KLODIANA PASHA, Pеtitioner, v. ALBERTO R. GONZALES, Respondent.
No. 04-4166
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 9, 2005—DECIDED DECEMBER 29, 2005
Petition to Review an Order of the Board of Immigration Appeals. No. A79 290 656
POSNER, Circuit Judge. At the risk of sounding like a broken record, we reiterate our oft-expressed concern with the adjudication of asylum claims by the Immigration Court and the Board of Immigration Appeals and with the defense of the BIA‘s asylum decisions in this court by the Justice Department‘s Office of Immigration Litigation. See Benslimane v. Gonzales, No. 04-1339, 2005 WL 3193641, at *1 (7th Cir. Nov. 30, 2005), and cases cited there. The performance of these federal agencies is too often inadequate. This case presents another depressing example.
Klodiana Pasha, an Albanian, was active in Albania‘s Democratic Party in 2000. According to her testimony before the immigration judge, she was involved in a local election that year that was won by the Socialist Pаrty, the dominant party in Albania. When she complained about ballot stuffing by the party, she was severely beaten by its thugs. Summoned shortly afterwards to the local prosecutor‘s office, she was told that she would be criminally prosecuted if she testified in court about the ballot stuffing. She testified nonetheless and later received death threats and was arrested by the police and told she would havе to appear in court to respond to a complaint lodged against her by the Socialist Party. Rather than keep the court date she fled the country and eventually reached the United States and applied for asylum as a victim of political persecution. All this is according to her testimony. But in addition to submitting published materials that confirm the misconduct of the Socialist Party toward its political foes, she attached to her application various official Albanian documents concerning herself, including subpoenas, a police report, and a summons.
At her hearing the immigration service‘s lawyer presented a forensic document examiner employed by the service named Gideon Epstein who testified that four of the nine documents that Pasha hаd attached to her application for asylum were probably fakes (he didn‘t analyze the other five). He based this assessment on the fact that the documents had been produced by color laser technology, which he testified was not a normal way in which a form document is produced because it makes only one copy at a time and is therefore expensive (and Albаnia is poor). Also, the printed text on the documents, as
Pasha filed a notice of appeal with the Board of Immigration Appeals. The form that the Board supplies for such notices (Form EOIR-26) requires the appellant to “state in detail the reason(s) for this appeal.” In the space provided, Pasha‘s then lawyer wrote only (so far as bears on her petition in this court) that “the [immigration] judge erred in evaluating all the evidence presented in the casе, particularly as it relates to future persecution. Other matters of record to be stated in a written brief.” The lawyer filed a written brief, but because he failed to attach the required certificate (see
The government argues that by failing to explain in detail, either in the notice of appeal or in a properly certificated brief, the grounds for her appeal from the immigration judge to the Board of Immigration Appeals, Pasha failed to exhaust her administrative remedies and as a result we have no jurisdiction to review the Board‘s order affirming the order of removal.
The Board could have invoked this rule and dismissed Pasha‘s appeal summarily because the passage we quoted in which her lawyer explained the reasons for the appeal was wholly lacking in specificity.
There is an analogy to the jurisdiction of the Supreme Court (and of lower federal courts in habeas corpus proceedings brought by state prisoners) to review state court decisions. Suppose that in the state supreme court the defendant argues that a critical ruling against him at trial violated his federal constitutional rights. Only he failed to object at trial and under state law that is a forfeiture and the stаte supreme court is not required to consider the objection. But the court decides to ignore the forfeiture and goes ahead and decides the merits of the constitutional challenge. If the defendant then seeks review in the U.S. Supreme Court, the state cannot challenge the Court‘s jurisdiction on the ground that he had forfeited his objection and therefore its rejection by the statе supreme court rests on an adequate state ground. For that was not the ground (not even an alternative ground) of the state supreme court‘s decision. E.g., Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Harris v. Reed, 489 U.S. 255, 260-61 (1989); Ford v. Johnson, 362 F.3d 395, 397-98 (7th Cir. 2004). The government has given us no reason to take a different approach to challenges that the Board of Immigration Appeals could have rebuffed on unexceptionable procedural grounds but chose instead to reject on the merits. Hassan v. Gonzales, supra, 403 F.3d at 433.
The government‘s lawyer conceded at argument that if the Board, rather than affirming summarily, had written an opinion, failure to exhaust administrative remedies would not be a bar to our consideration of the merits. We don‘t get the distinction. Summary affirmance without opinion has become a common method by which busy tribunals, including several of the federal courts of appeаls, dispose of many cases—on the merits. We are given no reason to suppose that summary affirmances by the Board have a different meaning—specifically, that they are dismissals of the appeal whenever there are grounds for dismissal even if the Board says “affirmed” and even though the Board‘s rules distinguish between affirmance and dismissal.
But when there is no opinion and no brief or statemеnt of grounds in the notice of appeal, it becomes uncertain what exactly the Board decided when it affirmed the immigration judge‘s decision. The Board in this case may have confined its merits determination to the question of the evidence bearing on the risk of future persecution, since that was the only question flagged in the notice of appeal, and may have ignored the adеquacy of the document expert‘s testimony, which related to evidence of past persecution, on the ground that Pasha had failed to exhaust that claim. Such an inference would be plausible had the Board said it was confining its attention to the question of the risk of future persecution and disregarding the others because they hadn‘t been mentioned in the notice. But it couldn‘t have said that in this case; for when the appeal is decided by a single member of the Board, he “shall issue an order that reads as follows: ‘The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 CFR 1003.1(e)(4).’ An order affirming without opinion, issued under authority of this provision, shall not include further explanation or reasoning.”
An inference that the “blind” affirmance by the single Board member was not actually based on a resolution of the merits of all the issues decided by the immigration judge would be plausible if the appellant had filed a brief limited to a single question (implying waiver of other questions), or if the notice of appeal had stated one question with the requisite specificity and passed over the other questions in silence (again implying waiver), as in Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004), or if the other questions were patently without merit,
The documents issue had been central to the proceedings before the immigration judge, he had discussed it at length, and though it was not mеntioned in the notice of appeal, the question that was mentioned—concerning the evidence of future persecution—wholly lacked the specificity required by the Board‘s rules. So if the Board member considered the merits, as his summary affirmance indicates, it is unlikely that without saying so he had failed to consider the main issue presented to the immigration judge. We conclude that we have jurisdiction to consider it.
The government‘s misplaced confidence that we lack jurisdiction to consider that issue is paralleled by the misplaced confidence of Pasha‘s lawyer that the government‘s jurisdictional argument was so negligible as to dispense with any need to explore alternative grounds for preventing the removal of his client besides errors committed by the immigration judge. Hе might have argued that Pasha‘s previous lawyer had rendered ineffective assistance of counsel by failing to attach to the appeal brief the required certificate of service, Benslimane v. Gonzales, supra, at *3, or that the Board should stay Pasha‘s removal to allow an immigration judge to rule on her application to adjust her status to that of a lawful resident on the basis of her having married an American citizen and had a child by him. To make either argument, Pasha‘s current lawyer would have had to file with the Board a motion to reopen pursuant to
The principal ground of the appeal relates to the infirmities in document expert Epstein‘s evidence. He should not have been permitted to testify. Although the Daubert filter against unreliable expert testimony is not strictly applicable to proceedings before administrative agencies, such as the Immigration Court, the “spirit of Daubert” is applicable to them. Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir. 2005); Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004). As we said in Niam, “‘Junk sciеnce’ has no more place in administrative proceedings than in judicial ones.” Id. Not knowing Albanian, Epstein was not a proper witness to testify that Albanian is always written with diacritical marks. Hebrew for example is normally written without diacritical marks (signifying vowels). Even if Albanians would like to use the diacritical marks in all their printed texts, their ability to do so would depend on the existence of typewriter or computer fonts in Albanian, and we are not told whether, when the documents in question were printed (and we do not even know when that was), the Albanian government—which had emerged from the era of communist dictatorship in a state of extraordinary disarray, U.S. Department of State, “Background Note: Albania” (Sept. 2005), http://www.state.gov/r/pa/ei/bgn/3235.htm—possessed such fonts.
As for Epstein‘s speculation that the Albаnian government would not use color laser printing to prepare official forms, this again depends on something about which Epstein is confessedly ignorant, namely that government‘s printing resources at the time these documents were printed, whenever that was. Considering the number of asylum applicants from Albania and the fact that there are an estimated 400,000 to one million Albanians in the United Stаtes, Bernd J. Fischer, “Albanian Refugees Seeking Political Asylum in the United States: Process and Problems,” 31 Journal of Ethnic & Migration Studies 193, 195 (2005); Diana Jean Schemo, “Long-Distance Ties That Bind,” N.Y. Times, May 1, 1999, p. B1, the Department of Homeland Security should be able to find a witness competent to testify to the likelihood that purportedly official Albanian documents produced by color laser printing and barren of diacritical marks probably were forged.
Pasha also presents a constitutional challenge. We do not have to consider it, since the government does not discuss it and since the challenge will be moot if Pasha, on remand, prevails on her asylum claim and thus establishes her right to remain in the United States. We mention it only for its bearing on exhaustion.
Some illegal aliens whom the government seeks to remove are eligible fоr voluntary departure in lieu of removal. Voluntary departure confers a variety of advantages, especially on aliens wanting another shot at becoming legal residents of the United States. Alimi v. Ashcroft, 391 F.3d 888, 892 (7th Cir. 2004); Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005); but cf. Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004). But to be eligible for voluntary departure the alien must have lived in the United States continuously for at least a year before being served with a notice to appear at a removаl proceeding.
It is difficult for asylum applicants to qualify for voluntary departure if like Pasha they apply promptly for asylum upon entering the United States, because, if we may judge from cases like Shire v. Ashcroft, 388 F.3d 1288, 1294 (9th Cir. 2004), and Prokopenko v. Ashcroft, 372 F.3d 941, 943 (8th Cir. 2004), they are likely to receive their notice to appear within a few months of filing their applications. But they have a year from entry to apply for asylum,
Whatever the merits of the argument, it is not subject to the requirement of exhaustion of administrative remedies. Sayaxing v. INS, 179 F.3d 515, 522 (7th Cir. 1999); Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005); Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004). Like most administrative agencies, see, e.g., Nebraska v. EPA, 331 F.3d 995, 997 (D.C. Cir. 2003); McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 981-82 and n. 3 (9th Cir. 2002), the Board of Immigration Appeals refuses to adjudicate the constitutionality of the statutes under which it opеrates, see Soberanes v. Comfort, supra, 388 F.3d at 1310; Liu v. Waters, 55 F.3d 421, 426 (9th Cir. 1995); In re L-S-J, 21 I. & N. Dec. 973, 974 (BIA 1997), such as the statute requiring a year‘s residency in order to be eligible for voluntary departure. Actually, these cases and many others, e.g., Johnson v. Robinson, 415 U.S. 361, 368 (1974), say that agencies have no jurisdiction to decide such issues.
Why agencies refuse to pass on constitutional questions—why indeed they might lack jurisdiction to do so—has never been adequately explained. The Federal Trade Commission thinks thе refusal inconsistent with Article VI of the Constitution, which both makes the Constitution, along with federal statutes and treaties, “the supreme Law of the Land” and requires all federal and state officers to take an oath to “support this Constitution.” In re Verrazzano Trading Corp., 91 F.T.C. 888, 952-53 (1978). But the “law of the land” provision in the Constitution is intended merely to confirm the supremacy of federal law, and the oath is a pledge of fealty to that supremаcy; these are not delegations to every subordinate official to indulge his private interpretations of the Constitution. The BIA is a subordinate unit in the Department of Justice, and the Attorney General may simply want to reserve to himself, or to the courts, any judgment as to the constitutionality of the Board‘s procedures. See Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 242-43 (Harlan, J., concurring). There is also a competence issue, see id.; McBride Cotton & Cattle Corp. v. Veneman, supra, 290 F.3d at 981-82 and n. 3; remember that
But all that matters is that if the Board of Immigration Appeals for whatevеr reason won‘t consider constitutional challenges—and it won‘t—there is scant reason to require the alien to make them to the Board. And so the government‘s failure to address Pasha‘s constitutional argument, on the ground that the appeal is barred by the exhaustion doctrine, is another lapse. This case has been poorly handled by the government at every stage: the procеeding before the immigration judge, the summary affirmance by the Board of Immigration Appeals, and the decision by the government in this court to put all its eggs in a basket that it should have known would not hold them.
The order of removal is vacated and the case returned to the Board of Immigration Appeals for further proceedings consistent with this opinion.
A true Copy:
Teste:
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Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—12-29-05