Sayyah v. Farquharson

United States Court of Appeals
For the First Circuit

No. 03-1802

CONSTANTINE E.O. SAYYAH,

Petitioner, Appellant,

v.

STEPHEN J. FARQUHARSON; FREDERICK B. MCDONALD,
SHERIFF, FRANKLIN COUNTY HOUSE OF CORRECTION,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Howard, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.

Myles Jacobson for appellant.
Lyle D. Jentzer, Attorney, Office of Immigration Litigation,
Civil Division, Department of Justice, with whom Peter D. Keisler,
Assistant Attorney General, and Christopher C. Fuller, Senior
Litigation Counsel, were on brief for appellees.

August 30, 2004
 CAMPBELL, Senior Circuit Judge. This appeal from the

district court's dismissal of a petition for habeas corpus

questions whether 8 U.S.C. § 1252(d) -- which bars court review of

a final order of removal unless the alien has exhausted all

administrative remedies as of right -- applies to such petitions.

The district court held that it does and we agree.

I. Background

The facts are not in dispute. Appellant, Constantine

E.O. Sayyah, an Iranian national, was detained by the Immigration

and Naturalization Service ("INS") on March 18, 1999 after having

illegally entered the United States from Canada, where he had been

living in temporary asylum. The Canadian government subsequently

denied his application for permanent asylum and refused to permit

him to return to Canada. The INS began removal proceedings. On

November 30, 1999, Sayyah filed an asylum application with the

Boston Immigration Court. On June 19, 2000, Sayyah appeared

without counsel before Immigration Judge Ragno. After a hearing,

Judge Ragno determined that Sayyah was in the United States

illegally and ordered him removed as soon as a country could be

found that would receive him. Until removal, he was to remain in

custody. Based on statements made by Sayyah at the hearing, Judge

Ragno ruled that Sayyah had waived his applications for asylum,

protection under the Convention Against Torture, and stay of

removal, and that he had consented to removal and waived his right

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to appeal to the Board of Immigration Appeals ("BIA"). Sayyah

subsequently complained that his waivers and consent to deportation

were prompted by Judge Ragno's rude and abusive treatment at the

hearing.

On February 21, 2001, Sayyah filed a pro se petition for

habeas corpus in the United States District Court for the District

of Massachusetts. In it, he asserted, inter alia, that Judge Ragno

had behaved in a biased and abusive manner, depriving Sayyah of his

right to due process of law.1 On June 1, 2001, counsel was

appointed for Sayyah. On June 12, 2001, Sayyah was released from

detention following the Supreme Court's decision in Zadvydas v.

Davis, 533 U.S. 678 (2001) (detention of an alien following final

order of removal allowed only for such time as is reasonably

necessary to secure the alien's removal).

Sayyah's release did not last long. On November 1, 2001,

Sayyah was reincarcerated for, among other reasons, getting angry

with his deportation officer and stating, in effect, that people

become terrorists when very angry and that he was very angry.

Again, he was to remain in custody pending removal.

In response to Sayyah's habeas corpus petition, the INS,

on July 3, 2002, moved to have Sayyah's claims reopened with his

original immigration judge, Judge Ragno, for the purpose of

1
He also claimed indefinite detention, but this claim was
mooted by his subsequent release.

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allowing him an opportunity to appeal to the BIA Judge Ragno's

earlier decision. Sayyah refused to join in this motion.

On July 19, 2002, Sayyah filed in the district court a

memorandum and an emergency motion for hearing and order of

release, arguing that the reopening of his case should not be

allowed to moot the claims set forth in his habeas corpus petition.

Sayyah further insisted that his detention violated Zadvydas and

INS rules because it exceeded the presumptive six-month period of

reasonable detention allowed for the process of removal.

On July 22, 2002, Judge Ragno allowed the government's

motion and, on August 20, 2002, reinstated his prior order

directing Sayyah's removal. Judge Ragno's new order provided

Sayyah a full right to appeal from any alleged denial of due

process by Judge Ragno. Purportedly because he feared being before

Judge Ragno again, however, Sayyah did not appeal to the BIA.

Instead, he chose to pursue the habeas petition he had filed in the

district court.

Meanwhile, on August 19, 2002, the district court held a

hearing on Sayyah's emergency motion for hearing and order of

release. On August 28, 2002, the district court denied the motion,

but without prejudice.

On October 28, 2002, the INS Headquarters Post Detention

Unit determined that Sayyah might be released on an order of

supervision upon the posting of $5,000 bond. Sayyah was not able

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to raise enough money to post the bond and remained in custody

until, after negotiation over the amount of the bond, he was

released in January of 2003 pending removal.

On November 26, 2002, appellees, Steven J. Farquharson of

the INS and Frederick B. McDonald of the Franklin County House of

Correction, filed a motion to dismiss the portion of Sayyah's

habeas corpus petition pertaining to his assertion that he had been

denied due process. In the motion, appellees argued that under

section 242(d) of the Immigration and Nationality Act, 8 U.S.C. §

1252(d),2 the district court lacked jurisdiction over the portion

of Sayyah's habeas corpus petition containing the due process claim

because Sayyah had failed to exhaust all administrative remedies

available to him as of right. On April 17, 2003, the district

court agreed that it lacked jurisdiction over the claim and granted

the motion to dismiss. It further concluded that since Sayyah's

remaining habeas corpus claim was mooted by his release, the

petition should be dismissed, and it closed the case.3 Now, Sayyah

appeals to this court.

2
The section was enacted under the Illegal Immigration Reform
and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009-546 (1996).
3
Sayyah does not appeal from the district court's
determination that the remaining claim in his petition is moot.

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 II. Discussion

As the issues presented are purely legal, we review them

de novo. Wallace v. Reno, 194 F.3d 279, 280-81 (1st Cir. 1999).

Sayyah argues that the district court erred when it

applied 8 U.S.C. § 1252(d) to this habeas corpus case and concluded

that section 1252(d) deprived the district court of jurisdiction to

review his due process claim. Section 1252(d) states:

Review of final orders. A court may review a
final order of removal only if--
(1) the alien has exhausted all administrative
remedies available to the alien as of right,
and
(2) another court has not decided the validity
of the order, unless the reviewing court finds
that the petition presents grounds that could
not have been presented in the prior judicial
proceeding or that the remedy provided by the
prior proceeding was inadequate or ineffective
to test the validity of the order.

The exhaustion bar contained in subsection (d)(1) is

jurisdictional. See Sousa v. INS, 226 F.3d 28, 31-32 (1st Cir.

2000).

A. Whether Section 1252(d)(1) Applies to Habeas Corpus

Sayyah argues that section 1252(d)(1)'s exhaustion

requirement does not apply to habeas corpus petitions. He notes

that section 1252(d) requires exhaustion as a predicate to "court"

review of a final order of removal but not specifically as a

predicate to habeas corpus. He contrasts the statute's lack of

mention of habeas corpus with § 1252(c)'s explicit reference to

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"[a] petition for review or habeas corpus of an order" (emphasis

added).4

We find Sayyah's argument unpersuasive. Six other

circuits have read section 1252(d)(1)'s exhaustion requirement, or

that of its predecessor, section 1105a(c), as being applicable to

habeas corpus petitions. Sun v. Ashcroft, 370 F.3d 932, 936-44

(9th Cir. 2004); Theodoropoulos v. INS, 358 F.3d 162, 169-74 (2d

Cir. 2004), superseding 313 F.3d 732 (2d Cir. 2002); Duvall v.

Elwood, 336 F.3d 228, 231-32 (3d Cir. 2003); Sundar v. INS, 328

F.3d 1320, 1324-26 (11th Cir.), cert. denied, 124 S. Ct. 531

(2003); Kurfees v. INS, 275 F.3d 332, 336-37 (4th Cir. 2001)

(holding that section 1105a(c) applies to habeas corpus petitions);

Goonsuwan v. Ashcroft, 252 F.3d 383, 385-90 (5th Cir. 2001) (same).

Sayyah bases much of his contrary argument on language in

INS v. St. Cyr, 533 U.S. 289 (2001) -- a case in which the Supreme

Court held that a different subsection of 8 U.S.C. § 1252, namely

subsection (a)(2)(C) ("[N]o court shall have jurisdiction to review

any final order of removal against an alien who is removable by

reason of having committed a criminal offense . . . ."), does not

4
Section 1252(c) states:
Requirements for petition. A petition for review or
habeas corpus of an order of removal--
(1) shall attach a copy of such order, and
(2) shall state whether a court has upheld the validity
of the order, and, if so, shall state the name of the
court, the date of the court's ruling, and the kind of
proceeding.

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eliminate habeas jurisdiction over petitions by such aliens. See

also Mahadeo v. Reno, 226 F.3d 3, 11 (1st Cir. 2000).5 In St. Cyr,

the Court stated that "[f]or the INS to prevail it must overcome

both the strong presumption in favor of judicial review of

administrative action and the longstanding rule requiring a clear

statement of congressional intent to repeal habeas jurisdiction."

533 U.S. at 298 (citing Ex Parte Yerger, 75 U.S. 85 (1868); Felker

v. Turpin, 518 U.S. 651 (1996)) (footnotes and parentheticals

omitted). In the circumstance of a statute purporting to exclude

any and all right of judicial review, the Court found the absence

of any specific reference to habeas corpus to be particularly

significant.

St. Cyr is not analogous to this case, however. Section

1252(d), the statute here at issue, does not purport to eliminate

judicial review. Rather, it premises judicial review upon the

prior exhaustion of administrative remedies. In so doing, section

1252(d) implements a principle almost universally recognized in our

5
Besides citing St. Cyr, Sayyah cites Ruckbi v. INS and Sousa.
They do not advance his cause. The former is not germane to
whether section 1252(d)'s exhaustion requirement applies to habeas
corpus petitions; it did not concern exhaustion or habeas corpus
and, instead, concerned a statute under the IIRIRA transitional
rules that barred direct review when an alien was deportable for
having committed certain criminal offenses. See INS v. Ruckbi, 159
F.3d 18, 21 (1st Cir. 1998). The latter indicates merely that
there may be exceptions to the application of a statutory
exhaustion requirement. Sousa, 226 F.3d at 32. It does not
suggest that section 1252(d) is not generally applicable to habeas
corpus petitions.

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jurisprudence. See, e.g., Ex parte Hawk, 321 U.S. 114, 116-17

(1944) (per curiam) (discussing common law exhaustion).

In St. Cyr, on the other hand, an interpretation of

section 1252(a)(2)(C) eliminating habeas corpus jurisdiction would

have invoked "the outer limits of Congress' power," 533 U.S. at

299; see also id. at 314 ("If it were clear that the question of

law could be answered in another judicial forum, it might be

permissible to accept the INS' reading of § 1252. But the absence

of such a forum, coupled with the lack of a clear, unambiguous, and

express statement of congressional intent to preclude judicial

consideration on habeas of such an important question of law,

strongly counsels against adopting a construction that would raise

serious constitutional questions.") (citations and footnotes

omitted). The Eleventh Circuit has highlighted this important

distinction, commenting:

The exhaustion requirement of § 1252(d)(1) is
not tantamount to a complete preclusion of
jurisdiction. Telling a petitioner that he
must seek the remedy for an error before an
administrative agency or another court prior
to seeking it in a habeas proceeding is not
the same thing as telling him that he may not
pursue the remedy in a federal habeas
proceeding in any event. Compelling a
petitioner to seek review of an immigration
order in the BIA before he can seek to have it
set aside in a habeas proceeding is different
from barring all habeas review of the order
regardless of exhaustion. The difference is
that between a reasonable condition precedent
and an unconditional preclusion.

Sundar, 328 F.3d at 1324.

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 We note, moreover, that subsection (2) of section 1252(d)

contains language intimating the likely inclusion of habeas review

in section 1252(d). Subsection (2) provides that a court may

"review" a final order of removal only if:

another court has not decided the validity of
the order, unless the reviewing court finds
that the petition presents grounds that could
not have been presented in the prior judicial
proceeding or that the remedy provided by the
prior proceeding was inadequate or ineffective
to test the validity of the order.

This reference to another court and a prior judicial proceeding

suggests that Congress envisaged the term "review" to encompass

habeas corpus review, which commonly follows upon other judicial

proceedings. Sun, 370 F.3d at 940; Theodoropoulos, 358 F.3d at

169-72 (stating, "[m]oreover, although § 1252(d) fails to expressly

mention habeas corpus or § 2241 (as required by [St. Cyr] to effect

a repeal of habeas jurisdiction), its recitation in subsection (2)

of the effect that prior judicial proceedings have on the scope of

a subsequent court's review seems plainly to contemplate habeas

review.") (footnote omitted).

The legislative history of section 1252(d), while not

explicit, is also entirely consistent with the inclusion of habeas

corpus review. Through the enactment of the IIRIRA, section

1252(d) replaced 8 U.S.C. § 1105a(c), which provided that "[a]n

order of deportation or of exclusion shall not be reviewed by any

court if the alien has not exhausted the administrative remedies

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available to him as a matter of right under the immigration law and

regulations . . . ." As section 1252(d) merely "restates" section

1105a(c), cases concerning the latter remain relevant. Sousa, 226

F.3d at 31; see also Sun, 370 F.3d at 937 ("[W]e thus have no

indication in the statute itself that Congress intended through

IIRIRA's enactment of § 1252(d)(1) to remove the exhaustion

requirement for habeas petitions that we had previously decided was

contained in the very similar language of former § 1105a(c).");

Duvall, 336 F.3d at 232 n.6 ("The [scant] legislative history that

does exist strongly suggests that the purpose of the two provisions

is one and the same."). Nothing in the legislative background nor

in cases construing the earlier section 1105a(c) lends support to

Sayyah's interpretation.

In this circuit's case of Hernandez v. Reno, 238 F.3d 50,

54-55 (1st Cir. 2001), the government argued that the exhaustion

requirement of section 1105a(c) barred review of Hernandez's habeas

corpus petition, which challenged the competency of his counsel.

We ultimately concluded from the particular facts in that case that

the exhaustion requirement did not bar Hernandez's petition. Id.

Hernandez faced immediate deportation notwithstanding the pendency

before the BIA of his motion to reopen, and his failure to timely

exhaust may have been caused by the very incompetency he complained

of. Id. We did not hold that section 1105a(c)'s exhaustion

requirement was generally inapplicable to habeas corpus petitions.

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To the contrary, we stated, "[i]n the ordinary case, we agree that

the respondent must use the Board's own procedures to resolve his

competency of counsel claims. Absent a threat of immediate

deportation, a district court should in general decline to

entertain a habeas petition challenging competency of counsel."

Id. at 55 (citation omitted).

We conclude that section 1252(d)'s exhaustion requirement

applies generally to habeas corpus petitions. To hold otherwise

would drastically limit the utilization of a salutary principle

customarily applied in respect to administrative proceedings. Such

an interpretation would allow an alien subjected to an adverse

decision to reject the very administrative review processes

established to correct mistakes and to insist, instead, upon

immediate access to a federal court.

Accordingly, we hold that section 1252(d)'s exhaustion

requirement applies broadly to all forms of court review of final

orders of removal, including habeas corpus.6 We now turn to

6
It might be argued that our holding results in giving to the
term "review" different meanings within the same statute. Compare
St. Cyr, 533 U.S. at 312-14 (reading "review" in section
1252(a)(2)(C) to mean only direct appeals); see also
Theodoropoulos, 358 F.3d at 171. "It is a fundamental interpretive
principle that identical words or terms used in different parts of
the same act are intended to have the same meaning." United States
v. Nippon Paper Indus. Co., Ltd., 109 F.3d 1, 4 (1st Cir. 1997)
(citations omitted). Assuming, without deciding, that this
principle would be applicable to the instant codification, it is
not absolute -- rather, it creates a flexible presumption. See
United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213
(2001) (stating, "the presumption 'is not rigid,' and 'the meaning

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whether the exhaustion requirement bars review of Sayyah's habeas

corpus petition.

B. Whether Sayyah's Habeas Corpus Petition Falls Within
the Scope of Section 1252(d)(1)

According to section 1252(d)(1), we may review Sayyah's

final order of removal -- and therefore the due process claim in

his habeas corpus petition which requests review of that order7 --

only if Sayyah has exhausted all administrative remedies available

to him as of right. Sayyah argues that he has exhausted his

administrative remedies because, at the time he filed his habeas

corpus petition, he had waived his right to appeal to the BIA. He

contends that this waiver foreclosed his ability to pursue any

remedy as of right. We disagree.

Sayyah's waiver of his right to appeal to the BIA does

not constitute exhaustion of the administrative remedies available

to him as of right under section 1252(d). See, e.g.,

Theodoropoulos, 358 F.3d at 174 (holding alien's waiver of right to

appeal to BIA was a failure to exhaust administrative remedies for

[of the same words] well may vary to meet the purposes of the
law,'") (quotations omitted). Because of the fundamental
difference between the provision in this case, pertaining to
exhaustion only, and the provision interpreted in St. Cyr,
eliminating review entirely, it would be only reasonable to forgo
the presumption. As discussed supra, the reading of "review"
advanced in St. Cyr was, itself, the product of a presumption, but
one that does not apply to cases like the present.
7
There is no dispute that this claim requests review of his
final order of removal.

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jurisdictional purposes). Sayyah argues that his waiver here was

the product of Judge Ragno's oppressive and improper behavior. But

after the hearing at which the behavior criticized was exhibited,

Sayyah was later granted an additional opportunity to appeal to the

BIA. Sayyah's purported fear that an appeal would force him to

appear once more before Judge Ragno was an insufficient excuse not

to comply with the exhaustion requirement. His appeal would have

been to the BIA, not to Judge Ragno. The BIA had the authority to

deal with Sayyah's objections to the events in Judge Ragno's

courtroom and provide relief, which might or might not have

included further hearings before Judge Ragno. See Ravindran v.

INS, 976 F.2d 754, 763 (1st Cir. 1992) (listing "judicial conduct"

among "irregularities" that BIA could have corrected if brought to

its attention); cf. Podio v. INS, 153 F.3d 506, 511 (7th Cir. 1998)

(remanding to BIA case concerning alleged immigration judge

misconduct and stating, "[w]hile the choice of a presiding judge is

left to the discretion of the BIA, we believe that all of the

parties concerned, including the original immigration judge

himself, would prefer that the new hearing be held before a

different judge").

Sayyah further contends that since his case was reopened

only after petition by the INS, any remedy available to him was

discretionary and not "as of right." See 8 U.S.C. § 1252(d)(1).

We disagree. Upon reopening of his case, Sayyah was given the

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opportunity to directly appeal to the BIA as of right. See 8

C.F.R. § 1003.3; Hernandez, 238 F.3d at 54 (stating that timely

appeal to the BIA is a remedy as of right). Moreover, the

distinction Sayyah seeks to make on these facts between

discretionary remedies and remedies as of right is somewhat

illusory. In Hernandez, we discussed the fact that an untimely

motion to reopen is a discretionary motion but that, to the extent

the BIA grants such "currently available remedies as a matter of

grace," courts may require exhaustion of them. See 238 F.3d at 54-

55. We conclude that Sayyah did not exhaust the administrative

remedies available to him as of right under section 1252(d)(1).

C. Whether Sayyah's Habeas Corpus Petition Falls within
the Exceptions to Section 1252(d)(1)

The exhaustion principle, while strict, admits of

appropriate exceptions in extraordinary instances. See Sun, 370

F.3d at 943 n.16 (citing Theodoropoulos, 358 F.3d at 173;

Goonsuwan, 252 F.3d at 389; Sousa, 226 F.3d at 328) ("There is

8
In Sousa, we discussed one such exception: "[t]he best
founded is one suggested by the Supreme Court, and explicitly
recognized in this and other circuits, where a resort to the agency
would be futile because the challenge is one that the agency has no
power to resolve in the applicant's favor." See 226 F.3d at 32.
Sayyah does not appear to argue in his brief that this exception
applies here. Regardless, the contested claim raised issues that
were well within the purview of the BIA -- namely, whether Judge
Ragno's conduct prevented Sayyah from having a fair opportunity to
defend himself, to pursue his petitions for asylum, withholding of
deportation and relief under the Convention Against Torture, and to
timely appeal to the BIA. See Ravindran, 976 F.2d at 763.
Accordingly, the Board was capable of resolving these issues in his
favor, and this exception does not apply.

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agreement among the circuits that have addressed the issue that

exceptions do apply to § 1252(d)(1), although the contours of such

exceptions remain to be fully developed.").

Sayyah contends his case falls within the exception for

cases in which prejudice may result from an unreasonable or

indefinite timeline for administrative action. See, e.g., McCarthy

v. Madigan, 503 U.S. 140, 146-47 (1992) (noting "circumstances in

which the interests of the individual weigh heavily against

requiring administrative exhaustion," including when "requiring

resort to the administrative remedy may occasion undue prejudice to

subsequent assertion of a court action . . . for example, from an

unreasonable or indefinite timeframe for administrative action")

(citations omitted); Simmons v. Reynolds, 898 F.2d 865, 867-68 (2d

Cir. 1990) (six-year delay in state appeal excused exhaustion

requirement in federal habeas action); Burkett v. Cunningham, 826

F.2d 1208, 1218-19 (3d Cir. 1987) (excusing state prisoner's

failure to exhaust state-law remedies before seeking federal habeas

corpus relief on ground that he had suffered over five years of

delay in attempting to vindicate himself in state court). On this

record, however, we are unable to find that pursuing an appeal to

the BIA would have resulted in a prejudicial delay.

Sayyah's final order of removal was issued on June 19,

2000. Sayyah was understood to have waived his right to appeal

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from the order, thus eliminating further consideration of his

claims for asylum, protection under the Convention Against Torture,

and stay of removal. Approximately two years later, Sayyah was

given another opportunity to appeal to the BIA, but he did not

pursue it. It was expressly made clear in that appeal that he

could pursue his assertion of a denial of due process by Judge

Ragno. Because Sayyah chose not to proceed with the appeal, there

was again no reason for further administrative consideration and no

reason to blame the agency for delay. Sayyah maintains, however,

that, at that time, he was presented information indicating that

appeals to the BIA were backlogged some five to eleven years. Bare

speculation of this sort, however, is no substitute for proof that

Sayyah suffered or would have suffered prejudicial administrative

delay. Cf. United States v. Gonzalez-Roque, 301 F.3d 39, 48 n.7

(2d Cir. 2002) (holding, in statutory exhaustion context, that

mistaken belief, even if true, "would not excuse [petitioner] from

raising" an issue but rather merely "reflect[ed] his conscious

decision not to do so"). Sayyah was not, moreover, under

continuous detainment during the two-year period between his

initial waiver of appeal and the reopening of his case. He was

released on June 12, 2001 and returned to further detention only

after, among other things, he engaged in angry confrontations with

Social Security and deportation personnel. He was again released

in 2002.

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 We hold that section 1252(d)(1) applies, jurisdictionally

barring consideration of Sayyah's contested claim for want of

exhaustion. As the statutory exhaustion requirement bars review,

we need not consider how Sayyah's habeas corpus petition fares

under the common-law exhaustion standard. See Sousa, 226 F.3d at

31. We conclude that Sayyah's due process claim was properly

dismissed. Affirmed.

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