In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2351

Dragan Dimenski,

Petitioner,

v.

Immigration and Naturalization Service,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

Argued December 4, 2001--Decided December 19, 2001

 Before Bauer, Posner, and Easterbrook,

Circuit Judges.

 Easterbrook, Circuit Judge. Dragan

Dimenski, who entered the United States

as a tourist in 1987, failed to leave

when his visa expired. After being

caught, he filed an application for

asylum. That application was denied on

initial review and then abandoned. Today

he seeks suspension of deportation so

that he can apply for permanent-resident

status as the relative of a U.S. citizen

(his daughter Susana). Suspension of

deportation is not available, however, to

an alien excluded from the United States;

such an alien must return to his native

land and wait ten years before obtaining

a new visa there. 8 U.S.C. sec.1182(a)(9)

(A)(ii). In this petition for review of

the order excluding him, Dimenski

contends that he is not subject to

exclusion (as opposed to deportation)

because he entered the country initially

on a valid visa.

 If Dimenski had remained in the United

States continuously since 1987,

deportation would be the appropriate

action. (Proceedings commenced before

April 1, 1997, the effective date of the

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. 104-

208, 110 Stat. 3009, so we use the

terminology and rules of the former law

rather than the unified removal

proceeding under the new statute.) But he
took a month-long trip outside the United

States in 1993 to visit a sick relative.

Before leaving he sought "advance

parole"--that is, assurance that he would

be readmitted to the United States

notwithstanding the lack of a visa. 8

U.S.C. sec.1182(d)(5). His request was

granted, and he was readmitted without

hassle when he returned. "Without hassle"

differs from "without consequence"; a

person paroled into the United States

(before the effective date of the iirira)

normally is placed into exclusion rather

than deportation proceedings, and the

rights of aliens differ in the two kinds

of proceedings. See Landon v. Plasencia,

459 U.S. 21, 25-27 (1982).

 Counsel representing the ins either

believed otherwise initially or just did

not think about the significance of the

parole. The ins opened a deportation

proceeding in September 1994 by issuing

an order to show cause. But in March 1995

the ins filed a motion to dismiss the

deportation proceeding in order to clear

the way for an exclusion proceeding.

Dimenski, represented by counsel, did not

respond to this motion, which the

immigration judge granted in due course.

The Board of Immigration Appeals

dismissed Dimenski’s appeal, observing

that he was not aggrieved by the

termination of the only proceeding then

pending. In November 1996 the ins got

exclusion proceedings under way. Dimenski

did not seek any of the options (such as

asylum) available to aliens in exclusion

proceedings, and an order excluding him

eventually was entered. Once again the

Board of Immigration Appeals dismissed

his appeal, this time stating that

Dimenski had forfeited all opportunity to

resist exclusion when his lawyer failed

to oppose dismissal of the deportation

proceeding in 1995.

 Taking a cue from the bia’s decision,

the ins argues that this court lacks

jurisdiction because Dimenski failed to

use all of his administrative remedies.

This is a confused position. Failure to

make the right argument at the right time

before an immigration judge may work a

forfeiture, but it does not divest this

court of jurisdiction when an alien has

filed a timely petition to review a final

administrative decision. We have ample

authority to determine whether an alien

adequately preserved his legal position
in the administrative process; indeed we

have jurisdiction to determine the scope

of our own authority even when the agency

believes that the alien has committed

crimes or otherwise performed an act that

disqualifies him from judicial review of

his substantive position. See Yang v.

INS, 109 F.3d 1185 (7th Cir. 1997).

Likewise the bia was confused. It seems to

have believed that the motion to dismiss

filed in March 1995 put at issue the

propriety of exclusion proceedings. Yet

it did not. The only relief sought was

dismissal of the deportation action,

which Dimenski had no reason to oppose--

after all, if the ins failed to initiate

a new proceeding, then his place in the

United States was secure. The reason the

ins sought dismissal is irrelevant. To see

this consider a criminal prosecution.

Suppose that the prosecutor, having

obtained one indictment, moves to

dismiss, anticipating that the grand jury

later will indict the accused for a

different offense. The accused, delighted

to be free of prosecution, acquiesces in

the motion. Has he forfeited all

opportunity to argue that a new

indictment (if one should be returned) is

defective? Of course not. Nor does a

civil litigant abandon any rights by

remaining silent when his adversary

voluntarily dismisses a lawsuit. Although

the ins could adopt rules that differ from

those governing litigation, it has not

done so; neither the bia nor counsel

representing the ins in this court cited

any regulation requiring an alien to

treat a motion to dismiss a proceeding as

if it were, say, to convert one ongoing

proceeding from deportation to exclusion.

An agency may not bushwhack a private

party by invoking a principle of

forfeiture that is abnormal in litigation

and not required (even hinted at) by

administrative regulations or precedents.

 So is exclusion the right device? Yes,

it is, for it is (well, was until 1997)

the administrative response to a person

who enters, or tries to enter, the United

States without a visa. Dimenski had a

visa in 1987 but not in 1993. The point

of parole is to admit someone who lacks a

visa, and the ins has consistently taken

the position, with the support of Leng

May Ma v. Barber, 357 U.S. 185 (1958),

that parolees (which Dimenski became) go

into exclusion rather than deportation

proceedings. About all Dimenski can offer
in response is that the regulation

attempting to make this clear appeared in

a portion of the Code of Federal

Regulations principally concerned with

adjustment of status rather than asylum.

The regulation (since modified, but

applicable in its original form to preiirira cases) provided:

The departure from the United States of

an applicant who is . . . not under

deportation proceedings shall be deemed

an abandonment of his or her application

constituting grounds for termination,

unless the applicant was previously

granted advance parole by the Service for

such absence, and was inspected upon

returning to the United States. If the

application of an individual granted

advance parole is subsequently denied,

the applicant will be subject to the

exclusion provisions of section 236 of

the Act. No alien granted advance parole

and inspected upon return shall be

entitled to a deportation hearing.

8 C.F.R. sec.245.2(a)(4)(ii). Dimenski

departed holding advance parole and was

inspected on his return; his request for

asylum later was denied (and then

abandoned). One would suppose that the

last sentence of this regulation thus

controls: "No alien granted advance

parole and inspected upon return shall be

entitled to a deportation hearing." Even

if, as Dimenski contends, the placement

of this regulation among others dealing

with adjustment of status could be

misleading, a court is obliged to accept

an agency’s plausible reading of its own

regulations. Shalala v. Guernsey Memorial

Hospital, 514 U.S. 87, 94-97 (1995);

Homemakers North Shore, Inc. v. Bowen,

832 F.2d 408, 411-12 (7th Cir. 1987). And

the ins’s view that this language applies

to applications of all sorts, not just

applications for adjustment of status, is

plausible; it is consistent with the norm

(and the holding of Leng May Ma) that a

person paroled into the United States

lands in exclusion proceedings.

 Nonetheless, Dimenski insists, it was

improper to exclude rather than deport

him, because the form he filled out to

apply for advance parole did not warn him

that one consequence of the parole device

is to place the returning alien in

exclusion proceedings if his pending

application for discretionary relief
should be denied after his return.

Dimenski does not say that the form he

used misled him or that he failed to

receive the two benefits of advance

parole (easy readmission, and

continuation of the pending asylum

request, which would have been deemed

abandoned had he departed without

notifying the ins). Instead, Dimenski

argues, the form should have alerted him

to the downside of the transaction. He

relies on Navarro-Aispura v. INS, 53 F.3d

233 (9th Cir. 1995), which holds that

notice on the form is essential for all

aliens other than those who were seeking

adjustment of status at the time of their

departure. The ninth circuit did not

trouble to explain why application forms

must contain this information. Nothing in

the immigration statutes requires the ins

to give legal advice, let alone to put

that advice in tiny type on forms.

Perhaps the ninth circuit thought that

the Constitution requires this; during

the 1990s that court held on several

occasions that the due process clause of

the fifth amendment requires public offi

cials to give advice about how private

parties can best use their legal

remedies. But West Covina v. Perkins, 525

U.S. 234 (1999), rejected that view and

held that the Constitution does not

require legal advice about how to use, or

the consequences of using, particular

remedies.

 Any other position would have

astonishing sweep. Think for a moment of

tax law. There are endless forms to fill

out, and each decision about how to

classify a transaction may have

substantial effects, yet attempting to

fit the Internal Revenue Code (and the

implementing regulations) onto the forms

would be an absurd project. In

immigration law, as in tax law--and

criminal law, too, where knowledge of the

law is presumed, cf. United States v.

Carlos-Colmenares, 253 F.3d 276 (7th Cir.

2001) (an alien’s reasonable, but

mistaken, belief that he was entitled to

reenter the United States is no defense

to prosecution)--the Constitution permits

the government to leave people to their

own research. Although the ninth

circuit’s approach in Navarro-Aispura is

well-meaning, it accomplishes little.

Suppose the form had told Dimenski that

he would be placed into exclusion

proceedings on his return. Just what good
would that have done him? How many aliens

know the different legal consequences of

deportation versus exclusion? To learn

these, an alien must consult counsel; and

if Dimenski had done this in 1993, he

would have learned about Leng May Ma and

sec.245.2(a)(4)(ii) (more likely, about

their legal effects) no matter what the

form had included or omitted. These days,

with all aliens subjected to unified

removal proceedings, even the advice that

the ninth circuit contemplated would be

pointless. Perhaps the ins should print on

every form in conspicuous type something

like "Consult a lawyer before you file

this!", but neither the statute nor the

Constitution requires such advice.

Affirmed