In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3569

TERESA JEZIERSKI,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition to Review Order

of the Board of Immigration Appeals.

No. A21 530 826

____________

ARGUED AUGUST 5, 2008—DECIDED SEPTEMBER 10, 2008

____________

Before POSNER, COFFEY, and MANION, Circuit Judges.

POSNER, Circuit Judge. The petitioner asked the Board

of Immigration Appeals to reopen her removal proceeding

on the ground that she had received ineffective assistance of counsel. The Board refused, finding that she had

not shown that the failures of her counsel of which she

complained would have led to a different result; in other

words, she had failed to prove “prejudice.” We must
2 No. 07-3569

decide whether we have jurisdiction to review the denial

of her motion.

Our recent decisions in Zamora-Mallari v. Mukasey,

514 F.3d 679, 694 (7th Cir. 2008); Kucana v. Mukasey, 533

F.3d 534 (7th Cir. 2008), and Huang v. Mukasey, 534 F.3d

618 (7th Cir. 2008), hold (contrary to the view of some

our sister circuits, see, e.g., Shardar v. Attorney General,

503 F.3d 308 (3d Cir. 2007); Fernandez v. Gonzales, 439 F.3d

592 (9th Cir. 2006)) that there is no power of judicial

review of petitions to reopen removal proceedings unless

the petition presents a question of law (or a constitutional

issue—there is a distinction so far as review jurisdiction

is concerned, but that’s for later to explain). “The facts

that the Board finds, and the reasons that it gives, en route

to exercising its discretion to grant or deny a petition to

reopen a removal proceeding, and the discretionary

decision itself, cannot be reexamined by a court, whether

for clear error, lack of substantial evidence, abuse of

discretion, or any other formulation of a ground for

reversing an administrative decision; all the court can

decide is whether the Board committed an error of law.

[See also Liu v. INS, 508 F.3d 716, 720-21 (2d Cir. 2007) (per

curiam).] That will usually be a misinterpretation of a

statute, regulation, or constitutional provision. But it

could also be a misreading of the Board’s own precedent,

or the Board’s use of the wrong legal standard [Ali v.

Achim, 468 F.3d 462, 465 (7th Cir. 2006)], or simply a failure

to exercise discretion [as in Sanchez v. Keisler, 505 F.3d

641, 649-50 (7th Cir. 2007)], or to consider factors acknowledged to be material to such an exercise.” Huang v.

Mukasey, supra, 534 F.3d at 620 (citations omitted).
No. 07-3569 3

We noted in Huang that our cases had not given consistent answers to the question of our power to review

the Board’s refusing to reopen a removal proceeding on

the basis of ineffective assistance of the alien’s counsel in

that proceeding. Id. at 623. Sanchez v. Keisler, supra, 505

F.3d at 647-48, and Kay v. Ashcroft, 387 F.3d 664, 676 (7th

Cir. 2004), had seemed to suggest a broad power,

but Patel v. Gonzales, 496 F.3d 829, 831 (7th Cir. 2007);

Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005), and

Stroe v. INS, 256 F.3d 498 (7th Cir. 2001), a narrow one.

There is a similar tension among circuits. Compare Omar

v. Mukasey, 517 F.3d 647 (2d Cir. 2008) (per curiam);

Fadiga v. Attorney General, 488 F.3d 142, 153-54 (3d Cir.

2007); Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir. 2006), and

Dakane v. Attorney General, 399 F.3d 1269, 1273-74 (11th Cir.

2005), all suggesting a broad power, with Jamieson v.

Gonzales, 424 F.3d 765, 768 (8th Cir. 2005), and Nativi-Gomez

v. Ashcroft, 344 F.3d 805, 807-09 (8th Cir. 2003), suggesting

a narrow one.

Within this circuit, at least, there is no actual conflict. In

Kay, the panel determined that the denial of effective

assistance of counsel in the circumstances violated the

Fifth Amendment; it wasn’t a “question of law” ruling,

but a constitutional ruling, which is different. The panel

in Sanchez did not discuss the issue of jurisdiction

(neither did Kay, for that matter), doubtless because the

Justice Department took the position that we could review

denials of petitions to reopen for abuse of discretion.

“When a court resolves a case on the merits without

discussing its jurisdiction to act, it does not establish a

precedent requiring similar treatment of other cases once
4 No. 07-3569

the jurisdictional problem has come to light. Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89, 119 and n. 29

(1984); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S.

33, 37-38 (1952).” Glidden v. Chromalloy American Corp., 808

F.2d 621, 625 (7th Cir. 1986). Especially after Kucana and

Huang, it is apparent that our power to review such

denials is narrow even when the alien is complaining of

ineffective assistance of counsel.

No statute entitles the alien to effective assistance of

counsel, Stroe v. INS, supra, 256 F.3d at 499-500 (7th Cir.

2001); Afanwi v. Mukasey, 526 F.3d 788, 796 (4th Cir. 2008),

although he is allowed to have counsel at his own expense. 8 U.S.C. § 1362. The Sixth Amendment is inapplicable to removal proceedings. Gjeci v. Gonzales, 451 F.3d

416, 421 (7th Cir. 2006); Stroe v. INS, supra, 256 F.3d at 500;

Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008); Afanwi

v. Mukasey, supra, 526 F.3d at 796-97; Zeru v. Gonzales, 503

F.3d 59, 72 (1st Cir. 2007); cf. Coleman v. Thompson, 501 U.S.

722, 752-54 (1991); Wainwright v. Torna, 455 U.S. 586, 587-99

(1982). And no statute or constitutional provision entitles

an alien who has been denied effective assistance of

counsel in his (in this case her) removal proceeding to

reopen the proceeding on the basis of that denial. Stroe

v. INS, supra, 256 F.3d at 501; Rafiyev v. Mukasey, Nos.

07-1317, 07-2406, 2008 U.S. App. LEXIS 16537, at *19-20

(8th Cir. Aug. 5, 2008). Nevertheless, if the Board of

Immigration Appeals adopted a rule entitling such an

alien to reopen, its failure to follow the rule in a particular

case would present a question of law. Aris v. Mukasey, 517

F.3d 595, 600 (2d Cir. 2008); cf. Hanan v. Mukasey, 519 F.3d

760, 764 (8th Cir. 2008); Khan v. Mukasey, 517 F.3d 513, 518-
No. 07-3569 5

19 (7th Cir. 2008). An administrative agency can change

its rules, but it has to justify the change, and a challenge

to the adequacy of the agency’s justification for doing so

presents a question of law. (For the general principle, see

National Cable & Telecommunications Ass’n v. Brand X

Internet Services, 545 U.S. 967, 981, 1001 (2005), and Motor

Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins.

Co., 463 U.S. 29, 46-57 (1983), and for its application to

petitions to reopen see Stroe v. INS, supra, 256 F.3d at 502-

03; Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008); Mai v.

Gonzales, 473 F.3d 162, 165 (5th Cir. 2006); Cruz v. Attorney

General, 452 F.3d 240, 250 (3d Cir. 2006).)

We cannot find any rule declared by the Board that

entitles the alien to reopen his removal proceeding on the

basis of ineffective assistance of counsel. The Board has

adopted a rule—the Lozada rule (In re Lozada, 19 I. & N.

Dec. 637 (BIA 1988), petition for review denied under

the name Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988); see

also Cruz v. Attorney General, supra, 452 F.3d at 250)—

setting forth the requirements for establishing ineffective

assistance. But having found ineffective assistance the

Board is not thereby required to grant the petition to

reopen. Satisfying the requirements of Lozada is a necessary condition to obtain a reopening on the basis of ineffective assistance of counsel rather than a sufficient one.

In the absence of a rule requiring reopening upon the

satisfaction of specified conditions, the decision to

reopen is discretionary, and we have no jurisdiction to

review the discretionary denial of a petition to reopen.

It is true that the Board has often granted such petitions

when the requirements of Lozada are satisfied, see, e.g., In
6 No. 07-3569

re Bozena Zmijewska, 24 I. & N. Dec. 87 (BIA 2007); In re – K-

& V- S-, 21 I. & N. Dec. 879, 881 (BIA 1997); In re

Gustavo Alonzo Grijalva-Barrera, 21 I. & N. Dec. 472, 473-

74 (BIA 1996)—but not always. See In re Orozco-Solis,

2006 BIA LEXIS 34; In re Gary Fitzroy Beckford, 22 I. & N.

Dec. 1216 (BIA 2000); see also In re Dean Maurice Morgan,

2006 BIA LEXIS 36; In re Robert Michael St. George Grant,

2005 BIA LEXIS 24; In re Lourdes Soriano-Vino in Removal

Proceedings, 2003 BIA LEXIS 17; In re Ydalia Cruz-Garcia,

22 I. & N. Dec. 1155 (BIA 1999). But that is consistent

with there being no entitlement to reopen on the basis

of ineffective assistance of counsel. Even if the alien

received subprofessional assistance from his lawyer, and

as a result was prejudiced in his effort to avoid removal,

the sheer passage of time since the removal proceeding,

or the alien’s culpable failure to seek prompt relief, might

be thought to justify refusing to reopen; and weighing

these considerations requires an exercise of discretion

of the tribunal.

The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so

great that forcing the alien to proceed without the assistance of a competent lawyer would deny him due

process of law by preventing him from “reasonably

presenting his case.” Henry v. INS, 8 F.3d 426, 440 (7th Cir.

1993); Kay v. Ashcroft, supra, 387 F.3d at 676; Hernandez v.

Mukasey, 524 F.3d 1014, 1017 (9th Cir. 2008); Aris

v. Mukasey, supra, 517 F.3d at 600; see also MonjarazMunoz v. INS, 327 F.3d 892, 897 (9th Cir. 2003). An alien

resisting removal, which would deprive him of his liberty

to remain in the United States, is entitled to due process,
No. 07-3569 7

Reno v. Flores, 507 U.S. 292, 306 (1993); Yamataya v. Fisher,

189 U.S. 86, 100-01 (1903); Bosede v. Mukasey, 512 F.3d 946,

952 (7th Cir. 2008); Torres v. INS, 144 F.3d 472, 474 (7th

Cir. 1998), which comprehends the right to present a

defense. Leguizamo-Medina v. Gonzales, 493 F.3d 772, 775-

76 (7th Cir. 2007); Rodriguez Galicia v. Gonzales, 422 F.3d

529, 539-40 (7th Cir. 2005).

Yet some cases say that if the alien is seeking merely

discretionary relief he has no entitlement to remain in the

United States and therefore a denial of relief does not

invade his liberty. E.g., Nativi-Gomez v. Ashcroft, supra,

344 F.3d at 807; Mejia Rodriguez v. Reno, 178 F.3d 1139,

1148 (11th Cir. 1999). The other cases that we have cited

do not recognize the distinction, however, and to do so

would be cutting things too fine. It is true that in Cevilla v.

Gonzales, 446 F.3d 658, 662 (7th Cir. 2006), we said that

while “Cevilla has a liberty interest in remaining in the

United States, . . . prevailing on the issue of continuous

physical presence in the United States would not give

her any right to remain here. It would merely give her

an opportunity to establish extreme hardship, which is

an appeal to the government’s discretion, rather than a

substantive entitlement.” But there is a difference between an issue and a remedy. Having created a reopening

remedy that can defeat removal, the government cannot

be allowed to destroy the remedy and so ensure removal

by creating procedural roadblocks that prevent the

alien from invoking the procedure. That would be a

deprivation of liberty without due process of law, and

therefore judicially reviewable even if the petition for
8 No. 07-3569

review did not present a question of law but merely a

question of fact (such as whether a notice of hearing had

been sent to the alien), because the statute governing

judicial review of rulings by the Board of Immigration

Appeals allows review of a discretionary ruling that

is claimed to deny a constitutional right. 8 U.S.C.

§ 1252(a)(2)(D); Kucana v. Mukasey, supra, 533 F.3d at 538.

The distinction between a question of fact on which a

right depends, and a question of law, is vital in a case

such as this, in which the infringement of a constitutional

right is not alleged. Because it is not alleged, our review

is limited to rulings of law, and as we held in Kucana

and Huang a factual determination by the Board—such as

its determination that the alleged incompetence of the

alien’s lawyer in the removal proceeding did not prejudice

the alien (she failed to show that the proceeding would

have had a different outcome with a better lawyer)—is not

a legal ruling and so does not confer jurisdiction on us.

The alien argues that her lawyer’s failure to file an

appeal brief with the Board in the removal proceeding

created a presumption of prejudice. If there were such

a presumption, and the Board ignored it, we would have

review jurisdiction even though the Board, once its error

was corrected, would still have discretionary authority

to deny the petition to reopen. The error of law could

have infected its consideration of the petition, and would

have to be corrected before it could exercise discretion in

a proper manner. E.g., Koon v. United States, 518 U.S. 81,

100 (1996); Huang v. Mukasey, supra, 534 F.3d at 620;

United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008);
No. 07-3569 9

Lin v. Mukasey, 532 F.3d 596, 598 (7th Cir. 2008); compare

Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir. 2006).

But there is no such rule. The alien derives it from a

series of Ninth Circuit cases that hold that the Board’s

failure to consider the alien’s arguments because his

lawyer did not file a brief (or did not appeal at all) establishes a presumption of prejudice. Granados-Oseguera v.

Gonzales, 464 F.3d 993, 997 (9th Cir. 2006); Ray v. Gonzales,

439 F.3d 582, 587 (9th Cir. 2006); Siong v. INS, 376 F.3d 1030,

1037 (9th Cir. 2004); Singh v. Ashcroft, 367 F.3d 1182, 1189

(9th Cir. 2004); Dearinger v. Reno, 232 F.3d 1042, 1045 (9th

Cir. 2000). There was no failure by the Board in this case.

The Board does not require an alien who is appealing

the adverse decision of an immigration judge to file a

brief, and when no brief is filed the Board will still

decide the merits of the appeal, and did so in this case.

(The Board reserves the right to dismiss the appeal summarily if the alien, after indicating that he intends to

appeal, fails to do so. 8 C.F.R. § 1003.1(d)(2)(i)(E). Sometimes the Board exercises the right, e.g., In re Ibrahim AlHamidieh, A95 518 117, 2007 WL 4699755 (BIA Dec. 4, 2007),

sometimes not. E.g., In re Jose Alfredo Rodriguez-Murrieta,

A90 116 459, 2007 WL 4699778 (BIA Nov. 30, 2007). To

repeat, the Board did decide the merits of alien’s appeal.)

In deciding whether to reopen, the Board asked itself

whether the removal proceeding might have come out

differently had the alien been represented by competent

counsel, and concluded that it would not have. That

conclusion was not the answer to a question of law, but

a discretionary determination.
10 No. 07-3569

We have no jurisdiction of the denial of the petition

to reopen. The petition for review is therefore

DISMISSED.

9-10-08