Vitaliy Korsunskiy v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4120
V ITALIY K ORSUNSKIY ,
Petitioner,
v.
A LBERTO R. G ONZALES , Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
____________
A RGUED A UGUST 9, 2006—D ECIDED A UGUST 23, 2006
____________
Before P OSNER , C OFFEY , and E ASTERBROOK , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Vitaliy Korsunskiy emi-
grated 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

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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 prevail-
ing 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 prose-
cuted 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,

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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 require-
ment, 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

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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 con-
victed 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 ex-
cused, 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

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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 re-
ceived 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

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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

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