Jarad, Jehad W. v. Gonzales, Alberto ( 2006 )


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  •                           In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-4292
    JEHAD WAZEEN JARAD,
    Petitioner,
    v.
    ALBERTO R. GONZALES, Attorney General
    of the United States,
    Respondent.
    ____________
    Petition for Review of an Order
    of the Board of Immigration Appeals
    ____________
    ARGUED AUGUST 9, 2006—DECIDED AUGUST 24, 2006
    ____________
    Before POSNER, COFFEY, and EASTERBROOK, Circuit
    Judges.
    EASTERBROOK, Circuit Judge. Jehad Wazeen Jarad
    entered this country without inspection—that is, by
    stealth—in 1991. After being caught, he was placed in
    removal proceedings (then called deportation; we use
    the current terminology). At a hearing on December 31,
    1991, he conceded that he had no right to be in the United
    States and requested the privilege of voluntary departure
    at his own expense. The immigration judge granted that
    request and gave Jarad until February 28, 1992, to leave;
    the judge also entered an order of removal to take effect
    if Jarad remained.
    2                                                No. 05-4292
    Notwithstanding both his promise and the valid order of
    removal (which he did not appeal), Jarad stayed in the
    United States. During the coming decade he married and
    had three children, all born in the United States and
    therefore citizens of this nation. After his wife became a
    naturalized U.S. citizen, Jarad filed a motion to reopen
    the immigration case so that he could apply for adjust-
    ment of status, see 
    8 U.S.C. §1255
    (i), on the basis of
    marriage to a citizen. The immigration judge denied this
    application in 2004 as a matter of discretion—for §1255(i)
    creates an opportunity rather than an entitlement.
    The IJ concluded that Jarad meets the eligibility re-
    quirements (a visa is immediately available and Jarad has
    not been convicted of a felony) but that it would be inequita-
    ble to allow him to gain by defying an order of removal. The
    IJ was disappointed by Jarad’s decision to renege on his
    promise to depart voluntarily—even though voluntary
    departure would have allowed him to obtain a visa in Israel
    and come back lawfully. (Voluntary departure enables an
    alien to avoid some of the disabilities, such as a ban on
    reentry for an extended period, that accompany removal. 8
    U.S.C. §1229c. See generally Alimi v. Ashcroft, 
    391 F.3d 888
    (7th Cir. 2004).)
    Moreover, the IJ concluded, an alien should not be
    allowed to obtain a substantial benefit by the length of an
    illegal stay (13 years by the time of the hearing on his
    motion to reopen) when other, law-abiding aliens must wait
    abroad until visas become available. All of the favorable
    equities that Jarad had accumulated—family, employment,
    community ties—are attributable to his unlawful actions.
    Jarad essentially argued that the longer he defied the 1991
    removal order, the greater his entitlement to remain in the
    United States. As the IJ saw things, among those eligible
    for the benefits of §1255(i) an alien who violates a removal
    order has a lower equitable standing than one who seeks
    No. 05-4292                                                  3
    adjustment of status before being ordered removed. The
    Board of Immigration Appeals affirmed without opinion.
    Jarad’s petition for judicial review encounters an obstacle
    in 
    8 U.S.C. §1252
    (a)(2)(B):
    Notwithstanding any other provision of law (statu-
    tory or nonstatutory), including section 2241 of title
    28, United States Code, or any other habeas corpus
    provision, and sections 1361 and 1651 of such title,
    and except as provided in subparagraph (D), and
    regardless of whether the judgment, decision, or
    action is made in removal proceedings, no court
    shall have jurisdiction to review (i) any judgment
    regarding the granting of relief under section
    1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,
    or (ii) any other decision or action of the Attorney
    General or the Secretary of Homeland Security the
    authority for which is specified under this
    subchapter to be in the discretion of the Attorney
    General or the Secretary of Homeland Security,
    other than the granting of relief under section
    1158(a) of this title.
    Jarad seeks relief under §1255, yet “no court shall have
    jurisdiction to review” an administrative decision “regard-
    ing the granting of relief under section . . . 1255”. To get
    anywhere, Jarad must rely on the proviso: “except as
    provided in subparagraph (D)”. That subparagraph reads:
    Nothing in subparagraph (B) or (C), or in any other
    provision of this Act (other than this section) which
    limits or eliminates judicial review, shall be con-
    strued as precluding review of constitutional claims
    or questions of law raised upon a petition for review
    filed with an appropriate court of appeals in accor-
    dance with this section.
    Our authority thus is limited to “constitutional claims or
    questions of law”. There is no serious claim under the
    4                                                No. 05-4292
    Constitution (Jarad’s contention that each of the IJ’s
    supposed mistakes violates the due process clause does
    not require analysis), and it is hard to see any “question
    of law”, because Jarad does not contend that the IJ contra-
    dicted §1255(i). He does not maintain, for example, that the
    agency refused to consider his application in the teeth of
    statutory language making him eligible. The IJ ruled in his
    favor on all issues of eligibility, and if the IJ made a poor
    judgment in exercising discretion that’s not a legal error for
    purposes of §1252(a)(2)(D). See Sokolov v. Gonzales, 
    442 F.3d 566
    , 569 (7th Cir. 2006). An IJ who thinks that an
    alien should not benefit from deceit, or disobedience to a
    lawful order of removal, does not violate any statute or
    regulation. See Alsagladi v. Gonzales, 
    450 F.3d 700
     (7th
    Cir. 2006).
    Whether the IJ balanced the equities soundly is a debat-
    able question, but that subject is not within this court’s
    purview. If an ill-considered exercise of discretion were
    treated as an error of law, then §1252(a)(2)(B) would not
    serve any function—for “abuse of discretion” is the standard
    of review in cases under the Administrative Procedure Act,
    where judicial review of agency action reaches its fullest
    extent. Unless §1252(a)(2)(B) is to be treated as so much hot
    air, it must bar a claim that the agency acted imprudently
    when acting under one of the listed statutes. See Cevilla v.
    Gonzales, 
    446 F.3d 658
    , 661 (7th Cir. 2006).
    The immigration judge cited the administrative deci-
    sion that Jarad accuses him of ignoring: Matter of Arai, 
    13 I&N Dec. 494
     (1970). We may assume that administrative
    decisions (no less than statutes and regulations) can
    establish “law” for purposes of §1252(a)(2)(D). Cf. Billeke-
    Tolosa v. Ashcroft, 
    385 F.3d 708
    , 710-13 (6th Cir. 2004);
    Hernandez v. Ashcroft, 
    345 F.3d 824
    , 846 (9th Cir. 2003).
    (Both of these decisions predate the Real ID Act of 2005,
    which added §1252(a)(2)(D) to the immigration code. The
    parties have not joined issue on the question whether “law”
    No. 05-4292                                                  5
    in the 2005 statute includes statements in administrative
    opinions, which is why we assume the point without
    reaching a conclusion. It should be confronted squarely by
    counsel when it matters to some future case.) Arai does not
    give Jarad any purchase. It establishes a balancing ap-
    proach, see generally Patel v. INS, 
    738 F.2d 239
    , 242-43
    (7th Cir. 1984), and balancing is exactly what the IJ did in
    his case. Jarad observes that the BIA did not give any
    weight to the fact that Arai had failed to depart as prom-
    ised. True enough, but neither did the Board say that no
    weight could be assigned; it just didn’t discuss the subject.
    Arai’s overstay was less than one tenth of Jarad’s. His
    application for adjustment of status had been based on a
    labor certification: he had skills that were in high demand.
    And he acquired those skills (the favorable equities) before
    entering the United States. The Board’s exercise of discre-
    tion in Arai’s favor does not compel, as a matter of law, a
    decision favorable to Jarad. Section 1252(a)(2)(D) therefore
    does not assist him.
    In an effort to fortify his contention that the IJ abused his
    discretion, Jarad maintains that the IJ failed to explore the
    question whether he had understood the significance of the
    opportunity to depart voluntarily in 1992. When counsel
    tried to explore the question at the hearing in 2004, the IJ
    cut off the questioning and stated that he remembered that
    the significance of voluntary departure had been explained.
    Jarad contends that it is unlikely that an immigration judge
    would have remembered something that happened 13 year
    ago; instead of relying on memory, Jarad insists, the IJ
    should have obtained a transcript of the 1991 hearing.
    All of this is a sidelight. Jarad’s lawyer tries to make
    it appear more significant by insisting that in 2004 the
    IJ denied his application because of a mistaken belief that
    Jarad knowingly had “violated the voluntary-departure
    order” of 1991. Actually, counsel now insists, Jarad had not
    understood the legal significance of voluntary departure
    6                                               No. 05-4292
    and had been told by “friends” that he did not have to
    depart. Why any alien would take the word of “friends” over
    that of an immigration judge is a mystery. At all events,
    there was no “voluntary-departure order” to violate. The IJ
    made only one “order” in 1991—an order of removal.
    Voluntary departure is an opportunity extended in lieu of
    removal, not an order; an option differs from a command.
    Jarad promised to depart and did not keep his word, but
    that lapse did not “violate” any command or obligation. The
    order he violated was not a promise but the IJ’s removal
    order, which is not voluntary in any respect—and which
    Jarad has been flouting for 14 years and counting.
    Now it is possible to imagine a strictly legal argument
    that, whenever an IJ relies on events at an earlier hearing,
    he must obtain a transcript to guard against the risk of
    error. Memory often plays tricks, and the fact that an IJ (or
    anyone else) thinks he remembers something that occurred
    more than a decade earlier may be one of those tricks.
    Certitude (which the IJ evinced) often is unwarranted.
    People may remember what they want to remember,
    whether it happened or not, and the lack of correla-
    tion between the strength and the accuracy of one’s recollec-
    tion is one of the most important findings of the psychology
    of memory. See Daniel L. Schacter, The Seven Sins of
    Memory (How the Mind Forgets and Remembers) 116-17,
    138-60 (2001); Elizabeth F. Loftus, Eyewitness Testimony
    100-01 (1996). A transcript does not make this error. (Note,
    by the way, that Jarad proposed at the 2004 hearing to rely
    on his own memory of decade-old events, and the testimony
    of an interested person may well be even less reliable than
    the IJ’s recollection. Jarad was more likely to remember, for
    the hearing mattered more to his life than the IJ’s, but
    Jarad also had a greater personal stake and thus a greater
    likelihood that his memory would conform to his self-
    interest rather than actual events.)
    No. 05-4292                                                  7
    Before the Board of Immigration Appeals, however, Jarad
    did not argue that a rule of law makes a transcript manda-
    tory. Nor did Jarad’s lawyer ask the IJ to have the 1991
    proceedings (which the parties assume were recorded)
    transcribed, or ask the BIA to do so, or even ask the agency
    to put the recording in the record. All that he did argue is
    that by relying on his memory the IJ had abused his
    discretion. Such an argument may or may not persuade the
    Board, but in court it is a dud; it is the very sort of conten-
    tion that §1252(a)(2)(B) interdicts. The strictly legal
    argument that a transcript always is required was not
    presented to the Board and so had not been exhausted, see
    
    8 U.S.C. §1252
    (d)(1), and has not been presented to us
    either—for, to repeat, Jarad uses this episode only as an
    illustration of the ways in which the IJ supposedly misused
    discretion.
    Finally, Jarad contends that the Board committed an
    error of law by assigning the administrative appeal to a
    single member (under its streamlining procedure) rather
    than a panel of three members. It is not clear how this could
    be thought a legal transgression, as opposed to yet another
    exercise of discretion. See Kambolli v. Gonzales, 
    449 F.3d 454
     (2d Cir. 2006). This court has never decided whether
    the decision to assign one member or three is reviewable in
    principle, because it just does not matter. Streamlining is
    supposed to be used for insubstantial appeals. An alien who
    says that his appeal should have been heard by three
    members must mean either (a) that the appeal was non-
    frivolous but still not strong enough to support reversal, or
    (b) that the appeal established a prejudicial error by the
    immigration judge. If proposition (a) is true, then a remand
    with instructions to convene a three-member panel would
    be pointless, for the alien would be doomed to lose again. If
    proposition (b) is true, then a remand with instructions to
    rehear the appeal before three members would be a waste
    of time, for the BIA would be bound to send the case back to
    8                                              No. 05-4292
    the IJ—and the court can do that directly. It therefore
    “makes no practical difference whether the BIA properly or
    improperly streamlined review.” Hamdan v. Gonzales, 
    425 F.3d 1051
    , 1058 (7th Cir. 2005), quoting from Georgis v.
    Ashcroft, 
    328 F.3d 962
    , 967 (7th Cir. 2003). Harmless errors
    do not support relief, so we need not now (or ever) decide
    whether one member or three is the right number to resolve
    an administrative appeal.
    The petition for review is dismissed for want of juris-
    diction.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—8-24-06