Marko Vrljicak v. Eric Holder, Jr. , 700 F.3d 1060 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1516
M ARKO V RLJICAK,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
A RGUED N OVEMBER 1, 2012—D ECIDED N OVEMBER 20, 2012
Before E ASTERBROOK, Chief Judge, and R OVNER and
H AMILTON, Circuit Judges.
E ASTERBROOK, Chief Judge. Marko Vrljicak, a citizen of
Serbia, requested asylum on the ground that his native
land would persecute him because of his sexual orienta-
tion. An immigration judge denied that request, ruling
that Vrljicak is ineligible because he did not seek
asylum within one year of entering the United States.
8 U.S.C. §1158(a)(2)(B). Vrljicak arrived on April 2, 2009,
2 No. 12-1516
under a work visa, which expired September 30, 2009.
He did not leave and was in unauthorized status on
July 14, 2010, when he applied for asylum. The Board
of Immigration Appeals agreed with the IJ that Vrljicak
took too long to seek asylum, but it also held that he
is entitled to withholding of removal and remanded
so that the final requirements for that status could
be satisfied.
We have jurisdiction of his petition because he has
been ordered removed from the United States, and with-
holding execution of that order does not give Vrljicak
all the benefits of asylum. See Jiménez Viracacha v.
Mukasey, 518 F.3d 511 (7th Cir. 2008). But we do not have
jurisdiction to review the Board’s conclusion that his
request for asylum was untimely. 8 U.S.C. §1158(a)(3).
Another provision, 8 U.S.C. §1252(a)(2)(D), adds a
proviso allowing courts to entertain constitutional and
other legal arguments. Vrljicak concedes that his applica-
tion came more than a year after his entry, but he con-
tends that the Board should have excused his delay
under 8 C.F.R. §1208.4(a)(5)(iv). The Board rejected that
argument, and Vrljicak now maintains that the regula-
tion is unconstitutionally vague. It is not clear how he
would benefit from such a decision; knock out an
exception to the statute, and the one-year time limit
remains. Perhaps Vrljicak believes that, if the exception
is too vague, then the statutory rule itself cannot be
enforced. No matter; the challenge to the regulation
is unavailing.
Section 1208.4(a) provides a regulatory definition of the
statutory term “extraordinary circumstances”. Subdivi-
No. 12-1516 3
sion (iv), on which Vrljicak relied before the Board and
which he now contends is unconstitutional, reads: “The ap-
plicant maintained Temporary Protected Status, lawful
immigrant or nonimmigrant status, or was given parole,
until a reasonable period before the filing of the
asylum application”. In other words, an alien properly
in the United States may request asylum during a “rea-
sonable” time after authorized status ends, even if the
total time between entry and application exceeds one
year. The Board concluded that it was not “reasonable”
for Vrljicak to wait nine months after his visa expired.
He calls the word “reasonable” vague and contends
that the Board should have used a rule (such as “180 days”)
rather than a standard. Some parts of the Immigration
and Nationality Act do use 180 days as the maximum
period for action by an alien in unauthorized status
following the expiration of a labor visa. See, e.g., 8 U.S.C.
§1255(k)(2). Again it is hard to see how this would
have helped Vrljicak; he took much more than 180 days.
This is not a first amendment overbreadth case, so he
can challenge the regulation only as applied. See, e.g.,
Washington State Grange v. Washington State Republican
Party, 552 U.S. 442, 449–50 & n.6 (2008); United States v.
Salerno, 481 U.S. 739, 745 (1987). Vrljicak told the immigra-
tion judge that he did not apply sooner because he ex-
pected the situation in Serbia to improve and did not
know that there was a deadline; these explanations show
that the choice between “reasonable” and some other
language in §1208.4(a)(5)(iv) did not affect his con-
duct. As applied to him, the regulation is not problematic.
Anyway, protean words such as “reasonable” are
ubiquitous in law. Think of the reasonable-person
4 No. 12-1516
standard in tort law. We know from United States v.
Powell, 423 U.S. 87 (1975), and many other decisions, that
just because it is possible to replace a standard with
a numeric rule, the Constitution does not render the
standard a forbidden choice. Vrljicak contends that it is
constitutionally mandatory to curtail official discretion
whenever feasible. Yet many decisions of the Supreme
Court hold that the Constitution itself creates capacious
discretion. Think of United States v. Booker, 543 U.S.
220 (2005), and Kimbrough v. United States, 552 U.S.
85 (2007), which hold that district judges may use
personal penological philosophies in criminal sen-
tencing, notwithstanding the Sentencing Guidelines, as
long as the sentences are within statutory limits and
reasonable. By Vrljicak’s approach, however, the
holdings in Booker and Kimbrough are backward and
the Court’s reasonableness standard unconstitutional.
Vrljicak’s understanding of due process evidently is not
the Supreme Court’s. (And it does not help him to
assert that the regulation allows different treatment
of similarly situated persons and violates the equal-protec-
tion principles the Supreme Court has found in the
due process clause; the same could have been said
about Booker and Kimbrough.)
Standards such as “reasonable” are less precise than
rules such as “180 days,” but flexibility has its benefits:
under the standard, immigration officials can accom-
modate unanticipated circumstances, while a deadline is
unyielding. Decisions such as Parker v. Levy, 417 U.S.
733 (1974), and Civil Service Commission v. Letter Carriers,
413 U.S. 548 (1973), hold that legislatures and agencies
No. 12-1516 5
may adopt standards and work out the details in ad-
judication. The National Labor Relations Board has been
wrestling with “unfair labor practices” for almost 80
years, and the “public interest, convenience, and neces-
sity” standard for agency action has an even older lin-
eage. That these standards continue to pose problems
of application does not make them—and the method
of elaboration in the common-law fashion—unconstitu-
tional. Indeed, neither the administrative nor the
judicial system could proceed without the latitude they
afford. (For another example, think of the phrase “good
cause” that peppers the federal rules of civil and
criminal procedure.)
The National Immigrant Justice Center filed a brief
as amicus curiae asking us to sidestep the constitutional
question by deeming the entire regulatory apparatus
for implementing the statutory exceptions to be defi-
cient. The Center maintains that the regulation and
its administration have “become completely unhinged
from the purposes and goals of the underlying statu-
tory provision.” No such argument was presented to
the Board. Whether or not we have the authority to en-
tertain it at the Center’s request, it would be inappro-
priate to do so. The Center should propose appropriate
changes to the regulation’s authors at the Department
of Justice and the Department of Homeland Security,
then ask the Board of Immigration Appeals to apply
the regulation (the current version or any amended one)
in harmony with the statute. Judicial review should
follow, and not precede, full consideration by the
6 No. 12-1516
officials charged with devising and applying the rules
for implementing the statute.
The petition for review is denied.
11-20-12