Aguilar-Alvarez v. Holder

FILED
United States Court of Appeals
Tenth Circuit

June 28, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

JORGE GUILLERMO AGUILAR-
ALVAREZ,

Petitioner,
No. 11-9556
v. (Petition for Review)

ERIC H. HOLDER, JR., Attorney
General of the United States,

Respondent.

ORDER AND JUDGMENT *

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.

Jorge Guillermo Aguilar-Alvarez (“Mr. Aguilar”) files a petition for review

from the final decision of the Board of Immigration Appeals (“BIA”) affirming an

immigration judge’s order of removal. He asks us to permit him to file a writ of

habeas corpus; our failure to do so, he contends, could effect a violation of the

Suspension Clause. Moreover, he challenges as improper the decision of the

Department of Homeland Security (“DHS”) to re-initiate proceedings against him

*
This order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
after it had initially sought dismissal of those proceedings without prejudice. We

conclude that Mr. Aguilar lacks standing to proceed on his habeas-related claims,

and that we otherwise lack jurisdiction under 8 U.S.C. § 1252(g) to review his

claim related to the DHS’s alleged abuse of prosecutorial discretion. We dismiss

his petition for review.

I

Mr. Aguilar was charged by a felony information on January 28, 2004, with

four counts of second-degree burglary in Tulsa County, Oklahoma. Subsequently,

on February 6, 2004, he was charged—again in Tulsa County—by a second felony

information with an additional six counts of burglary. A few months later, on

November 30, 2004, Mr. Aguilar pleaded guilty to count four of the first

information and to five of the six counts in the second information.

The Tulsa County district court thereafter placed Mr. Aguilar on a deferred

sentence without a judgment of guilt, requiring him to serve five years of

community service, and ordering him to pay restitution, compensation to the

Oklahoma Victim’s Compensation Fund, and court fees. The deferred sentence

included various other rules and conditions that Mr. Aguilar had to follow in

order to be deemed in compliance. In 2009, because Mr. Aguilar had complied

with the requirements of the deferred sentence, the trial court entered orders

“expung[ing]” his previous plea, and dismissing the action “with prejudice.” E.g.,

R. at 218 (Order of Expungement, filed Nov. 23, 2009) (emphasis added).

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 Earlier in 2009, the DHS filed against Mr. Aguilar a Notice to Appear

(“NTA”) in immigration removal proceedings, see R. at 32–33 (Tr. of Removal

Hr’g, held Mar. 23, 2010), because he allegedly had been “convicted” of two or

more crimes involving “moral turpitude” that did not “aris[e] out of a single

scheme of criminal misconduct,” 8 U.S.C. § 1227(a)(2)(A)(ii). On March 23,

2010, after holding a hearing on the NTA, an immigration judge, on the DHS’s

motion, terminated the removal proceedings without prejudice due to some

apparent confusion concerning the charging documents and whether Mr. Aguilar

was actually removable under § 1227(a)(2)(A)(ii). See R. at 33–34 (“I’ll go

ahead and put on the record the reason I’m terminating, Judge, is, [our] office

determined in 2005 that the alien was not deportable.”). One month later, the

DHS re-initiated the removal charge, issuing another NTA to Mr. Aguilar on the

same grounds.

Further hearings on the NTA were held in late 2010 and on February 14,

2011, and revealed that the government had initially sought dismissal without

prejudice of the prior charge because the DHS’s counsel had been under the

erroneous impression that Mr. Aguilar’s offenses arose from a single scheme of

criminal conduct and thus, at that time, elected not to proceed with the case. Mr.

Aguilar denied allegations in the NTA suggesting that he was “convicted” of

multiple counts of burglary, but admitted the allegations concerning his alienage

status. He also admitted that the alleged instances of burglary in the NTA “did

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not arise out of a single scheme of criminal misconduct.” Id. at 226 (NTA, dated

Apr. 23, 2010).

At the February 14 hearing, the immigration judge declined to terminate the

proceedings on res judicata grounds, reasoning that the prior NTA termination

was made without prejudice, and that both parties had accepted that decision and

“waived appeal.” Id. at 148 (Tr. of Removal Hr’g, held Feb. 14, 2011).

Regarding the removal, Mr. Aguilar’s counsel argued that the expungement orders

entered by the Tulsa County district court showed that his guilty pleas, which

served as the basis for the NTA, had been withdrawn, and that the criminal case

had been dismissed, thereby legally vitiating his convictions. The immigration

judge rejected this contention, finding that, under 8 U.S.C. § 1101(a)(48) and BIA

precedent, Mr. Aguilar was “convict[ed]” for purposes of federal law because he

pleaded guilty to the burglary charges and received some “restraint” on his

liberty. R. at 153–54. The subsequent expungement orders, in the immigration

judge’s view, did not alter this outcome and compel dismissal of the removal

petition.

The immigration judge further found that the Oklahoma burglary

“convictions” were crimes of “moral turpitude.” Id. at 116–17 (Oral Decision of

Immigration Judge, dated Feb. 14, 2011). Moreover, because Mr. Aguilar had

conceded that the purported convictions all arose out of different schemes of

criminal conduct, there was a sufficient basis to support the removal charge. Mr.

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Aguilar did not seek discretionary relief from removal.

Mr. Aguilar retained new counsel and appealed to the BIA. He argued that:

(1) the DHS’s re-initiation of the removal proceedings in April of 2010 violated

principles of res judicata; (2) the DHS’s counsel abused its “prosecutorial

discretion” by seeking to remove him after first terminating the original removal

proceedings; and (3) his counsel should, “as a matter of fairness and justice,” be

permitted an opportunity to litigate issues overlooked by prior counsel, including

the possibility that his criminal counsel was ineffective in light of the Supreme

Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

However, the BIA adopted and affirmed the immigration judge’s decision.

More specifically, it rejected Mr. Aguilar’s res judicata argument, finding that the

termination of his prior proceeding had no preclusive effect. It further rejected

his prosecutorial-discretion arguments because the decision on whether to place

an alien into a removal proceeding is “entirely within the authority of the DHS.”

R. at 4 (Decision of BIA, dated Aug. 19, 2011). Additionally, the BIA found that

it lacked authority to address Mr. Aguilar’s claims of ineffective assistance of

counsel because it was “bound by the conviction [of] record[],” and it could not

“retry” his criminal case in immigration proceedings. Id.

II

Mr. Aguilar petitions for review from the BIA’s order dismissing his appeal

of the immigration judge’s decision sustaining the removal charge. As alluded to

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above, 8 U.S.C. § 1227(a)(2)(A)(ii) makes removable an alien “convicted of two

or more crimes involving moral turpitude, not arising out of a single scheme of

criminal misconduct.” See Cordova-Soto v. Holder, 659 F.3d 1029, 1030 (10th

Cir. 2011). Section 1252(a)(2)(C), however, provides in pertinent part that “no

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 covered in

. . . [8 U.S.C. §] 1227(a)(2)(A)(ii) . . . for which both predicate offenses are,

without regard to their date of commission, otherwise covered by

[§] 1227(a)(2)(A)(i).”

In other words, the jurisdictional bar applies to a removal petition filed

against an alien convicted of two or more crimes involving moral turpitude under

§ 1227(a)(2)(A)(ii) provided that each crime (i.e., at least two) independently

satisfies § 1227(a)(2)(A)(i)’s requirements. See Abiodun v. Gonzales, 461 F.3d

1210, 1215 (10th Cir. 2006); accord Gallegos-Vasquez v. Holder, 636 F.3d 1181,

1183 (9th Cir. 2011). Section 1227(a)(2)(A)(i) in turn provides in pertinent part

that an alien is deportable if he commits a crime of moral turpitude within ten

years of being admitted as a lawful permanent resident alien and the crime is

punishable by a year or more in prison. See Marmolejo-Campos v. Holder, 558

F.3d 903, 906 (9th Cir. 2009) (en banc). Mr. Aguilar was “convicted” of six

counts of second-degree burglary under Okla. Stat. tit. 21, § 1435, each of which

is punishable by a term of imprisonment of up to seven years. See Okla. Stat. tit.

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21, § 1436(2) (“Burglary in the second degree [is punishable by imprisonment]

not exceeding seven (7) years and not less than two (2) years.”). He does not

contest the immigration judge’s findings that his convictions satisfy the

requirements of § 1227(a)(2)(A)(ii). Thus, given the language in § 1252(a)(2)(C)

applying the jurisdictional bar “without regard” to the date of the commission of

the triggering offenses under § 1227(a)(2)(A)(ii), judicial review of the removal

order would appear to be prohibited. See Malilia v. Holder, 632 F.3d 598, 601

n.2 (9th Cir. 2011); Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105, 1107 (10th

Cir. 2006).

Nonetheless, § 1252(a)(2)(C)’s “jurisdictional prohibition is qualified by [8

U.S.C.] § 1252(a)(2)(D).” Vasiliu v. Holder, 651 F.3d 1185, 1187 (10th Cir.

2011). That provision provides that nothing in § 1252(a)(2)(C) “shall be

construed as precluding review of constitutional claims or questions of law raised

upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C.

§ 1252(a)(2)(D); see Vasiliu, 651 F.3d at 1187. We therefore have “jurisdiction

over [the removal] order[] [under § 1227(a)(2)(A)(ii)] . . . but only insofar as the

petition for review raises constitutional or legal challenges to the removal order.”

Vasiliu, 651 F.3d at 1187; see Hamilton v. Holder, 584 F.3d 1284, 1286 (10th Cir.

2009). And “[w]e review each of the [legal and constitutional] issues raised in

the petition de novo.” Brue v. Gonzales, 464 F.3d 1227, 1232 (10th Cir. 2006);

see Torres de la Cruz v. Maurer, 483 F.3d 1013, 1019 (10th Cir. 2007).

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 III

Mr. Aguilar raises multiple issues concerning his removal proceedings.

Broadly speaking, he lodges challenges against the jurisdiction-stripping

provisions added to the federal immigration scheme via the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, 302 (2005) (codified as amended in

scattered sections of, inter alia, 8 U.S.C.). Second, he contends that the DHS’s

decision to re-initiate the removal proceedings after dismissing them without

prejudice was an unlawful abuse of its prosecutorial discretion.

A

Mr. Aguilar argues that the REAL ID Act does not apply to him because he

was convicted in Oklahoma, a state that has opted out of various registration

requirements of the Act. Second, he contends that the Act’s jurisdiction-stripping

provisions violate the Suspension Clause of the U.S. Constitution as applied to his

case. These arguments represent an attempt to evade the jurisdiction-stripping

provisions added by the REAL ID Act, which speak to the availability of habeas

corpus relief, see 8 U.S.C. § 1252(a)(2)(C) (“Notwithstanding any other provision

of law . . . including [§] 2241 of Title 28, or any other habeas corpus provision,

. . . no court shall have jurisdiction to review . . . [removal orders issued under

§ 1227(a)(2)(A)(ii)].” (emphases added)); see also id. § 1252(a)(5) (“For purposes

of this chapter, in every provision that limits or eliminates judicial review or

jurisdiction to review, the terms ‘judicial review’ and ‘jurisdiction to review’

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include habeas corpus review . . . [under] any . . . habeas corpus provision . . . .”).

We conclude, however, that Mr. Aguilar lacks standing to challenge the REAL ID

Act’s jurisdiction-stripping provisions as they relate to the restrictions on habeas

review.

Article III of the U.S. Constitution limits the jurisdiction of federal courts

to the adjudication of “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1.

We may pass only upon matters that are properly justiciable under Article III.

See Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir. 2004). A key component

of justiciability is Article III standing, see, e.g., Awad v. Ziriax, 670 F.3d 1111,

1120 (10th Cir. 2012), a concept that requires the litigant seeking keys to the

federal courthouse to “allege[] . . . a [sufficient,] personal stake in the outcome of

the controversy,” Horne v. Flores, 557 U.S. 433, 445 (2009) (quoting Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009)) (internal quotation marks omitted).

“To establish . . . standing, the [litigant seeking to avail himself of federal

jurisdiction] bears the burden of demonstrating the following three elements: (1)

an injury in fact; (2) a causal connection between the injury and the challenged

action; and (3) a likelihood that a favorable decision will redress the injury.”

Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011); accord Ibrahim v. Dep’t of

Homeland Sec., 669 F.3d 983, 992 (9th Cir. 2012); see Coll v. First Am. Title Ins.

Co., 642 F.3d 876, 892 (10th Cir. 2011).

The government contends that Mr. Aguilar lacks an injury in fact because

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he has not (by his own admission) attempted to file a habeas petition. However,

we need not assess the merit of that contention because Mr. Aguilar has not (and

cannot) show that the redressability component of standing is satisfied here.

Standing requires a petitioner to allege an injury that can be “redressed by a

favorable decision.” Camreta v. Greene, 131 S.Ct. 2020, 2028 (2011) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)) (internal quotation

marks omitted). “To satisfy the ‘redressability’ prong of the standing test, the

[petitioner] must demonstrate that a substantial likelihood [exists] that the relief

requested will redress the injury claimed.” Ash Creek Mining Co. v. Lujan, 969

F.2d 868, 875 (10th Cir. 1992) (second alteration in original) (quoting Duke

Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978))

(some internal quotation marks omitted); see Camreta, 131 S. Ct. at 2028–29;

Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2752–55 (2010);

Summers, 555 U.S. at 493–96; Sprint Commc’ns Co. v. APCC Servs., Inc., 554

U.S. 269, 286–87 (2008); see also Davis v. Fed. Election Comm’n, 554 U.S. 724,

734 (2008). “This requirement [helps] assure[] that ‘there is a real need to

exercise the power of judicial review in order to protect the interests of the

complaining party.’” Summers, 555 U.S. at 493 (quoting Schlesinger v.

Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974)).

Mr. Aguilar’s arguments seek exemption from the REAL ID Act’s

jurisdiction-stripping provisions so that he may file a habeas action, with the

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ultimate goal of vitiating the factual foundation of his removal order. At bottom,

Mr. Aguilar endeavors to challenge the deferred adjudications entered in 2004 on

the ground that his counsel was ineffective under Padilla in failing to advise him

of the immigration consequences of his pleas. 1 However, even if we ultimately

1
At oral argument, counsel conceded that he was seeking to challenge
the underlying convictions on ineffective assistance of counsel grounds. See Oral
Arg. at 5:20–6:02. This concession is largely consistent with the overall pith of
his brief. See, e.g., Pet’r Br. at 7 (suggesting that he ought to be able to “litigate
issues . . . regarding the ineffective assistance of counsel during [his] criminal
case”).

Relatedly, Mr. Aguilar asks us to convert his petition for review into a
petition for a writ of habeas corpus. We decline. First, a removal proceeding, as
a creature of Article I, plainly does not contemplate the assertion of habeas
corpus. See Vasiliu, 651 F.3d at 1187 (“The government maintains that our
jurisdiction under § 1252(a)(2)(D) extends only to the review of colorable
constitutional claims and that Mr. Vasiliu’s Padilla claim is substantively
meritless. But whether his contention has merit or not, we cannot address it
because a challenge to an alien’s criminal conviction, upon which a removal order
is based, is beyond the scope of removal proceedings.”); Waugh v. Holder, 642
F.3d 1279, 1283 (10th Cir. 2011) (“[N]either the [immigration judge] nor the BIA
has authority to adjudicate the constitutionality of an underlying criminal
conviction.”). Moreover, Mr. Aguilar provides no support for such a novel
remedy, and we could locate none.

Mr. Aguilar raises an incidental argument that his due process right to a
full and fair deportation hearing is being denied because he lacks the ability to
challenge the underlying “presumptively constitutionally void” plea agreements
under Padilla. Pet’r Br. at 13. We squarely rejected such an argument in Waugh,
where we declined to impose upon the DHS the “burden . . . to prove as part of its
case that [a petitioner’s] conviction was constitutional under the Sixth
Amendment,” in light of the holding in Padilla. See 642 F.3d at 1282. Mr.
Aguilar erroneously maintains without support that Padilla singles out a
particular constitutional infirmity that must be given heightened protection in
removal proceedings. However, there is “nothing in Padilla that would create the
(continued...)

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concluded that Mr. Aguilar could file a habeas action to challenge his underlying

“convictions” (i.e., deferred adjudication orders), such relief would be illusory

because any such habeas action that Mr. Aguilar might pursue would be time-

barred under the limitations period of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”).

Under AEDPA, a federal habeas petition challenging a state criminal

judgment must be filed “within the one-year limitation period set forth in [28

U.S.C.] § 2244(d)(1).” Sigala v. Bravo, 656 F.3d 1125, 1126 (10th Cir. 2011).

The one-year period runs from the latest of four specified dates in § 2244(d)(1),

including, as pertinent here, “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

28 U.S.C. § 2244(d)(1)(A). Generally, under Oklahoma law, a trial judge is

permitted to defer the adjudication of guilt—as was done in this case—where the

facts of the crime are otherwise conclusively established. See Okla. Stat. tit. 22,

§ 991c(A); cf. Okla. Stat. tit. 63, § 2-410. In doing so, the judge typically enters

a deferred adjudication order setting forth certain penalties and various conditions

to be satisfied in order for the defendant to have the criminal matter later

1
(...continued)
unique burden petitioner proposes.” Id. at 1283. Indeed, a conviction may suffer
from a host of constitutional errors, but that does not change the DHS’s sole
purpose in a removal proceeding—viz., to prove that such a conviction exists and
that it meets the requirements for removal. See 8 U.S.C. § 1229a(c)(3)(A).

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expunged from his record. See Okla. Stat. tit. 22, § 991c.

We note that whether a deferred adjudication order (here, under Oklahoma

law) constitutes a “judgment” sufficient to allow for habeas relief and trigger the

start of the statutory time period under § 2244(d)(1) is a matter of first impression

in our circuit. 2 The question is relevant because AEDPA presupposes the

existence of a state court judgment both in order to seek habeas relief in the first

instance, see 28 U.S.C. § 2254(a), and as a predicate for kick-starting the

limitations period for seeking that relief, see id. § 2244(d)(1). Unfortunately,

there is little authority on this matter. In fact, the Fifth Circuit seems to be the

only circuit that has considered an analogous question. See Caldwell v. Dretke,

429 F.3d 521, 526–27 (5th Cir. 2005).

Thankfully, we need not grapple here with this thorny question. Even if we

were to assume that an Oklahoma deferred adjudication order qualified under

AEDPA as a “judgment,” clearly any attempt by Mr. Aguilar to file a habeas

petition seeking to vacate the 2004 deferred adjudication orders would now be

time-barred under AEDPA’s one-year limitations period, because he has still not

filed a habeas action, now multiple years after the conclusion of the time he could

2
In entering a deferred adjudication order under Oklahoma law, a trial
court must not issue a “judgment of guilt,” see Okla. Stat. tit. 22, § 991c(A); if a
defendant satisfactorily completes the conditions of a deferred judgment order,
the court may “order the verdict or plea of guilty or plea of nolo contendere to be
expunged from the record and the charge shall be dismissed with prejudice to any
further action,” id. § 991c(C).

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have sought review under state law and that those “judgments” became final.

Compare, e.g., Okla. Stat. tit. 22, § 1051(a) (ninety days to challenge the terms of

a deferred adjudication order), with Okla. Stat. tit. 22, Ch. 18, App., R. 4.2(A)

(ten days to challenge the predicate plea). 3

Accordingly, any relief we could provide would be illusory: even if we

authorized Mr. Aguilar to pursue a habeas action to attack his 2004 deferred

adjudications, such an action would be time-barred under AEDPA. See Emery v.

Roanoke City Sch. Bd., 432 F.3d 294, 298–99 (4th Cir. 2005) (holding that the

plaintiff failed to establish “redressab[ility]” in arguing that he had been

inappropriately denied certain state benefits because he was no longer eligible for

3
Indeed, even if we went so far as to assume that Mr. Aguilar could
conceivably challenge his deferred adjudication orders through a habeas action
predicated on the subsequent judgment entered in his state case on November 23,
2009, that dismissed the entire action with prejudice, such a habeas action would
be time-barred. The operative date that this judgment became final for AEDPA
purposes was the date it was entered because no further review of this favorable
judgment existed under state law. Specifically, Mr. Aguilar cannot under
Oklahoma law seek appellate review of a favorable dismissal with prejudice—or
any antecedently adjudicated facts. See Okla. Stat. tit. 22, § 1051(a) (“An appeal
to the Court of Criminal Appeals may be taken by the defendant, as a matter of
right from any judgment against him . . . .” (emphasis added)); Gonseth v. State,
871 P.2d 51, 54 (Okla. Crim. App. 1994); see also Greenwood v. State, 375 P.2d
661, 664 n.1 (Okla. Crim. App. 1962) (“The term ‘judgment’ in § 1051 has been
construed by this Court as ‘final judgment’. Appeals to Criminal Court of
Appeals are from final judgment against defendant.” (quoting Gibson v. State, 197
P.2d 310, 313 (Okla. Crim. App. 1948)) (some internal quotation marks omitted)).
Therefore, AEDPA’s one-year limitations period would have long since
expired—even if a date some five years after the deferred adjudication orders was
treated as the operative one.

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those benefits under state law due partly to the fact that the statutory period for

seeking them had run); Takhar v. Kessler, 76 F.3d 995, 1001 (9th Cir. 1996)

(holding that the plaintiff’s challenges to the validity of a prior conviction were

not redressable in administrative proceedings because the “proper avenue” for

seeking such relief was via direct appeal or habeas corpus, and he sought neither

of those remedies); see also Warth v. Seldin, 422 U.S. 490, 505–07 (1975)

(ascertaining a lack of a causal relationship between the plaintiffs’ asserted

injuries in losing out on affordable housing in light of a zoning ordinance and any

relief the court might grant, because there was no indication that affordable

housing would be available if the ordinance was struck). Furthermore, Mr.

Aguilar does not allege any facts that would entitle him to the application of

tolling to save his proposed habeas petition. See Sigala, 656 F.3d at 1127.

Thus, after the rough procedural complications in this case are chiseled

away, a conclusion resting on a smooth rationale remains: We can provide Mr.

Aguilar with no remedial benefit. In other words, a favorable decision by this

Court holding that Mr. Aguilar may file a federal habeas petition challenging his

burglary convictions under Padilla would amount to little more than a hollow

gesture—indeed, an empty one providing him at best with “abstract vindication.”

13A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal

Practice and Procedure § 3531.6, at 395 (3d ed. 2008). Consequently, he lacks

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standing to challenge the REAL ID Act. 4

B

Mr. Aguilar also contends that, “[a]s a matter of policy, fairness, and

justice, the immigration attorney should not have abused his prosecutorial

discretion by again seeking to remove Mr. Aguilar after terminating the initial

removal case.” Pet’r Br. at 21. The government contends that 8 U.S.C. § 1252(g)

limits our jurisdiction to consider Mr. Aguilar’s claims concerning the DHS’s

alleged abuse of its prosecutorial discretion. We agree with the government.

In determining whether the DHS’s actions in this case fall within

§ 1252(g), we first examine, as the initial step in our analytical journey, the plain

text of the provision. See United States v. Lamirand, 669 F.3d 1091, 1094 (10th

Cir. 2012). Here, the relevant language clearly illuminates our path. Section

1252(g) bars our jurisdiction “to hear any cause or claim by or on behalf of any

alien arising from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against any alien under

this chapter.” 5 Accord Luevano v. Holder, 660 F.3d 1207, 1210 n.2 (10th Cir.

4
Because we conclude that Mr. Aguilar lacks standing to proceed, we
do not address the government’s alternative argument that an opinion from this
court on the constitutionality of the REAL ID Act’s jurisdiction-stripping
provisions would amount to an impermissible advisory opinion.
5
This provision, though referring to the Attorney General, has been
applied to the Secretary of the DHS. Ali v. Mukasey, 524 F.3d 145, 150 & n.5 (2d
Cir. 2008) (discussing and quoting 6 U.S.C. § 202(3), which “transferred to the
(continued...)

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2011). “[This section] was directed against a particular evil: attempts to impose

judicial constraints upon prosecutorial discretion.” Reno v. American-Arab Anti-

Discrimination Comm. (AAADC), 525 U.S. 471, 485 n.9 (1999).

Here, the NTA was initially dismissed on motion of the DHS, and it was

dismissed without prejudice. The government attorney made absolutely clear on

the record that he was going to revisit the matter in order to reassess the basis for

the charging document. See R. at 35 (“I would still consider this a conviction,

however, I want to do some more research on this, and find out why this was

ruled earlier not to be a conviction . . . .”).

In other words, there was no final decision about whether the government

would proceed with the case, and Mr. Aguilar was clearly made aware that the

action could be re-initiated. All of Mr. Aguilar’s prosecutorial-discretion

contentions concern the propriety of the DHS’s act of re-commencing removal

proceedings against him, and we have no jurisdiction under § 1252(g) to consider

them. See Zundel v. Holder, 687 F.3d 271, 279 (6th Cir. 2012) (noting the lack of

jurisdiction to consider an inquiry “arising from the Attorney General’s decision

to adjudicate (or not adjudicate) cases”); see also Lemos v. Holder, 636 F.3d 365,

5
(...continued)
Secretary of DHS the responsibility for ‘[c]arrying out the immigration
enforcement functions vested by statute in, or performed by, the Commissioner of
Immigration and Naturalization (or any officer, employee, or component of the
Immigration and Naturalization Service).’” (alteration in original)); accord
Elgharib v. Napolitano, 600 F.3d 597, 606–07 (6th Cir. 2010).

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367 (7th Cir. 2011); Hanggi v. Holder, 563 F.3d 378, 383 (8th Cir. 2009); Ajlani

v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008). The thrust of Mr. Aguilar’s claims

is that the DHS acted outside of its statutorily bestowed discretion; such claims

occupy an area that is off-limits to our review. See AAADC, 525 U.S. at 485 n.9.

Mr. Aguilar has provided no basis for us to conclude otherwise. 6 In sum, we lack

jurisdiction to consider Mr. Aguilar’s prosecutorial-discretion arguments.

IV

Mr. Aguilar’s petition for review is DISMISSED.

Entered for the Court

JEROME A. HOLMES
Circuit Judge

6
Because we lack jurisdiction under § 1252(g), we need not consider
the government’s alternative procedural arguments.

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