Magala v. Gonzales, No. 04-2819.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | Easterbrook |
| Citation | 434 F.3d 523 |
| Parties | Olga MAGALA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent. |
| Docket Number | No. 04-2819. |
| Decision Date | 27 December 2005 |
Page 523
v.
Alberto R. GONZALES, Attorney General of the United States, Respondent.
Page 524
Robert A. Perkins, Perkins & Associates, Chicago, IL, for Petitioner.
Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Christopher C. Wang, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before COFFEY, EASTERBROOK, and WILLIAMS, Circuit Judges.
EASTERBROOK, Circuit Judge.
In July 1999 an Immigration Judge ordered Olga Magala to be removed to her native Ukraine. In May 2002, while her administrative appeal was still pending, she married a U.S. citizen and applied for a visa as his relative. This was approved in December 2002. Her lawyer, Michael Thoren, asked the Board of Immigration Appeals to reopen her proceedings (which it still had under advisement) so that she could adjust her status to that of lawful permanent resident. This provoked the
Page 525
Board to act. In April 2003 it dismissed (for lack of merit) the appeal from the July 1999 ruling, observed that it could not "reopen" a proceeding that was still open, and declined to remand to the IJ for adjustment of status because Thoren had failed to provide the application for that relief required by 8 C.F.R. § 1003.2(c)(1), (4). The Board noted, however, that Magala could submit the application within the time allowed for a (proper) motion to reopen. It wrapped up by giving Magala 30 days to depart voluntarily.
Thoren had to act quickly. The clock was ticking on the period to submit the application for adjustment of status and on the period for voluntary departure. The latter window was the shorter one, and, unless it was extended or cancelled, Magala had to leave and wait abroad for the processing of her request for permanent residence. A person who is given the opportunity for voluntary departure yet remains in the United States loses for five years any opportunity to obtain discretionary relief such as adjustment of status. See 8 U.S.C. § 1252b(e)(2)(A) (1994 ed.; repealed 1996); Alimi v. Ashcroft, 391 F.3d 888 (7th Cir.2004). The current version of this law has a 10-year rather than a 5-year ban, plus some other changes. See 8 U.S.C. § 1229c. We cite the older one because Magala was placed in removal proceedings before the 1996 legislation, and under its transition rules the former version of this bar still applies to her. 110 Stat. 3009-546, 625-27 (1996).
With time pressing, Thoren sat on his hands. He put off telling Magala that her appeal had been decided. He did not file a prompt application for adjustment of status or ask the Board to extend or rescind the privilege of voluntary departure so that adjustment of status would remain available. But in June 2003 Thoren filed a motion to reopen, with the appropriate documentation, and the Board told him the next month that it was too late: because Magala had failed to depart during the 30 days, she had forfeited any opportunity to adjust her status based on her marriage. Thoren did not bother to tell Magala about this decision.
In November 2003 Magala sought Thoren's help in extending her right to engage in employment while her appeal was pending. Only then did she learn that the appeal had been resolved months earlier. Magala fired Thoren; her new counsel, Tzvetelina Boynovska, filed a disciplinary complaint against Thoren with state officials, a step necessary before seeking relief from the Board based on his lapses. See Matter of Lozada, 19 I & N Dec. 637 (1988); Matter of Assaad, 23 I & N Dec. 553 (2003). Thoren conceded to the Illinois Attorney Registration and...
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Matter of Compean, Interim Decision No. 3632.
...e.g., Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); see also Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (suggesting the same in dictum); Stroe v. INS, 256 F.3d 49......
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Singh v. Gonzales, No. 05-16005.
...Amendment challenge and, as our cases reflect, the contours of the claim depend on the factual circumstances. But see Magala v. Gonzales, 434 F.3d 523, 526 (7th 3. 8 U.S.C. § 1252(b)(1) ("The petition for review must be filed not later than 30 days after the date of the final order of remov......
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Jezierski v. Mukasey, No. 07-3569.
...664, 676 (7th Cir.2004), had seemed to suggest a broad power, but Patel v. Gonzales, 496 F.3d 829, 831 (7th Cir.2007); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir.2005), and Stroe v. INS, 256 F.3d 498 (7th Cir.2001), a narrow one. There is a similar tension among circuits. Compare Omar v......
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Al-Saka v. Sessions, No. 17-3951
...F.3d 788, 799 (4th Cir. 2008), vacated on other grounds , 558 U.S. 801, 130 S.Ct. 350, 175 L.Ed.2d 4 (2009) (mem.); Magala v. Gonzales , 434 F.3d 523, 525 (7th Cir. 2005) ; Singh v. Lynch , 803 F.3d 988, 993–94 (8th Cir. 2015) ; Rafiyev v. Mukasey , 536 F.3d 853, 861 (8th Cir. 2008) ; cf. U......
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Matter of Compean, Interim Decision No. 3632.
...e.g., Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005); see also Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (suggesting the same in dictum); Stroe v. INS, 256 F.3d 49......
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Singh v. Gonzales, No. 05-16005.
...Amendment challenge and, as our cases reflect, the contours of the claim depend on the factual circumstances. But see Magala v. Gonzales, 434 F.3d 523, 526 (7th 3. 8 U.S.C. § 1252(b)(1) ("The petition for review must be filed not later than 30 days after the date of the final order of remov......
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Jezierski v. Mukasey, No. 07-3569.
...664, 676 (7th Cir.2004), had seemed to suggest a broad power, but Patel v. Gonzales, 496 F.3d 829, 831 (7th Cir.2007); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir.2005), and Stroe v. INS, 256 F.3d 498 (7th Cir.2001), a narrow one. There is a similar tension among circuits. Compare Omar v......
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Al-Saka v. Sessions, No. 17-3951
...F.3d 788, 799 (4th Cir. 2008), vacated on other grounds , 558 U.S. 801, 130 S.Ct. 350, 175 L.Ed.2d 4 (2009) (mem.); Magala v. Gonzales , 434 F.3d 523, 525 (7th Cir. 2005) ; Singh v. Lynch , 803 F.3d 988, 993–94 (8th Cir. 2015) ; Rafiyev v. Mukasey , 536 F.3d 853, 861 (8th Cir. 2008) ; cf. U......