Massis v. Mukasey

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NIMATALLAH SHAFIK MASSIS, 
Petitioner,
v.
 No. 05-1329
MICHAEL B. MUKASEY, United
States Attorney General,
Respondent.


NIMATALLAH SHAFIK MASSIS, 
Petitioner,
v.
 No. 05-1851
MICHAEL B. MUKASEY, United
States Attorney General,
Respondent.


On Petitions for Review of Orders of
the Board of Immigration Appeals.
2 MASSIS v. MUKASEY

NIMATALLAH SHAFIK MASSIS, 
Petitioner-Appellant,
v.
MICHAEL CHERTOFF, Secretary of
Homeland Security; MICHAEL J.
GARCIA, Assistant Secretary;  No. 05-6981
CALVIN MCCORMICK, Interim Field
Office Director; MICHAEL B.
MUKASEY, United States Attorney
General,
Respondents-Appellees.


Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-05-1242-8-PJM)

Argued: September 24, 2008

Decided: December 9, 2008

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Denied in part and dismissed in part by published opinion.
Judge Duncan wrote the opinion, in which Judge Niemeyer
and Judge King joined.
 MASSIS v. MUKASEY 3
COUNSEL

ARGUED: Rachel Stutz, WILMER, CUTLER, PICKER-
ING, HALE & DORR, L.L.P., Washington, D.C., for Peti-
tioner/Appellant. Woei-Tyng Daniel Shieh, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondents/Appellees. ON BRIEF: Paul R. Q. Wolfson,
Victoria S. Shabo, WILMER, CUTLER, PICKERING,
HALE & DORR, L.L.P., Washington, D.C., for Petition-
er/Appellant. Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Civil Division, Susan K. Houser, Senior Litigation
Counsel, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Immigration Litigation, Washington, D.C., for
Respondents/Appellees.

OPINION

DUNCAN, Circuit Judge:

The petitioner, Nimatallah Shafik Massis, is a Jordanian
national and a permanent resident of the United States. On
February 25, 2005, the Board of Immigration Appeals
("BIA") found that Massis was deportable as an aggravated
felon and that he did not qualify for a discretionary waiver of
deportation under former section 212(c) of the Immigration
and Nationality Act ("INA"), 8 U.S.C. § 1182(c).1 In these
consolidated actions, Massis seeks review of the BIA’s
removal order on two grounds. First, Massis raises a claim of
ineffective assistance of counsel based on his counsel’s deci-
sion to concede deportability for Massis’s June 6, 1995 con-
viction of reckless endangerment. Second, Massis argues that
reckless endangerment is not a "crime of violence" and thus
cannot form the basis of his deportation as an aggravated
1
Section 212 was repealed by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, § 304(b), 110 Stat. 3009, 3598–97.
4 MASSIS v. MUKASEY
felon. For the reasons that follow, we deny in part and dismiss
in part the petitions for review.

I.

Massis was admitted to the United States as a lawful per-
manent resident on November 20, 1974. Evidence in the
record shows that Massis had a history of hitting and pushing
his wife, Hilda Massis. J.A. 54, 239. Massis and his wife
eventually divorced in 1996.

On February 3, 1995, Massis was arrested after chasing his
wife and two young girls with an ax in a residential neighbor-
hood. Hilda Massis told the responding police officer that
Massis "chased her up Parkland Drive screaming[,] ‘I’m
going to kill you,’ while holding a wood ax above his head."
J.A. 53. While in pursuit, Massis fell to the ground and Hilda
Massis and the two girls were able to run into a neighbor’s
house for safety. The police report filed for the incident
included statements from witnesses affirming that "if Nima-
tallah did not fall, he would have killed her." J.A. 54. At the
time of his arrest, Massis was under a court order to avoid
contact with Hilda Massis, although he had repeatedly vio-
lated this order and had declared in a Maryland state court
proceeding that "even with a divorce, he would always con-
sider himself married to his wife." J.A. 280.

On March 3, 1995, Massis was charged with intent to mur-
der, carrying a weapon openly with intent to injure, criminal
contempt and reckless endangerment. On June 6, 1995, he
pled guilty to one count of reckless endangerment and one
count of criminal contempt and was sentenced to five years
imprisonment.2 On June 28, 1996, the Immigration and Natu-
2
At the time of Massis’s conviction, the Maryland Code defined reck-
less endangerment as follows:
(a) Any person who recklessly engages in conduct that creates
a substantial risk of death or serious physical injury to
 MASSIS v. MUKASEY 5
ralization Service initiated removal proceedings against Mas-
sis under 8 U.S.C. § 1227(a)(2)(A)(iii), which states that
"[a]ny alien who is convicted of an aggravated felony at any
time after admission is deportable."3 Represented by counsel
at a merits hearing before an immigration judge ("IJ") on
December 31, 1998, Massis conceded deportability as an
aggravated felon based on his reckless endangerment convic-
tion. He sought a waiver of deportation under 8 U.S.C.
§ 1182(c), which the IJ eventually granted on March 19, 2003.4
Although the IJ noted that Massis "has a history of battering
his wife and convictions which are related to his [spousal]
abuse and inability or unwillingness to conform to acceptable
standards of conduct," J.A. 240, the IJ found that Massis suf-

another person is guilty of the misdemeanor of reckless
endangerment and on conviction is subject to a fine not
exceeding $5,000 or imprisonment not exceeding 5 years or
both.
Md. Code Ann. art. 27, § 120 (1995.
3
At the time of Massis’s removal proceeding, an "aggravated felony"
included any "crime of violence (as defined in section 16 of Title 18 . . .)
for which the term of imprisonment imposed (regardless of any suspension
of imprisonment) is at least 5 years." Immigration and Nationality Techni-
cal Corrections Act of 1994, Pub. L. 103-416, § 222, 108 Stat. 4305,
4320–21 (1994) (current version at 8 U.S.C. § 1101(a)(43)(F)).
Title 18 U.S.C. § 16 defines a "crime of violence" as follows:
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or prop-
erty of another, or
(b) any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense.
This definition was in force at the time of Massis’s removal proceeding.
See Pub. L. No. 98-473, Title II, § 1001(a), 98 Stat. 2136 (1984).
4
Former section 212(c) of the Immigration and Naturalization Act gave
the Attorney General authority to grant discretionary admission to certain
aliens subject to deportation. See generally Singh v. Keisler, 255 F. App’x
710, 713–14 (4th Cir. 2007) (unpublished).
6 MASSIS v. MUKASEY
fered from mental illness and that "his actual behavior since
his incarceration is strongly indicative of rehabilitation," id. at
241. The IJ concluded that "[i]t would be unconscionable to
‘discard’ [Massis], who has been so troublesome because of
his mental illness, by jettisoning him into a violent region of
the world where he will have inadequate support for his men-
tal illness." Id. at 242.

The Department of Homeland Security ("DHS") appealed
the IJ’s decision to the BIA. On appeal, Massis was repre-
sented by different counsel. The BIA vacated the IJ’s grant of
section 212(c) relief on February 25, 2005, holding that Mas-
sis had not "demonstrated extraordinary circumstances that
might warrant relief." J.A. 281. The BIA noted that the IJ’s
concern about "the supposed unavailability of psychiatric care
in Jordan" was "not supported by persuasive facts" and
emphasized that Massis had failed to accept responsibility for
a "violent history about which he expresses little remorse." Id.
The BIA found that Massis had "not shown himself to be a
desirable resident of the United States" and ordered Massis
deported to Jordan. Id. Massis filed a timely petition for
review of the BIA’s deportation order on March 25, 2005.
J.A. 282.

Massis retained a third counsel and filed a petition for a
writ of habeas corpus in the United States District Court for
the District of Maryland on May 5, 2005, seeking "declaratory
and injunctive relief to enjoin his imminent removal from the
United States." J.A. 302-12. On June 27, 2005, the district
court transferred the case to this court under section 106(a) of
the REAL ID Act of 2005, which vests jurisdiction over such
habeas petitions in the courts of appeals.5 Both parties con-
sented to the transfer order.
5
Section 106(a) of the REAL ID Act states as follows:
Notwithstanding any other provision of law (statutory or nonsta-
tutory), including section 2241 of Title 28, or any other habeas
 MASSIS v. MUKASEY 7
In addition to his habeas petition, Massis filed a motion to
reconsider and reopen with the BIA on May 25, 2005, assert-
ing a claim for ineffective assistance of counsel based on his
first counsel’s concession of deportability at his 1998 removal
hearing. J.A. 318-33. Relying on Leocal v. Ashcroft, 543 U.S.
1 (2004), Massis also argued that reckless endangerment did
not constitute a crime of violence and that his conviction
should not have subjected him to removal proceedings. The
BIA denied this motion on July 26, 2005, on the ground that
Massis had failed to "file a motion to reopen within a reason-
able period of the alleged ineffective assistance." J.A. 364. In
denying the motion, the BIA noted that Massis "had an oppor-
tunity to file a motion to remand proceedings based on inef-
fective assistance of counsel while his case was on appeal, but
failed to do so" and instead "waited until almost 3 months
after our February 25, 2005, decision to raise his ineffective
assistance of counsel claim." Id. Massis filed a timely petition
for review of the BIA’s decision to deny his motion to recon-
sider and reopen on August 19, 2005. J.A. 370-72.

The following three petitions were consolidated for pur-
poses of appeal:

• 05-1329, Massis’s petition for review of the
BIA’s deportation order

corpus provision, and sections 1361 and 1651 of such title, a peti-
tion for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive
means for judicial review of an order of removal entered or
issued under any provision of this chapter, except as provided in
subsection (e) of this section. For purposes of this chapter, in
every provision that limits or eliminates judicial review or juris-
diction to review, the terms ‘judicial review’ and ‘jurisdiction to
review’ include habeas corpus review pursuant to section 2241 of
Title 28, or any other habeas corpus provision, sections 1361 and
1651 of such title, and review pursuant to any other provision of
law (statutory or nonstatutory).
8 U.S.C. § 1252(a)(5).
8 MASSIS v. MUKASEY
• 05-6981, Massis’s petition for a writ of habeas
corpus

• 05-1851, Massis’s petition for review of the
BIA’s decision to deny Massis’s motion to
reopen and reconsider

II.

In each of his petitions, Massis seeks to revisit his original
counsel’s concession of deportability on two grounds. First,
he raises a due process claim, arguing that his counsel’s con-
cession of deportability in the 1998 removal hearing
amounted to ineffective assistance. He argues that the BIA
improperly denied his motion to reopen his case to consider
this claim and asks this court to find that his counsel’s inef-
fective assistance violated his due process rights. Second,
Massis argues that this court may consider "the ultimate sub-
stantive question" of whether reckless endangerment consti-
tutes a crime of violence—and whether Massis is
removable—because the issue is "purely legal in nature" and
because "[i]t would be a profound miscarriage of justice to
remove him without either the agency or this Court consider-
ing the fundamental question of whether he is removable."
Petitioner’s Br. at 13.

Massis’s arguments on appeal arise out of the recent
Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1
(2004). In Leocal, the Supreme Court addressed whether a
conviction of driving under the influence of alcohol ("DUI")
constituted a crime of violence under 18 U.S.C. § 16. The
Court held that a crime of violence involves a "substantial
risk" of "using physical force against another person in the
course of committing the offense" and found that a DUI under
Florida law did not qualify as a crime of violence for the pur-
poses of determining the petitioner’s removability. 543 U.S.
at 11 (internal quotations omitted). Massis cites Minor v.
State, 605 A.2d 138 (Md. 1992), and related cases to argue on
 MASSIS v. MUKASEY 9
appeal that the Maryland courts have held that reckless endan-
germent under Maryland law "does not require proof of any
violent or forceful act of the defendant." Petitioner’s Br. at 21.
Although Massis conceded deportability based on his reckless
endangerment conviction and failed to challenge this conces-
sion before the IJ or the BIA, Massis now contends that reck-
less endangerment under Maryland law does not qualify as a
crime of violence under 18 U.S.C. § 16(b) and that he is not
a convicted aggravated felon subject to deportation under 8
U.S.C. § 1227(a)(2)(A)(iii). He argues that his original coun-
sel’s decision to concede deportability amounted to ineffec-
tive assistance of counsel. He further contends that this court
can and should examine whether reckless endangerment
under Maryland law constitutes a crime of violence that can
support a deportation order. We consider each argument in
turn.

A.

Massis did not attempt to assert his ineffective assistance of
counsel claim until several months after the BIA found that he
did not qualify for a discretionary waiver of deportability
under former section 212(c) and ordered him deported to Jor-
dan.6 He now raises this claim in each of his petitions for
6
Massis also argues that in reversing the IJ’s decision to grant a discre-
tionary waiver, the BIA erroneously applied the wrong standard of review
to the IJ’s factual findings and failed to consider all the evidence, as
required by its past precedent. This argument is unavailing. The BIA prop-
erly stated that it reviews "the discretionary determination made by the
Immigration Judge de novo." J.A. 279; see also 8 C.F.R.
§ 1003.1(d)(3)(ii). Although Massis correctly points out that the BIA must
review factual findings under a clearly erroneous standard, see 8 C.F.R.
§ 1001.1(d)(3)(i), the Supplementary Information to section 1003.1 makes
clear that this standard only applies to the factual determination of "‘what
happened’ to the individual." Procedural Reforms to Improve Case Man-
agement, 67 Fed. Reg. at 54,888-90 (Aug. 26, 2002). In contrast, applica-
tion of the law to those facts—to determine, for example, whether those
facts amount to "exceptional and extremely unusual hardship"—may be
reviewed de novo. See id.
10 MASSIS v. MUKASEY
review, arguing that his counsel’s concession of deportability
in the 1998 removal hearing was "plainly ineffective." Peti-
tioner’s Br. at 32. He further argues that because his counsel’s
ineffective assistance resulted in prejudice, the BIA’s decision
to deny his motion to reopen and reconsider was arbitrary and
capricious. The DHS argues in response that "it was reason-
able, as the law stood in 1998, [for Massis’s original counsel]
to conclude his crime was an aggravated felony" and that such
a concession did not amount to ineffective assistance because
it was not "so egregious that it rendered the hearing unfair."
Respondent’s Br. at 12. The DHS further argues that the BIA
did not abuse its discretion in determining that Massis failed
timely to raise his ineffective assistance of counsel claim. We
agree.

The BIA’s denial of a motion to reopen is reviewed for an
abuse of discretion and should be reversed only if the decision
is arbitrary, capricious, or contrary to law. Afanwi v. Mukasey,
526 F.3d 788, 794 (4th Cir. 2008) (citing Immigration & Nat-
uralization Serv. v. Doherty, 502 U.S. 314, 323–24 (1992);
Barry v. Gonzales, 445 F.3d 741, 744–45 (4th Cir. 2006)).
"The BIA’s denial of a motion to reopen is reviewed with
extreme deference, given that motions to reopen are disfa-
vored because every delay works to the advantage of the
deportable alien who wishes merely to remain in the United
States." Barry, 445 F.3d at 744–45 (citing Stewart v. Immi-
gration & Naturalization Serv., 181 F.3d 587, 596 (4th Cir.
1999)) (internal quotations and punctuation omitted).

In light of that standard, we first consider Massis’s conten-
tion that his initial counsel’s concession of deportability in the
1998 removal hearing was plainly ineffective. Citing In re B-
B-, 22 I. & N. Dec. 309 (BIA 1998), for the proposition that
a reasonable tactical decision by counsel cannot constitute
ineffective assistance of counsel, the BIA rejected this argu-
ment. We cannot conclude that the BIA abused its discretion
in doing so. The state of the law as it existed at the time of
Massis’s removal hearing supports the BIA’s determination.
 MASSIS v. MUKASEY 11
Accord Mbea v. Gonzales, 482 F.3d 276, 281 (4th Cir. 2007)
(noting that the law "then in effect" at the time of an alien’s
conviction would apply to the alien’s removal proceedings
(citing Immigration & Naturalization Serv. v. St. Cyr, 533
U.S. 289 (2001))).

In 1998, the BIA had not addressed the question of whether
reckless endangerment under Maryland law qualified as a
crime of violence. Its precedent at that time had established
that a crime of violence under 18 U.S.C. § 16(b) required a
"risk of harm," but did not require a substantial risk that phys-
ical force may be used in the commission of an offense. For
example, in In re Alcantar, 20 I. & N. Dec. 801 (BIA 1994),
the BIA stated that 8 U.S.C. § 16 defines offenses that have
"the potential of resulting in harm," such that "[o]nce the
court determines that the defendant has been convicted of a
crime that usually involves a risk of harm, the inquiry ends;
it does not matter whether that risk has matured into actual
harm." Id. at 809. See also In re Magallanes-Garcia, 22 I. &
N. Dec. 1, 4 (BIA 1998) (holding that a crime of violence
"must have ‘the potential of resulting in harm’" (citation omit-
ted)).

Federal courts of appeals subsequently began to reach a
contrary conclusion, holding that a crime of violence requires
a substantial likelihood that the perpetrator will intentionally
employ physical force. See, e.g., Dalton v. Ashcroft, 257 F.3d
200, 207–08 (2d Cir. 2001); United States v. Hernandez-
Castellanos, 287 F.3d 876, 881 (9th Cir. 2002). The BIA also
revisited the issue in In re Luis Manuel Ramos, 23 I. & N.
Dec. 336, 336 (BIA 2002), holding that a DUI is not a crime
of violence because it does not involve a substantial risk that
physical force may be used in the commission of the offense.
The Supreme Court, however, did not adopt that view until
2004. See Leocal, 543 U.S. at 11.

Given the state of the law in 1998, it was not unreasonable
for Massis’s original counsel to concede deportability based
12 MASSIS v. MUKASEY
on the Maryland reckless endangerment statute, which stated
that any person who "recklessly engages in conduct that
creates a substantial risk of death or serious physical injury"
is guilty of reckless endangerment. Md. Code Ann. art. 127,
§ 120 (1995) (emphasis added). Such a concession is particu-
larly understandable in light of counsel’s decision to seek
equitable relief in the form of a discretionary waiver of the
deportation, which the IJ in fact granted. Massis has not
shown that the BIA abused its discretion in refusing to allow
Massis to revisit his concession of deportability by asserting
an ineffective assistance of counsel claim.

Moreover, Massis has not shown that the BIA abused its
discretion in denying his motion to reopen and reconsider.
Under 8 C.F.R. § 1003.2(a), "[t]he decision to grant or deny
a motion to reopen . . . is within the discretion of the Board."
In denying Massis’s motion, the BIA noted that Massis
"chose to solely respond to the DHS’s appeal" of the IJ’s
grant of section 212 relief; failed to file a motion to remand
proceedings based on ineffective assistance while his case
was on appeal; and delayed "until almost 3 months after [the
BIA’s] February 25, 2005 decision to raise his ineffective
assistance of counsel claim." J.A. 363–64. Although Massis
argues that he had no reason to enlarge the scope of the
DHS’s appeal of the section 212 waiver, he has not shown
that the BIA abused its discretion in denying his motion to
reopen and reconsider as untimely.

Finally, with respect to all of Massis’s petitions for review,
our recent decision in Afanwi forecloses Massis’s due process
claim based on ineffective assistance of counsel. In Afanwi,
we held that an alien’s "counsel’s actions do not implicate the
Fifth Amendment," such that the counsel’s alleged ineffec-
tiveness does "not deprive [an alien] of due process." 526
F.3d at 799 (noting that the alien’s counsel "was not a state
actor" and there was no "sufficient nexus between the federal
government and counsel’s ineffectiveness" to treat the coun-
sel’s actions as governmental action). Under Afanwi, Massis
 MASSIS v. MUKASEY 13
cannot assert an ineffective assistance of counsel claim to
challenge his concession of deportability in 1998.

For the foregoing reasons, Massis’s due process claim
based on ineffective assistance of counsel is denied.

B.

Massis also seeks to revisit his original concession of
deportability on the substantive ground that reckless endan-
germent does not constitute a crime of violence under 18
U.S.C. § 16(b), rather than through the portal of an ineffective
assistance of counsel claim. He argues that after Leocal, under
Maryland law reckless endangerment can no longer be con-
sidered a crime of violence to support a deportation order.
Massis does not dispute that he failed to raise the issue before
either the IJ or the BIA. Relying on Zhong v. United States
Department of Justice, 480 F.3d 104, 121–22 (2d Cir. 2007),
Massis contends that "failure to exhaust individual issues
before the BIA does not deprive [a court of appeals] of sub-
ject matter jurisdiction to consider those issues." Id. at 122.
Massis further argues that this court may consider the issue
because this court has "discretion to decide a purely legal
issue not ruled on below when a miscarriage of justice will
result from the court’s failure to act." Petitioner’s Br. at 39.
In light of recent Supreme Court precedent, however, we are
constrained to disagree.

Title 8 U.S.C. § 1252(d)(1) states that "[a] court may
review a final order of removal only if the alien has exhausted
all administrative remedies to the alien as of right." We have
previously interpreted this provision as a jurisdictional bar. In
other words, under 8 U.S.C. § 1252(d)(1), an alien’s failure to
dispute an issue on appeal to the BIA constitutes a failure to
exhaust administrative remedies that bars judicial review. In
Kurfees v. Immigration & Naturalization Service, 275 F.3d
332 (4th Cir. 2001), we found that we had no jurisdiction to
consider the habeas petition of an alien who had failed to
14 MASSIS v. MUKASEY
appeal her 1993 deportation order and a 1997 denial of her
motion to reopen. Id. at 336 ("It is well settled that parties
must exhaust their administrative remedies before filing suit
in federal court. . . . And we have held that district courts lack
jurisdiction over the claims of aliens who have failed to
exhaust their administrative remedies."); see also Asika v.
Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) ("We have no
jurisdiction to consider this argument, however, because [the
alien] failed to make it before the Board and, therefore, failed
to exhaust ‘all administrative remedies.’" (citations omitted)).

We are not alone in regarding section 1252(d)(1) as impos-
ing a jurisdictional hurdle; many of our sister circuits have
held similarly. The First Circuit held in Sunoto v. Gonzales,
504 F.3d 56, 57 (1st Cir. 2007), that it lacked jurisdiction to
review the BIA’s decision on issues that an alien had failed
to raise in his appeal before the BIA. Similarly, the Seventh
Circuit has noted that the jurisdiction of the courts of appeals
"is limited to direct review of final orders of removal and mat-
ters decided by ICE in the course of removal proceedings."
Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 443 (7th Cir.
2007). Other courts of appeals have held likewise. See
Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir. 2006) ("[The
alien] did not raise this issue before the BIA. . . . Conse-
quently, [the alien] did not exhaust his administrative reme-
dies with respect to this claim, and we lack jurisdiction to
entertain it on appeal."); Bonhometre v. Gonzales, 414 F.3d
442, 447–48 (3d Cir. 2005) ("As a general rule, an alien must
exhaust all administrative remedies available to him as of
right before the BIA as a prerequisite to raising a claim before
us. . . . [The alien’s] procedural due process claims thus could
have been argued before the BIA, and his failure to do so is
thus fatal to our jurisdiction over this petition." (citations
omitted)); accord Frango v. Gonzales, 437 F.3d 726 (8th Cir.
2006) (finding that "Congress likely intended by enacting
§ 1252(d)(1) to continue to require that an alien not only pur-
sue all stages of administrative review, but also raise all issues
before the agency"). But cf. Bangura v. Hansen, 434 F.3d
 MASSIS v. MUKASEY 15
487, 494 (6th Cir. 2006) (noting that "[i]n the immigration
context, several circuits have indicated that constitutional
challenges to the INA and INS procedures and some due pro-
cess claims do not require exhaustion because the BIA does
not have the power to adjudicate these claims" and collecting
authorities (citations and internal punctuation omitted)).

Massis relies on Zhong v. United States Department of Jus-
tice, 480 F.3d 104 (2d Cir. 2007), for the proposition that fail-
ure to exhaust individual issues before the BIA does not
deprive the court of appeals of subject matter jurisdiction. The
Second Circuit, however, has since retreated from that posi-
tion. In Grullon v. Mukasey, 509 F.3d 107 (2d Cir. 2007), the
Second Circuit noted that "[s]ubsequent to Lin Zhong, the
Supreme Court" held in Bowles v. Russell, 127 S. Ct. 2360
(2007), that "when an appeal has not been prosecuted in the
manner directed, within the time limited by the acts of Con-
gress, it must be dismissed for want of jurisdiction." 509 F.3d
at 111–12 (citing Bowles, 127 S. Ct. at 2366). In Bowles, the
Supreme Court held that a court of appeals had no jurisdiction
to consider an untimely habeas appeal. The Bowles Court
found that "[b]ecause Congress decides whether federal courts
can hear cases at all, it can also determine when, and under
what conditions, federal courts can hear them." 127 S. Ct. at
2365 (citation omitted). Applying Bowles to the administra-
tive exhaustion requirement of 8 U.S.C. § 1252(d)(1), the
Grullon court noted:

Congress has instructed the courts that they may not
review a final order of removal unless the alien has
appealed to the BIA. When an exhaustion require-
ment is statutory and evinces an intent to constrict
the ability of courts to adjudicate a class of cases, the
limitation is jurisdictional, rather than mandatory
only. . . . [B]ecause [such an exhaustion require-
ment] is a statutory limit on the Court’s power, it is
jurisdictional, not merely mandatory.
16 MASSIS v. MUKASEY
509 F.3d at 112 (citing Magtanong v. Gonzales, 494 F.3d
1190, 1191 (9th Cir. 2007)); see also Ruiz-Martinez v.
Mukasey, 516 F.3d 102, 117–19 (2d Cir. 2008) (finding that
the court lacked jurisdiction over an untimely petition for
review of a final removal order). Under 8 U.S.C.
§ 1252(d)(1), Massis may not raise an issue on appeal that he
did not previously raise before the IJ and BIA. This court has
no jurisdiction to consider his argument that reckless endan-
germent does not constitute a crime of violence.

Massis argues that he had no reason to raise the issue of
deportability before the BIA because the DHS appealed a sep-
arate issue—the IJ’s grant of section 212(c) relief—and "there
would have been no reason for Mr. Massis’s counsel to
enlarge the scope of the appeal or to file a cross-appeal." Peti-
tioner’s Br. at 36. This argument is not persuasive. Courts
have found that an alien’s failure to dispute an issue before an
IJ also constitutes a failure to exhaust administrative reme-
dies. See, e.g., Martinez-Castano v. U.S. Attorney Gen., No.
07-16010, 2008 WL 3972443, at *1 (11th Cir. Aug. 28, 2008)
(unpublished) (noting that because the alien "did not raise
with the IJ his asylum and withholding-of-removal claims
based on his political opinion . . . he did not exhaust his
administrative remedies" and the court "lack[ed] jurisdiction
to consider his claims"); Gonzalez-Rios v. Mukasey, Nos. 05-
71766, 06-74271, 2008 WL 3561983, at *1 (9th Cir. Aug. 12,
2008) (unpublished) (finding that the alien "did not raise this
argument [that his conviction under a California statute "was
not categorically a conviction for an aggravated felony"] dur-
ing any administrative proceedings before the IJ or the BIA"
and that the court "lack[ed] jurisdiction to adjudicate an issue
where the petitioner failed to exhaust all administrative reme-
dies as of right" (citations omitted)). In his petition, Massis
argues that at the time he conceded deportability, "the Mary-
land Court of Appeals made clear [in interpreting the state’s
reckless endangerment statute] that [a criminal] defendant’s
conduct need not involve the use or a substantial risk of the
use of force," such that reckless endangerment might not con-
 MASSIS v. MUKASEY 17
stitute a "crime of violence" under 18 U.S.C. § 16(b). Peti-
tioner’s Br. at 20 (citing Minor v. State, 605 A.2d 138 (Md.
1992)). By conceding deportability, however, Massis declined
to raise the issue of whether reckless endangerment consti-
tutes a crime of violence before the IJ. Because Massis failed
to exhaust his administrative remedies, this court has no juris-
diction to consider the substantive legal issue that he now
raises.

Citing Lara v. Trominski, 216 F.3d 487, 493 (5th Cir.
2000), and other cases, Massis argues that "courts of appeals
. . . may consider an alien’s assertion that he was erroneously
subject to deportation if the alien demonstrates that his depor-
tation would result in a gross miscarriage of justice." Petition-
er’s Br. at 39. Massis’s reliance on a "miscarriage of justice"
exception to the jurisdictional bar of 8 U.S.C. § 1252(d)(1) is
similarly misplaced. In Bowles, the Supreme Court held that
courts have "no authority to create equitable exceptions to
jurisdictional requirements." 127 S. Ct. at 2366. The Bowles
Court rejected the habeas petitioner’s argument that the Court
should excuse his untimely filing because he satisfied the
"unique circumstances" doctrine of Harris Truck Lines, Inc.
v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962). Empha-
sizing that "the timely filing of a notice of appeal in a civil
case is a jurisdictional requirement," the Court overruled Har-
ris Truck Lines and a related case "to the extent they purport
to authorize an exception to a jurisdictional rule." Bowles, 127
S. Ct. at 2637.

Since Bowles, courts of appeals have declined to entertain
equitable exceptions to section 1252(d)’s administrative
exhaustion requirement. Relying on Bowles, the Second Cir-
cuit held in Grullon that "there is no ‘manifest injustice’
exception to § 1252(d)’s exhaustion requirement" and that
"[i]nsofar as our earlier opinions have held to the contrary,
those opinions are overruled." Grullon, 509 F.3d at 115. The
Grullon court reasoned that Bowles, in invalidating the
"unique circumstances" exception, "likewise invalidates the
18 MASSIS v. MUKASEY
‘manifest injustice’ exception to the jurisdictional bar created
by 8 U.S.C. § 1252(d)’s exhaustion requirement." Id. The
Eighth Circuit similarly relied on Bowles in declining to craft
a futility exception to section 1252(d)(1)’s administrative
exhaustion requirement. See Bah v. Mukasey, 521 F.3d 857,
859 (8th Cir. 2008) (citing Bowles for the proposition that
courts have "no authority to create equitable exceptions to
jurisdictional requirements"). Under Bowles, Massis may not
rely on a "miscarriage of justice" argument to revisit his con-
cession of deportability and circumvent his failure to exhaust
administrative remedies. Because we may not create an equi-
table exception to section 1252(d)(1)’s exhaustion require-
ment, this court lacks jurisdiction to consider whether reckless
endangerment constitutes a crime of violence.

Massis’s claim that he is not deportable as a convicted
aggravated felon is dismissed for lack of jurisdiction.

III.

For the foregoing reasons, Massis’s three petitions for
review are

DENIED IN PART AND DISMISSED IN PART.