No Exhaustion Requirement For Constitutional Issues In Immigration Cases

I cannot explain why, but many immigration courts and the Board of Immigration Appeals believe that they cannot make any ruling on whether their rules and regulations violate basic Constitutional rights. This means that if someone is unconstitutionally charged with a civil immigration violation, he must suffer through a lengthy, expensive immigration court case then go through another long, expensive appeal to the Board of Immigration Appeals and then start a long, expensive appeal to a circuit court through a petition for review where he will for the first time have his constitutional right heard by a real judge. Incredible!

On the other hand, it means that if someone forgets to raise a constitutional issue in the courts below, the circuit court can't say it is his fault for not raising it. He can always say there was no point raising it before because the immigration court and BIA won't listen to it anyway. This can help if someone did not have a lawyer at his immigration court hearing and on appeal to the circuit court wants to argue that the immigration courts must give him a right to appointed counsel in immigration court.

A discussion of how this is not covered by the exhaustion doctrine is mentioned in Pasha v. Gonzales (7th Cir. Dec. 29, 2005). http://caselaw.lp.findlaw.com/data2/circs/7th/044166p.pdf