Chowdhury v. Ashcroft

Decision Date22 February 2001
Docket Number00-1751,No. 99-4256,99-4256
Citation241 F.3d 848
Parties(7th Cir. 2001) Md. Ifthekar Chowdhury, <A HREF="#fr1-1" name="fn1-1">1 Petitioner-Appellant, v. John Ashcroft, Attorney General, and U.S. Immigration and Naturalization Service, Respondents-Appellees. Md. Ifthekar Chowdhury, Petitioner, v. U.S. Immigration and Naturalization Service, Respondent
CourtU.S. Court of Appeals — Seventh Circuit

Petition for Review from the Board of Immigration Appeals of the Immigration and Naturalization Service. No. A73 534 032--Chicago.

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...

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