Korsunskiy v. Gonzales

• Decision Date: 23 August 2006
• Docket Number: No. 05-4120.,05-4120.
• Citation: 461 F.3d 847
• Parties: Vitaliy KORSUNSKIY, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

461 F.3d 847

Vitaliy KORSUNSKIY, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-4120.

United States Court of Appeals, Seventh Circuit.

Argued August 9, 2006.

Decided August 23, 2006.

John L. Sesini (argued), Milwaukee, WI, for Petitioner.

Erin R. Lewis (argued), Office of the United States Attorney, Indianapolis, IN, Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Andrew C. MacLachlan, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Vitaliy Korsunskiy emigrated to the United States from Ukraine and in 1994 received permission to remain as a permanent resident. Unfortunately he chose to violate several criminal statutes and accumulated at least three convictions (one for theft, one for disorderly conduct with a weapon, and one for attempted theft); immigration officials believe that these are "crimes of moral turpitude." When he tried to reenter the United States after a trip abroad, Korsunskiy was stopped and served with a notice that the convictions rendered him inadmissible. Convictions for crimes of moral turpitude bar an alien from the United States and cut off various avenues of discretionary relief from that exclusion. If none of Korsunskiy's convictions is for a crime of moral turpitude then he is entitled to seek a waiver of inadmissibility under 8 U.S.C. § 1182(h), and if only one of his convictions is for a crime of moral turpitude then he is eligible for a petty-offense exception. But any one crime of moral turpitude will cut off Korsunskiy's entitlement to judicial review of the resulting discretionary decision, restricting our role to a search for pure errors of law. See 8 U.S.C. § 1252(a)(2)(C), referring to 8 U.S.C. § 1182(a)(2); the exception is in § 1252(a)(2)(D).

Korsunskiy proceeded to minimize his chance of prevailing by appearing at the hearing without counsel (though he had ample opportunity to retain a lawyer). He conceded that his convictions make him inadmissible, and when both the lawyer for the agency and the immigration judge stated that these convictions make him ineligible for discretionary relief he did not reply. His only argument was that he has a medical condition that is likely to receive better care in the United States than in Ukraine; the IJ responded that the convictions cut off Korsunskiy's entitlement to relief on humanitarian grounds, though the IJ added that he could still ask administrative officials not to execute the order of removal (a decision that is not reviewable as a result of 8 U.S.C. § 1252(g)).

Perhaps recognizing that he should not have attempted to go it alone, Korsunskiy then engaged counsel, who prosecuted an administrative appeal on his behalf. But the appeal contested the characterization of only two of the three convictions; one (the conviction for theft) was and is conceded to be a "crime of moral turpitude." The brief argued that the other two do not count: one is civil rather than criminal, counsel maintained, and the other is too trivial to support removal. Counsel insisted that a single countable conviction that led to a sentence under six months does not cut off all possibility of discretionary relief, as the IJ (thinking that Korsunskiy had three convictions for crimes of moral turpitude) had supposed. That did not persuade the Board of Immigration Appeals, which affirmed without opinion.

Korsunskiy's petition for judicial review has been met with the contention that because at least one conviction for a crime of moral turpitude is established (indeed conceded), we must dismiss for lack of jurisdiction. We retain authority to entertain strictly legal points, and the classification of a conviction (as "crime of moral turpitude" or "aggravated felony" or "petty offense" or any of several other categories that matter to immigration status) is a legal question. See Yang v. INS, 109 F.3d 1185 (7th Cir.1997). But there's a further problem: a legal point is available in court only if it was properly presented to the agency. 8 U.S.C. § 1252(d)(1).

The agency contends that this exhaustion requirement, too, is "jurisdictional." It is not. See Abdelqadar v. Gonzales, 413 F.3d 668, 670-71 (7th Cir.2005). Exhaustion is a condition to success in court but not a limit on the set of cases that the judiciary has been assigned to resolve. A genuine jurisdictional limit keeps the case or controversy out of court; case-processing rules for disputes that the federal judiciary has been authorized to resolve are not "jurisdictional." See Eberhart v. United States, ___ U.S. ___, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005). The agency therefore may waive or forfeit the exhaustion issue, something that it could not do for a genuinely "jurisdictional" limit.

Instead of waiving or forfeiting anything, however, the agency has stood on its rights. It points out, correctly, that counsel's arguments to the Board and this court were not presented to the immigration judge, so by the time they were raised on administrative appeal it was already too late. Korsunskiy responds that exhaustion should be unnecessary when an alien appears pro se. The immigration judge has a duty not to mislead an alien and ensure that there is good ground for removal or exclusion. The absence of counsel, in other words, is not an adequate justification for ruling against the alien; the agency still must prove its contentions in a fairly conducted...