Stroe v. Immigration & Naturalization Service

• Citation: 256 F.3d 498
• Decision Date: 26 June 2001
• Docket Number: No. 00-2934,00-2934
• Parties: (7th Cir. 2001) Angela Stroe and Marin Stroe, Petitioners, v. Immigration and Naturalization Service, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 498

256 F.3d 498 (7th Cir. 2001)

Angela Stroe and Marin Stroe, Petitioners, v. Immigration and Naturalization Service, Respondent.

No. 00-2934

In the United States Court of Appeals For the Seventh Circuit

Argued February 21, 2001

Decided June 26, 2001

Petition for Review of an Order of the Board of Immigration Appeals.

Before Posner, Kanne, and Diane P. Wood, Circuit Judges.

Posner, Circuit Judge.

An immigration judge ordered the Stroes deported ("removed" is the current term) because they were deportable and were ineligible for asylum. They appealed to the Board of Immigration Appeals from the denial of asylum, but the Board dismissed their appeal because they failed to file a brief. They moved the Board to reopen the case and decide their appeal, but the Board denied their motion. They ask us to reverse the denial.

When the Stroes filed their original appeal with the Board they were represented by a lawyer named Larry E. Adkison. The brief was due on January 23, 1995, but Adkison requested an extension of 30 or 60 days and received a 30-day extension, to February 23. Adkison did not file the brief, however, until May 30 and the Board did not receive it until June 6--the day after the Board had dismissed the appeal because the brief hadn't been filed. The motion to reopen, presented by new counsel, accused Adkison of having rendered ineffective assistance in failing to file the brief within the extended deadline for doing so.

The Stroes argue that the Board denied due process of law when it dismissed the appeal for failure to file a timely brief without having notified them of the possibility that dismissal might be a consequence of such a failure. The argument borders on the frivolous. The appeal was dismissed more than three months after the extended deadline for filing a brief had passed. Adkison had asked for a 30- or a 60-day extension of time for filing the brief and had gotten 30 days, which should have contented him and apparently did, for he requested no further extension. The Board was under no duty, either constitutional or statutory, to send him periodic reminders. An appellant's failure to file a brief is a serious procedural default, and, at least when the appellant is represented by counsel, as in the present case, or declines an offer of counsel, dismissal is an appropriate sanction. This is recognized in numerous immigration cases, e.g., Perez-Rodriguez v. INS, 3 F.3d 1074, 1080 (7th Cir. 1993); Castaneda- Suarez v. INS, 993 F.2d 142, 146 (7th Cir. 1993); Huicochea-Gomez v. INS, 237 F.3d 696, 700-01 (6th Cir. 2001); Nazakat v. INS, 981 F.2d 1146, 1148-49 (10th Cir. 1992); Toquero v. INS, 956 F.2d 193, 196- 97 (9th Cir. 1992), though denied in a few others, in particular Medrano- Villatoro v. INS, 866 F.2d 132, 134 (5th Cir. 1989), and Escobar-Ramos v. INS, 927 F.2d 482, 483-84 (9th Cir. 1991).

The Stroes also argue that their motion should have been granted because the assistance that Adkison had given them was ineffective. The parties do not discuss the source or nature of a right to effective counsel in deportation proceedings. Expressly left open in our recent decision in Chowdhury v. Ashcroft, 241 F.3d 848, 854 (7th Cir. 2001), the existence of the right is assumed in a number of cases, e.g., Henry v. INS, 8 F.3d 426, 440 (7th Cir. 1993); Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir. 2001); Iavorski v. INS, 232 F.3d 124, 128 (2d Cir. 2000); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999); Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990), but only Iavorski actually reversed the denial of relief on this ground. The statements in the other opinions are dicta.

The right assumed in the cases is not absolute, but is limited to situations in which the denial of effective counsel results in a denial of due process. Even the limited right stands on weak ground, however. Deportation proceedings are civil, and so, as all the cases that we have cited recognize, the Sixth Amendment is not in play. Ambati v. Reno, 233 F.3d 1054, 1061 (7th Cir. 2000). The general rule, certainly, is that civil litigants have no constitutional right to the assistance of counsel, Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir. 1997); Young v. Murphy, 90 F.3d 1225, 1235 (7th Cir. 1996); DeSilva v. DiLeonardi, 181 F.3d 865, 868 (7th Cir. 1999), and therefore no constitutional right to effective assistance of counsel. E.g., Coleman v. Thompson, 501 U.S. 722, 753-54 (1991); Anderson v. Cowan, 227 F.3d 893, 901 (7th Cir. 2000); Bell v. Eastman Kodak Co., 214 F.3d 798, 802 (7th Cir. 2000); Barkauskas v. Lane, 946 F.2d 1292, 1294 (7th Cir. 1991); Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990); United States v. 87 Blackheath Rd., 201 F.3d 98 (2d Cir. 2000) (per curiam). So the fact that like other civil litigants an alien in a deportation proceeding is allowed to hire a lawyer at his own expense, 8 U.S.C. sec. 1362, gives him no right to complain if the lawyer he hires is ineffective.

The nonright to effective assistance of counsel in civil cases is the rule even when the proceeding though nominally civil involves liberty or even life, as in a capital habeas corpus case, where the Supreme Court has held that there is no right to effective assistance of counsel. Murray v. Giarratano, 492 U.S. 1 (1989); see also Pennsylvania v. Finley, 481 U.S. 551 (1987). None of the cases that assume there is a right to effective assistance of counsel in deportation proceedings considers the bearing of Murray or Finley (which seem, incidentally, to have cut back on earlier cases according a Fifth Amendment right to counsel when physical liberty is at stake in a noncriminal proceeding, see Lassiter v. Dept. of Social Services, 452 U.S. 18, 31-32 (1981); In re Gault, 387 U.S. 1, 36 (1967)) or of any of the other decisions that hold that civil litigants have no right to effective assistance of counsel beyond what the law of legal malpractice grants them. The discussion of the source of the assumed right in the deportation cases is distinctly perfunctory.

It may help to distinguish two situations. In one the immigration bureaucracy finds a lawyer for an alien. It may have an obligation to find a competent lawyer, as we suggested in DeSilva v. DiLeonardi, supra, 181 F.3d at 869, in the same way that a state that puts a child in a foster home has to choose competent foster parents even though it may have no legal obligation to help the child in the first place. In the second situation, which is the usual and the present case, the alien finds his own lawyer. Then one would think that as in other civil cases the lawyer's shortcomings would be imputed to the client, Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962), leaving the latter with a malpractice action rather than a right to continue litigating against the original adversary (the INS). In criminal cases, it is true, the distinction is erased; the Sixth Amendment is interpreted to impute even a retained lawyer's goof-ups to the state, Cuyler v. Sullivan, 446 U.S. 335, 342-45 (1980)-- but then the Sixth Amendment creates a right to counsel, whereas all that the due process clause requires, so far as procedure is concerned, is notice and an opportunity for a hearing. Nothing in the clause implies a guarantee that the litigant or his lawyer will take good advantage of the opportunity.

We suggested in DeSilva v. DiLeonardi, supra, 181 F.3d at 869, an extradition case, that it might be arguable that more process and protection are due when the INS acts as a "prosecutor" in deportation cases. Cf. Cuyler v. Sullivan, supra, 446 U.S. at 343. That may be thought the outermost limit of moving the Fifth Amendment in the direction of the Sixth. The Stroes' situation, however, does not involve any issue on which the INS bears the burden of persuasion. They concede deportability and seek a favorable exercise of discretion with respect to asylum.

This discussion shows that the question whether there is ever a constitutional right to counsel in immigration cases is ripe for reconsideration. But not in this case. The Board of Immigration Appeals has decided that ineffective assistance of counsel is a valid ground for reopening a deportation case in "egregious circumstances." In re Lozada, 19 I&N 637 (BIA), aff'd, 857 F.2d 10 (1st Cir. 1988); In re B-B, Interim Decision 3367, 1998 WL 694640 (BIA 1998). We may assume, without having to decide because the issue is not raised, that the Board's decision to allow aliens to claim ineffective assistance of counsel as a basis for reopening deportation proceedings is within the scope of the Board's discretionary authority even though it probably is not compelled by statute or the Constitution. The Board's failure to give any reason for the decision troubles us, however; we worry that the Board may not be cognizant of the relevant precedents governing the right to counsel in civil cases. But that, too, is an issue for another day.

Concerned, however, with the use of delay as a common tactic in resisting deportation, because the longer the alien is in this country the more likely he is to accrue "equities" that will make it more difficult to deport him, INS v. Rios-Pineda, 471 U.S. 444, 450 (1985); Stone v. INS, 514 U.S. 386, 399-400 (1995); INS v. Doherty, 502 U.S. 314, 323 (1992); Guan v. INS, 49 F.3d 1259, 1262- 63 (7th Cir. 1995); Rhoa-Zamora v. INS, 971 F.2d 26, 33 (7th Cir. 1992); Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999); Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999); Shaar v. INS, 141 F.3d 953, 957 (9th Cir. 1998); Saiyid v. INS, 132 F.3d 1380, 1384 (11th Cir. 1998), the Board in In re Lozada, supra, created an ingenious screen to prevent strategic invocation of ineffective assistance. The screen requires that a motion to reopen deportation proceedings because of ineffective assistance of couns...