F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 5 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
JEREMY E. RILEY,
Petitioner - Appellant,
v. No. 01-1250
IMMIGRATION &
NATURALIZATION SERVICE, The
District Director, District 19,
Respondent - Appellee.
JEREMY E. RILEY,
Petitioner,
v. No. 02-9531
IMMIGRATION &
NATURALIZATION SERVICE,
Respondent.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO (No. 01-1250)
(D.C. No. 00-D-1775)
and
PETITION FOR REVIEW OF AN ORDER FROM THE
IMMIGRATION & NATURALIZATION SERVICE (No. 02-9531)
(A27-591-887)
Jeffrey Dean Joseph, Denver, Colorado, for Petitioner-Appellant.
Michelle E. Gorden (Papu Sandhu, Senior Litigation Counsel, with her on the
brief in 01-1250, and Donald E. Keener, Deputy Director, with her on the brief in
02-9531), Office of Immigration Litigation, Civil Division, Department of Justice,
Washington, D.C., for Respondent-Appellee.
Before BRISCOE, McWILLIAMS, and McKAY, Circuit Judges.
McKAY, Circuit Judge.
In these consolidated immigration cases, Petitioner-Appellant Jeremy E.
Riley appeals the district court’s May 9, 2001, denial of his petition for a writ of
habeas corpus and petitions for review of the Board of Immigration Appeals’ May
2, 2002, decision denying his motion to reconsider his deportation proceedings.
Appellant is a native of Egypt and a citizen of Lebanon. He was ordered
deported from the United States in 1991 based on charges that he remained in the
United States longer than the time permitted under his non-immigrant visitor’s
visa. He appealed. Appellant’s proceedings were then continued indefinitely
pending his opportunity to apply for temporary protected status. In 1994, the
United States Immigration and Nationalization Service moved to reinstate the
appeal. In 1998, the motion was granted and the Board of Immigration Appeals
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dismissed the appeal. The BIA held that Appellant had failed to establish past
persecution, a well-founded fear of persecution, or a clear probability of
persecution on account of a protected ground specified in the Immigration and
Nationality Act. Appellant did not petition for review of this decision; therefore,
the Order of Deportation became final in 1998.
In 1999, the INS issued a letter directing Appellant to report for
deportation. He did not do so. The INS then went to his home and arrested him.
Appellant was in custody for over two years. While in custody, Appellant refused
to cooperate with the INS to facilitate his return to Lebanon. At the time of oral
argument and the date of this decision, Appellant is under supervised release and
has apparently begun to cooperate with the INS.
In 2000, Appellant submitted a letter to the INS requesting the INS to join
in a motion to re-open and remand his administrative case to the BIA and also
requested that the INS grant him supervised release from custody. In the letter,
Appellant claimed that his prior counsel’s performance was ineffective because
counsel did not prove Appellant’s eligibility for asylum and because counsel did
not file the suspension of deportation application until 1995 (when he could have
filed it as early as 1992). The INS refused to join in the motion.
On September 8, 2000, Appellant filed a Petition for a Writ of Habeas
Corpus seeking review of his immigrant detention pending his deportation from
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the United States. Appellant also challenged the INS’s refusal to join in a motion
to re-open his deportation case so that he could pursue his application for
suspension of deportation, and he alleged that counsel had been ineffective during
his deportation proceedings. The district court held that Appellant’s detention
was not unconstitutional in light of Ho v. Green, 204 F.3d 1045 (10th Cir. 2000),
overruled in part by Zadvydas v. Davis, 121 S. Ct. 2491, 2497 (2001). The court
also ruled that Appellant’s refusal to assist the INS justified his continuous
detention. Finally, the court held that the INS’s refusal to join a motion to re-
open did not violate due process because there is no right or entitlement to such
relief. Appellant appealed to this court challenging the district court’s denial of
habeas corpus.
In April 2002, while the habeas appeal was pending with this court,
Appellant filed a motion to re-open with the BIA alleging ineffective assistance
of counsel. The BIA denied the appeal on May 2, 2002. Appellant appealed to
this court the BIA’s failure to consider his motion to re-open. We consolidated
the two appeals for argument.
We first consider whether the district court erred in concluding that it had
habeas corpus jurisdiction to consider Appellant’s challenges to his final
deportation order. We then address whether the district court properly denied the
petition on the merits. We review the district court’s denial of habeas corpus de
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novo. Sierra v. INS, 258 F.3d 1213, 1218 (10th Cir. 2001).
In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that a
criminal alien could use § 2241 to collaterally challenge a final order of removal.
Today we address whether § 2241 is also available to non-criminal aliens. The
Second and Third Circuits have both addressed this question and held “that
federal courts retain § 2241 habeas jurisdiction over petitions from criminal and
non-criminal aliens alike.” Liu v. INS, 293 F.3d 36, 37 (2d Cir. 2002) (citing
Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir. 2001)). The INS urges us in
the opposite direction to decide that St. Cyr narrowly held that there is § 2241
jurisdiction to review criminal aliens’ challenges to their final deportation orders
but that it does not apply more broadly to non-criminal aliens. We cannot agree.
It is well settled that “Congress must articulate specific and unambiguous
statutory directives to effect a repeal [of habeas jurisdiction].” St. Cyr, 533 U.S.
at 299. There is a “strong presumption in favor of judicial review of
administrative action and [a] longstanding rule requiring a clear statement of
congressional intent to repeal habeas jurisdiction.” St. Cyr, 533 U.S. at 298. In
St. Cyr, the Supreme Court held that neither 8 U.S.C. § 1252(g), INA § 242(g),
nor 8 U.S.C. § 1105(a) “indicate[s] a congressional intent to repeal habeas
jurisdiction.” Chmakov, 266 F.3d at 215. We agree that “[t]he Court’s decision
in St. Cyr does not suggest, expressly or implicitly, that its holding that Congress
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did not repeal § 2241 by any provision of AEDPA or IIRIRA applies only to
criminal aliens.” Liu, 293 F.3d at 40. The Third Circuit aptly summarized the
INS’s position in the following paragraph:
The INS argues . . . that although the relevant provisions of AEDPA and
IIRIRA do not evince a congressional intent to repeal habeas jurisdiction
for criminal deportees, they do evince such an intent for non-criminal
aliens. That argument borders on the nonsensical. The Supreme Court has
held that those provisions have a particular meaning, and that meaning does
not indicate a congressional intent to repeal habeas jurisdiction. It simply
cannot be that the meaning will change depending on the background or
pedigree of the petitioner.
Chmakov, 266 F.3d at 215; see also Liu, 293 F.3d at 40.
We join the reasoning of the Second and Third Circuits and hold that 8
U.S.C. 1105(a) is not the sole remedy for judicial review. The INS did not strip §
2241 federal habeas jurisdiction in either 8 U.S.C. § 1252(g), INA § 242(g), or 8
U.S.C. § 1105(a) because neither contains a clear statement referencing § 2241 as
is required when attempting to remove federal habeas jurisdiction. Therefore, we
agree with the district court that it had jurisdiction to consider Appellant’s
challenges to his final deportation order.
We now address whether the district court properly denied the petition on
the merits. Appellant originally argued that § 242 of the INA, 8 U.S.C. § 1252,
required his release or a hearing to determine whether he was eligible to be
released under the guidelines promulgated by the Supreme Court in Zadvydas v.
Davis, 121 S. Ct. 2491 (2001). He asked for “immediate release from custody
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under adequate and reasonable supervision.” Aplt. Br. at 57. Subsequent to the
filing of these appeals, Appellant was granted supervised release.
Section 2241(c)(1) provides that “[t]he writ of habeas corpus shall not
extend to a prisoner unless [he] is in custody.” However, the fact that Appellant
is no longer in custody does not automatically moot Appellant’s petition because
he was in custody at the time of filing. Spencer v. Kemna, 523 U.S. 1, 7 (1998).
Our inquiry then becomes whether Appellant meets one of the exceptions to the
mootness doctrine. We will not dismiss a petition as moot if “(1) secondary or
‘collateral’ injuries survive after resolution of the primary injury; (2) the issue is
deemed a wrong capable of repetition yet evading review; (3) the defendant
voluntarily ceases an allegedly illegal practice but is free to resume it at any time;
or (4) it is a properly certified class action suit .” Chong v. District Director, INS,
264 F.3d 378, 384 (3d Cir. 2001); see also Sosna v. Iowa, 419 U.S. 393, 399 (1975);
Roe v. Wade, 410 U.S. 113, 125 (1973); Sibron v. New York, 392 U.S. 40, 53
(1968); United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); Southern
Utah Wilderness Alliance v. Smith, 110 F.3d 725, 729 (10th Cir. 1997); Oyler v.
Allenbrand, 23 F.3d 292, 294 (10th Cir. 1994); ARW Exploration Corp. v.
Aguirre, 947 F.2d 450, 453 (10th Cir. 1991).
We are somewhat concerned about the circumstances surrounding
Appellant’s release and the potential for the INS to resume Appellant’s detention.
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However, while arguably the narrow exception of voluntary cessation may be
applicable, the record provides inadequate development and support of this issue.
Therefore, based on the record in front of us, we hold that Appellant’s release
from detention moots his challenge to the legality of his extended detention.
Appellant then contends that he was denied due process because his
counsel’s actions and inaction rendered the proceedings so fundamentally unfair
that he was prevented from effectively presenting his case, thus making his
detention illegal. Since originally making this argument, Appellant filed a Motion
to Re-open with the BIA alleging ineffective assistance of counsel. The BIA
denied this motion holding that the failure to file the Motion to Re-open within
the regulatory time line barred the Motion’s consideration.
We must consider whether the BIA abused its discretion in refusing to
consider Appellant’s Motion to Re-open challenging Appellant’s former counsel’s
ineffective representation. We review the BIA’s denial of a motion to re-open for
an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992); INS v. Abudu,
485 U.S. 94, 104-05 (1988).
Appellant argues that the BIA erred in determining that the regulatory time
line for filing motions cannot be equitably tolled in circumstances of ineffective
assistance of counsel. While the BIA did not specifically hold to this effect, it
glossed over the possibility in Appellant’s case by failing to initiate a discussion
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detailing Appellant’s failure to exercise due diligence. The BIA’s entire
resolution of the issue is as follows:
Certain courts have determined that time and numerical limitations on
motions to reopen may be equitably tolled. . . . Even when available, the
doctrine of equitable tolling is applied sparingly. Equitable tolling is
unavailable when a party fails to exercise due diligence on his own behalf.
Here, the respondent admits that he learned of the Board’s November 27,
1998, decision in August, 1999. Yet the respondent did not file the pending
motion until years later. There is no basis for abrogating the motions
deadline here.
Certified Administrative Record at 6-7 (internal citations omitted).
The Second and Ninth Circuits have addressed equitable tolling on motions
to reopen based on claims of ineffective assistance of counsel, holding that the
time and numerical limitations on motions to re-open may be equitably tolled.
Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000) (“Because there is no evidence
that Congress intended to enact a jurisdictional bar to untimely motions to reopen,
the limitations period for such motions may be equitably tolled to accommodate
claims of ineffective assistance of counsel.”); see also Socop-Gonzalez v. INS,
272 F.3d 1176 (9th Cir. 2001).
In determining whether a statute of limitations is subject to tolling, “the
basic question . . . is one of legislative intent.” Burnett v. New York Cent. R.R.
Co., 380 U.S. 424, 426 (1965) (citation omitted). After an “examin[ation of] the
text, structure, legislative history, and purpose of Congress’s 1990 amendment to
the INA,” we join the Second and Ninth Circuits and agree that there is “no
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indication, either explicit or implicit, that Congress intended that this limitations
period not be equitably tolled.” Iavorski, 232 F.3d at 130.
Exhaustion of administrative remedies is a right and a duty. The BIA must
examine Appellant’s situation to determine whether his particular case warrants
equitable tolling. The BIA failed to look at any other considerations other than
time to determine if Appellant’s case warranted equitable tolling. A simple
cursory comparison of the date of filing and the regulatory time line for filing
motions is not enough. Specifically, the BIA must review Appellant’s due
diligence along with his attempts to comply with the BIA’s requirements detailed
in Matter of Lazoda, 19 I. & N. 637, 639 (BIA 1988) (claims of ineffective
assistance of counsel require a threefold showing: 1) affidavit detailing agreement
with counsel, 2) counsel informed of allegations and given opportunity to
respond, and 3) complaint filed with disciplinary authorities).
For the foregoing reasons, we DISMISS AS MOOT the continued detention
claim, AFFIRM IN PART, REVERSE IN PART, and REMAND the decision of
the district court in 01-1250, and GRANT the Petition and REMAND the decision
on the Board of Immigration Appeals in 02-9531 for further consideration
consistent with this opinion.
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