[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT FILED
____________________________ U.S. COURT OF APPEALS
ELEV ENT H CIR CUIT
April 25, 2003
No. 02-13878
THOMAS K. KAHN
____________________________ CLERK
D. C. Docket No. 02-60751-CV-WPD
HAR RYP ERS AD S UND AR,
Petitione r-App ellant,
versus
IMM IGRA TION AND NAT URA LIZA TION SER VICE ,
UNI TED STA TES ATT ORN EY G ENE RAL ,
Respo ndents- Appe llees.
____________________________
Appe al from th e United States D istrict Cou rt
for the Southern District of Florida
____________________________
(April 25, 2003)
Before CARNES, MARCUS and SUHRHEINRICH *, Circuit Judges.
CARNE S, Circuit Judge:
*Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit,
sitting by designation.
Harrypersad Sundar, a citizen of Trinidad and Tobago, lived in the United
States as a lawful permanent resident until his removal was ordered by an
immigration judge because he had committed a crime of moral turpitude. Sundar
did not appeal that removal order to the Board of Immigration Appeals, but instead
did nothing for four-and-a-half years and then filed a 28 U.S.C. § 2241 petition for
a writ of habeas corpus to overturn the removal order. The district court denied the
habeas petition because Sundar’s failure to appeal the removal order to the BIA
constituted a failure to exhaust his administrative remedies as required in 8 U.S.C.
§ 1252 (d)(1).
In this ap peal by S undar f rom tha t denial of habeas r elief we a re faced w ith
the question of whether § 1252(d)(1)’s exhaustion requirement applies in § 2241
habeas p roceedin gs or on ly in direct a ppeals to this Cou rt from th e BIA .
Conclud ing that it does ap ply in habeas p roceedings, w e affirm the district co urt’s
denial of the petition.
I.
Sundar entered the United States in 1983 and was granted legal permanent
resident status that same year. In 1990, he pleaded guilty in New York to burglary
and was sentenced to an indeterminate sentence of not less than two years and not
more than six years of imprisonment. In June 1998, Sundar traveled to Trinidad,
2
and upon his return to the United States, the Immigration and Naturalization
Service detained him at the airport. Based on his 1990 burglary conviction, the
INS issued a notice to appear, which alleged that Sundar was subject to removal
from the United States because he had committed a crime of moral turpitude,
pursuant to § 212(a)(2)(A)(i)(I) of the Immigration and Naturalization Act (INA),
and it began removal proceedings against him.
At the hearing that resulted, the immigration judge decided Sundar was
subject to remov al on the c harge alle ged in th e notice to appear. A ccordin g to
Sundar, the judge also ruled during the course of the hearing that because he had
been convicted of an aggravated felony Sundar was not eligible for discretionary
relief under INA § 212(c).1 On August 6, 1998, the immigration judge entered a
removal order. Sundar did not appeal the removal order to the BIA. On November
9, 1998 – eight years after he had been convicted of the aggravated felony that
caused the removal – Su ndar was finally removed fro m the United States. 2
1
It appears from the record that Sundar did not even apply for discretionary relief, but
that fact is not essential to our decision. The immigration judge denied discretionary relief
regardless of whether Sundar sought it, and his failure to appeal that denial is the pivotal fact for
our decision.
2
Thereafter, Sundar returned to the United States, and on February 25, 2002, the INS
found him in the Broward County, Florida, jail where he was being detained on charges that
included armed car jacking and aggravated battery with a deadly weapon. On April 23, 2002,
Sundar was indicted for entering the United States after he had been removed, in violation of 8
U.S.C. § 1326. He filed a motion to dismiss that federal indictment on the ground that his 1998
removal order was invalid, a motion the district court denied. Sundar thereafter entered a
conditional guilty plea, reserving his right to appeal from the denial of his motion to dismiss.
3
On M ay 30, 20 02, Su ndar filed a habeas petition atta cking h is 1998 remov al.
Sundar acknowledges that the immigration judge’s ruling that Sundar was not
eligible fo r discretio nary relief was co nsistent w ith immig ration law at the time.
See In re Yeung, 21 I. & N. Dec. 610 (BIA 1996) (en banc). How ever, Sundar
argues, INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), an intervening
Supreme Court decision, abrogated the prior BIA decisional law on which the
immigration judge’s ruling was based. As a result, Sundar contends that he is now
eligible for relief from deportation under INA § 212, and that the erroneous
decision of the immigration judge violated his du e process rights.
The district court disagreed. It acknowledg ed that the Supreme Co urt’s St.
Cyr decision establishes that Sundar should have been entitled to seek
discretionary relief from deportation under INA § 212 because his aggravated
felony conviction, which would have disqualified him from discretionary relief
under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. No. 104-208, 110 Stat. 3009 (IIRIRA), predated the enactment of the
IIRIRA. Habeas relief was nonetheless due to be denied, the court reasoned,
Sundar was convicted and sentenced to a prison term of 57 months on the reentry charge, and
that conviction was affirmed by this Court on March 26, 2003 (it is our case no. 02-14759). We
set all of this out here because the § 1326 charge obviously was the impetus behind Sundar’s
belated attempt to set aside the 1998 removal order that is the target of his habeas petition in this
case.
4
because Sundar’s failure to appeal the immigration judge’s decision to the BIA
constitutes a failure to exhaust administrative remedies which precludes him from
collaterally attacking the removal order in a habeas petition. Alternatively, on the
merits of Sundar’s due process claim, the district court decided that because the
grant of relief pursuant to INA § 212 is completely discretionary, any detriment
from being held ineligible for such relief is purely speculative, meaning Sundar
cannot s how th e violation of a con stitutionally protected interest.
II.
The exhaustion requirement applicable to immigration cases is found in 8
U.S.C. § 1252(d)(1), which provides that “[a] court may review a final order of
remov al only if . . . th e alien has exhaus ted all adm inistrative r emedies available to
the alien as of right.” We have interpreted that requiremen t to be jurisdictional, so
we lack jurisdictio n to con sider claim s that hav e not bee n raised b efore the BIA.
Fernandez-Bernal v. Attorney General, 257 F.3d 1304, 1317 n.13 (11th Cir. 2001)
(holding that because of § 1251(d)(1) we lack jurisdiction to review a claim the
petitioner does no t raise in his appeal to the BIA ); Galindo-Del Valle v. Attorney
General, 213 F .3d 594 , 599 (1 1th Cir. 2 000) (s ame); Asencio v. INS, 37 F.3d 614,
615-16 (11th Cir. 1994) (interpreting 8 U.S.C. § 1105a(c) (1995)3 and holdin g “a
3
8 U.S.C. § 1105a(c) (1995) was the predecessor statute to 8 U.S.C. § 1252(d)(1) and
provided “[a]n order of deportation or of exclusion shall not be reviewed by any court if the alien
5
court lacks jurisdiction to consider a claim which has not first been presented to the
Board”).
Although our decisions in Fernandez-Bernal, Galind o-Del V alle, and
Asenc io were iss ued in cir cumstan ces wh ere the alien had filed petitions in this
Court s eeking d irect review of BIA decision s in remo val proc eedings , the Fou rth
Circuit held in Kurfees v. INS, 275 F.3d 332 (4th Cir. 2001), that the exhaustion
requirem ent applie s in habe as proce edings, to o. In that c ase, Kurfees filed a §
2241 habeas petition challenging an order of deportation on the ground that the
immigration judge had failed to establish that she was d eportable. Because
Kurfees had not appealed the deportation order to the BIA, she had not exhausted
her administrative remedies under the then-applicable statute, 8 U.S.C. § 1105a(c)
(1995), and for that reason the district court dismissed her habeas petition for lack
of jurisd iction. Id. at 336. The Fourth Circuit affirmed, reasoning that Kurfees
should not be allowed “to bypass the administrative process by bringing a habeas
corpus action in the district court,” id., because “Congress has specifically required
aliens to exhaust their administrative remedies before going into federal court.” Id.
at 337. The Court explained why it is essential that the exhaustion requirement be
applied in habeas cases as well in direct review pro ceedings:
has not exhausted the administrative remedies available to him as of right under the immigration
laws and regulations.”
6
While upholding the exhaustion requirement may seem strict in an
individual case, exhaustion serves the twin purposes of protecting
adminis trative age ncy auth ority and promo ting judic ial efficienc y.
The BIA w as not given the opportunity to review the case because
Kurfees neglected to appeal. Th e exhaustion doctrine embod ies a
policy of respect fo r admin istrative ag encies, w hich allow s them to
carry out their responsibilities and “to discover and correct [their] own
errors.” A rule that allowed parties to circumvent the administrative
process under the circumstances of this case would undermine agency
functions and clog the courts with unnecessary petitions. The rules
are clear: b efore pr oceedin g to fede ral court, a n alien m ust exha ust his
or her ad ministrativ e remed ies. Kur fees failed to exhau st.
Id. at 336 (internal citation omitted).
We agree with the Fourth Circuit’s reasoning in Kurfees, but we have to go
beyond it in order to address Sundar’s chief argument to the contrary. He argues
that because § 1252(d)(1) refers to what a court “may review” (just as the
predece ssor § 1 105a(c ) referred to wha t shall not “b e review ed”), it app lies only to
direct review proceedings and not to habeas proceedings. That argument finds
some support in the observation in the St. Cyr opinion , which was no t address ed in
the Kurfees decision, that “[i]n the immigration context, ‘judicial review’ and
‘habeas corpus’ have historically distinct meanings.” St. Cyr, 533 U.S. at 311, 121
S. Ct. at 2285. Citing St. Cyr, Sund ar claims th at wher e an imm igration s tatute
places jurisdictional limits on judicial “review” of a final removal order, those
restriction s do no t apply to h abeas rev iew. Id. at 313-1 4, 121 S . Ct. at 228 6-87.
Sundar reads St. Cyr too broadly. The language he relies upon from that
7
opinion arose in a materially d ifferent co ntext. The IN S asserte d in St. Cyr that
certain sections of 8 U.S.C. § 1252 (including (a)(1), (a)(2)(C), and (b)(9))4
removed entirely from the federal courts the jurisdiction to hear habeas cases
involving certain types of immigration orders, even when all administrative
remedie s had be en exha usted. Id. at 310-11, 121 S. Ct. at 2285. Because such a
construction would “invoke[] the outer limits of Congress’ power,” id. at 299, 121
S. Ct. at 2279, and “would raise serious constitutional problems,” id. at 300, 121 S.
Ct. at 2279, it sho uld not be acc epted, the Su preme Co urt explained, ab sent “a
clear statement of congressional intent to repeal habeas jurisdiction,” id. at 298,
121 S . Ct. at 227 8. That r easonin g is cons istent with “the long standing rule
requiring a clear statement of congressional intent to repeal habeas jurisdiction.”
Id., 121 S. Ct. at 2278. The statutory references in 8 U.S.C. § 1252(a)(1),
(a)(2)(C), and (b)(9) to “review” and “judicial review” were judged not to provide
4
8 U.S.C. § 1252(a)(1) provides, “Judicial review of a final order of removal (other than
an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed
only by chapter 158 of Title 28, except as provided in subsection (b) of this section.”
8 U.S.C. § 1252(a)(2)(C) provides, “Notwithstanding any other provision of law, no
court shall have jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed” certain criminal offenses.
8 U.S.C. § 1252(b)(9) provides, “Judicial review of all questions of law and fact,
including interpretation and application of constitutional and statutory provisions, arising from
any action taken or proceeding brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final order under this section.”
8
the high degree o f clarity req uired to o ust feder al habeas jurisdictio n entirely.
But what we have here is different. 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 h e can seek to have it s et aside in a habeas p roceedin g 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.
Section 1252(d)(1), unlike the provisions involved in St. Cyr, does not
invoke the rule disfavoring the repeal of habeas jurisdiction, because it does not
repeal habeas jurisdiction. It only conditions that jurisdiction and its exercise on
exhaus tion of re medies, a conditio n that serv es valuab le interests. See Kurfees,
275 F.3d at 336. The exhaustion requirement that results from our construction of
§ 1252(d)(1) do es not “invoke the outer limits of Congress’ po wer” or “raise
serious constitutional problems” any more than the well-established exhaustion
requirement now contained in 28 U.S.C. § 2254(b)(1) does. That is why the
9
exhaus tion requ irement o f § 125 2(d)(1 ) applies to habeas p roceedin gs as w ell as to
direct rev iew pro ceeding s.
Some courts have indicated in dicta that constitutional challenges to the INA
and INS procedures and some due process claims do not require exhaustion,
because the BIA does no t have the powe r to adjud icate those claims. See, e.g.,
Bernal-Vallejo v. INS, 195 F .3d 56, 6 4 (1st C ir. 1999 ); Akinwunmi v. INS, 194
F.3d 1 340, 13 41 (10 th Cir. 19 99); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.
1998) ; Rashtabadi v. INS, 23 F.3d 1562, 15 67 (9th Cir. 1994). Th ose same courts,
however, have held that where the claim is within the purview of the BIA which
can pro vide a rem edy, the ex haustion requirem ent applie s with fu ll force. See
Bernal- Vallejo, 195 F.3d at 64 (ineffective assistance of counsel claim required
exhaus tion beca use BIA could h ear the claim ); Akinwunmi, 194 F.3d at 1341
(same); Mojsilo vic, 156 F .3d at 74 8 (same ); Rashtabadi, 23 F.3d at 1567 (claimed
due process error that immigration judge failed to advise petitioner of immigration
conseq uences o f admittin g depo rtability cou ld be cor rected by BIA) .
Sundar’s claim is not a constitutional challenge to the INA itself or a due
process claim that c ould no t be resolv ed by a B IA dec ision. Ins tead, his cla im in
essence is that the immigration judge in this case and the BIA in its previous
decision in In re Yeung should not have interpreted IIRIR A § 348 to app ly
10
retroactively to cases in which the petitioner had pleaded guilty to an aggravated
felony b efore en actment o f that pro vision. It w as within the BIA ’s author ity to
reconsider and change its decision in In re Yeung, and in o rder to ex haust his
administrative remedies Sundar should have asked it to do so. The decision in
Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573 (1982), establishes that
perceived futility is no exception to the exhaustion requirement contained in 28
U.S.C . § 2254 , and it sho uld not b e an exce ption to th e one co ntained in 8 U.S .C. §
1252(d)(1), either. The Supreme Court’s holding in Engle that a state prisoner
with a cla im he w ants to br ing to fed eral cour t “may no t bypass th e state cou rts
simply because he thinks they will be unsympathetic to the claim,” was based upon
the reasoning that a state court which has previously rejected an argument “may
decide, upon reflection, that the contention is valid.” Id. (footnote omitted).
Likewise, an alien with a claim he wants to bring in a habeas proceeding
may no t bypass th e BIA simply b ecause h e thinks it w ill be unsy mpathe tic to his
claim, because the BIA may decide, upon reflection, that the contention is valid.
On ap peal, the B IA cou ld have a ccepted S undar’s interpreta tion and reversed its
decision in In re Yeung. If it had, th e due pr ocess vio lation Su ndar claim s wou ld
have be en reme died, ren dering th is habeas proceed ing unn ecessary. B y failing to
appeal the immigration judge’s decision to the BIA, Sundar deprived it of the
11
opportunity to “discover and correct [its] own error[].” Kurfees, 275 F .3d at 33 6.
Preven ting petitio ners fro m doin g that is w hat the ex haustion requirem ent is all
about. See Rashtabadi, 23 F.3d at 1567 (“[A] petitioner cannot obtain review of
procedural errors in the administrative process that were not raised before the
agency merely by alleging that every such error violates due process.”) (internal
marks omitted). Moreover, we are dealing with a statutory exhaustion
requirement, and “we will not read futility or other exceptions into statutory
exhaustion requirements where Congress has provided otherwise.” Booth v.
Churner, 532 U.S. 731, 741 n.6, 121 S. Ct. 1819, 1825 n.6 (2001). 5
Becaus e Sund ar did no t exhaus t his adm inistrative r emedies by appe aling to
the BIA before seeking habeas review of the immigration judge’s removal order,
the district court’s denial of his habeas petition on that ground was proper.
AFFIRMED.
5
Sundar’s counsel at oral argument contended that Hoang v. Comfort, 282 F.3d 1247
(10th Cir. 2002), is a decision recognizing a futility exception to the exhaustion requirement in a
habeas case. That case is different from this one, because the petitioners there were not seeking
review of final removal orders. Instead, they were challenging the constitutionality of INA §
236(c), codified at 8 U.S.C. § 1226(c), which mandates detention pending administrative
removal proceedings. Id. at 1253-55. Therefore, the exhaustion requirement contained in 8
U.S.C. § 1252(d)(1) was, by its plain terms (“may review a final order of removal only if”), not
implicated in that case. Id. at 1254 (“With regard to immigration laws, exhaustion of remedies is
statutorily required only for appeals of final orders of removal.”).
12