Christa Bauer v. Eric Holder, Jr. , 353 F. App'x 38 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 17, 2009
Decided November 23, 2009
AMENDED November 25, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 08-3243 & 09-1280
C HRISTA FAREED BAUER,
Petitioner, Petitions for Review of Or-
ders of the Board of Immigra-
v. tion Appeals.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Order
Christa Bauer, a citizen of either Zambia or Zimbabwe, applied for asylum in the
United States. (Her passport is from Zambia, and several affidavits presented in support
of the application for asylum acknowledge birth in that nation; but in the asylum appli-
cation itself Bauer asserts that she was born in Harare, Zimbabwe, and is a citizen of
that nation.) An immigration judge scheduled a hearing for November 28, 2005. Bauer
did not appear. Eleven days before the hearing, she had filed a notice withdrawing the
claim for asylum: she had decided instead to pursue a petition for adjustment of status
on the basis of marriage. Because Bauer did not appear, she was ordered removed in
absentia. The IJ also denied her request for asylum; apparently he had not received the
notice withdrawing that request. But that decision did not matter, because the removal
order rests on the facts that Bauer is neither a citizen of the United States nor the holder
of a visa entitling her to be here. And once the order of removal was entered, the
agency closed its file on Bauer’s request for adjustment of status.
Bauer had 180 days to file a motion to reopen the proceedings, a step that could
have allowed the agency to act on the petition for adjustment of status. 8 U.S.C.
§1229a(b)(5)(C). She took more time than that. Bauer contends that she did not learn
Nos. 08-3243 & 09-1280 Page 2
about the removal order until April 3, 2006. Through legal counsel, she filed a motion to
reopen on September 26, or 176 days after she concedes receiving actual notice. (Bauer
has given at least four other dates as the receipt of notice; April 3 is the latest, so we use
that without considering the consequences of this curious inconsistency.) The statutory
180-day deadline runs from “the date of the order of removal”, not from the date the
order is received. As of April 3, 2006, Bauer had 54 days left to file a timely motion. She
has never explained why she did not file within that period. Instead her lawyer has es-
poused the view that the time runs from receipt of notice, rather than from the date of
the removal order, and that there is therefore no delay in need of explanation. Counsel
has never offered any authority for that position, however.
The IJ denied the motion to reopen, for two reasons: first, it was untimely; second
Bauer has not established “exceptional circumstances” (the standard for relief on a
timely motion). Bauer filed an affidavit concerning her decision to skip the hearing. In it
she asserted that “I thought the combination of my marriage and the [adjustment-of-
status] filing would cancel out any need to appear before the Judge”. Bauer did not
suggest that the IJ or any of the agency’s employees had advised her that she could
simply ignore an order to appear for a hearing. The IJ understandably concluded that
an alien’s decision to ignore an IJ’s order to appear is not the sort of circumstance that
justifies starting over.
On appeal to the Board of Immigration Appeals, Bauer filed a second affidavit. This
time she attributed her decision to advice from Marianna Omazic, an immigration
counselor (a non-lawyer assistant accredited by the agency, see 8 C.F.R. §1292.2(d)).
Bauer did not supply any written advice to that effect from Omazic, nor did the affidavit
(or any other document filed with the BIA) present Omazic’s version of any conversa-
tions she may have had with Bauer. Neither the affidavit nor any other document
stated that Bauer had lodged a complaint with the agency, which has the authority to
remove Omazic from the rolls of accredited counselors. See 8 C.F.R. §1292.3. The BIA
dismissed Bauer’s appeal, ruling that the second affidavit was no better than the first at
establishing exceptional circumstances. The Board thought that, by parallel to Matter of
Lozada, 19 I&N Dec. 637 (1988), Bauer had to confront Omazic with the allegation that
unprofessional advice had been rendered, obtain (and include in the record) a response
to that accusation, and file a formal charge of misconduct with the regulatory body.
None of these steps had been taken. Bauer then filed a motion to reconsider, which the
BIA denied. We have consolidated Bauer’s petitions for review of the motions to reopen
and reconsider.
We held in Kucana v. Mukasey, 533 F.3d 534 (2008), cert. granted, 129 S. Ct. 2075(2009), that 8 U.S.C. §1252(a)(2)(B)(ii) precludes jurisdiction over petitions to review or-
ders denying motions to reopen, unless (as §1252(a)(2)(D) provides) the alien presents a
statutory or constitutional argument. Bauer contends that she has a constitutional ar-
gument: that bad advice from a non-lawyer counselor means that the IJ’s order violates
the due process clause of the fifth amendment. But we are not reviewing the removal
order entered in November 2005. The orders at issue are those entered by the BIA in
2008 (denying reopening) and 2009 (denying reconsideration of the 2008 decision).
Bauer does not present any constitutional objections to those orders.
Whether the petition to reopen was timely, whether that time should be equitably
tolled (as Bauer argued before the BIA), and whether “exceptional circumstances” sup-
port reopening are non-constitutional issues. Bauer does not contend that the Board
made an error of law; instead she contends that the IJ and the BIA abused their discre-
tion by not accepting her untimely motion and not deeming the circumstances “excep-
tional.” Those are the very sort of discretionary decisions on which §1252(a)(2)(B)(ii)
Nos. 08-3243 & 09-1280 Page 3
makes the administrative decision final. See, e.g., Huang v. Mukasey, 534 F.3d 618, 622–23
(7th Cir. 2008). See also, e.g., Stroe v. INS, 256 F.3d 498 (7th Cir. 2001) (because there is
no right to appointed counsel at public expense in removal proceedings, bad legal ad-
vice is not a constitutional problem but, as in other civil litigation, is imputed to the cli-
ent); Magala v. Gonzales, 434 F.3d 523 (7th Cir. 2005).
Kucana holds that decisions not to reopen are covered by §1252(a)(2)(B)(ii) (subject
to the proviso for statutory and constitutional arguments), because it reads the refer-
ence to “discretion” in §1252(a)(2)(B)(ii) to include not only discretion specified in the
Immigration and Naturalization Act, but also discretion exercised under that Act. Regu-
lations under the Act make reopening discretionary. The other possible understanding
of §1252(a)(2)(B)(ii), advanced by the alien in Kucana, limits that statute to discretion
conferred by the statutory text. If the Supreme Court should agree with that argument,
then we would have jurisdiction. But Bauer still could not prevail, for §1229a(b)(5)(C)
provides that an order of removal may be rescinded
only—
(i) upon a motion to reopen filed within 180 days after the date of the order
of removal if the alien demonstrates that the failure to appear was because of
exceptional circumstances (as defined in subsection (e)(1) of this section), or
(ii) upon a motion to reopen filed at any time if the alien demonstrates that
the alien did not receive notice in accordance with paragraph (1) or (2) of sec-
tion 1229(a) of this title or the alien demonstrates that the alien was in Federal
or State custody and the failure to appear was through no fault of the alien.
Bauer cannot use subsection (i), because her motion was filed more than 180 days after
the order of removal. And subsection (ii) does not apply by its terms: Bauer does not
contend that she did not receive notice of the hearing, or that she was in custody at the
time of the hearing.
And even if all of this is mistaken, substantial evidence supports the Board’s decision
that Bauer has not demonstrated “that the failure to appear was because of exceptional
circumstances (as defined in subsection (e)(1) of this section)”. Subsection (e)(1) reads:
“The term ‘exceptional circumstances’ refers to exceptional circumstances (such as bat-
tery or extreme cruelty to the alien or any child or parent of the alien, serious illness of
the alien, or serious illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances) beyond the control of the alien.” Nothing “be-
yond the control” of Bauer took place, nor is mistaken legal advice comparable to ex-
treme cruelty or serious illness. Cf. Murray v. Carrier, 477 U.S. 478 (1986) (when there is
no right to counsel at public expense, a lawyer’s incompetence is not the sort of external
impediment that could excuse a procedural default). Bauer may or may not have re-
ceived bad advice (her own affidavits don’t agree on that point), but she could and
should have notified the IJ and asked him to postpone or cancel the hearing. And she
could have alerted Omazic to her current allegations, obtained Omazic’s response, and
filed a formal complaint. See Omar v. Mukasey, 517 F.3d 647, 651 (2d Cir. 2008) (the BIA is
entitled to apply the Lozada procedure to complaints about the advice furnished by non-
lawyers). The BIA did not abuse its discretion in denying Bauer’s motion.
The petitions for review are dismissed for want of jurisdiction on the authority of
Kucana; but in an exercise of caution, given the grant of certiorari in Kucana, we alterna-
tively deny the petitions on the merits.