Jose Chavarria-Reyes v. Loretta Lynch
Filed opinion of the court by Judge Easterbrook. The petition for review is DENIED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge, dissenting and Frank H. Easterbrook, Circuit Judge. [6808374-1]  [15-3730]
United States Court of Appeals
For the Seventh Circuit
JOSE I. CHAVARRIA‐REYES,
LORETTA E. LYNCH, Attorney General of the United States,
Petition for Review of an Order of the
Board of Immigration Appeals.
ARGUED SEPTEMBER 20, 2016 — DECIDED DECEMBER 30, 2016
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. An immigration judge or‐
dered Jose Chavarria‐Reyes removed to Mexico after con‐
cluding that he lacks permission to be here and is ineligible
for discretionary relief because he has committed a crime of
moral turpitude. He does not contest either conclusion but
contends nonetheless that the IJ erred by failing to alert him
to the possibility of voluntary departure under §240B(a) of
the Immigration and Nationality Act, 8 U.S.C. §1229c(a).
Voluntary departure usually depends on a showing of
good moral character, a showing that Chavarria‐Reyes can‐
not make: he has at least three convictions, for domestic bat‐
tery, retail theft, and home‐repair fraud. But voluntary de‐
parture under §240B(a) is available without regard to the al‐
ien’s character, provided he claims this privilege at the outset
of the proceedings and forswears all other arguments. An
alien who departs voluntarily has more opportunity to re‐
turn in later years than does an alien removed involuntarily.
The Board of Immigration Appeals rejected his argument
that the IJ had violated the Due Process Clause of the Fifth
Amendment, and Chavarria‐Reyes has filed a petition for
review of that order.
His initial problem is that the Board entered its decision
on November 6, 2015, and the petition for review was not
received in our clerk’s office until December 8, two days be‐
yond the 30‐day time limit. 8 U.S.C. §1252(b)(1). The Su‐
preme Court has characterized a predecessor statute as ju‐
risdictional, Stone v. INS, 514 U.S. 386, 405 (1995), and we
held in Sankarapillai v. Ashcroft, 330 F.3d 1004, 1005 (7th Cir.
2003), that the current version also is jurisdictional. Chavar‐
ria‐Reyes maintains, however, that while in detention pre‐
ceding removal he handed his petition to a guard on No‐
vember 30, making it timely under Fed. R. App. P.
25(a)(2)(C), which applies the “prison mailbox rule” to all
appellate papers. The Attorney General agrees with this con‐
tention, which poses a novel question in this circuit.
Rule 25(a)(2)(C) provides:
A paper filed by an inmate confined in an institution is timely if
deposited in the institution’s internal mailing system on or be‐
fore the last day for filing. If an institution has a system designed
for legal mail, the inmate must use that system to receive the
benefit of this rule. Timely filing may be shown by a declaration
in compliance with 28 U.S.C. §1746 or by a notarized statement,
either of which must set forth the date of deposit and state that
first‐class postage has been prepaid.
We can’t see any reason why this rule would not apply to
immigration. Houston v. Lack, 487 U.S. 266 (1988), created the
prison mailbox rule for use in civil litigation, where the time
limit for filing a notice of appeal is jurisdictional. Bowles v.
Russell, 551 U.S. 205 (2007). If intra‐prison filing satisfies a
jurisdictional requirement for civil litigation, it can equally
satisfy a jurisdictional requirement for administrative litiga‐
We recognize that a panel of the Fifth Circuit once held
that the prison mailbox rule does not apply to immigration
matters. Guirguis v. INS, 993 F.2d 508 (5th Cir. 1993). But Rule
25(a)(2)(C) was amended after Guirguis, and a later decision
from the same circuit said that a filing while in immigration
detention after the Rule was amended counts as timely.
Smith v. Conner, 250 F.3d 277, 279 n.11 (5th Cir. 2001) (dic‐
tum). The Fifth Circuit has since held that immigration de‐
tainees represented by counsel cannot take advantage of
Rule 25(a)(2)(C), see Navarro‐Miranda v. Ashcroft, 330 F.3d
672, 676 (5th Cir. 2003), but Chavarria‐Reyes lacked counsel
when he handed his petition to the guard. What’s more, this
circuit has concluded that represented prisoners, no less
than those proceeding on their own, can use the prison
mailbox rule, whose text does not draw a distinction be‐
tween represented and pro se litigants. See United States v.
Craig, 368 F.3d 738 (7th Cir. 2004).
The Second and Ninth Circuits have held that the prison
mailbox rule applies to immigration proceedings. See Aran‐
go‐Aradondo v. INS, 13 F.3d 610, 612–13 (2d Cir. 1994); Barrien‐
tos v. Lynch, 829 F.3d 1064 (9th Cir. 2016). No court—other
than the superseded opinion in Guirguis—has held other‐
wise. We join the Second, Fifth, and Ninth Circuits in con‐
cluding that aliens detained pending removal can take ad‐
vantage of Rule 25(a)(2)(C). Chavarria‐Reyes’s petition is
The Attorney General maintains that we nonetheless lack
jurisdiction because of Chavarria‐Reyes’s criminal convic‐
tions and the fact that voluntary departure is a discretionary
remedy. See 8 U.S.C. §1252(a)(2)(B), (C). But §1252(a)(2)(D)
provides that questions of law are reviewable notwithstand‐
ing the other parts of §1252(a). The question Chavarria‐
Reyes presents—whether the IJ had a duty to notify him of
the opportunity for relief under §240B(a)—is one of law for
the purpose of §1252(a)(2)(D).
And there can be no doubt that the IJ failed in this duty.
Section 240B(a) has been implemented by 8 C.F.R.
§1240.26(b)(1)(i), which provides that an IJ may grant volun‐
tary departure before the conclusion of removal proceedings
if the alien:
(A) Makes such request prior to or at the master calendar hear‐
ing at which the case is initially calendared for a merits hearing;
(B) Makes no additional requests for relief (or if such requests
have been made, such requests are withdrawn prior to any grant
of voluntary departure pursuant to this section);
(C) Concedes removability;
(D) Waives appeal of all issues; and
(E) Has not been convicted of a crime described in section
101(a)(43) of the Act and is not deportable under section
A second regulation, 8 C.F.R. §1240.11(b), provides that the IJ
must tell all aliens about voluntary departure. Although this
regulation does not spell out the required advice, or say
when it must be supplied, In re Cordova, 22 I.&N. Dec. 966
(1999) (BIA en banc), concluded that an IJ must raise the sub‐
ject of voluntary departure at an early procedural hearing—
that is to say, the sort of hearing at which the IJ identifies the
issues that will be addressed by evidence at later hearings—
unless the alien has been convicted of an aggravated felony,
which Chavarria‐Reyes has not. (Another regulation, 8 C.F.R.
§1240.11(a)(2), requires comprehensive advice about all op‐
portunities for relief from removal, but it is limited to aliens
admitted for permanent residence. Chavarria‐Reyes is not in
Requiring the IJ to raise the subject as soon as possible is
necessary, the Board concluded in Cordova, because
§1240.26(b)(1)(i) requires an alien to make irrevocable choic‐
es, such as abandoning all other requests for relief and waiv‐
ing the right to appeal. But the IJ did not tell Chavarria‐
Reyes about his option to request early voluntary departure.
Instead he told Chavarria‐Reyes to consult with his lawyer
(Chavarria‐Reyes told the IJ he had one) and then make any
motions or requests that counsel told him would be appro‐
priate. It turned out that Chavarria‐Reyes did not have a
lawyer—at least, none ever entered an appearance—and so
we must assume that he did not learn until too late about the
possibility of relief under §240B(a).
Here Chavarria‐Reyes encounters a final roadblock:
§1252(d)(1) provides that a court may review a final order of
removal “only if … the alien has exhausted all administrative
remedies available to the alien as of right” (emphasis add‐
ed). The exhaustion requirement is not a jurisdictional bar,
see Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006);
Abdelqadar v. Gonzales, 413 F.3d 668, 670–71 (7th Cir. 2005),
but it is a mandatory case‐processing rule and must be en‐
forced if a litigant claims its benefits. The Attorney General
asks us to enforce this rule, observing that Chavarria‐Reyes
did not argue, on his appeal to the BIA, that the IJ failed to
follow §1240.11(b) as understood in Cordova. Instead he con‐
tended that the IJ had violated the Due Process Clause of the
Fifth Amendment by holding his pro se status against him.
The BIA rejected that argument, and Chavarria‐Reyes, with
the benefit of counsel in this court, does not repeat it. Now
he seeks relief based on an argument that he could have
made, but did not. Exhaustion means not just taking an ap‐
peal to the Board but also presenting an argument, so that
the Board has “an opportunity to pass upon the particular
legal arguments and contentions that [the alien] now raises”.
Zeqiri v. Mukasey, 529 F.3d 364, 369–70 (7th Cir. 2008).
Chavarria‐Reyes maintains that, when an IJ’s error leaves
an alien ignorant of his rights, it is unfair to require the alien
to complain in detail to the BIA—a complaint that would
depend on the very knowledge that the IJ failed to convey.
Yet the statute says that judicial review is permissible “only
if” exhaustion has been accomplished. Nothing in the statute
suggests that an alien can avoid the exhaustion requirement
by asserting ignorance of an IJ’s error. Nor does the statute
suggest that exhaustion is required only of aliens who have
lawyers. We have not found any decision, from any circuit,
concluding that §1252(d)(1) is inapplicable to aliens who
represent themselves or to aliens who claim to be in the dark
about what the IJ did wrong—for a claim of ignorance is
easy to make but almost impossible for the agency or a court
to refute, even if the assertion is false.
The function of exhaustion is to alert the Board so that it
can fix the IJ’s errors. That function can’t be served if courts
take the existence of an error as a reason not to require ex‐
haustion. And judges would be hard pressed to require more
of an administrative tribunal than they require of them‐
selves. When litigants file briefs in this court, the judges reg‐
ularly address only those contentions presented (whether or
not the litigant has a lawyer) and treat all others as forfeited.
The plain‐error rule of Fed. R. Crim. P. 52(b) does not apply
to civil litigation or to civil administrative proceedings. Re‐
quiring the BIA to dredge through a record and find all of
the things an IJ might have done but didn’t do, plus all those
the IJ did do, and then evaluate both actions and inactions
against a long list of administrative requirements and prohi‐
bitions, would prolong and complicate all immigration pro‐
ceedings. Both judges and administrative adjudicators need
the help of lawyers and litigants to focus attention on prob‐
lematic areas, and they are entitled to limit their considera‐
tion to contentions actually presented—whether they call
that requirement forfeiture or exhaustion of remedies.
Although the exhaustion requirement prevents us from
granting Chavarria‐Reyes’s petition, he remains free to ask
the BIA to reconsider or reopen its decision in light of the IJ’s
failure to implement the holding of Cordova. That step would
be unnecessary if the Attorney General consents to a reopen‐
ing on the basis of this established error. And, no matter
what happens to Chavarria‐Reyes, we hope that the agency
will revise the procedural checklists (or “scripts”) it prepares
for use by IJs. The checklist for initial hearings with unrepre‐
8/15/Script_MC_Checklist.pdf, appears to contemplate ad‐
vice about voluntary departure only if the IJ first decides
that the alien is ineligible for any other kind of relief. That’s
not what Cordova contemplates: §1240.11(a)(2) requires ad‐
vice to permanent residents about all entitlements, not just
about a fallback after other possibilities have been exhaust‐
ed, and §1240.11(b) requires advice to all aliens about volun‐
tary departure. Worse, the checklist for use at hearings with
aliens who have counsel—the category in which the IJ
(wrongly) supposed Chavarria‐Reyes to be—does not call on
the IJ to give advice about voluntary departure under
§240B(a), whether or not some other option is available.
14/08/15/Script_Initial_Hearing.pdf. The agency could do
aliens, and its own personnel, a big favor by revising these
checklists to reflect all entitlements within the scope of a
statute or regulation.
The petition for review is denied.
POSNER, Circuit Judge, dissenting. This case involves a
typical botch by an immigration judge. No surprise: the Im‐
migration Court, though lodged in the Justice Department, is
the least competent federal agency, though in fairness it may
well owe its dismal status to its severe underfunding by
Congress, which has resulted in a shortage of immigration
judges that has subjected them to crushing workloads. See,
e.g., Julia Preston, “Deluged Immigration Courts, Where
Cases Stall for Years, Begin to Buckle,” NY Times, Dec. 1,
=0 (visited Dec. 30, 2016).
The immigrant, Chavarria‐Reyes, is a citizen of Mexico.
Although married to an American citizen with whom he has
four citizen children, he is an undocumented (i.e., unlawful)
immigrant who has been ordered removed. The primary is‐
sue he presents in this appeal challenging the order of re‐
moval is procedural: he was not told that he could apply, as
authorized by 8 U.S.C. § 1229c(a)(1), for permission to depart
voluntarily before the conclusion of the removal proceeding.
Lacking legal representation until he appealed to us, he was
unfamiliar with the intricacies of immigration law and there‐
fore failed to take issue with anything the immigration judge
said at the removal hearing, though the judge considered
only whether to allow Chavarria‐Reyes to depart voluntarily
after completion of the removal proceeding rather than be‐
fore—“after” being a steeper hill for the immigrant to climb
because it requires him (as is not required for voluntary de‐
parture before the conclusion of the removal hearing) to
prove that he “is, and has been, a person of good moral
character for at least 5 years immediately preceding the al‐
ien’s application for voluntary departure.” § 1229c(b)(1)(B).
Applying that standard the immigration judge—without
giving Chavarria‐Reyes an opportunity to try to prove that
he had been a person of good moral character for the last five
years—denied voluntary departure and ordered him re‐
This was a heavy blow, because a person who has been
ordered removed is subject to criminal penalties if he’s
found to have re‐entered the United States without authori‐
zation, see 8 U.S.C. § 1326, and in addition he’s not permit‐
ted to return with authorization for ten years, 8 U.S.C.
§ 1182(a)(9)(A). Had Chavarria‐Reyes been allowed to de‐
part voluntarily, he would still be barred from returning for
ten years, § 1182(a)(9)(B), but he would have an opportunity
to obtain a waiver of the ten‐year bar by demonstrating that
refusal to admit him would result in extreme hardship to his
spouse, who is an American citizen.
The ground of the immigration judge’s harsh ruling was
her belief that the immigrant “had been arrested and con‐
victed on several occasions for offenses ranging from retail
theft, home repair fraud, driving on a revoked license, and a
domestic battery” (actually there’s no record of a driving of‐
fense)—a criminal record that the judge remarked “does not
reflect well on the respondent’s character in the United
States.” The judge further remarked that “his negative fac‐
tors [the crimes] far outweigh any positives that have been
demonstrated in this case.” In fact she didn’t think there
were “any positives.” For she was skeptical—though the
government is not—that Chavarria‐Reyes has an American
family or has ever been employed in the 17 years he’s been in
the United States. Yet she never invited him to present evi‐
dence on his own behalf, and—testifying through a transla‐
tor, over a video feed, without counsel—he couldn’t have
been expected to interrupt and insist on presenting his side
of the case.
The removal proceeding was thus cursory, indeed farci‐
cal. See Kerciku v. INS, 314 F.3d 913, 917–18 (7th Cir. 2003).
Chavarria‐Reyes was given no opportunity to explain his
employment history in the United States (he claims to have
worked as a carpenter throughout his sojourn here, until he
was detained in anticipation of the removal proceeding), to
prove his family status, to promise to leave the country if
granted voluntary departure—or to explain his criminal rec‐
ord. That record, the details of which the immigration judge
ignored, is a joke, consisting as it does of three misdemean‐
ors committed over the course of 15 years, for which crimes
he served a total of seven days in jail. The government states
in its brief that one of the crimes of which the immigrant was
convicted was a “crime of moral turpitude.” That is ridicu‐
lous, and the government doesn’t even bother to say which
of the immigrant’s three crimes it thinks was a crime of mor‐
Chavarria‐Reyes was railroaded by the immigration
judge. The majority does not deny this but concludes that he
failed to exhaust his administrative remedies because his pro
se appeal to the Board of Immigration Appeals did not pro‐
vide a precise articulation of his argument that the immigra‐
tion judge had failed to inform him of the possibility of vol‐
untarily departing before the conclusion of his removal hear‐
ing. But by arguing both that the immigration judge had
erred by failing to grant him voluntary departure and that
he was denied due process at his removal hearing, Chavar‐
ria‐Reyes placed the Board of Immigration Appeals on no‐
tice that the immigration judge had made a hash of her duty
to inform him of the availability of voluntary departure. See
Hamdan v. Mukasey, 528 F.3d 986, 991 (7th Cir. 2008), quoting
approvingly, from Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422
(3d Cir. 2005), that “so long as an immigration petitioner
makes some effort, however insufficient, to place the Board
on notice of a straightforward issue being raised on appeal, a
petitioner is deemed to have exhausted her administrative
remedies.” See also Kaganovich v. Gonzales, 470 F.3d 894, 897
(9th Cir. 2006); Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.
We should vacate the removal order and remand the
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