The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4166
KLODIANA PASHA,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A79 290 656
____________
ARGUED NOVEMBER 9, 2005—DECIDED DECEMBER 29, 2005
____________
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 Immigra-
tion 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 Litiga-
tion. See Benslimane v. Gonzales, No. 04-1339, 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.
2 No. 04-4166
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 submit-
ting 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 docu-
ments had been produced by color laser technology, which
he testified was not a normal way in which a form docu-
ment 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 hand-
writing that filled in the blanks in them, did not contain the
diacritical marks (accents) that are part of the spelling of
No. 04-4166 3
many of the Albanian words in that text. Epstein acknowl-
edged, 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 docu-
ments 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 Immigra-
tion 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 pro-
vided, 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
4 No. 04-4166
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 regula-
tion, 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).
No. 04-4166 5
There is an analogy to the jurisdiction of the Supreme
Court (and of lower federal courts in habeas corpus pro-
ceedings 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 (1991);
Harris v. Reed, 489 U.S. 255, 260-61 (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 ap-
peals, 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
6 No. 04-4166
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 ques-
tion of the evidence bearing on the risk of future persecu-
tion, 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 evi-
dence 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 affirms, without opinion, the result of the
decision below. The decision below is, therefore, the final
agency determination. See 8 CFR 1003.1(e)(4).’ An order
affirming without opinion, issued under authority of this
provision, shall not include further explanation or reason-
ing.” 8 C.F.R. § 1003.1(e)(4)(ii). The regulation further
provides that to be authorized to decide the appeal the
single member must have “determine[d] that the result
reached in the decision under review was correct; [and] that
any errors in the decision under review were harmless or
nonmaterial,” § 1003.1(e)(4)(i), and this might seem to imply
that the single member in this case must have reached the
merits, agreed with the immigration judge, and not
No. 04-4166 7
relied on any procedural pratfalls. But this is uncertain
because the regulation further provides that the single
member’s order of summary affirmance merely “approves
the result reached in the decision below; it does not neces-
sarily imply approval of all of the reasoning of that deci-
sion.” § 1003.1(e)(4)(ii).
An inference that the “blind” affirmance by the single
Board member was not actually based on a resolution of the
merits of all the issues decided by the immigration judge
would be plausible if the appellant had filed a brief limited
to a single question (implying waiver of other questions), or
if the notice of appeal had stated one question with the
requisite specificity and passed over the other questions in
silence (again implying waiver), as in Zara v. Ashcroft, 383
F.3d 927, 931 (9th Cir. 2004), or if the other questions were
patently without merit, 8 C.F.R. § 1003.1(e)(4)(i), or had not
even been presented to the immigration judge, or were
beyond the competence of the Board to resolve. But none of
these things is true in this case, except the last, and it is not
a bar to our consideration of a question, as we’ll see when
we discuss Pasha’s constitutional complaint about ineligibil-
ity for voluntary departure if her asylum claim is denied.
The documents issue had been central to the proceedings
before the immigration judge, he had discussed it at
length, and though it was not mentioned in the notice of
appeal, the question that was mentioned—concerning
the evidence of future persecution—wholly lacked the
specificity required by the Board’s rules. So if the Board
member considered the merits, as his summary affirm-
ance indicates, it is unlikely that without saying so he
had failed to consider the main issue presented to the
immigration judge. We conclude that we have jurisdic-
tion to consider it.
8 No. 04-4166
The government’s misplaced confidence that we lack
jurisdiction to consider that issue is paralleled by the
misplaced confidence of Pasha’s lawyer that the govern-
ment’s jurisdictional argument was so negligible as
to dispense with any need to explore alternative grounds for
preventing the removal of his client besides errors commit-
ted by the immigration judge. He might have argued that
Pasha’s previous lawyer had rendered ineffective assistance
of counsel by failing to attach to the appeal brief the re-
quired certificate of service, Benslimane v. Gonzales, supra, at
*3, or that the Board should stay Pasha’s removal to allow
an immigration judge to rule on her application to adjust
her status to that of a lawful resident on the basis of her
having married an American citizen and had a child by him.
To make either argument, Pasha’s current lawyer would
have had to file with the Board a motion to reopen pursuant
to 8 C.F.R. § 1003.2(c), along with a motion to stay Pasha’s
removal pending a decision on the motion to reopen. (Filing
a motion to reopen does not automatically stay the removal
order. 8 C.F.R. § 1003.2(f).) Even if he had done that, his sec-
ond argument, at least, would probably have failed; because
the marriage took place after the initiation of removal
proceedings, the Board would have granted the motion and
stayed removal only if the government had not objected to
the reopening. In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256-
57 (BIA 2002).
Pasha’s lawyer is luckier than the government’s. His
gamble succeeded, and now the government finds itself
in the awkward position of having failed to respond to
the merits of its opponent’s appeal. This does not result
in an automatic reversal. An appellee (or “respondent,”
as the appellee in an appeal from an administrative
agency to a court is called) is not required to file a brief,
or otherwise participate. Fed. R. App. P. 31(c); 7th Cir.
No. 04-4166 9
R. 31(d); Allgeier v. United States, 909 F.2d 869, 871-72 n. 3
(6th Cir. 1990). The court must still determine as best it
can the merits of the appeal and reverse only if it decides
that the appeal is indeed meritorious.
The principal ground of the appeal relates to the in-
firmities in document expert Epstein’s evidence. He
should not have been permitted to testify. Although the
Daubert filter against unreliable expert testimony is not
strictly applicable to proceedings before administrative
agencies, such as the Immigration Court, the “spirit of
Daubert” is applicable to them. Rodriguez Galicia v. Gon-
zales, 422 F.3d 529, 539 (7th Cir. 2005); Niam v. Ashcroft,
354 F.3d 652, 660 (7th Cir. 2004). As we said in Niam,
“ ’Junk science’ has no more place in administrative pro-
ceedings than in judicial ones.” Id. Not knowing Al-
banian, Epstein was not a proper witness to testify that
Albanian is always written with diacritical marks. Hebrew
for example is normally written without diacritical
marks (signifying vowels). Even if Albanians would like
to use the diacritical marks in all their printed texts,
their ability to do so would depend on the existence of
typewriter or computer fonts in Albanian, and we are
not told whether, when the documents in question were
printed (and we do not even know when that was), the
Albanian government—which had emerged from the era
of communist dictatorship in a state of extraordinary
disarray, U.S. Department of State, “Background Note:
Albania” (Sept. 2005), http://www.state.gov/r/pa/ei/
bgn/3235.htm—possessed such fonts.
As for Epstein’s speculation that the Albanian government
would not use color laser printing to prepare official forms,
this again depends on something about which Epstein is
confessedly ignorant, namely that government’s printing
10 No. 04-4166
resources at the time these documents were printed, when-
ever that was. Considering the number of asylum applicants
from Albania and the fact that there are an estimated
400,000 to one million Albanians in the United States, Bernd
J. Fischer, “Albanian Refugees Seeking Political Asylum in
the United States: Process and Problems,” 31 Journal of
Ethnic & Migration Studies 193, 195 (2005); Diana Jean
Schemo, “Long-Distance Ties That Bind,” N.Y. Times, May
1, 1999, p. B1, the Department of Homeland Security should
be able to find a witness competent to testify to the likeli-
hood that purportedly official Albanian documents pro-
duced by color laser printing and barren of diacritical marks
probably were forged.
Pasha also presents a constitutional challenge. We do
not have to consider it, since the government does
not discuss it and since the challenge will be moot if
Pasha, on remand, prevails on her asylum claim and thus
establishes her right to remain in the United States. We
mention it only for its bearing on exhaustion.
Some illegal aliens whom the government seeks to remove
are eligible for voluntary departure in lieu of removal.
Voluntary departure confers a variety of advantages,
especially on aliens wanting another shot at becoming legal
residents of the United States. Alimi v. Ashcroft, 391 F.3d 888,
892 (7th Cir. 2004); Bocova v. Gonzales, 412 F.3d 257, 265 (1st
Cir. 2005); but cf. Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651
(7th Cir. 2004). But to be eligible for voluntary departure the
alien must have lived in the United States continuously for
at least a year before being served with a notice to appear at
a removal proceeding. 8 U.S.C. § 1229c(b)(1)(A). Pasha
did not.
It is difficult for asylum applicants to qualify for volun-
tary departure if like Pasha they apply promptly for asylum
No. 04-4166 11
upon entering the United States, because, if we may judg-
e from cases like Shire v. Ashcroft, 388 F.3d 1288, 1294
(9th Cir. 2004), and Prokopenko v. Ashcroft, 372 F.3d 941,
943 (8th Cir. 2004), they are likely to receive their notice
to appear within a few months of filing their applications.
But they have a year from entry to apply for asylum,
8 U.S.C. § 1158(a)(2)(B), and so by waiting till the end of
the period to file their application for asylum they can
protect their eligibility for voluntary departure. Pasha
argues that because it wants removal proceedings to be
completed as soon as possible after the arrival of the illegal
alien, the government is being perverse and arbitrary,
and thus denying the equal protection of the laws (a de-
nial of equal protection, when committed by the federal
government, violates the due process clause of the
Fifth Amendment), by discriminating against prompt
applicants for asylum, such as herself. Cf. Francis v. INS, 532
F.2d 268, 272-73 (2d Cir. 1976); Hernandez-Mezquita
v. Ashcroft, 293 F.3d 1161, 1163-64 (9th Cir. 2002).
Whatever the merits of the argument, it is not subject
to the requirement of exhaustion of administrative rem-
edies. Sayaxing v. INS, 179 F.3d 515, 522 (7th Cir. 1999);
Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir.
2005); Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir.
2004). Like most administrative agencies, see, e.g.,
Nebraska v. EPA, 331 F.3d 995, 997 (D.C. Cir. 2003); Mc-
Bride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 981-82
and n. 3 (9th Cir. 2002), the Board of Immigration Ap-
peals refuses to adjudicate the constitutionality of the
statutes under which it operates, see Soberanes v. Comfort,
supra, 388 F.3d at 1310; Liu v. Waters, 55 F.3d 421, 426 (9th
Cir. 1995); In re L-S-J, 21 I. & N. Dec. 973, 974 (BIA 1997),
such as the statute requiring a year’s residency in order
to be eligible for voluntary departure. Actually, these
12 No. 04-4166
cases and many others, e.g., Johnson v. Robinson, 415 U.S.
361, 368 (1974), say that agencies have no jurisdiction to
decide such issues.
Why agencies refuse to pass on constitutional ques-
tions—why indeed they might lack jurisdiction to do
so—has never been adequately explained. The Federal
Trade Commission thinks the refusal inconsistent with
Article VI of the Constitution, which both makes the
Constitution, along with federal statutes and treaties, “the
supreme Law of the Land” and requires all federal and state
officers to take an oath to “support this Constitution.” In re
Verrazzano Trading Corp., 91 F.T.C. 888, 952-53 (1978). But the
“law of the land” provision in the Constitution is intended
merely to confirm the supremacy of federal law, and the
oath is a pledge of fealty to that supremacy; these are not
delegations to every subordinate official to indulge his
private interpretations of the Constitution. The BIA is a
subordinate unit in the Department of Justice, and the
Attorney General may simply want to reserve to himself, or
to the courts, any judgment as to the constitutionality of the
Board’s procedures. See Oestereich v. Selective Service System
Local Bd. No. 11, 393 U.S. 233, 242-43 (Harlan, J., concurring).
There is also a competence issue, see id.; McBride Cotton &
Cattle Corp. v. Veneman, supra, 290 F.3d at 981-82 and n. 3;
remember that the appeal here was to a single member of
the Board.
But all that matters is that if the Board of Immigration
Appeals for whatever reason won’t consider constitutional
challenges—and it won’t—there is scant reason to re-
quire the alien to make them to the Board. And so the
government’s failure to address Pasha’s constitutional
argument, on the ground that the appeal is barred by the
exhaustion doctrine, is another lapse. This case has been
No. 04-4166 13
poorly handled by the government at every stage: the
proceeding before the immigration judge, the summary
affirmance by the Board of Immigration Appeals, and the
decision by the government in this court to put all its eggs in
a basket that it should have known would not hold them.
The order of removal is vacated and the case returned
to the Board of Immigration Appeals for further proceed-
ings consistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-29-05