Ukraine. In May 2002, while her administrative appeal was
still pending, she married a U.S. citizen and applied for a
visa as his relative. This was approved in December 2002.
Her lawyer, Michael Thoren, asked the Board of Immigra-
tion Appeals to reopen her proceedings (which it still had
under advisement) so that she could adjust her status to
that of lawful permanent resident. This provoked the Board
to act. In April 2003 it dismissed (for lack of merit) the
appeal from the July 1999 ruling, observed that it could not
“reopen” a proceeding that was still open, and declined to
2 No. 04-2819
remand to the IJ for adjustment of status because Thoren
had failed to provide the application for that relief required
by 8 C.F.R. §1003.2(c)(1), (4). The Board noted, however,
that Magala could submit the application within the time
allowed for a (proper) motion to reopen. It wrapped up by
giving Magala 30 days to depart voluntarily.
Thoren had to act quickly. The clock was ticking on the
period to submit the application for adjustment of status
and on the period for voluntary departure. The latter
window was the shorter one, and, unless it was extended or
cancelled, Magala had to leave and wait abroad for the
processing of her request for permanent residence. A person
who is given the opportunity for voluntary departure yet
remains in the United States loses for five years any
opportunity to obtain discretionary relief such
as adjustment of status. See 8 U.S.C. §1252b(e)(2)(A)
(1994 ed.; repealed 1996); Alimi v. Ashcroft, 391 F.3d 888(7th Cir. 2004). The current version of this law has a 10-
year rather than a 5-year ban, plus some other changes. See
8 U.S.C. §1229c. We cite the older one because Magala was
placed in removal proceedings before the 1996 legislation,
and under its transition rules the former version of this bar
still applies to her. 110 Stat. 3009-546, 625-27 (1996).
With time pressing, Thoren sat on his hands. He put off
telling Magala that her appeal had been decided. He did not
file a prompt application for adjustment of status or ask the
Board to extend or rescind the privilege of voluntary
departure so that adjustment of status would remain
available. But in June 2003 Thoren filed a motion to reopen,
with the appropriate documentation, and the Board told
him the next month that it was too late: because Magala
had failed to depart during the 30 days, she had forfeited
any opportunity to adjust her status based on her marriage.
Thoren did not bother to tell Magala about this decision.
No. 04-2819 3
In November 2003 Magala sought Thoren’s help in
extending her right to engage in employment while her
appeal was pending. Only then did she learn that the
appeal had been resolved months earlier. Magala fired
Thoren; her new counsel, Tzvetelina Boynovska, filed a
disciplinary complaint against Thoren with state officials, a
step necessary before seeking relief from the Board based
on his lapses. See Matter of Lozada, 19 I&N Dec. 637(1988); Matter of Assaad, 23 I&N Dec. 553 (2003). Thoren
conceded to the Illinois Attorney Registration
and Disciplinary Commission that he had botched Magala’s
case. Boynovska then filed another motion to reopen the
removal proceedings, contending that Magala had been
prejudiced by Thoren’s errors. But the Board denied this
motion, observing that the lack of a proper application had
been curable while the voluntary-departure window re-
mained open, and that Thoren told the ARDC that he had
informed Magala of the Board’s April decision the following
month.
In this court the parties dwell on constitutional argu-
ments, which are pointless because removal is not a
criminal proceeding and there is no constitutional
ineffective-assistance doctrine. See Stroe v. INS, 256 F.3d
498 (7th Cir. 2001). The Constitution entitles aliens to
due process of law, but this does not imply a right to
good lawyering. Every litigant in every suit and every
administrative proceeding is entitled to due process, but
it has long been understood that lawyers’ mistakes in
civil litigation are imputed to their clients and do not justify
upsetting the outcome. See, e.g., National Hockey League v.
Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976); Societe
International v. Rogers, 357 U.S. 197, 212 (1958); United
States v. 7108 West Grand Avenue, 15 F.3d 632 (7th Cir.
1994). The civil remedy is damages for malpractice, not a
re-run of the original litigation.
4 No. 04-2819
To say that the Constitution does not assist Magala is
not, however, to say that she has no potential arguments.
The Board may grant relief as a matter of sound discretion;
agencies are not limited to the very least that the Constitu-
tion demands. The Board has been willing to assist aliens
whose rights have been undermined by bad lawyers,
whether or not the Constitution requires this, and it
considered Magala’s argument on the merits rather
than stating that substandard legal assistance is immate-
rial. Because the agency entertains such contentions, basic
principles of administrative law demand that it do
so carefully and rationally.
The Board’s care is in doubt. It relied on Thoren’s state-
ment that he told Magala in May 2003 about the Board’s
decision of April 2, 2003, dismissing her initial appeal, and
took this as conclusive proof that Magala knew of her need
to depart before the 30 days had run. Yet in this respect
Thoren and Magala disagreed; an agency cannot credit one
person’s testimony over another’s on a material issue
without a hearing to determine who is right. Worse, even by
Thoren’s account Magala had been prejudiced. A date “in
May 2003” likely is more than 30 days after April 2,
2003—another part of Magala’s statement implied that the
meeting had occurred in late May—so Magala’s time to
depart (or obtain an extension of time to do so) had expired
and her opportunity to obtain an adjustment of status had
lapsed before Thoren clued her in.
What is more, the Board did not mention an important
difference between the old version of the voluntary-depar-
ture bar and the current one. (It may not have recognized
that Magala is covered by the old law.) The version applica-
ble to Magala says that an alien who is allowed to “depart
voluntarily at his own expense . . . who remains in the
United States after the scheduled date of departure, other
than because of exceptional circumstances, shall not be
eligible for” adjustment of status during the next five years.
No. 04-2819 5
8 U.S.C. §1252b(e)(2)(A) (1994 ed.) (emphasis added). The
Board did not consider whether counsel’s bungling is an
“exceptional circumstance” justifying relief from the
presumptive bar. The pre-1996 statute defined “exceptional
circumstances” as serious matters beyond the alien’s
control, 8 U.S.C. §1252b(f)(2) (1994 ed.). Woeful legal
“assistance” that undermines an alien’s rights may fit that
definition. One court of appeals deems a lawyer’s failure to
alert the alien to the consequences of non-departure to be so
grave that it has asked the Board to consider establishing
an exceptional-circumstance escape hatch to the current
statute, even though the 1996 amendment deleted that
language. See Zmijewska v. Gonzales, 426 F.3d 99 (2d Cir.
2005). We express no view on whether that would be
sensible (or even legally possible); it is enough to say that,
under the former version of this statute, the Board had
available the means to protect Magala from the conse-
quences of Thoren’s blunders. But it never mentioned the
possibility.
Boynovska and the Board may share responsibility for
this oversight. Lawyers all too often invoke the Constitution
as if it were a panacea and bypass seemingly mundane
arguments based on statutes and regulations. Mimicking
Gresham’s Law, flabby constitutional generalities drive out
sound legal points. Aliens who fail to present their argu-
ments to the Board cannot make them in court either;
exhaustion of administrative remedies is no less a norm of
administrative law than is the obligation to render careful
decisions. See 8 U.S.C. §1252(d)(1). Because the agency’s
lawyer seems to be as drawn to the Constitution as
Magala’s—counsel for the Department of Justice told us at
oral argument that he had never considered the possibility
that there might be an administrative-law dimension to this
litigation—the exhaustion doctrine has not been invoked.
The parties have not joined issue on the question whether
an ineffective-assistance claim by itself should have alerted
6 No. 04-2819
the Board to the possibility that exceptional circumstances
obtain.
It seems best to remand so that the Board may decide
whether Boynovska did enough to preserve a statutory
contention—and, if so, to address that subject on the merits.
See INS v. Ventura, 537 U.S. 12 (2002). The Board also
should consider whether this is an issue it ought to raise on
its own so as to avoid unnecessary constitutional adjudica-
tion.
The petition for review is granted, and the matter is
remanded to the Board for proceedings consistent with
this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-27-05