Jezierski, Teresa v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3569
T ERESA JEZIERSKI,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
____________
Petition to Review Order
of the Board of Immigration Appeals.
No. A21 530 826
____________
A RGUED A UGUST 5, 2008—D ECIDED S EPTEMBER 10, 2008
____________
Before P OSNER, C OFFEY, and M ANION, Circuit Judges.
P OSNER, Circuit Judge. The petitioner asked the Board
of Immigration Appeals to reopen her removal proceeding
on the ground that she had received ineffective assist-
ance of counsel. The Board refused, finding that she had
not shown that the failures of her counsel of which she
complained would have led to a different result; in other
words, she had failed to prove “prejudice.” We must
2 No. 07-3569
decide whether we have jurisdiction to review the denial
of her motion.
Our recent decisions in Zamora-Mallari v. Mukasey,
514 F.3d 679, 694 (7th Cir. 2008); Kucana v. Mukasey, 533
F.3d 534 (7th Cir. 2008), and Huang v. Mukasey, 534 F.3d
618 (7th Cir. 2008), hold (contrary to the view of some
our sister circuits, see, e.g., Shardar v. Attorney General,
503 F.3d 308 (3d Cir. 2007); Fernandez v. Gonzales, 439 F.3d
592 (9th Cir. 2006)) that there is no power of judicial
review of petitions to reopen removal proceedings unless
the petition presents a question of law (or a constitutional
issue—there is a distinction so far as review jurisdiction
is concerned, but that’s for later to explain). “The facts
that the Board finds, and the reasons that it gives, en route
to exercising its discretion to grant or deny a petition to
reopen a removal proceeding, and the discretionary
decision itself, cannot be reexamined by a court, whether
for clear error, lack of substantial evidence, abuse of
discretion, or any other formulation of a ground for
reversing an administrative decision; all the court can
decide is whether the Board committed an error of law.
[See also Liu v. INS, 508 F.3d 716, 720-21 (2d Cir. 2007) (per
curiam).] That will usually be a misinterpretation of a
statute, regulation, or constitutional provision. But it
could also be a misreading of the Board’s own precedent,
or the Board’s use of the wrong legal standard [Ali v.
Achim, 468 F.3d 462, 465 (7th Cir. 2006)], or simply a failure
to exercise discretion [as in Sanchez v. Keisler, 505 F.3d
641, 649-50 (7th Cir. 2007)], or to consider factors acknowl-
edged to be material to such an exercise.” Huang v.
Mukasey, supra, 534 F.3d at 620 (citations omitted).
No. 07-3569 3
We noted in Huang that our cases had not given con-
sistent answers to the question of our power to review
the Board’s refusing to reopen a removal proceeding on
the basis of ineffective assistance of the alien’s counsel in
that proceeding. Id. at 623. Sanchez v. Keisler, supra, 505
F.3d at 647-48, and Kay v. Ashcroft, 387 F.3d 664, 676 (7th
Cir. 2004), had seemed to suggest a broad power,
but Patel v. Gonzales, 496 F.3d 829, 831 (7th Cir. 2007);
Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005), and
Stroe v. INS, 256 F.3d 498 (7th Cir. 2001), a narrow one.
There is a similar tension among circuits. Compare Omar
v. Mukasey, 517 F.3d 647 (2d Cir. 2008) (per curiam);
Fadiga v. Attorney General, 488 F.3d 142, 153-54 (3d Cir.
2007); Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir. 2006), and
Dakane v. Attorney General, 399 F.3d 1269, 1273-74 (11th Cir.
2005), all suggesting a broad power, with Jamieson v.
Gonzales, 424 F.3d 765, 768 (8th Cir. 2005), and Nativi-Gomez
v. Ashcroft, 344 F.3d 805, 807-09 (8th Cir. 2003), suggesting
a narrow one.
Within this circuit, at least, there is no actual conflict. In
Kay, the panel determined that the denial of effective
assistance of counsel in the circumstances violated the
Fifth Amendment; it wasn’t a “question of law” ruling,
but a constitutional ruling, which is different. The panel
in Sanchez did not discuss the issue of jurisdiction
(neither did Kay, for that matter), doubtless because the
Justice Department took the position that we could review
denials of petitions to reopen for abuse of discretion.
“When a court resolves a case on the merits without
discussing its jurisdiction to act, it does not establish a
precedent requiring similar treatment of other cases once
4 No. 07-3569
the jurisdictional problem has come to light. Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89, 119 and n. 29
(1984); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S.
33, 37-38 (1952).” Glidden v. Chromalloy American Corp., 808
F.2d 621, 625 (7th Cir. 1986). Especially after Kucana and
Huang, it is apparent that our power to review such
denials is narrow even when the alien is complaining of
ineffective assistance of counsel.
No statute entitles the alien to effective assistance of
counsel, Stroe v. INS, supra, 256 F.3d at 499-500 (7th Cir.
2001); Afanwi v. Mukasey, 526 F.3d 788, 796 (4th Cir. 2008),
although he is allowed to have counsel at his own ex-
pense. 8 U.S.C. § 1362. The Sixth Amendment is inapplica-
ble to removal proceedings. Gjeci v. Gonzales, 451 F.3d
416, 421 (7th Cir. 2006); Stroe v. INS, supra, 256 F.3d at 500;
Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008); Afanwi
v. Mukasey, supra, 526 F.3d at 796-97; Zeru v. Gonzales, 503
F.3d 59, 72 (1st Cir. 2007); cf. Coleman v. Thompson, 501 U.S.
722, 752-54 (1991); Wainwright v. Torna, 455 U.S. 586, 587-99
(1982). And no statute or constitutional provision entitles
an alien who has been denied effective assistance of
counsel in his (in this case her) removal proceeding to
reopen the proceeding on the basis of that denial. Stroe
v. INS, supra, 256 F.3d at 501; Rafiyev v. Mukasey, Nos.
07-1317, 07-2406, 2008 U.S. App. LEXIS 16537, at *19-20
(8th Cir. Aug. 5, 2008). Nevertheless, if the Board of
Immigration Appeals adopted a rule entitling such an
alien to reopen, its failure to follow the rule in a particular
case would present a question of law. Aris v. Mukasey, 517
F.3d 595, 600 (2d Cir. 2008); cf. Hanan v. Mukasey, 519 F.3d
760, 764 (8th Cir. 2008); Khan v. Mukasey, 517 F.3d 513, 518-
No. 07-3569 5
19 (7th Cir. 2008). An administrative agency can change
its rules, but it has to justify the change, and a challenge
to the adequacy of the agency’s justification for doing so
presents a question of law. (For the general principle, see
National Cable & Telecommunications Ass’n v. Brand X
Internet Services, 545 U.S. 967, 981, 1001 (2005), and Motor
Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins.
Co., 463 U.S. 29, 46-57 (1983), and for its application to
petitions to reopen see Stroe v. INS, supra, 256 F.3d at 502-
03; Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008); Mai v.
Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); Cruz v. Attorney
General, 452 F.3d 240, 250 (3d Cir. 2006).)
We cannot find any rule declared by the Board that
entitles the alien to reopen his removal proceeding on the
basis of ineffective assistance of counsel. The Board has
adopted a rule—the Lozada rule (In re Lozada, 19 I. & N.
Dec. 637 (BIA 1988), petition for review denied under
the name Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988); see
also Cruz v. Attorney General, supra, 452 F.3d at 250)—
setting forth the requirements for establishing ineffective
assistance. But having found ineffective assistance the
Board is not thereby required to grant the petition to
reopen. Satisfying the requirements of Lozada is a neces-
sary condition to obtain a reopening on the basis of inef-
fective assistance of counsel rather than a sufficient one.
In the absence of a rule requiring reopening upon the
satisfaction of specified conditions, the decision to
reopen is discretionary, and we have no jurisdiction to
review the discretionary denial of a petition to reopen.
It is true that the Board has often granted such petitions
when the requirements of Lozada are satisfied, see, e.g., In
6 No. 07-3569
re Bozena Zmijewska, 24 I. & N. Dec. 87 (BIA 2007); In re – K-
& V- S-, 21 I. & N. Dec. 879, 881 (BIA 1997); In re
Gustavo Alonzo Grijalva-Barrera, 21 I. & N. Dec. 472, 473-
74 (BIA 1996)—but not always. See In re Orozco-Solis,
2006 BIA LEXIS 34; In re Gary Fitzroy Beckford, 22 I. & N.
Dec. 1216 (BIA 2000); see also In re Dean Maurice Morgan,
2006 BIA LEXIS 36; In re Robert Michael St. George Grant,
2005 BIA LEXIS 24; In re Lourdes Soriano-Vino in Removal
Proceedings, 2003 BIA LEXIS 17; In re Ydalia Cruz-Garcia,
22 I. & N. Dec. 1155 (BIA 1999). But that is consistent
with there being no entitlement to reopen on the basis
of ineffective assistance of counsel. Even if the alien
received subprofessional assistance from his lawyer, and
as a result was prejudiced in his effort to avoid removal,
the sheer passage of time since the removal proceeding,
or the alien’s culpable failure to seek prompt relief, might
be thought to justify refusing to reopen; and weighing
these considerations requires an exercise of discretion
of the tribunal.
The complexity of the issues, or perhaps other condi-
tions, in a particular removal proceeding might be so
great that forcing the alien to proceed without the assis-
tance of a competent lawyer would deny him due
process of law by preventing him from “reasonably
presenting his case.” Henry v. INS, 8 F.3d 426, 440 (7th Cir.
1993); Kay v. Ashcroft, supra, 387 F.3d at 676; Hernandez v.
Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008); Aris
v. Mukasey, supra, 517 F.3d at 600; see also Monjaraz-
Munoz v. INS, 327 F.3d 892, 897 (9th Cir. 2003). An alien
resisting removal, which would deprive him of his liberty
to remain in the United States, is entitled to due process,
No. 07-3569 7
Reno v. Flores, 507 U.S. 292, 306 (1993); Yamataya v. Fisher,
189 U.S. 86, 100-01 (1903); Bosede v. Mukasey, 512 F.3d 946,
952 (7th Cir. 2008); Torres v. INS, 144 F.3d 472, 474 (7th
Cir. 1998), which comprehends the right to present a
defense. Leguizamo-Medina v. Gonzales, 493 F.3d 772, 775-
76 (7th Cir. 2007); Rodriguez Galicia v. Gonzales, 422 F.3d
529, 539-40 (7th Cir. 2005).
Yet some cases say that if the alien is seeking merely
discretionary relief he has no entitlement to remain in the
United States and therefore a denial of relief does not
invade his liberty. E.g., Nativi-Gomez v. Ashcroft, supra,
344 F.3d at 807; Mejia Rodriguez v. Reno, 178 F.3d 1139,
1148 (11th Cir. 1999). The other cases that we have cited
do not recognize the distinction, however, and to do so
would be cutting things too fine. It is true that in Cevilla v.
Gonzales, 446 F.3d 658, 662 (7th Cir. 2006), we said that
while “Cevilla has a liberty interest in remaining in the
United States, . . . prevailing on the issue of continuous
physical presence in the United States would not give
her any right to remain here. It would merely give her
an opportunity to establish extreme hardship, which is
an appeal to the government’s discretion, rather than a
substantive entitlement.” But there is a difference be-
tween an issue and a remedy. Having created a reopening
remedy that can defeat removal, the government cannot
be allowed to destroy the remedy and so ensure removal
by creating procedural roadblocks that prevent the
alien from invoking the procedure. That would be a
deprivation of liberty without due process of law, and
therefore judicially reviewable even if the petition for
8 No. 07-3569
review did not present a question of law but merely a
question of fact (such as whether a notice of hearing had
been sent to the alien), because the statute governing
judicial review of rulings by the Board of Immigration
Appeals allows review of a discretionary ruling that
is claimed to deny a constitutional right. 8 U.S.C.
§ 1252(a)(2)(D); Kucana v. Mukasey, supra, 533 F.3d at 538.
The distinction between a question of fact on which a
right depends, and a question of law, is vital in a case
such as this, in which the infringement of a constitutional
right is not alleged. Because it is not alleged, our review
is limited to rulings of law, and as we held in Kucana
and Huang a factual determination by the Board—such as
its determination that the alleged incompetence of the
alien’s lawyer in the removal proceeding did not prejudice
the alien (she failed to show that the proceeding would
have had a different outcome with a better lawyer)—is not
a legal ruling and so does not confer jurisdiction on us.
The alien argues that her lawyer’s failure to file an
appeal brief with the Board in the removal proceeding
created a presumption of prejudice. If there were such
a presumption, and the Board ignored it, we would have
review jurisdiction even though the Board, once its error
was corrected, would still have discretionary authority
to deny the petition to reopen. The error of law could
have infected its consideration of the petition, and would
have to be corrected before it could exercise discretion in
a proper manner. E.g., Koon v. United States, 518 U.S. 81,
100 (1996); Huang v. Mukasey, supra, 534 F.3d at 620;
United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008);
No. 07-3569 9
Lin v. Mukasey, 532 F.3d 596, 598 (7th Cir. 2008); compare
Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir. 2006).
But there is no such rule. The alien derives it from a
series of Ninth Circuit cases that hold that the Board’s
failure to consider the alien’s arguments because his
lawyer did not file a brief (or did not appeal at all) estab-
lishes a presumption of prejudice. Granados-Oseguera v.
Gonzales, 464 F.3d 993, 997 (9th Cir. 2006); Ray v. Gonzales,
439 F.3d 582, 587 (9th Cir. 2006); Siong v. INS, 376 F.3d 1030,
1037 (9th Cir. 2004); Singh v. Ashcroft, 367 F.3d 1182, 1189
(9th Cir. 2004); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th
Cir. 2000). There was no failure by the Board in this case.
The Board does not require an alien who is appealing
the adverse decision of an immigration judge to file a
brief, and when no brief is filed the Board will still
decide the merits of the appeal, and did so in this case.
(The Board reserves the right to dismiss the appeal sum-
marily if the alien, after indicating that he intends to
appeal, fails to do so. 8 C.F.R. § 1003.1(d)(2)(i)(E). Some-
times the Board exercises the right, e.g., In re Ibrahim Al-
Hamidieh, A95 518 117, 2007 WL 4699755 (BIA Dec. 4, 2007),
sometimes not. E.g., In re Jose Alfredo Rodriguez-Murrieta,
A90 116 459, 2007 WL 4699778 (BIA Nov. 30, 2007). To
repeat, the Board did decide the merits of alien’s appeal.)
In deciding whether to reopen, the Board asked itself
whether the removal proceeding might have come out
differently had the alien been represented by competent
counsel, and concluded that it would not have. That
conclusion was not the answer to a question of law, but
a discretionary determination.
10 No. 07-3569
We have no jurisdiction of the denial of the petition
to reopen. The petition for review is therefore
D ISMISSED.
9-10-08