Chowdhury, Ifthekar v. Ashcroft, John , 241 F.3d 848 ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4256
Md. Ifthekar Chowdhury,/1
Petitioner-Appellant,
v.
John Ashcroft, Attorney General, and
U.S. Immigration and Naturalization Service,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99-C-0655--Charles R. Norgle, Sr., Judge.
No. 00-1751
Md. Ifthekar Chowdhury,
Petitioner,
v.
U.S. Immigration and Naturalization Service,
Respondent.
Petition for Review from the
Board of Immigration Appeals of the
Immigration and Naturalization Service.
No. A73 534 032--Chicago.
Argued December 1, 2000--Decided February 22, 2001
Before Posner, Diane P. Wood, and Williams, Circuit
Judges.
Diane P. Wood, Circuit Judge. The Immigration and
Naturalization Service ("INS") is given great
discretion to interpret its own regulations,
including regulations limiting the number of
motions to reopen proceedings that can be filed
by an alien who faces deportation (or removal, as
it is now termed). Nonetheless, that discretion
must be exercised consistently with the
regulations the Board of Immigration Appeals
("the Board") itself has issued. In this case we
find that Ifthekar Chowdhury has never received
a meaningful opportunity to be heard in
deportation proceedings because the Board has
failed to follow its own rules for reopening
proceedings in a rational way. We therefore
remand this case to the Board to consider
Chowdhury’s motion to reopen on its merits.
I
Chowdhury is a native and citizen of Bangladesh
who fled his country after being jailed and
beaten by Bangladeshi authorities following
student protests that he had organized. He made
his way to the United States in 1994 and
immediately filed for asylum. In 1996, his
application for asylum was denied, and he was
referred to deportation proceedings. A hearing in
his case was scheduled for October 2, 1996, but
Chowdhury, who at that time was represented by
counsel Archana O’Chaney, failed to appear for
it. Accordingly, an immigration judge entered an
in abstentia deportation order against him,
pursuant to 8 U.S.C. sec. 1252b(c)(1) (1994).
On November 1, 1996, attorney O’Chaney filed a
motion to rescind the in abstentia deportation
order, claiming that Chowdhury had been in the
courthouse on the day of the October 2 hearing,
but that he did not know which room his hearing
was in and could not ask for assistance because
he does not speak English. (Although the record
does not mention what language he speaks, we
presume it is Bangla, the predominant language of
Bangladesh. Bangla, a relatively close cousin to
Hindi, is an Indo-Aryan language; like Hindi, it
is derived from Sanskrit.) O’Chaney’s motion
failed to mention that her client had been
counting on her to give him the necessary
assistance, but she never showed up at the
hearing. Based on the information before him, the
immigration judge denied the motion, finding that
Chowdhury’s confusion did not constitute
"exceptional circumstances" excusing his failure
to appear at the hearing, as required by 8 U.S.C.
sec.sec. 1252b(c)(3)(A) & (f)(2) (1994). O’Chaney
appealed this decision to the Board.
While the appeal before the Board was pending,
Chowdhury married a U.S. citizen. His wife,
Sejal, filed a visa petition for relative
immigrant status on behalf of Ifthekar. This
petition was approved, but the actual visa could
not be issued until the Board granted Chowdhury
an adjustment of status to that of legal alien.
Accordingly, Chowdhury’s new lawyer, Raymond
Sanders, filed a motion with the Board on
February 20, 1998, "to reopen and remand" the
case to the immigration judge to allow Chowdhury
to apply for adjustment of status based on his
marriage. Once again, however, Chowdhury was
poorly served by his chosen agent. Attorney
Sanders inexplicably failed to attach to the
motion a fully documented application for
adjustment of status, as required by 8 C.F.R.
sec. 3.2(c)(1). The motion, therefore, was denied
on November 23, 1998, because of its procedural
defectiveness (i.e., the absence of the
appropriate application). In the same order, the
Board also finally ruled on and rejected
Chowdhury’s appeal regarding the O’Chaney motion
to reopen and affirmed the in abstentia
deportation order.
Chowdhury never filed a petition for review of
the Board’s November 23 order, because no one
ever told him that the order existed. In spite of
the fact that the faulty change of status
application showed Sanders as Chowdhury’s
attorney, the Board sent notice of the decision
only to attorney O’Chaney, who had ceased
representing Chowdhury at some point over the two
years during which the Board sat on the first
motion to reopen. In fact, Chowdhury did not
learn that his appeal had been denied until he
received a "bag and baggage" order on January 7,
1999, requiring him to report for deportation.
After he received the deportation order,
Chowdhury promptly took two actions. First, he
asked the Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois to
investigate the conduct of attorneys O’Chaney and
Sanders. Second, he hired his current lawyer,
Mary Sfasciotti, who filed with the Board a
motion to reopen the deportation proceedings,
citing the ineffectiveness of Chowdhury’s earlier
counsel. Attached to that motion was a fully
documented application for adjustment of status.
But, on February 28, 2000, the Board denied the
motion, finding that because the Sfasciotti
motion was Chowdhury’s second motion to reopen,
he was foreclosed from making that motion
because, under 8 C.F.R. sec. 3.2(c)(2), he could
file only one motion to reopen.
Through Sfasciotti, Chowdhury also filed a
petition for a writ of habeas corpus in the
federal court for the Northern District of
Illinois, asking the district court to enjoin the
INS from executing the deportation order, based
on the ineffective assistance provided by his
previous counsel. On November 23, 1999, the
district court dismissed that petition, reasoning
that under sec. 242(g) of the Illegal Immigration
Reform and Individual Responsibility Act
(IIRIRA), codified at 8 U.S.C. sec. 1252(g), it
did not have subject matter jurisdiction over
Chowdhury’s case. In so doing, it construed
Chowdhury’s claim as one that arose from a
decision of the Attorney General to "adjudicate
cases, or execute removal orders against" him,
over which the courts have no jurisdiction. See
8 U.S.C. sec. 1252(g) (2000).
Chowdhury now appeals both the district court’s
dismissal of the petition for a writ of habeas
corpus and the Board’s denial of the Sfasciotti
motion to reopen, pursuant to 8 U.S.C. sec.
1105a(a) (1994), as modified by the IIRIRA,
sec.sec. 309(a), (c)(1), & (c)(4).
II
A. Habeas Corpus Petition
Although Chowdhury has made a valiant effort to
explain how his case avoids the strict limits on
habeas corpus jurisdiction in the immigration
area, we conclude that the district court
correctly rejected his claim. (This is a question
we review de novo. Selbe v. United States, 130
F.3d 1265, 1266 (7th Cir. 1997).) We start, of
course, with the language of the statute, which
reads as follows:
[N]o court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien
arising from the decision or action by the
Attorney General to commence proceedings,
adjudicate cases, or execute removal orders
against any alien under this chapter.
IIRIRA, sec. 242(g), codified at 18 U.S.C. sec.
1252(g). (This provision, while new, applies to
Chowdhury’s case, given our holding that it is
fully retroactive. See Lalani v. Perryman, 105
F.3d 334, 336 (7th Cir. 1997).) Chowdhury
suggests that his claim does not fit within this
prohibition because it arose not from the actions
of the Attorney General or the Board, but from
the actions of his former attorneys. He argues
that claims of ineffective assistance of counsel
are common to all proceedings and do not arise
from the peculiar nature of immigration
proceedings or a decision to execute a
deportation order. Nevertheless, at the end of
the day Chowdhury was asking the district court
to stay the execution of his deportation order,
pending a Board decision on his motion to reopen.
He was therefore attacking one of the three
specific actions over which sec. 1252(g)
forecloses review--the execution of a removal
order--and was squarely within the jurisdictional
bar. See Fedorca v. Perryman, 197 F.3d 236, 239-
40 (7th Cir. 1999).
Some circuits have taken the position that sec.
1252(g) does not bar habeas corpus proceedings
that were brought under 28 U.S.C. sec. 2241, as
Chowdhury’s was. See, e.g., Henderson v. INS, 157
F.3d 106 (2d Cir. 1998); Goncalves v. Reno, 144
F.3d 110 (1st Cir. 1998). This court, however, is
not among them--at least not at that broad level
of generality. Instead, we have held that sec.
1252(g) forecloses review even over sec. 2241
habeas proceedings. See Yang v. INS, 109 F.3d
1185, 1195 (7th Cir. 1997). The only exception,
which was not at issue in Yang, might be for
something like the set of rare cases (in the
slightly different context of sec. 440(a) of the
Immigration and Nationality Act) in which we have
recognized that an action under sec. 2241 might
still be possible notwithstanding similarly
forbidding language. See LaGuerre v. Reno, 164
F.3d 1035, 1040 (7th Cir. 1998); Turkhan v.
Perryman, 188 F.3d 814, 824 (7th Cir. 1999)
(permitting review in a habeas corpus case
notwithstanding LaGuerre, under unusual
circumstances). This interpretation of sec.
1252(g) and like provisions is consistent with
the Supreme Court’s decision in Reno v. American-
Arab Anti-Discrimination Comm., 525 U.S. 471, 485
(1999), which noted that sec. 1252(g) appeared to
be designed to ensure that discretionary
determinations would not be made the bases for
separate rounds of judicial intervention outside
the streamlined process that Congress has
designed. It now appears that the Court may have
more to say on this general subject soon, as it
recently granted certiorari in two cases that
present the question whether all jurisdiction to
entertain petitions under sec. 2241 was repealed
by IIRIRA’s permanent rules. See St. Cyr v. INS,
229 F.3d 406 (2d Cir. 2000), cert. granted, 69
U.S.L.W. 3478 (U.S. Jan. 12, 2001) (No. 00-767);
Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir.
2000), cert. granted, 69 U.S.L.W. 3478 (U.S. Jan.
12, 2001) (No. 00-1011). For the present,
however, American-Arab is the closest governing
authority, and it is to that case we turn.
American-Arab definitively rejected the
proposition Chowdhury urges, namely, that sec.
1252(g) violates Article III of the Constitution
or the separation of powers doctrine, even as
applied to habeas corpus petitions. This is not
so, the Court found, because the statute still
leaves open several avenues of judicial relief,
including a timely filed petition for review of
the deportation order in the appellate court.
Additionally, sec. 1252(g) does not foreclose a
petition for habeas corpus directed to matters
other than the three discrete actions delineated
in sec. 1252(g). Those other points could
include, for instance, "decisions to open an
investigation, to surveil the suspected violator,
to reschedule the deportation hearing, to include
various provisions in the final order that is the
product of the adjudication, and to refuse
reconsideration of that order." American-Arab,
525 U.S. at 482.
We conclude that this is not one of those rare
cases in which we would have to confront the
question whether an exception to the normal bar
on habeas corpus petitions must be recognized.
Nor are we inclined to revisit our own
interpretation of the law, although we will
obviously be governed by whatever the Supreme
Court decides in St. Cyr and Calcano-Martinez, to
the extent these rulings bear on these questions.
The district court correctly followed the statute
and this court’s decisions when it found that it
lacked jurisdiction over Chowdhury’s petition for
a writ of habeas corpus.
B. Motion to Reopen
INS regulations governing motions to reopen
provide, in pertinent part, that "a party may
file only one motion to reopen deportation or
exclusion proceedings. . ." 8 C.F.R. sec.
3.2(c)(2). Based on this provision, the Board
denied the Sfasciotti motion to reopen because
attorney Sanders had already filed a "motion to
reopen and remand" on February 20, 1998.
(Everyone agrees that the November 1, 1996,
motion to challenge the in absentia ruling did
not count against the numerical limit, under 8
C.F.R. sec. 3.2(c)(3)(i) and 8 C.F.R. sec.sec.
3.23(b)(4)(iii)(A)(1) & (2), & (D). Thus, the
counting at least potentially begins with the
Sanders motion, not the O’Chaney motion.) The
Board did not say anything about the fact that
the Sanders motion had never been considered on
the merits but had been dismissed based only on
procedural faults.
Although we normally review such decisions by
the Board only for abuse of discretion, see
Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.
1999); Thomas Jefferson Univ. v. Shalala, 512
U.S. 504, 512 (1994), we must also ensure that
the Board’s legal interpretations stay within the
boundaries permitted to it and that it has not
unreasonably failed to consider relevant factual
information. With this in mind, we conclude that
the Board’s decision in this case cannot stand.
First, the regulations themselves make it clear
that the Board is not required to dismiss every
motion to remand that follows an earlier motion
and thus in some technical sense is a "second" or
later motion. Apart from the special rule
pertaining to in abstentia rulings, a motion with
the word "reopen" in the label that is filed
while an appeal is pending before the Board "may
be deemed a motion to remand for further
proceedings before the Immigration Judge" such
that it will not be subject to the time and
numerical limitations for motions to reopen. 8
C.F.R. sec. 3.2(c)(4) (emphasis added).
The question is therefore how the Sanders
motion should have been characterized: as a
motion to remand not subject to the numerical
limitations, or as a motion to reopen. We do not
disagree that the INS has some discretion over
the characterization process, given the fact that
the text of the regulation says the Board "may"
deem a motion one to remand, rather than it
"must." But the use of the word "may" does not
suggest that the Board can sort motions by
throwing them down a staircase to see where they
land, or by any other similarly arbitrary method.
Some motions will reflect the fact that the
earlier proceeding should be viewed as still
ongoing, while others will be based on something
that was truly finished. A similar distinction
occurs in Social Security remands, where the
agency and courts draw a distinction between
remands under sentence 4 of the Act (reviewable
immediately as final judgments) and remands under
sentence 6 (not reviewable because further fact-
finding is necessary before a final judgment can
be entered). 42 U.S.C. sec. 405(g). See Sullivan
v. Finkelstein, 496 U.S. 617, 625-26 (1990).
Here, the Board itself initially indicated that
it thought it was dealing with a motion to
remand, and thus the kind of motion that does not
count against the applicant. The Sanders motion
was unhelpfully entitled a "motion to reopen and
remand," but the Board’s order of November 23,
1998, specifically referred to the Sanders motion
as a "motion to remand." We see no reason to
presume that the Board used the term carelessly,
especially since its own regulations draw a legal
distinction between the two kinds of motions.
Although it offered no explanation, the Board
well may have considered the Sanders motion as
one to remand rather than to reopen precisely
because it was apparent that the agency had never
heard even the first detail of the merits of
Chowdhury’s case. We certainly cannot say that it
would have been arbitrary or unreasonable for the
Board to characterize the motion as one to remand
rather than reopen. What does strike us as
unreasonable is the Board’s after-the-fact effort
to persuade us that it "really" meant to be
talking about a motion to reopen, notwithstanding
its use of the other terminology.
There are other important reasons as well to
hold the Board to its initial choice of
characterization, as reflected in the written
record. This court has consistently held that
aliens have due process rights, based in the
Fifth Amendment, that apply to immigration
proceedings. See, e.g., Castaneda-Suarez v. INS,
993 F.2d 142, 144 (7th Cir. 1993). Even if the
Board had consistently interpreted Chowdhury’s
motion as one to reopen, we would still need to
review the course of proceedings--and to do so de
novo--to ensure that they comported with basic
due process standards. See Nazarova, 171 F.3d at
482. Just as we would construe a statute in a way
that avoids a constitutional problem, if that is
fairly possible, both we and the Board should
interpret and apply administrative procedures in
a way that avoids constitutional issues. Here,
the Board knew that Chowdhury had never received
a meaningful opportunity to be heard, and it knew
that he at least alleged that this was through no
fault of his. With the risk of a due process
problem looming, the Board may--properly--have
considered the Sanders motion as one to remand so
that it would avoid escalating the issue to a
constitutional level. Compare Nazarova, 171 F.3d
at 485 (alien’s failure to receive a meaningful
opportunity to be heard provided a basis to
vacate in abstentia order); Romani v. INS, 146
F.3d 737, 739 (9th Cir. 1998) (same).
Regulations are created to provide guidance and
uniformity to an agency’s decision-making. Those
regulations, however, should not be so strictly
interpreted as to provide unreasonable, unfair,
and absurd results. That, we fear, is what the
Board is now trying to defend, particularly given
the fact that the agency has actually approved
his visa petition. In attempting to convince this
court that Chowdhury’s situation was not
completely unconscionable, counsel for the INS
told us that Chowdhury still had the circuitous
option of returning to Bangladesh, showing the
United States consulate there his approved visa
petition, and applying for a visa, which would
then allow him to return. But we conclude that
all that is unnecessary, because the Board’s own
regulations, read reasonably, show that he is
entitled to a hearing now.
The soundness of interpreting the Board’s system
this way can also be demonstrated by considering
exactly what kind of "second" petition Chowdhury
was trying to file. This is not the only area of
the law in which repeated petitions are
disfavored. The one that appears before federal
courts with the greatest frequency relates to
second or successive petitions for writs of
habeas corpus under 28 U.S.C. sec. 2254 or 2255.
For both of these, before a prisoner is entitled
to file a successive petition, he or she must
obtain the permission of the court of appeals.
See 28 U.S.C. sec.sec. 2244(b)(3); 2255 para. 8.
The key insight these habeas corpus cases offer
is that not all petitions that are literally the
"second" can or should be regarded as such for
purposes of the "second or successive" petition
rule. Instead, as the Supreme Court held in Slack
v. McDaniel, 529 U.S. 473 (2000), the phrase
"second or successive" is a term of art. Id. at
486. If a prisoner first files an initial
petition that contains some claims that have
properly been exhausted in state court
proceedings and others that have not, the correct
disposition is to dismiss that "first" petition
and allow the prisoner to go back and complete
the exhaustion process. When he returns with the
later or "second" petition, the Court held, that
is to be considered an initial petition for
purposes of the permission rule. Id. at 487. As
an initial petition, its filing does not require
prior authorization from the court of appeals.
Similarly, if the initial petition is dismissed
for a purely technical reason, such as a failure
to pay a filing fee, it does not count for
purposes of the successive petition permission
rule. See Benton v. Washington, 106 F.3d 162 (7th
Cir. 1996). This is exactly what happened to
Chowdhury when the Sanders application was
dismissed on purely technical grounds.
In these circumstances, the fact that the Board
received an initial piece of paper from Sanders
need not mean that it received a legally adequate
"first" motion to reopen. If we accept the
analogy to successive petitions for habeas corpus
relief, we conclude again that the Sanders paper
should not count at all, Sfasciotti filed the
first cognizable motion to reopen, and the Board
should have considered the motion on its merits.
Because the Board erred at the administrative
level, we have no need to reach the question
whether its action violated the Fifth Amendment’s
due process clause because Chowdhury received
ineffective assistance of counsel. This was a
point Chowdhury stressed in his briefs, and he
claimed that such a violation entitled him to go
back to the point in the proceeding that was
first tainted by the ineffective counsel and to
start over. Although Chowdhury is correct to
point out that there are cases holding that
aliens have some residual protection against
ineffective lawyers, based on the Fifth
Amendment, see Castaneda-Suarez, 993 F.2d at 144;
Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.
1998), the extent of this protection is unclear.
It is also unclear how the Fifth Amendment right
contrasts with the Sixth Amendment right to legal
representation, which does not apply to
immigration proceedings. See Castaneda-Suarez,
993 F.2d at 144; Mantell v. U.S. Dept. of
Justice, INS, 798 F.2d 124, 127 (5th Cir. 1986);
Mohsseni Behbahani v. INS, 796 F.2d 249, 251 n.1
(9th Cir. 1986). Logically, one would imagine
that the Fifth Amendment protects less;
furthermore, in the unique case of civil
immigration proceedings, we would need to
consider to what extent an alien must be held
accountable for his or her agent’s actions, which
is the normal practice in civil cases. See, e.g.,
Link v. Wabash R.R. Co., 370 U.S. 626, 633-34
(1962). We save these issues for another day,
when they are squarely presented.
III
Because Chowdhury had a right to have his
motion to reopen heard on the merits by the
Board, under its own regulations, we hereby REVERSE
the Board’s decision denying Chowdhury’s February
28, 2000, motion to reopen and remand this case
to the Board to consider that motion on its
merits, including the application for adjustment
of status. We AFFIRM the district court’s dismissal
of Chowdhury’s habeas corpus petition. Each party
shall bear its own costs on appeal.
/1 This is the way Chowdhury’s name appears
throughout the record. "Md." is a commonly used
abbreviation for the name "Mohammed" in the
languages of the Indian subcontinent. We assume
that is what it means here, although we have not
found any place in the record where this is
clearly stated.