In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4120

VITALIY KORSUNSKIY,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals

____________

ARGUED AUGUST 9, 2006—DECIDED AUGUST 23, 2006

____________

Before POSNER, COFFEY, and EASTERBROOK, Circuit

Judges.

EASTERBROOK, Circuit Judge. Vitaliy Korsunskiy emigrated to the United States from Ukraine and in 1994

received permission to remain as a permanent resident.

Unfortunately he chose to violate several criminal statutes

and accumulated at least three convictions (one for theft,

one for disorderly conduct with a weapon, and one for

attempted theft); immigration officials believe that these

are “crimes of moral turpitude.” When he tried to reenter

the United States after a trip abroad, Korsunskiy was

stopped and served with a notice that the convictions

rendered him inadmissible. Convictions for crimes of

moral turpitude bar an alien from the United States and
2 No. 05-4120

cut off various avenues of discretionary relief from that

exclusion. If none of Korsunskiy’s convictions is for a

crime of moral turpitude then he is entitled to seek a waiver

of inadmissibility under 8 U.S.C. §1182(h), and if only one

of his convictions is for a crime of moral turpitude then he

is eligible for a petty-offense exception. But any one crime

of moral turpitude will cut off Korsunskiy’s entitlement to

judicial review of the resulting discretionary decision,

restricting our role to a search for pure errors of law. See 8

U.S.C. §1252(a)(2)(C), referring to 8 U.S.C. §1182(a)(2); the

exception is in §1252(a)(2)(D).

Korsunskiy proceeded to minimize his chance of prevailing by appearing at the hearing without counsel (though he

had ample opportunity to retain a lawyer). He conceded

that his convictions make him inadmissible, and when both

the lawyer for the agency and the immigration judge stated

that these convictions make him ineligible for discretionary

relief he did not reply. His only argument was that he has

a medical condition that is likely to receive better care in

the United States than in Ukraine; the IJ responded that

the convictions cut off Korsunskiy’s entitlement to relief on

humanitarian grounds, though the IJ added that he could

still ask administrative officials not to execute the order of

removal (a decision that is not reviewable as a result of 8

U.S.C. §1252(g)).

Perhaps recognizing that he should not have attempted to

go it alone, Korsunskiy then engaged counsel, who prosecuted an administrative appeal on his behalf. But the

appeal contested the characterization of only two of the

three convictions; one (the conviction for theft) was and is

conceded to be a “crime of moral turpitude.” The brief

argued that the other two do not count: one is civil rather

than criminal, counsel maintained, and the other is too

trivial to support removal. Counsel insisted that a single

countable conviction that led to a sentence under six

months does not cut off all possibility of discretionary relief,
No. 05-4120 3

as the IJ (thinking that Korsunskiy had three convictions

for crimes of moral turpitude) had supposed. That did not

persuade the Board of Immigration Appeals, which affirmed

without opinion.

Korsunskiy’s petition for judicial review has been met

with the contention that because at least one conviction for

a crime of moral turpitude is established (indeed conceded),

we must dismiss for lack of jurisdiction. We retain authority

to entertain strictly legal points, and the classification of a

conviction (as “crime of moral turpitude” or “aggravated

felony” or “petty offense” or any of several other categories

that matter to immigration status) is a legal question. See

Yang v. INS, 109 F.3d 1185 (7th Cir. 1997). But there’s a

further problem: a legal point is available in court only if it

was properly presented to the agency. 8 U.S.C. §1252(d)(1).

The agency contends that this exhaustion requirement, too, is “jurisdictional.” It is not. See Abdelqadar v.

Gonzales, 413 F.3d 668, 670-71 (7th Cir. 2005). Exhaustion

is a condition to success in court but not a limit on the set

of cases that the judiciary has been assigned to resolve. A

genuine jurisdictional limit keeps the case or controversy

out of court; case-processing rules for disputes that the

federal judiciary has been authorized to resolve are not

“jurisdictional.” See Eberhart v. United States, 126 S. Ct.

403 (2005). The agency therefore may waive or forfeit the

exhaustion issue, something that it could not do for a

genuinely “jurisdictional” limit.

Instead of waiving or forfeiting anything, however, the

agency has stood on its rights. It points out, correctly, that

counsel’s arguments to the Board and this court were not

presented to the immigration judge, so by the time they

were raised on administrative appeal it was already too

late. Korsunskiy responds that exhaustion should be

unnecessary when an alien appears pro se. The immigration

judge has a duty not to mislead an alien and ensure that
4 No. 05-4120

there is good ground for removal of exclusion. The absence

of counsel, in other words, is not an adequate justification

for ruling against the alien; the agency still must prove its

contentions in a fairly conducted proceeding. Yet how can

this line of argument get around §1252(d)(1)? That statute

says that exhaustion is essential. What the IJ should or

should not have done may be a good issue to raise on an

administrative appeal; it is not a reason to bypass the

administrative process entirely. Korsunskiy (who had

counsel on appeal to the BIA) did not ask for a remand on

the ground that the IJ had erred in the conduct of the

hearing by failing to protect a pro se litigant from his own

folly. Any argument that forfeitures at the hearing level

should be overlooked thus has been forfeited (i.e., not

exhausted) by its omission from the administrative appeal.

Had that argument been raised it would not have been

successful. First, Korsunskiy did not forfeit his points

before the IJ; he waived them by agreeing with the charge

that he was excludable as an alien who had been convicted of crimes of moral turpitude. A criminal defendant

who pleads guilty can’t contend later that the charge did

not establish a crime or that he had a good defense. See,

e.g., United States v. Broce, 488 U.S. 563 (1989). Just so

with the administrative equivalent of a guilty plea. Waiver

means that there is no error, and doctrines that allow relief

from (some kinds of) forfeiture do not apply. See, e.g.,

United States v. Olano, 507 U.S. 725, 732-35 (1993).

Second, any argument that aliens’ errors must be excused, and that immigration judges must act as the aliens’

advocates rather than as neutral adjudicators, would make

an already cumbersome process impossible to administer.

Then the only good advice a lawyer could give would be to

appear pro se—for either the IJ would recognize any

meritorious defense the alien possessed or be reversed (and

the process extended) if he did not. No lawyer could do more

for the alien, and many a lawyer would do less (as by
No. 05-4120 5

forfeiting some helpful point, or leaving an important fact

out of the record). That’s reason enough not to adopt the

approach.

Judges often say that filings by pro se litigants should be

liberally construed, so that a lay person’s unfamiliarity with

legal lingo does not lead to the loss of a good claim. See

Haines v. Kerner, 404 U.S. 519 (1972). If the judge can see

what the pro se litigant is driving at, that is enough. But

this principle does not relieve litigants from the need to

take those steps required to present and preserve their

claims. For example, an unrepresented person cannot

get litigation under way without filing a complaint and

any other necessary documents. See Baldwin County

Welcome Center v. Brown, 466 U.S. 147 (1984). And many

steps as the case progresses must be accomplished correctly,

and on time, on pain of forfeiture:

[W]e have never suggested that procedural rules in

ordinary civil litigation should be interpreted so as

to excuse mistakes by those who proceed without

counsel. As we have noted before, “in the long run,

experience teaches that strict adherence to the

procedural requirements specified by the legislature

is the best guarantee of evenhanded administration

of the law.” Mohasco Corp. v. Silver, 447 U.S. 807,

826 (1980).

McNeil v. United States, 508 U.S. 106, 113 (1993) (footnote

omitted). So a criminal defendant who waives counsel, and

pleads guilty, can’t contend later that had he only received better legal advice he would have gone to trial. An

alien charged with acts that make him excludable (or

removable) likewise must choose between acknowledging

the charges’ validity or mounting a defense. Korsunskiy

chose the former and cannot complain about his own

decision.

Korsunskiy has at least one conviction for a crime of

moral turpitude, so we cannot go beyond points of law
6 No. 05-4120

under 8 U.S.C. §1252(a)(2)(D). Every opportunity to present

such a legal argument has been waived, forfeited, or both.

This means that we lack jurisdiction, and the petition

accordingly is dismissed.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-23-06