Angela Stroe and Marin Stroe v. Immigration and Naturalization Service
256 F.3d 498
7th Cir.
2001
Check Treatment
Docket

*1 Angela STROE and Marin

Stroe, Petitioners, AND

IMMIGRATION SERVICE,

NATURALIZATION

Respondent.

No. 00-2934.

United States Appeals, Court of

Seventh Circuit.

Argued Feb. 2001.

Decided June *2 Board argue

The Stroes it when dis process of law denied to file a for failure time the appeal missed them of the having notified without ly brief a conse might be that dismissal possibility argument failure. The of such quence As- Pollock & (argued), Pollock D. Scott was appeal The frivolous. on the borders IL, petitioners. for sociates, Chicago, months after than three more dismissed had filing for brief deadline extended Immigration Der-Yeghiayan, Samuel or a for a 30 had asked Adkison passed. IL, Service, Chicago, and Naturalization filing of time 60-day extension of Jus- Department (argued), Fiorino Paul days, should which gotten and had brief Litigation, Division, Immigration tice, Civil did, for apparently him and contented have DC, respondent. Washington, The further extension. no requested he duty, either constitu under no was Board KANNE, DIANE POSNER, Before periodic him statutory, to send or tional WOOD, Judges. Circuit P. failure to file appellant’s An reminders. and, default, procedural ais serious brief POSNER, Judge. Circuit represented appellant least when case, or de counsel, present by as judge ordered immigration An counsel, is an dismissal offer of clines (“removed” current is the deported recognized This sanction. appropriate term) they deportable were because cases, e.g., Per numerous in They appealed asylum. ineligible were INS, ez-Rodriguez v. from Appeals to the Board INS, Cir.1993); (7th Castaneda-Suarez dis- the Board asylum, but the denial (7th Cir.1993); Huico 142, 146 F.2d to they failed appeal because their missed INS, F.3d 700-01 chea-Gomez Board They moved file brief. INS, F.2d Cir.2001); (6th Nazakat appeal, their decide case and reopen the Cir.1992); Toquero v. 1146, 1148-49 They their motion. the Board denied but (9th Cir.1992), INS, 196-97 F.2d the denial. us to reverse ask others, particu in in a few though denied ap- original their the Stroes filed When INS, F.2d Medrano-Villatoro lar they represented were the Board peal with (5th Cir.1989), and Escobar-Ra The E. Adkison. Larry named by lawyer INS, F.2d mos but January due on brief was of 30 or extension requested an Adkison their argue also The Stroes extension, to day a 30 received days and because granted have been should file the motion did not Adkison February given had that Adkison assistance Board however, May 30 and the brief, until do parties was ineffective. day 6—the them June until not receive did of a right or nature the source discuss had dismissed after the proceed in counsel effective been filed. hadn’t the brief because in our recent open left Expressly ings. coun- new reopen, presented motion Ashcroft, Chowdhury v. having rendered decision' sel, Adkison accused Cir.2001), the existence file the F.3d failing assistance ineffective a number is assumed for do- deadline the extended within brief F.3d cases, Henry v. e.g., ing so. Reno, Cir.1993); proceeding though nominally Hernandez civil in (1st Cir.2001); life, liberty Iavorski v. even in a capital volves (2d corpus Supreme habeas where the Reno, Dearinger *3 has no right Court held there is to (9th Cir.2000); Reno, Mejia Rodriguez v. Murray effective assistance counsel. v. (11th 1139, Cir.1999); 178 F.3d Mi Giarratano, 2765, 492 U.S. S.Ct. (10th 465, F.2d chelson L.Ed.2d 1 see Pennsylvania also Cir.1990), only actually but Iavorski re 551, Finley, 1990, 481 U.S. 107 S.Ct. ground. versed the denial of relief on this (1987). L.Ed.2d 539 None cases in opinions The statements the other are right that assume is a to there effective dicta. in deportation pro assistance of counsel ceedings bearing Murray considers right The is assumed cases (which seem, Finley incidentally, to absolute, but limited to is situations have cut back on earlier according cases which the denial of effective re counsel right Fifth Amendment to counsel when process. sults in a denial of Even physical liberty at stake in is a noncriminal right weak ground, limited stands on how proceeding, Dept. see Lassiter v. Social Deportation civil, ever. proceedings are Services, 18, 31-32, 452 U.S. so, all as the cases that we cited have 2153, Gault, 68 L.Ed.2d 640 In re recognize, the Sixth not in Amendment is 387 U.S. 18 L.Ed.2d Reno, play. Ambati v. 233 F.3d (1967)) or of of the other decisions (7th Cir.2000). rule, general certain litigants that hold that civil no right have ly, litigants is that civil have no constitu beyond to effective assistance of counsel counsel, right tional to the assistance of legal malpractice grants what the law of (7th Edgar, Forbes v. 112 F.3d them. The discussion of the source of the Cir.1997); Young Murphy, 90 F.3d right assumed cases is (7th Cir.1996); DeSilva v. Di distinctly perfunctory. Leonardi, (7th Cir.1999), 181 F.3d right and therefore no constitutional to may help distinguish It to two situations. effective E.g., assistance of counsel. Cole immigration bureaucracy one the finds Thompson, 722, 753-54, man v. 501 U.S. lawyer may alien. an It have an S.Ct. 115 L.Ed.2d 640 obligation a competent lawyer, to find Cowan, Anderson F.3d suggested DiLeonardi, we DeSilva v. Cir.2000); Co., Bell v. Eastman Kodak supra, 181 at way in the same Cir.2000); Barkauskas puts state that in a child foster Lane, Cir. home has to competent par- choose foster 1991); Prihoda v. McCaughtry, even it though may legal ents have no United States obligation help to the child in the first Rd., (2d 87 Blackheath 201 F.3d 98 situation, place. In the second which is 2000) curiam). (per So the fact that like present the usual and the the alien litigants other deporta civil an alien in a lawyer. finds his own one Then would proceeding tion lawyer is allowed to hire a think that inas other civil cases the law- expense, § his own gives 8 U.S.C. yer’s shortcomings imputed would be to right him complain no to if lawyer he client, R.R., Link v. Wabash hires is ineffective. 626, 633-34, 8 L.Ed.2d 734 non-right to effective leaving malprac- assistance of the latter awith counsel in civil cases is the rule when right even tice action rather than a to continue discretionary authority even adversary Board’s original against litigating compelled by true, probably it is cases, though INS). (the is In criminal The Board’s or the Constitution. statute erased; Amend- the Sixth is distinction give any reason the decision a re- failure impute even interpreted ment is us, however; worry Cuyl- state, we that the troubles to the lawyer’s goof-ups tained 342-45, cognizant of the rele- not be Sullivan, er (1980) right precedents governing vant —but that, too, But in civil cases. counsel creates Amendment Sixth then the day. pro- issue for another that the due counsel, all whereas procedure so far as requires, cess clause *4 Concerned, however, the use with concerned, opportunity an notice and is resisting tactic in delay common a implies a Nothing clause hearing. longer alien is the the deportation, because lawyer litigant or his that the guarantee likely he to country the more in this opportuni- the advantage of good will take it “equities” that will make more accrue ty- him, INS v. Rios-Pine deport difficult to DiLeonardi, v. in DeSilva suggested We da, at an extradition supra, 181 F.3d INS, Stone L.Ed.2d pro- arguable that more might be 386, 399-400, U.S. the INS are due when protection cess and Doherty, INS v. L.Ed.2d cases. deportation “prosecutor” acts as 314, 323, 112 L.Ed.2d U.S. Sullivan, supra, Cuyler v. Cf. INS, 49 F.3d Guan thought may That be (7th Cir.1995); Rhoa-Zamora 1262-63 Fifth moving limit of the outermost (7th Cir.1992); INS, Lara 971 F.2d the Sixth. in the direction of Amendment Trominski, 216 F.3d situation, however, does not The Stroes’ INS, Bernal-Vallejo v. 2000); bears on which the INS any issue involve INS, (1st Cir.1999); Stewart 181 F.3d They concede persuasion. the burden INS, Cir.1999); Shaar a favorable exercise and seek deportability Saiyid v. (9th Cir.1998); asylum. respect to with of discretion (11th Cir.1998), INS, 132 F.3d Lozada, supra, in In re created question shows This discussion strategic prevent to ingenious screen an a constitutional there is ever whether assistance. ineffective ripe for invocation of cases is to counsel reopen to that a motion requires in this case. screen But not reconsideration. because of ineffec proceedings deportation has Immigration Appeals The Board accompanied counsel be coun tive assistance assistance of that ineffective decided (1) detailing agreement depor an affidavit reopening a ground for is a valid sel (2) counsel; and the movant between circumstances.” “egregious case in tation of ineffective (BIA), aff'd, allegations Lozada, showing that In re 19 & N B-B, to counsel re (1st Cir.1988); communicated assistance were 857 F.2d opportunity given that he was 1998 WL 694640 Decision Interim (3) them; a statement as assume, (BIA 1998). respond hav without We against complaint was filed is not whether the issue ing to decide because disciplinary appropriate counsel with raised, to allow the Board’s decision why not. if not authorities and ineffective assistance to claim aliens included, uniformly ap courts, have ours deporta reopening counsel as basis Board’s. Hen- proved this initiative scope of the within the proceedings tion INS, ry supra, 440; Hernan 8 F.3d at response. receive a We feel that while he Reno, dez v. 55; Lam v. supra, 238 F.3d at negligent was pursuing request his Trominski, supra, 216 F.3d at 497-98; for an time, extension of perform he did INS, Lata v. 204 F.3d the service that paid we him to do.” This Bernal-Vallejo v. supra, fishy. sounds perform Adkison did not Reno, 64; Anin v. 195 F.3d at 188 F.3d service for which paid the Stroes had him. Cir.1999) (per curiam); They paid had him to appeal. By brief the INS, supra, Stewart v. 596; fifing brief, an untimely F.3d at which became the Esposito v. (2d basis of the Board’s dismissal of the merits, without reaching the he defeated purpose of his retention. The second The Board held that the Stroes in mov- above, quoted sentence about his not re- ing reopen proceeding ceiving a response to request his for an on the basis of alleged Adkison’s ineffec- extension, sense, makes no because he re- (1), tive assistance had satisfied but not ceived an days. extension of 30 Had he (2) (3). Regarding the Stroes had response, received a he would have regard notified Adkison with to his failure *5 had inquire either to about the status of time, to file the brief on but not with request his by or file the January brief regard to other claims of ineffective assis- neither of which he did. they tance on which based the motion to So reject the Board was reopen, including entitled to present failure to the essen- explanation Stroes’ tial facts for not bearing fifing on the a com- Stroes’ claim for plaint against Adkison. asylum only It was not a good defense to being de- —their explanation. point that, ported. By-not Stroes out giving oppor- Adkison an interpreted literally, the tunity claim, requirement third comment on this the of Lozada require doesn’t a good explana- Stroes denied the Immigration Board of tion for Appeals the failure to a opportunity disciplinary an file to evaluate the complaint, just an explanation. significance of Adkison’s And that failure to file is literally. But Suppose requirement brief. Adkison good had reasons true — empty, senseless, would be present indeed if not additional facts to the im- by could be satisfied migration explanation. a bad judge. might Then it be clear Suppose the Stroes had they that even if said Adkison had filed a hadn’t timely complaint filed a because Adkison appeal brief the would had told have failed for them by that fifing want of a a brief solid factual basis for he had the claim actually helped by them asylum. setting the stage seeking their further on the Regarding point out cor- basis of his ineffective assistance. Accord- rectly they explained that why they had ing to logic position, Stroes’ that not filed a complaint with disciplin- the bar explanation Lozada. satisfy would authorities, ary they argue that that is all that requirement the third Lozada of Board, Yet if by refusing to (and requires. They said they remember accept explanation that the Stroes did counsel) represented were by new give, any violated of the rules that it had Adkison Lozada, prepare “did and file a brief in laid down in it would be no de our albeit several past months fense to the Board’s action that the rule formally deadline. He request did an ex- Although was dumb. an administrative tension of the deadline from the Office of agency permitted is change rules it Judge, but fashion, he did not is, created in common law unless unrea that the Board explanation adjudication byproduct —and Trominski, accept, Lara by the sonable would of the Lozada the character rules — INS, 498; method, Esposito per it is not F.3d at supra, 216 same, law common 111; expla In re Rivera- reasoned F.2d at supra, so without to do mitted E.g., Motor Claros, mind. Decision WL change of Interim for its nation (BIA short, Farm Mutual 1996) requires, v. State Ass’n Vehicle — Mfrs. Co., any explanation. Ins. old explanation, not good Automobile (1983); Miami (represented, the Stroes explanation Indiana, Inc. v. U.S. counsel) Indians remembered, offered for Nation itbe Interior, 348-49 F.3d Dept. Adkison’s complained about having Castaneda-Suarez, supra, 993 2001); unsatisfactory Cir. stunning default was Communications, 146; Schurz F.2d collusion be suspect Board to allowed the FCC, 982 F.2d Inc. v. and him. tween them INS, F.3d Salameda cases allow an that some mindful We are Valley Im (7th Cir.1995); Wisconsin the Loza- complied with has not alien who FERC, F.3d Co. v. provement infringement rules to establish da INS, (D.C.Cir.2001); Henry process right to effective supposed due cannot, (1st is, agency That See of counsel nevertheless. assistance can, course without reverse legislature as a INS, Castillo-Perez be its about-faces must explanation; (9th Cir.2000); Escobar-Grijalva legislative- reasoned; respect, the in this (9th Cir.2000); Figer an adminis is what hybrid, which judicial oa court, is, to a agency assimilated trative *6 INS, 184 1989); Lopez v. also see decisis, stare which, under the doctrine Cir.1999). (9th These are 1097, 1099-1100 for reasons give required is likewise cases; that court’s Circuit mainly Ninth Therefore, since abandoning precedent. Ap Immigration the Board hostility to to be purported in this ease the Board Romero, known, see Victor peals well changing the Lozada than applying rather A Political Solution Elian and Aliens: reopen “On motion to rules, its denial Problem,” 4 N.Y.U. Plenary Power denial violated to the if that be sustained cannot (2000- 343, 347 n. 23 See, Pol’y Pub. Legis. Allentown Mack & e.g., J. rules. NLRB, Service, 2001); McKinney, “Congressional 522 U.S. v. David & Inc. Sales 818, 797 and Conflict Intent, 139 L.Ed.2d Court Supreme 118 S.Ct. 235, Ruiz, 199, Statutory Eligi 415 U.S. (1998); v. Morton Over Among the Circuits (1974); An 1055, Im Discretionary Under Relief bility S.Ct. Fruitland, Dept. v. Inc. U.S. Act dershock’s Naturalization and migration 735, Cir. Agriculture, L. Rev. 212(c),” 26 Miami Inter-Am. § U. 473, Shalala, 1998); v. Pope (1994); & Theo Peter Schuck 97, 110 n. grounds, Cir.1993), on other overruled “Continuity and Wang, dore Hsien F.3d 561 Cir. Apfel, v. Litiga Johnson Change: Patterns 1338, Reno, 212 F.3d 1999); Gonzalez 1979-1990,” Courts, 45 Stan. L. tion doubtless ex 115, 175-76 and Rev. Circuit of Ninth large number plains if violated, even we rules were not by the Su reversed cases immigration they required fact ignore the See, Aguirre- e.g., INS preme Court. simply because deny the motion 1439, 415, 119 S.Ct. U.S. Aguirre, 526 comply with had faked the Stroes (1999); American- Reno an L.Ed.2d requires rule rule. The third second Comm., Arab major Anti-Discrimination 525 a purpose of the third rule is to 471, 936, U.S. S.Ct. L.Ed.2d 940 enlist the clients of that bar efforts to (1999); 26, Yang, INS 519 U.S. 117 S.Ct. raise its ethical by putting pres- standards 350, (1996); 136 L.Ed.2d 288 Reno v. immigrants sure on report appro- to the Flores, 292, 1439, 507 U.S. 113 S.Ct. 123 priate disciplinary conspicuous authorities (1993); Elias-Zacarias, L.Ed.2d 1 INS v. failures of the comply bar to 478,112 502 U.S. S.Ct. L.Ed.2d 38 professional with minimum norms of con- (1992); INS v. National Center Immi booting duct. Adkisoris fell Inc., 183, grants’ Rights, 502 U.S. 112 well below those norms and should certain- 551, (1991); S.Ct. 116 L.Ed.2d 546 INS v. ly brought have been to the attention of 875, Pangilinan, 2210, 486 U.S. 108 S.Ct. disciplinary the bar authorities. We shall (1988); Abudu, L.Ed.2d 882 INS copy send a opinion of our to the Illinois 485 U.S. 108 S.Ct. 99 L.Ed.2d 90 Attorney Registration Disciplinary (1988); Rios-Pineda, supra; INS v. INS action, appropriate Commission for Adki- Lopez-Mendoza, 468 U.S. being son a member of the Illinois bar. (1984); S.Ct. 82 L.Ed.2d 778 INS v. Affirmed. Delgado, 466 U.S. 104 S.Ct. L.Ed.2d 247 Phinpathya, INS v. WOOD, DIANE P. Judge, Circuit 464 U.S. 78 L.Ed.2d 401 concurring in judgment. Plasencia, Landon v. agree While I with the ultimate out 74 L.Ed.2d 21 INS come majority reaches, Miranda, and I further (1982) agree interpretation with its curiam); applica (per L.Ed.2d INS v. tion of the Jong rule announced in In Wang, Ha re Loza U.S. da, (1981) curiam). 19 I. 67 L.Ed.2d 123 & N. Dec. (per 1988 WL 235454 (BIA 1988), (1st aff'd, But that aside. Given the doubts 857 F.2d 10 1988), about whether there is right to counsel cannot myself associate with the cases save as in majority’s the Board respect dicta with to the due its discretion recognize, process we have diffi dimension of the to counsel *7 culty understanding how an alien who fails immigration in proceedings, nor with its comply with the Board’s criteria can pointed rather criticism of the Ninth Cir succeed in challenging its decision. In any cuit’s immigration jurisprudence. The event, the argue only that they did majority 500, acknowledges, ante comply with the Lozada rules. the issue of a constitutional right to coun immigration sel in ripe cases is not in this rule,

The by third Lozada way, has a agree. and I my opinion, purpose further beyond just deterring col renders subsequent lusion between the discussion of that alien and his or her and, lawyer. point unnecessary indeed, The deficiencies of undesir immigra I known, see, tion bar able. find its are well comments about the Ninth e.g., Lara v. Trominski, supra, 497; equally Circuit to be point. 216 F.3d at beside the Esco bar-Grijalva supra, Whatever the Ninth Circuit think F.3d at 1335; Katy Motiey, rules, “Ethical about the Lozada Violations is clear that Immigration Attorneys: this approved Who court has in past. Should Be them the Sanctioning?” Legal Henry 426, 5 Geo. J. Ethics See (1992); Sheard, cf. Hilary long “Ethical As as we are content to Issues in Immigration Proceedings,” prior jurisprudence, 9 adhere to our own we Geo. L.J. and deeply need not delve into the views of I see no concept, and a flexible Moreover, process is manner all circuits. our sister assumption categorical a statistics, make I reason to and with possible games are implicated in coun- never be several that it have been will if there that even note immigration problem cases reversed immigration sel-related Ninth Circuit Court, hears that Circuit case. Supreme by the country’s INS-related this

about half “civil” and “criminal” labels The Administrative (According to the claims. event. While imprecise cases are Courts, the States the United Office Fed- under the recognize suit might we 1723 INS heard 910 Ninth Circuit “civil,” definitely Act as Tort Claims eral States in the United docketed cases for distribution drug prosecution and a October Appeals- between Courts of “criminal,” are definitely there as cocaine our while September 1999 and dis- where this of federal law many areas 60). court’s That just win/ heard court corpus Habeas blurred. tinction becomes thus Supreme Court in the record loss one, conjunction with forfeitures in civil much. very probative of may not be another, immi- prosecutions criminal INS as the point, to counsel right I note a third. may well be gration cases I complex. is more recognized, has itself assumption about usual well that our tak to be majority understand do not which someone dissatisfied with the ease the due position unsupportable ing the legal may bring a representation legal with Four the Fifth clauses process action is contestable malpractice to civil apply do teenth Amendments theoretically have. the Stroes kind of case Amend (in Fifth case of the cases, foreign best, it from they must conduct At ment) Such proceedings. might be plaintiffs foreign shores. Most flatly inconsis obviously be would position par- States to travel to the able to United Supreme Court long fine of tent with to assist lawsuit and in their own ticipate Mut. See, e.g., American decisions. Mfrs. counsel, not be option will but that later 49-50, Sullivan, 526 U.S. Ins. Co. v. they unless or until the Stroes available to 143 L.Ed.2d 119 S.Ct. (a country to enter this new obtain a 931-32, Homar, 520 U.S. Gilbert case). nothing hurdle, their see high 138 L.Ed.2d recognition the INS’s about unreasonable Real Daniel Good v. James States United of its number that, in some small lurking Property, pro- genuine might cases, be there v. El Mathews L.Ed.2d dimension, of constitutional problem cess 340-49, dridge, practice. agency problem of just a and not (1976). only question *8 ultimately event, majority as the whether, some narrow under therefore day. concedes, is a another this debate circumstances, relating to matters set of earlier, that INS’s agree IAs noted represen legal quality existence screen acceptable legally Lozada rule is a due level of rise to the ever tation alleged ineffective weeding out cases with quarrel no I have process violation. possibly that cannot counsel assistance proposition established the well process violation. level of due rise to the counsel,” and “right to Amendment Sixth more must do petitioners agree I also Washing test of Strickland hence the all for any reason at up with than come ton, U.S. bar complaint with to file a their failure in non apply does L.Ed.2d 674 good authorities; must be their reason But, the Su proceedings. criminal con- entitled to one, Board was us, reminds constantly preme Court 50

elude that the reason the gave did meet standard. For those rea-

sons, I judgment concur

court. EMERSON, formerly

Loretta M. Rubenzer,

known as Loretta M.

Plaintiff-Appellant,

NORTHERN STATES POWER

COMPANY, Defendant-

Appellee.

No. 00-3746.

United Appeals, States Court of

Seventh Circuit.

Argued March 2001.

Decided June