Jehad Wazeen Jarad v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4292
J EHAD W AZEEN J ARAD ,
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 24, 2006
____________
Before P OSNER , C OFFEY , and E ASTERBROOK , Circuit
Judges.
E ASTERBROOK , Circuit Judge. Jehad Wazeen Jarad
entered this country without inspection—that is, by
stealth—in 1991. After being caught, he was placed in
removal proceedings (then called deportation; we use
the current terminology). At a hearing on December 31,
1991, he conceded that he had no right to be in the United
States and requested the privilege of voluntary departure
at his own expense. The immigration judge granted that
request and gave Jarad until February 28, 1992, to leave;
the judge also entered an order of removal to take effect
if Jarad remained.

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2 No. 05-4292
Notwithstanding both his promise and the valid order of
removal (which he did not appeal), Jarad stayed in the
United States. During the coming decade he married and
had three children, all born in the United States and
therefore citizens of this nation. After his wife became a
naturalized U.S. citizen, Jarad filed a motion to reopen
the immigration case so that he could apply for adjust-
ment of status, see 8 U.S.C. §1255(i), on the basis of
marriage to a citizen. The immigration judge denied this
application in 2004 as a matter of discretion—for §1255(i)
creates an opportunity rather than an entitlement.
The IJ concluded that Jarad meets the eligibility re-
quirements (a visa is immediately available and Jarad has
not been convicted of a felony) but that it would be inequita-
ble to allow him to gain by defying an order of removal. The
IJ was disappointed by Jarad’s decision to renege on his
promise to depart voluntarily—even though voluntary
departure would have allowed him to obtain a visa in Israel
and come back lawfully. (Voluntary departure enables an
alien to avoid some of the disabilities, such as a ban on
reentry for an extended period, that accompany removal. 8
U.S.C. §1229c. See generally Alimi v. Ashcroft, 391 F.3d 888
(7th Cir. 2004).)
Moreover, the IJ concluded, an alien should not be
allowed to obtain a substantial benefit by the length of an
illegal stay (13 years by the time of the hearing on his
motion to reopen) when other, law-abiding aliens must wait
abroad until visas become available. All of the favorable
equities that Jarad had accumulated—family, employment,
community ties—are attributable to his unlawful actions.
Jarad essentially argued that the longer he defied the 1991
removal order, the greater his entitlement to remain in the
United States. As the IJ saw things, among those eligible
for the benefits of §1255(i) an alien who violates a removal
order has a lower equitable standing than one who seeks

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No. 05-4292 3
adjustment of status before being ordered removed. The
Board of Immigration Appeals affirmed without opinion.
Jarad’s petition for judicial review encounters an obstacle
in 8 U.S.C. §1252(a)(2)(B):
Notwithstanding any other provision of law (statu-
tory or nonstatutory), including section 2241 of title
28, United States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of such title,
and except as provided in subparagraph (D), and
regardless of whether the judgment, decision, or
action is made in removal proceedings, no court
shall have jurisdiction to review (i) any judgment
regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,
or (ii) any other decision or action of the Attorney
General or the Secretary of Homeland Security the
authority for which is specified under this
subchapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security,
other than the granting of relief under section
1158(a) of this title.
Jarad seeks relief under §1255, yet “no court shall have
jurisdiction to review” an administrative decision “regard-
ing the granting of relief under section . . . 1255”. To get
anywhere, Jarad must rely on the proviso: “except as
provided in subparagraph (D)”. That subparagraph reads:
Nothing in subparagraph (B) or (C), or in any other
provision of this Act (other than this section) which
limits or eliminates judicial review, shall be con-
strued as precluding review of constitutional claims
or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accor-
dance with this section.
Our authority thus is limited to “constitutional claims or
questions of law”. There is no serious claim under the

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4 No. 05-4292
Constitution (Jarad’s contention that each of the IJ’s
supposed mistakes violates the due process clause does
not require analysis), and it is hard to see any “question
of law”, because Jarad does not contend that the IJ contra-
dicted §1255(i). He does not maintain, for example, that the
agency refused to consider his application in the teeth of
statutory language making him eligible. The IJ ruled in his
favor on all issues of eligibility, and if the IJ made a poor
judgment in exercising discretion that’s not a legal error for
purposes of §1252(a)(2)(D). See Sokolov v. Gonzales, 442
F.3d 566, 569 (7th Cir. 2006). An IJ who thinks that an
alien should not benefit from deceit, or disobedience to a
lawful order of removal, does not violate any statute or
regulation. See Alsagladi v. Gonzales, 450 F.3d 700 (7th
Cir. 2006).
Whether the IJ balanced the equities soundly is a debat-
able question, but that subject is not within this court’s
purview. If an ill-considered exercise of discretion were
treated as an error of law, then §1252(a)(2)(B) would not
serve any function—for “abuse of discretion” is the standard
of review in cases under the Administrative Procedure Act,
where judicial review of agency action reaches its fullest
extent. Unless §1252(a)(2)(B) is to be treated as so much hot
air, it must bar a claim that the agency acted imprudently
when acting under one of the listed statutes. See Cevilla v.
Gonzales, 446 F.3d 658, 661 (7th Cir. 2006).
The immigration judge cited the administrative deci-
sion that Jarad accuses him of ignoring: Matter of Arai, 13
I&N Dec. 494 (1970). We may assume that administrative
decisions (no less than statutes and regulations) can
establish “law” for purposes of §1252(a)(2)(D). Cf. Billeke-
Tolosa v. Ashcroft, 385 F.3d 708, 710-13 (6th Cir. 2004);
Hernandez v. Ashcroft, 345 F.3d 824, 846 (9th Cir. 2003).
(Both of these decisions predate the Real ID Act of 2005,
which added §1252(a)(2)(D) to the immigration code. The
parties have not joined issue on the question whether “law”

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No. 05-4292 5
in the 2005 statute includes statements in administrative
opinions, which is why we assume the point without
reaching a conclusion. It should be confronted squarely by
counsel when it matters to some future case.) Arai does not
give Jarad any purchase. It establishes a balancing ap-
proach, see generally Patel v. INS, 738 F.2d 239, 242-43
(7th Cir. 1984), and balancing is exactly what the IJ did in
his case. Jarad observes that the BIA did not give any
weight to the fact that Arai had failed to depart as prom-
ised. True enough, but neither did the Board say that no
weight could be assigned; it just didn’t discuss the subject.
Arai’s overstay was less than one tenth of Jarad’s. His
application for adjustment of status had been based on a
labor certification: he had skills that were in high demand.
And he acquired those skills (the favorable equities) before
entering the United States. The Board’s exercise of discre-
tion in Arai’s favor does not compel, as a matter of law, a
decision favorable to Jarad. Section 1252(a)(2)(D) therefore
does not assist him.
In an effort to fortify his contention that the IJ abused his
discretion, Jarad maintains that the IJ failed to explore the
question whether he had understood the significance of the
opportunity to depart voluntarily in 1992. When counsel
tried to explore the question at the hearing in 2004, the IJ
cut off the questioning and stated that he remembered that
the significance of voluntary departure had been explained.
Jarad contends that it is unlikely that an immigration judge
would have remembered something that happened 13 year
ago; instead of relying on memory, Jarad insists, the IJ
should have obtained a transcript of the 1991 hearing.
All of this is a sidelight. Jarad’s lawyer tries to make
it appear more significant by insisting that in 2004 the
IJ denied his application because of a mistaken belief that
Jarad knowingly had “violated the voluntary-departure
order” of 1991. Actually, counsel now insists, Jarad had not
understood the legal significance of voluntary departure

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6 No. 05-4292
and had been told by “friends” that he did not have to
depart. Why any alien would take the word of “friends” over
that of an immigration judge is a mystery. At all events,
there was no “voluntary-departure order” to violate. The IJ
made only one “order” in 1991—an order of removal.
Voluntary departure is an opportunity extended in lieu of
removal, not an order; an option differs from a command.
Jarad promised to depart and did not keep his word, but
that lapse did not “violate” any command or obligation. The
order he violated was not a promise but the IJ’s removal
order, which is not voluntary in any respect—and which
Jarad has been flouting for 14 years and counting.
Now it is possible to imagine a strictly legal argument
that, whenever an IJ relies on events at an earlier hearing,
he must obtain a transcript to guard against the risk of
error. Memory often plays tricks, and the fact that an IJ (or
anyone else) thinks he remembers something that occurred
more than a decade earlier may be one of those tricks.
Certitude (which the IJ evinced) often is unwarranted.
People may remember what they want to remember,
whether it happened or not, and the lack of correla-
tion between the strength and the accuracy of one’s recollec-
tion is one of the most important findings of the psychology
of memory. See Daniel L. Schacter, The Seven Sins of
Memory (How the Mind Forgets and Remembers) 116-17,
138-60 (2001); Elizabeth F. Loftus, Eyewitness Testimony
100-01 (1996). A transcript does not make this error. (Note,
by the way, that Jarad proposed at the 2004 hearing to rely
on his own memory of decade-old events, and the testimony
of an interested person may well be even less reliable than
the IJ’s recollection. Jarad was more likely to remember, for
the hearing mattered more to his life than the IJ’s, but
Jarad also had a greater personal stake and thus a greater
likelihood that his memory would conform to his self-
interest rather than actual events.)

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No. 05-4292 7
Before the Board of Immigration Appeals, however, Jarad
did not argue that a rule of law makes a transcript manda-
tory. Nor did Jarad’s lawyer ask the IJ to have the 1991
proceedings (which the parties assume were recorded)
transcribed, or ask the BIA to do so, or even ask the agency
to put the recording in the record. All that he did argue is
that by relying on his memory the IJ had abused his
discretion. Such an argument may or may not persuade the
Board, but in court it is a dud; it is the very sort of conten-
tion that §1252(a)(2)(B) interdicts. The strictly legal
argument that a transcript always is required was not
presented to the Board and so had not been exhausted, see
8 U.S.C. §1252(d)(1), and has not been presented to us
either—for, to repeat, Jarad uses this episode only as an
illustration of the ways in which the IJ supposedly misused
discretion.
Finally, Jarad contends that the Board committed an
error of law by assigning the administrative appeal to a
single member (under its streamlining procedure) rather
than a panel of three members. It is not clear how this could
be thought a legal transgression, as opposed to yet another
exercise of discretion. See Kambolli v. Gonzales, 449 F.3d
454 (2d Cir. 2006). This court has never decided whether
the decision to assign one member or three is reviewable in
principle, because it just does not matter. Streamlining is
supposed to be used for insubstantial appeals. An alien who
says that his appeal should have been heard by three
members must mean either (a) that the appeal was non-
frivolous but still not strong enough to support reversal, or
(b) that the appeal established a prejudicial error by the
immigration judge. If proposition (a) is true, then a remand
with instructions to convene a three-member panel would
be pointless, for the alien would be doomed to lose again. If
proposition (b) is true, then a remand with instructions to
rehear the appeal before three members would be a waste
of time, for the BIA would be bound to send the case back to

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8 No. 05-4292
the IJ—and the court can do that directly. It therefore
“makes no practical difference whether the BIA properly or
improperly streamlined review.” Hamdan v. Gonzales, 425
F.3d 1051, 1058 (7th Cir. 2005), quoting from Georgis v.
Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003). Harmless errors
do not support relief, so we need not now (or ever) decide
whether one member or three is the right number to resolve
an administrative appeal.
The petition for review is dismissed for want of juris-
diction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-06

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