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 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, 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 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
No. 04-4166 3

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
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 noticeof-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); RojasGarcia 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 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 (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 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
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 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 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 reasoning.” 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 necessarily imply approval of all of the reasoning of that decision.” § 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 ineligibility 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 affirmance 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 jurisdiction 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 government’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 committed 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 required 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 second 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 infirmities 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. Gonzales, 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 proceedings than in judicial ones.” Id. Not knowing Albanian, 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, whenever 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 likelihood that purportedly official Albanian documents produced 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 voluntary departure if like Pasha they apply promptly for asylum
No. 04-4166 11

upon entering the United States, because, if we may judge 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 denial 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 remedies. 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); McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 981-82

and n. 3 (9th Cir. 2002), the Board of Immigration Appeals 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 questions—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 require 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 proceedings 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