Benslimane, Jellal v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1339
JELLAL BENSLIMANE,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition to Review an Order of the
Board of Immigration Appeals.
No. A77 656 393
____________
ARGUED SEPTEMBER 23, 2005—DECIDED NOVEMBER 30, 2005
____________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. In the year ending on the date of
the argument, different panels of this court reversed the
Board of Immigration Appeals in whole or part in a stagger-
ing 40 percent of the 136 petitions to review the Board that
were resolved on the merits. The corresponding figure, for
the 82 civil cases during this period in which the United
States was the appellee, was 18 percent. Our criticisms of the
Board and of the immigration judges have frequently been
severe. E.g., Dawoud v. Gonzales, 424 F.3d 608, 610 (7th Cir.
2005) (“the [immigration judge’s] opinion is riddled with
inappropriate and extraneous comments”); Ssali v. Gonzales,
2 No. 04-1339
424 F.3d 556, 563 (7th Cir. 2005) (“this very significant
mistake suggests that the Board was not aware of the most
basic facts of [the petitioner’s] case”); Sosnovskaia v. Gonzales,
421 F.3d 589, 594 (7th Cir. 2005) (“the procedure that the
[immigration judge] employed in this case is an affront to
[petitioner’s] right to be heard”); Soumahoro v. Gonzales, 415
F.3d 732, 738 (7th Cir. 2005) (per curiam) (the immigration
judge’s factual conclusion is “totally unsupported by the
record”); Grupee v. Gonzales, 400 F.3d 1026, 1028 (7th Cir.
2005) (the immigration judge’s unexplained conclusion is
“hard to take seriously”); Kourski v. Ashcroft, 355 F.3d 1038,
1039 (7th Cir. 2004) (“there is a gaping hole in the reasoning
of the board and the immigration judge”); Niam v. Ashcroft,
354 F.3d 652, 654 (7th Cir. 2003) (“the elementary principles
of administrative law, the rules of logic, and common sense
seem to have eluded the Board in this as in other cases”).
Other circuits have been as critical. Wang v. Attorney General,
423 F.3d 260, 269 (3d Cir. 2005) (“the tone, the tenor, the
disparagement, and the sarcasm of the [immigration judge]
seem more appropriate to a court television show than a
federal court proceeding”); Chen v. U.S. Dep’t of Justice, 426
F.3d 104, 115 (2d Cir. 2005) (the immigration judge’s finding
is “grounded solely on speculation and conjecture”); Fiadjoe
v. Attorney General, 411 F.3d 135, 154-55 (3d Cir. 2005) (the
immigration judge’s “hostile” and “extraordinarily abusive”
conduct toward petitioner “by itself would require
a rejection of his credibility finding”); Lopez-Umanzor v.
Gonzales, 405 F.3d 1049, 1054 (9th Cir. 2005) (“the [immigra-
tion judge’s] assessment of Petitioner’s credibility was
skewed by prejudgment, personal speculation, bias, and
conjecture”); Korytnyuk v. Ashcroft, 396 F.3d 272, 292 (3d Cir.
2005) (“it is the [immigration judge’s] conclusion, not [the
petitioner’s] testimony, that ‘strains credulity’ ”).
This tension between judicial and administrative adjudica-
tors is not due to judicial hostility to the nation’s immigra-
No. 04-1339 3
tion policies or to a misconception of the proper standard of
judicial review of administrative decisions. It is due to the
fact that the adjudication of these cases at the administrative
level has fallen below the minimum standards of legal
justice. Niam v. Ashcroft, supra, 354 F.3d at 654. Whether
this is due to resource constraints or to other circum-
stances beyond the Board’s and the Immigration Court’s
control, we do not know, though we note that the problem
is not of recent origin. E.g., Galina v. INS, 213 F.3d 955, 958
(7th Cir. 2000). All that is clear is that it cannot be in the
interest of the immigration authorities, the taxpayer, the
federal judiciary, or citizens concerned with the effective
enforcement of the nation’s immigration laws for removal
orders to be routinely nullified by the courts, and that the
power of correction lies in the Department of Homeland
Security, which prosecutes removal cases, and the Depart-
ment of Justice, which adjudicates them in its Immigration
Court and Board of Immigration Appeals.
In the present case, the Board has ordered an alien who is
married to a U.S. citizen removed (deported) because
he failed to produce a document that was both peripheral to
his claim to be allowed to remain in this country by virtue
of his marriage and already in the possession of the immi-
gration authorities. Jellal Benslimane, a Moroccan, entered
the United States on a visitor’s visa in 1998 and overstayed.
The Immigration and Naturalization Service, as it then
was—its functions have since been taken over by agencies
in the Department of Homeland Security, which was created
in 2003—sought to remove him. In February 2003, shortly
before the department opened its doors, Benslimane
appeared before an immigration judge, admitting
removability but claiming that he had married an American
citizen two months earlier and that she had filed a petition,
4 No. 04-1339
Form I-130, requesting that he be given a visa as a legal
resident of the United States.
Besides the visa petition, Benslimane, to be allowed to
remain in the United States, was required to file an ap-
plication, Form I-485, requesting that his status be ad-
justed from that of illegal immigrant to that of legal resi-
dent. 8 U.S.C. § 1255(a)(1); 285 C.F.R. § 245.2(a)(3)(ii). Such
an application states the ground for the adjustment sought
and furnishes certain other information, see In re Grand Jury
Subpoena, 341 F.3d 331, 334 (4th Cir. 2003), but the bona fides
of Benslimane’s marriage—the basis of his application for
adjustment—would be determined in the proceeding on the
wife’s petition. Drax v. Reno, 338 F.3d 98, 114 (2d Cir. 2003);
see 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.2(a)(1);
Orichitch v. Gonzales, 421 F.3d 595, 596 (7th Cir. 2005).
Benslimane’s I-485 application was duly filed. The Immigra-
tion and Naturalization Service, acknowledging the filing,
informed him in writing that it would take 26 months for
him to be granted an interview on the application.
Meanwhile the proceedings to remove Benslimane
went forward. At his initial removal hearing, conducted
in February of 2003, the immigration judge noted that
had Benslimane and his wife filed the visa petition and
adjustment of status application forms jointly, he could have
continued the removal proceeding until the visa petition
was adjudicated. Onyeme v. INS, 146 F.3d 227, 232 (4th Cir.
1998); Israel v. INS, 785 F.2d 738, 740 n. 3 (9th Cir. 1986); In
re Garcia, 16 I. & N. Dec. 653, 655-57 (BIA 1978). The forms
had been filed jointly, but had been placed on a different
adjudicative track from the removal proceeding. The
immigration judge asked the government’s lawyer to find
out the status of the visa petition and report back to him in
90 days.
No. 04-1339 5
At the resumed hearing, held in May of 2003 after the
90 days had expired, the government’s lawyer, who was
from the agency in the Department of Homeland Security
called Immigration and Customs Enforcement, reported that
the wife’s visa petition was being handled by a different
agency in DHS, Citizenship and Immigration Services. The
lawyer added that she had no information about the status
of the visa proceeding. The immigration judge, although
told by Benslimane’s lawyer that the wife had filed
Benslimane’s I-485 application at the same time that she had
filed her I-130 petition, told Benslimane to submit his I-485
application to the judge within 60 days.
Benslimane failed to do so, because his lawyer thought
that an I-485 form cannot be filed with the immigration
authorities until the visa petition has been adjudicated. This
was wrong, 8 C.F.R. § 245.2(a)(2)(i)(B), and also very
peculiar, since the lawyer, unless he had forgotten, knew
that the form had been filed. At any rate, he requested a
further continuance to await the adjudication of the visa
petition (the I-130). The judge denied the request and
ordered Benslimane removed, since adjustment of status
was the only basis on which he was resisting removal.
Benslimane appealed to the Board of Immigration Appeals.
By then, his lawyer had woken up and submitted a
copy of the I-485 that Benslimane’s wife had filed. Neverthe-
less the Board affirmed the immigration judge’s denial of
the motion for a continuance and the resulting order of
removal, without mentioning that the original Form I-485
had been filed long before the immigration judge had
ordered Benslimane removed.
In effect, then, Benslimane has been ordered removed
because he failed to submit a duplicate of the Form I-485
that had been filed six months earlier, that (according to the
6 No. 04-1339
government’s lawyer at the argument in our court) had not
been lost, but that the government lawyer at the removal
proceeding had no copy of. We have not been told why the
mishandling of the matter by Benslimane’s original lawyer
was not made the basis for a claim of ineffective assistance
of counsel. The Board of Immigration Appeals allows such
claims, Pervaiz v. Gonzales, 405 F.3d 488, 489-90 (7th Cir.
2005); Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001), though
on conditions that might not have been satisfied here
because the Board in In re Lozada, 19 I. & N. Dec. 637, 639
(BIA), aff’d, 857 F.2d 10 (1st Cir. 1988), had created a “screen
to prevent strategic invocation of ineffective assistance. The
screen requires that a motion to reopen deportation pro-
ceedings 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.” Stroe v. INS, supra, 256 F.3d
at 501.
The visa petition remains unadjudicated, though there
is no suggestion of foot-dragging on the part of either
Benslimane or his wife.
The final decision in this case is the order removing
Benslimane, which is nondiscretionary and therefore
reviewable by us. Subhan v. Ashcroft, 383 F.3d 591, 594 (7th
Cir. 2004); see 8 U.S.C. § 1227(a)(1)(C); Nakamoto v. Ash-
croft, 363 F.3d 874, 880-81 (9th Cir. 2004). But it
was precipitated by the denial of his motion for a continu-
ance. A ruling on such a motion is discretionary, and the
government argues that we have no jurisdiction to review
No. 04-1339 7
a discretionary ruling by an immigration judge. We assume,
as we did in Subhan v. Ashcroft, supra, 383 F.3d at 595, that
the government’s argument is correct in general. See 8
U.S.C. § 1252(a)(2)(B)(ii). But it is not correct in the circum-
stances of this case, which are similar to those in Subhan.
There the immigration judge had denied the alien’s motion
for a continuance, precipitating an order of removal,
because through no fault of the alien’s the government had
not yet acted on his application for a labor certificate that he
needed in order to be able to adjust his status to that of legal
resident. We held that the denial of the motion had the
effect of a substantive ruling on the application to adjust his
status and was therefore judicially reviewable.
It is the same here. Benslimane had completed all the
formalities required for an adjustment of his status, just like
Subhan, but the immigration authorities had, through no
fault of his or his wife’s, failed as yet to act on his
wife’s petition. In Subhan, the alien’s entitlement to a
labor certificate hadn’t been determined; here the bona fides
of the alien’s marriage hadn’t been determined. An immi-
gration judge cannot be permitted, by arbitrarily denying a
motion for a continuance without which the alien cannot
establish a ground on which Congress has determined that
he is eligible to seek to remain in this country, 8 U.S.C. §§
1151(b)(2)(A)(i), 1255(a), to thwart the congressional design.
The Board of Immigration Appeals so recognized in In re
Garcia, supra, 16 I. & N. Dec. at 654: “We have examined our
policy with respect to the disposition of motions to reopen
for consideration of adjustment applications based upon as
yet unadjudicated visa petitions in light of the present
regulation permitting simultaneous filing. In order to give
what we consider to be appropriate effect to the simulta-
neous filing provisions of 8 C.F.R. 245.2(a)(2), as amended,
we shall hereafter generally reopen the deportation pro-
8 No. 04-1339
ceedings in such cases unless clear ineligibility is apparent
in the record.”
Other courts have recognized an even broader scope
of judicial review of denials of continuances. They have
pointed out that section 1252(a)(2)(B)(ii) closes the door only
to the review of rulings “the authority for which is specified
under this subchapter to be in the discretion of the Attorney
General,” and that rulings on motions for a continuance are
not among those specified (that is, explicitly listed). Zafar v.
U.S. Attorney General, 426 F.3d 1330, 1334-35 (11th Cir. 2005);
Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); Medina-
Morales v. Ashcroft, 371 F.3d 520, 528-29 (9th Cir. 2004). We
need not take a position on that interpretation.
At argument the government’s lawyer offered a remark-
able interpretation of our decision in Subhan: that it permits
judicial review of the denial of a continuance only if the
immigration judge fails to give a reason for the denial. If he
gives any reason, however outlandish—even if the reason
he gives is that he does not grant continuances when the
moon is full—there is no jurisdiction, the lawyer contended,
to review the ruling. That would be a senseless distinction,
and is not what Subhan is about.
When the Board of Immigration Appeals affirmed the
order to remove Benslimane, it knew that he had complied
with all the requirements for an adjustment of status and
was merely awaiting action on his wife’s petition. Its
decision that he nevertheless be removed forthwith flew
in the face of its own decision in Garcia, as well as in the face
of Congress’s “intent [in enacting 8 U.S.C. § 1255] that
eligible aliens be able to adjust status without having to
leave the United States, to relieve the burden on the
United States citizen with whom the aliens had the requisite
family or other relationship, on the United States consulates
No. 04-1339 9
abroad, and on the alien.” Succar v. Ashcroft, 394 F.3d 8, 22
(1st Cir. 2005); see also Randall v. Meese, 854 F.2d 472, 473-74
(D.C. Cir. 1988). The Board attempted to distinguish Garcia
on the ground that Benslimane had failed to submit his
application for adjustment of status to the immigration
judge. But neither had Garcia; his application had been
forwarded to the Board (corresponding to the immigration
judge here—Garcia’s case was already before the Board) by
the division of the immigration service in which he had filed
it.
The Board’s action is intelligible, but not justifiable,
only as punishment for a lawyer’s mistaken belief that
the filing of the I-485 form (which had already been
filed!) would be premature. We are not required to per-
mit Benslimane to be ground to bits in the bureaucratic
mill against the will of Congress. And anyway punish-
ment was not the rationale of the Board’s action, which
appears to have been completely arbitrary.
The order of removal is vacated, and we direct the
Board to stay removal pending the ruling on the visa
petition and completion of the adjustment of status proceed-
ing.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-30-05