Pasha v. Gonzales, 04-4166.

• Decision Date: 29 December 2005
• Docket Number: No. 04-4166.,04-4166.
• Citation: 433 F.3d 530
• Parties: Klodiana PASHA, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

433 F.3d 530

Klodiana PASHA, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 04-4166.

United States Court of Appeals, Seventh Circuit.

Argued November 9, 2005.

Decided December 29, 2005.

Geoffrey Heeren (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Jonathan F. Potter (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, ROVNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

At the risk of sounding like a broken record, we reiterate our oft-expressed concern with the adjudication of asylum claims by the Immigration Court and the Board of Immigration Appeals and with the defense of the BIA's asylum decisions in this court by the Justice Department's Office of Immigration Litigation. See Benslimane v. Gonzales, 430 F.3d 828, 2005 WL 3193641, at *1 (7th Cir. Nov.30, 2005), and cases cited there. The performance of these federal agencies is too often inadequate. This case presents another depressing example.

Klodiana Pasha, an Albanian, was active in Albania's Democratic Party in 2000. According to her testimony before the immigration judge, she was involved in a local election that year that was won by the Socialist Party, the dominant party in Albania. When she complained about ballot stuffing by the party, she was severely beaten by its thugs. Summoned shortly afterwards to the local prosecutor's office, she was told that she would be criminally prosecuted if she testified in court about the ballot stuffing. She testified nonetheless and later received death threats and was arrested by the police and told she would have to appear in court to respond to a complaint lodged against her by the Socialist Party. Rather than keep the court date she fled the country and eventually reached the United States and applied for asylum as a victim of political persecution. All this is according to her testimony. But in addition to submitting published materials that confirm the misconduct of the Socialist Party toward its political foes, she attached to her application various official Albanian documents concerning herself, including subpoenas, a police report, and a summons.

At her hearing the immigration service's lawyer presented a forensic document examiner employed by the service named Gideon Epstein who testified that four of the nine documents that Pasha had attached to her application for asylum were probably fakes (he didn't analyze the other five). He based this assessment on the fact that the documents had been produced by color laser technology, which he testified was not a normal way in which a form document is produced because it makes only one copy at a time and is therefore expensive (and Albania is poor). Also, the printed text on the documents, as distinct from the handwriting that filled in the blanks in them, did not contain the diacritical marks (accents) that are part of the spelling of many of the Albanian words in that text. Epstein acknowledged, however, that he does not speak or read Albanian and had no access to official Albanian texts comparable to Pasha's documents. Admitting that he could not "rule out" the possibility that they were authentic, he concluded merely that they were "probably not what they're purported to be." The immigration judge concluded that the documents were of "highly questionable authenticity" and solely on this ground rejected Pasha's testimony about being persecuted for activities on behalf of the Democratic Party.

Pasha filed a notice of appeal with the Board of Immigration Appeals. The form that the Board supplies for such notices (Form EOIR-26) requires the appellant to "state in detail the reason(s) for this appeal." In the space provided, Pasha's then lawyer wrote only (so far as bears on her petition in this court) that "the [immigration] judge erred in evaluating all the evidence presented in the case, particularly as it relates to future persecution. Other matters of record to be stated in a written brief." The lawyer filed a written brief, but because he failed to attach the required certificate (see 8 C.F.R. § 1003.3(c)(1)) stating that he had served the brief on the Department of Homeland Security, the Board refused to consider it. (The record is silent on whether he served the department. The brief is not in the record, and when the Clerk of our court asked the Board for a copy of it he was told that he would have to file a request for it under the Freedom of Information Act!) The Board, or rather a single member authorized to act for the Board, went on to affirm the immigration judge's decision without opinion.

The government argues that by failing to explain in detail, either in the notice of appeal or in a properly certificated brief, the grounds for her appeal from the immigration judge to the Board of Immigration Appeals, Pasha failed to exhaust her administrative remedies and as a result we have no jurisdiction to review the Board's order affirming the order of removal. 8 U.S.C. § 1252(d)(1); Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.2004); Ishak v. Gonzales, 422 F.3d 22, 31 (1st Cir.2005). So confident is the government of the correctness of its argument that it has not deigned to respond to the merits of the appeal. This was a tactical error. The government's confidence is unwarranted. The reason is found in a "warning" that the Board includes in its notice-of-appeal form. The warning, which is based on a regulation, 8 C.F.R. §§ 1003.1(d)(2)(i)(A), .3(b); see In re Valencia, 19 I. & N. Dec. 354, 355 (BIA 1986), states: "You must clearly explain the specific facts and law on which you base your appeal of the Immigration Judge's decision. The Board may summarily dismiss your appeal if it cannot tell from this Notice of Appeal, or any statements attached to this Notice of Appeal, why you are appealing."

The Board could have invoked this rule and dismissed Pasha's appeal summarily because the passage we quoted in which her lawyer explained the reasons for the appeal was wholly lacking in specificity. 8 C.F.R. § 1003.3(b); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820-21 (9th Cir.2003); Bayro v. Reno, 142 F.3d 1377, 1379 (11th Cir.1998); Townsend v. U.S. Dep't of Justice INS, 799 F.2d 179, 182 (5th Cir.1986). But the Board did not do this. Instead it affirmed on the merits — as it was entitled to do. The requirement of specificity is not jurisdictional. The Board can waive a failure to exhaust, Abdelqadar v. Gonzales, 413 F.3d 668, 670-71 (7th Cir.2005), and so can choose between dismissing the appeal for failure to comply with the requirement of specificity and waiving the failure and proceeding to the merits. It chose the latter course in this case as in Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir.2005).

There is an analogy to the jurisdiction of the Supreme Court (and of lower federal courts in habeas corpus proceedings brought by state prisoners) to review state court decisions. Suppose that in the state supreme court the defendant argues that a critical ruling against him at trial violated his federal constitutional rights. Only he failed to object at trial and under state law that is a forfeiture and the state supreme court is not required to consider the objection. But the court decides to ignore the forfeiture and goes ahead and decides the merits of the constitutional challenge. If the defendant then seeks review in the U.S. Supreme Court, the state cannot challenge the Court's jurisdiction on the ground that he had forfeited his objection and therefore its rejection by the state supreme court rests on an adequate state ground. For that was not the ground (not even an alternative ground) of the state supreme court's decision. E.g., Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Harris v. Reed, 489 U.S. 255, 260-61, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Ford v. Johnson, 362 F.3d 395, 397-98 (7th Cir.2004). The government has given us no reason to take a different approach to challenges that the Board of Immigration Appeals could have rebuffed on unexceptionable procedural grounds but chose instead to reject on the merits. Hassan v. Gonzales, supra, 403 F.3d at 433.

The government's lawyer conceded at argument that if the Board, rather than affirming summarily, had written an opinion, failure to exhaust administrative remedies would not be a bar to our consideration of the merits. We don't get the distinction. Summary affirmance without opinion has become a common method by which busy tribunals, including several of the federal courts of appeals, dispose of many cases — on the merits. We are given no reason to suppose that summary affirmances by the Board have a different meaning — specifically, that they are dismissals of the appeal whenever there are grounds for dismissal even if the Board says "affirmed" and even though the Board's rules distinguish between affirmance and dismissal.

But when there is no opinion and no brief or statement of grounds in the notice of appeal, it becomes uncertain what exactly the Board decided when it affirmed the immigration judge's decision. The Board in this case may have confined its merits determination to the question of the evidence bearing on the risk of future persecution, since that was the only question flagged in the notice of appeal, and may have ignored the adequacy of the document expert's testimony, which related to evidence of past persecution, on the ground that Pasha had failed to exhaust that claim. Such an inference would be plausible had the Board said it was confining its attention to the question of the risk of future persecution and disregarding the others because they hadn't been mentioned in the notice. But it couldn't have said that in this case; for when the appeal is decided by a single member of the Board, he "shall issue an order that reads as follows: `The Board...