Chavarria-Reyes v. Lynch , 845 F.3d 275 ( 2016 )

EASTERBROOK, Circuit Judge.

An immigration judge ordered Jose Chavarria-Reyes removed to Mexico after concluding that he lacks permission to be here and is ineligible for discretionary relief because he has committed a crime of moral turpitude. He does not contest either conclusion but contends nonetheless that the IJ erred by failing to alert him to the possibility of voluntary departure under § 240B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a).

Voluntary departure usually depends on a showing of good moral character, a showing that Chavarria-Reyes cannot make: he has at least three convictions, for domestic battery, retail theft, and home-repair fraud. But voluntary departure under § 240B(a) is available without regard to the alien’s character, provided he claims this privilege at the outset of the proceedings and forswears all other arguments. An alien who departs voluntarily has more opportunity to return in later years than does an alien removed involuntarily. The Board of Immigration Appeals rejected his argument that the IJ had violated the Due Process Clause of the Fifth Amendment, and Chavarria-Reyes has filed a petition for review of that order.

His initial problem is that the Board entered its decision on November 6, 2015, and the petition for review was not received in our clerk’s office until December 8, two days beyond the 30-day time limit. 8 U.S.C. § 1252(b)(1). The Supreme Court has characterized a predecessor statute as jurisdictional, Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995), and we held in Sankarapillai v. Ashcroft, 330 F.3d 1004, 1005 (7th Cir. 2003), that the current version also is jurisdictional. Chavarria-Reyes maintains, however, that while in detention preceding removal he handed his petition to a guard on November 30, making it timely under Fed. R. App. P. 25(a)(2)(C), which applies the “prison mailbox rule” to all appellate papers. The Attorney General agrees with this contention, which poses a novel question in this circuit.

Rule 25(a)(2)(C) provides:

A paper filed by an inmate confined in an institution is timely if deposited in the institution’s internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

We can’t see any reason why this rule would not apply to immigration. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), created the prison mailbox rule for use in civil litigation, where the time limit for filing a notice of appeal is jurisdictional. Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). If intra-prison filing satisfies a jurisdictional requirement for civil litigation, it can equally satisfy a jurisdictional requirement for administrative litigation.

We recognize that a panel of the Fifth Circuit once held that the prison mailbox rule does not apply to immigration matters. Guirguis v. INS, 993 F.2d 508 (5th Cir. 1993). But Rule 25(a)(2)(C) was amended after Guirguis, and a later decision from the same circuit said that a filing while in immigration detention after the Rule was amended counts as timely. Smith v. Conner, 250 F.3d 277, 279 n.11 (5th Cir. 2001) (dictum). The Fifth Circuit has since held that immigration detainees represented by counsel cannot take advantage of Rule 25(a)(2)(C), see Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003), but Chavarria-Reyes lacked counsel when he handed his petition to the guard. What’s more, this circuit has concluded that represented prisoners, no less than those proceeding on their own, can use the prison mailbox rule, whose text does not draw a distinction between represented and pro se litigants. See United States v. Craig, 368 F.3d 738 (7th Cir. 2004).

The Second and Ninth Circuits have held that the prison mailbox rule applies to immigration proceedings. See Arango-Aradondo v. INS, 13 F.3d 610, 612-13 (2d Cir. 1994); Barrientos v. Lynch, 829 F.3d 1064 (9th Cir. 2016). No court — other than the superseded opinion in Guirguis — has held otherwise. We join the Second, Fifth, and Ninth Circuits in concluding that aliens detained pending removal can take advantage of Rule 25(a)(2)(C). Chavarria-Reyes’s petition is timely.

The Attorney General maintains that we nonetheless lack jurisdiction because of Chavarria-Reyes’s criminal convictions and the fact that voluntary departure is a discretionary remedy. See 8 U.S.C. § 1252(a)(2)(B), (C). But § 1252(a)(2)(D) provides that questions of law are reviewable notwithstanding the other parts of § 1252(a). The question Chavarria-Reyes presents — whether the IJ had a duty to notify him of the opportunity for relief under § 240B(a) — is one of law for the purpose of § 1252(a)(2)(D).

And there can be no doubt that the IJ failed in this duty. Section 240B(a) has been implemented by 8 C.F.R. § 1240.26(b)(1)(i), which provides that an IJ may grant voluntary departure before the conclusion of removal proceedings if the alien:

(A)Makes such request prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing;

(B) Makes no additional requests for relief (or if such requests have been made, such requests are withdrawn pri- or to any grant of voluntary departure pursuant to this section);

(C) Concedes removability;

(D) Waives appeal of all issues; and

(E) Has not been convicted of a crime described in section 101(a)(43) of the Act and is not deportable under section 237(a)(4).

A second regulation, 8 C.F.R. § 1240.11(b), provides that the IJ must tell all aliens about voluntary departure. Although this regulation does not spell out the required advice, or say when it must be supplied, In re Cordova, 22 I. & N. Dec. 966 (1999) (BIA en banc), concluded that an IJ must raise the subject of voluntary departure at an early procedural hearing — that is to say, the sort of hearing at which the IJ identifies the issues that will be addressed by evidence at later hearings — unless the alien has been convicted of an aggravated felony, which Chavarria-Reyes has not. (Another regulation, 8 C.F.R. § 1240.11(a)(2), requires comprehensive advice about all opportunities for relief from removal, but it is limited to aliens admitted for permanent residence. Cha-varria-Reyes is not in that category.)

Requiring the IJ to raise the subject as soon as possible is necessary, the Board concluded in Cordova, because § 1240.26(b)(1)(i) requires an alien to make irrevocable choices, such as abandoning all other requests for relief and waiving the right to appeal. But the IJ did not tell Chavarria-Reyes about his option to request early voluntary departure. Instead he told Chavarria-Reyes to consult with his lawyer (Chavarria-Reyes told the IJ he had one) and then make any motions or requests that counsel told him would be appropriate. It turned out that Chavarria-Reyes did not have a lawyer — at least, none ever entered an appearance — and so we must assume that he did not learn until too late about the possibility of relief under § 240B(a).

Here Chavarria-Reyes encounters a final roadblock: § 1252(d)(1) provides that a court may review a final order of removal “only if ... the alien has exhausted all administrative remedies available to the alien as of right” (emphasis added). The exhaustion requirement is not a jurisdictional bar, see Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006); Abdelqadar v. Gonzales, 413 F.3d 668, 670-71 (7th Cir. 2005), but it is a mandatory case-processing rule and must be enforced if a litigant claims its benefits. The Attorney General asks us to enforce this rule, observing that Chavarria-Reyes did not argue, on his appeal to the BIA, that the IJ failed to follow § 1240.11(b) as understood in Cordova. Instead he contended that the IJ had violated the Due Process Clause of the Fifth Amendment by holding his pro se status against him. The BIA rejected that argument, and Chavarria-Reyes, with the benefit of counsel in this court, does not repeat it. Now he seeks relief based on an argument that he could have made, but did not. Exhaustion means not just taking an appeal to the Board but also presenting an argument, so that the Board has “an opportunity to pass upon the particular legal arguments and contentions that [the alien] now raises”. Zeqiri v. Mukasey, 529 F.3d 364, 369-70 (7th Cir. 2008).

Chavarria-Reyes maintains that, when an I J’s error leaves an alien ignorant of his rights, it is unfair to require the alien to complain in detail to the BIA — a complaint that would depend on the very knowledge that the IJ failed to convey. Yet the statute says that judicial review is permissible “only if’ exhaustion has been accomplished. Nothing in the statute suggests that an alien can avoid the exhaustion requirement by asserting ignorance of an I J’s error. Nor does the statute suggest that exhaustion is required only of aliens who have lawyers. We have not found any decision, from any circuit, concluding that § 1252(d)(1) is inapplicable to aliens who represent themselves or to aliens who claim to be in the dark about what the IJ did wrong — for a claim of ignorance is easy to make but almost impossible for the agency or a court to refute, even if the assertion is false.

The function of exhaustion is to alert the Board so that it can fix the IJ’s errors. That function can’t be served if courts take the existence of an error as a reason not to require exhaustion. And judges would be hard pressed to require more of an administrative tribunal than they require of themselves. When litigants file briefs in this court, the judges regularly address only those contentions presented (whether or not the litigant has a lawyer) and treat all others as forfeited. The plain-error rule of Fed. R. Crim. P. 52(b) does not apply to civil litigation or to civil administrative proceedings. Requiring the BIA to dredge through a record and find all of the things an IJ might have done but didn’t do, plus all those the IJ did do, and then evaluate both actions and inactions against a long list of administrative requirements and prohibitions, would prolong and complicate all immigration proceedings. Both judges and administrative adjudicators need the help of lawyers and litigants to focus attention on problematic areas, and they are entitled to limit their consideration to contentions actually presented — whether they call that requirement forfeiture or exhaustion of remedies.

Although the exhaustion requirement prevents us from granting Chavarria-Reyes’s petition, he remains free to ask the BIA to reconsider or reopen its decision in light of the IJ’s failure to implement the holding of Cordova. That step would be unnecessary if the Attorney General consents to a reopening on the basis of this established error. And, no matter what happens to Chavarria-Reyes, we hope that the agency will revise the procedural checklists (or “scripts”) it prepares for use by IJs. The checklist for initial hearings with unrepresented aliens, https://www..justice.gov/sites/default/fíles/ eoir/legacy/2014/08/15/Script_MC_ Checklist.pdf, appears to contemplate advice about voluntary departure only if the IJ first decides that the alien is ineligible for any other kind of relief. That’s not what Cordova contemplates: § 1240.11(a)(2) requires advice to permanent residents about all entitlements, not just about a fallback after other possibilities have been exhausted, and § 1240.11(b) requires advice to all aliens about voluntary departure. Worse, the checklist for use at hearings with aliens who have counsel — the category in which the IJ (wrongly) supposed Chavarria-Reyes to be — does not call on the IJ to give advice about voluntary departure under § 240B(a), whether or not some other option is available. See https://www.justice.gov/sites/ default/fíles/eoir/legacy/2014/08/15/Script-Initial_Hearing.pdf. The agency could do aliens, and its own personnel, a big favor by revising these checklists to reflect all entitlements within the scope of a statute or regulation.

The petition for review is denied.