Bonhometre v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

7-15-2005

Bonhometre v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-2037

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2037

FREBERT BONHOMETRE

Petitioner

v.

ALBERTO GONZALES, Attorney General of the United

States;* IMMIGRATION AND NATURALIZATION SERVICE

On Petition for Review from the United States

Department of Justice Board of Immigration Appeals

BIA No. A91 436 391

Argued March 8, 2005

Before: SCIRICA, Chief Judge, and ROTH and VAN

ANTWERPEN, Circuit Judges.

(Filed: July 15, 2005)

James M. Tyler, Esq. (Argued)

Schubert, Bellwoar, Cahill & Quinn

Two Penn Center, Suite 1400

1500 John F. Kennedy Blvd.

Philadelphia, Pennsylvania 19102

Counsel for Petitioner

*

Substituted pursuant to Fed. R. App. P. 43(c).

Peter D. Keisler, Esq.

Donald E. Keener, Esq.

Alison Marie Igoe, Esq. (Argued)

United States Department of Justice, Civil Division

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Sonya F. Lawrence, Esq.

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Counsel for the Government

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Before us is what originally was the Government’s appeal

from an order of the United States District Court for the Eastern

District of Pennsylvania (Dalzell, J.) granting Frebert

Bonhometre’s petition for writ of habeas corpus. See

Bonhometre v. Ashcroft, 306 F. Supp. 2d 510 (E.D. Pa. 2004).

The District Court ruled that the Board of Immigration Appeals

violated Mr. Bonhometre’s Fifth Amendment right to procedural

due process by failing to advise him of his potential eligibility

for relief from removal. What is now before us is a petition for

review alleging the same procedural due process violations as

were asserted in Mr. Bonhometre’s habeas petition. After

consideration of what has become a procedurally-problematic

case, we concluded that we need not reach the merits of the

procedural due process challenge 1 alleged here because Mr.

1

For simplicity, we shall refer to Mr. Bonhometre’s claims

of error as “procedural due process” challenges. However, we

make no judgment as to whether or not the failure of an

Immigration Judge or the Board of Immigration Appeals to advise

2

Bonhometre did not exhaust the administrative remedies that

were available to him as of right at the agency level.

Consequently, we deny his Petition for Review and reverse the

District Court’s grant of habeas corpus.

I. FACTS

Frebert Bonhometre is a native and citizen of Haiti who

was granted temporary legal residency status on September 15,

1989. His common-law wife and three children are all United

States citizens. On December 12, 1995, Mr. Bonhometre plead

guilty in the Commonwealth of Massachusetts to armed robbery,

assault and battery, and assault with a dangerous weapon. He

was sentenced to a prison term of not more than three years.

Mr. Bonhometre served two years of his sentence before

he was released into the custody of the Immigration and

Naturalization Service 2 (“INS”) on July 18, 1997. The INS

initiated removal proceedings, charging him with removability

under section 237(a)(2)(A)(iii) of the Immigration and

Nationality Act of 1952 (“INA”), which requires removal of any

alien convicted of an aggravated felony at any time after

admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(iii)

(1998); see also 8 U.S.C. §1101(a)(43)(F) (1997) (defining

“aggravated felony” to include “a crime of violence . . . for

an alien of the multitude of forms of relief that may be available to

him (despite the fact that none seem to have been implicated by the

facts in the administrative record) is a denial of his Fifth

Amendment procedural due process rights. We do note, however,

that “[d]ue process is not a talismanic term which guarantees

review in this [C]ourt of procedural errors correctable by the

administrative tribunal.” Marrero v. INS, 990 F.2d 772, 778 (3d

Cir. 1990) (citations and internal quotation marks omitted).

2

On March 1, 2003, the INS ceased to exist as an agency

within the Department of Justice, and its enforcement functions

were transferred to the Department of Homeland Security, pursuant

to sections 441 and 471 of the Homeland Security Act of 2002,

Pub. L. 107-296, 116 Stat. 2135.

3

which the term of imprisonment [is] at least one year.”). At his

September 17, 1997, removal proceeding, a United States

Immigration Judge (“IJ”) ordered Mr. Bonhometre removed to

Haiti. He then appealed to the Board of Immigration Appeals

(“BIA”), raising two issues: (1) the IJ erred in determining that

he was deportable because his criminal offense occurred before

the enactment of section 440 of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”); and (2) AEDPA is

unconstitutional. The BIA dismissed his appeal.

Despite the removal order that had been filed against him,

the INS released Mr. Bonhometre in October, 2000. It was not

until he attempted to renew a work permit in May, 2003, that the

Government again took him into custody. Mr. Bonhometre

thereafter filed a habeas corpus petition pro se. The District

Court appointed counsel for him, and directed counsel to amend

the habeas corpus petition. In this amended petition, Mr.

Bonhometre asserted that he was denied procedural due process

when the IJ failed to advise him that he could have asked for

relief under sections 212(c) and 212(h) of the INA,3 as well as

under the United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”). The District Court found that he had not exhausted

the available administrative remedies before the BIA, but

concluded that his procedural due process claim was “wholly

collateral” to the relevant INA review provisions, and that the

BIA had no expertise in adjudicating such a procedural due

process claim. The District Court therefore concluded that it had

subject matter jurisdiction pursuant to the Supreme Court’s

holding in Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-

16 (1994), despite Mr. Bonhometre’s failure to exhaust, and,

after considering the merits of his Fifth Amendment challenge,

granted his petition. The Government appealed, and argument

was heard by this Court on March 8, 2005.

3

Both of these provisions were repealed by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996,

Pub.L. No. 104-132, 110 Stat. 1214 (“IIRIRA”).

4

II. JURISDICTION AND STANDARD OF REVIEW

During the pendency of our deliberations on this matter,

Congress amended section 1252 of Title 8 of the United States

Code via the Real ID Act of 2005, Pub. L. 109-13, 119 Stat. 231

(“Real ID Act”). Under the new judicial review regime imposed

by the Real ID Act, a petition for review is now the sole and

exclusive means of judicial review for all orders of removal

except those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8

U.S.C. § 1252(a)(5) (1999 & Supp. 2005). Our jurisdiction was

also enlarged, as we now have the authority to consider

constitutional claims or questions of law raised in a criminal

alien’s petition for review. 8 U.S.C. § 1252(a)(2)(D) (2005);

see Papageorgiou v. Gonzales, ___ F.3d ____, 2005 WL

1490454, *2 (3d Cir. Jun. 24, 2005) (noting that, while the Real

ID Act permits judicial review of constitutional claims or

questions of law raised by criminal aliens, this Court’s

jurisdiction remains nonetheless subject to the unamended

jurisdictional limitations of 8 U.S.C. § 1252). Moreover, all

habeas corpus petitions brought by aliens 4 that were pending in

the district courts on the date the Real ID Act became effective

(May 11, 2005) are to be converted to petitions for review and

transferred to the appropriate courts of appeals. See Real ID

Act, Pub.L. 109-13, Div. B, Title I, § 106(c). These

modifications effectively limit all aliens to one bite of the apple

with regard to challenging an order of removal, in an effort to

streamline what the Congress saw as uncertain and piecemeal

review of orders of removal, divided between the district courts

(habeas corpus) and the courts of appeals (petitions for review).

See H.R. Conf. Rep. No. 109-72, at 173-75 (2005).

In the Real ID Act, however, the Congress was silent as

to what was to be done with an appeal from a district court

habeas decision that is now pending before a court of appeals.

4

This provision applies only to aliens who are challenging

an order of removal via habeas corpus. An alien challenging the

legality of his detention still may petition for habeas corpus. See

H.R. Conf. Rep. No. 109-72, at 175 (2005).

5

Despite this silence, it is readily apparent, given Congress’ clear

intent to have all challenges to removal orders heard in a single

forum (the courts of appeals), id. at 174, that those habeas

petitions that were pending before this Court on the effective

date of the Real ID Act are properly converted to petitions for

review and retained by this Court. We thus generally have

jurisdiction to consider such a petition pursuant to section 242(a)

of the INA. 8 U.S.C. § 1252(a) (1999 & Supp. 2005).5

Even though this habeas appeal has turned into a petition

for review, our standard of review remains the same. We review

whether Mr. Bonhometre’s procedural due process rights were

violated de novo, Abdulrahman v. Ashcroft, 330 F.3d 587, 596-

97 (3d Cir. 2003), which is the same standard that would have

been applied to our review of the District Court’s grant of his

petition for habeas corpus, Ruggiano v. Reish, 307 F.3d 121, 126

(3d Cir. 2002).

III. DISCUSSION

5

We note further that some habeas petitions pending before

the district courts of this Circuit may not be properly before us as

converted-petitions for review. See 8. U.S.C. § 1252(b)(2) (1999)

( “The petition for review shall be filed with the court of appeals

for the judicial circuit in which the immigration judge completed

the proceedings.”); compare 28 U.S.C. § 2241(a) (1994) (“Writs of

habeas corpus may be granted by the Supreme Court, any justice

thereof, the district courts and any circuit judge within their

respective jurisdictions.”) (emphasis added). Such is the case

here, as Mr. Bonhometre’s immigration hearing was conducted

within the jurisdiction of the First Circuit, but he is detained within

the boundaries of this Circuit. However, given that this case has

been thoroughly briefed and argued before us, and given that Mr.

Bonhometre has waited a long time for the resolution of his claims,

we believe it would be a manifest injustice to now transfer this case

to another court for duplicative proceedings. Cf. Nwaokolo v. INS,

314 F.3d 303, 306 n.2 (7th Cir.2002) (holding that 8 U.S.C. §

1252(b)(2) is a venue provision and hence non-jurisdictional).

6

In view of the atypical procedural posture of this case and

the effect of the Real ID Act, we will consider the District

Court’s opinion to be non-existent, and will address the

procedural due process claims raised by Mr. Bonhomotre in his

opening brief to the District Court as if they were raised in a

petition for review before us in the first instance. In his now-

converted-Petition for Review, Mr. Bonhometre contends that

the agency violated his Fifth Amendment due process rights by

failing to advise him that he had the opportunity to request relief

from his removal order under sections 212(c) and 212(h) of the

INA, as well as under the CAT. These claims were not raised

before the BIA at any point.

A.

We begin, as we always must when reviewing agency

determinations, with a determination of whether we have subject

matter jurisdiction to consider Mr. Bonhometre’s claims. 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. 8 U.S.C. § 1252(d)(1) (1999)

(emphasis added); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422

(3d Cir. 2005). To exhaust a claim before the agency, an

applicant must first raise the issue before the BIA or IJ, Alleyne

v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989), so as to give it “the

opportunity to resolve a controversy or correct its own errors

before judicial intervention.” Zara v. Ashcroft, 383 F.3d 927,

931 (9th Cir. 2004). The Supreme Court has instructed that

“[t]he doctrine of administrative exhaustion should be applied

with a regard for the particular administrative scheme at issue.”

Weinberger v. Salfi, 422 U.S. 749, 765 (1975). We thus remain

cognizant of the fact that the exhaustion terms of section

1252(d)(1) must be examined with Congress’s intent concerning

the provision’s scope in mind, especially in light of the

modifications made to the section by the Real ID Act.6

6

We note at the outset that “[t]here is 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

7

We have previously rejected an exception to section

1252(d)(1)’s requirement of administrative exhaustion before the

BIA based on futility. See Duvall v. Elwood, 336 F.3d 228, 234

(3d Cir. 2003) (rejecting the argument that exhaustion is excused

where further administrative proceedings would be futile

because the BIA had already definitively decided the issue); see

also Nyhuis v. Reno, 204 F.3d 65, 69 (3d Cir. 2000) (noting that

a statute with “a jurisdictional requirement . . . by definition

cannot be subject to a futility exception”). As we see it, a claim

is “available as of right” if, at the very least, (1) the alien’s claim

was within the jurisdiction of the BIA to consider and implicated

agency expertise,7 and (2) the agency was capable of granting

the remedy sought by the alien.8 It is uncontested that Mr.

Bonhometre failed to bring his procedural due process claims of

error to the BIA. Therefore, he would be excused from

exhausting his claims before the BIA if either of these

prerequisites were absent.

Mr. Bonhometre’s claims, though argued in the language

of procedural due process, essentially claim that the IJ failed in

fully developed.” Sun v. Ashcroft, 370 F.3d 932, 943 (9th Cir.

2004).

7

See Marrero, 990 F.2d at 778 (noting that exhaustion

would not be required where the BIA did not have jurisdiction to

adjudicate a particular claim); Vargas v. U.S. Dept. of Immigration

and Naturalization, 831 F.2d 906, 908 (9th Cir. 1987) (holding that

certain due process claims “are exempt from [exhaustion] because

the BIA does not have jurisdiction to adjudicate constitutional

issues” and “[a]lthough due process claims are generally exempt

from the exhaustion requirement, we do not review ‘procedural

errors correctable by the administrative tribunal’”).

8

See Bak v. INS, 682 F.2d 441, 443 (3d Cir. 1982) (“the

Board could have reversed the immigration judge, and thus

exhaustion is necessary under section 1105a(c)”); see also Sewak

v. I.N.S., 900 F.2d 667, 670 (3d Cir. 1990) (noting that “Sewak’s

due process claim amounts to a procedural error correctable

through the administrative process”).

8

its duty to completely develop this case, and requests remand to

correct this alleged error. See Vargas 831 F.2d at 908 (“The

requirement that Petitioner exhaust his claims before appealing

them to this Court applies even though Petitioner claims the

BIA’s procedural errors violated his right to due process”).

Clearly, the BIA has the ability to conduct de novo review of an

immigration proceeding and the subsequent decision of the IJ,

see, e.g., Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001),

and has sufficient expertise in this area to be eminently capable

of addressing whether the IJ properly explored all avenues of

relief that were available. See In re Cordova, 22 I. & N. Dec.

966, 970 (BIA 1999) (“An [IJ] has a duty to inform aliens of

potential forms of relief for which they are apparently eligible,

including voluntary departure”); see also In re Po Shing Yeung,

21 I. & N. Dec. 610, 624-255 (BIA 1997) (stating that

procedural errors, such as exclusion of evidence or failure to

advise that there was a right to counsel, are typically cured

simply by holding a new hearing in compliance with due process

requirements); Matter of Santos, 19 I. & N. Dec. 105, 111 (BIA

1984) (discussing whether or not a petitioner was prejudiced by

the IJ’s failure to advise him of free legal services at the start of

the hearing). Furthermore, it is beyond debate that, had the BIA

concluded that the IJ’s conduct during the immigration hearing

did not fulfill his obligation to completely develop the record

under the immigration regulations, it could have remanded for a

new trial. Mr. Bonhometre’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.

B.

Even if we were to consider Mr. Bonhometre’s claims on

the merits, we still would not grant relief. To prevail on a

procedural due process challenge to a decision by the BIA, an

alien must make an initial showing of substantial prejudice. See

De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004)

(concluding that an alien had failed to establish that she was

substantially prejudiced by the procedural error she advanced)

(internal quotation marks omitted). Therefore, if Mr.

Bonhometre cannot demonstrate that he was eligible for relief

9

under sections 212(c) and 212(h) of the INA, or under the CAT,

no procedural due process claim can lie.9

Mr. Bonhometre first claims that the IJ failed to inform

him of the possibility of relief under former section 212(c) of the

INA. Prior to its repeal in 1996, this section stated:

Aliens lawfully admitted for permanent residence who

temporarily proceeded abroad voluntarily and not

under an order of deportation, and who are returning to

a lawful unrelinquished domicile of seven consecutive

years, may be admitted in the discretion of the

Attorney General.

8 U.S.C. § 1182(c) (1994) (repealed 1996) (emphasis added).

Because it is undisputed that Mr. Bonhometre was a lawful

temporary alien at the time of his removal hearing, he was not,

by the express language of the statute, eligible for a section

212(c) waiver.

Mr. Bonhometre’s claim that he was eligible for section

212(h) “extreme hardship waiver” fares little better. Prior to its

repeal, section 212(h) gave the Attorney General discretion to

waive an alien’s deportation if that alien was not an aggravated

felon, and if his departure would cause extreme hardship to a

United States citizen that was his spouse, parent or child. See 8

U.S.C. § 1182(h) (1994) (repealed 1996). In 1996, Congress

9

At the outset, we note that the majority of the courts of

appeals, including our own, agree that there is no constitutional

right to be informed of possible eligibility for discretionary relief.

See United States v. Torres, 383 F.3d 92, 105-06 (3d Cir. 2004);

see also United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th

Cir. 2004) (en banc); United States v. Lopez-Ortiz, 313 F.3d 225,

231 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003); Smith v.

Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002); Oguejiofor v.

Attorney General, 277 F.3d 1305, 1309 (11th Cir. 2002);

Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001)

(quoting Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000)).

10

made sweeping changes to the immigration law, including the

institution of a new definition of aggravated felony that

unambiguously applied retroactively to all past convictions. See

IIRIRA, section 328(a) (mandating that the amendments relating

to aggravated felonies “shall apply to actions taken on or after

the date of enactment of this Act, regardless of when the

conviction occurred”) (emphasis added); see also INS v. St. Cyr,

533 U.S. 289, 318-19 (2001) (explicitly noting that Congress

clearly stated that the amended definition of “aggravated felony”

is to apply retroactively); accord Landgraf v. USI Film Prods.,

511 U.S. 244, 268 (1994) (“[A] requirement that Congress first

make its intention clear helps ensure that Congress itself has

determined that the benefits of retroactivity outweigh the

potential for disruption or unfairness”).10 Since, under the new

definition, Mr. Bonhometre is an aggravated felon, he thus

would not have qualified for section 212(h) relief, regardless of

any hardship that may befall his wife or children as a result of

his removal.

Finally, Mr. Bonhometre cannot argue that the IJ’s failure

to advise him of potential CAT eligibility was a procedural due

process violation, because there are no facts in the record to

support a CAT claim. An applicant is entitled to protection

under the CAT if he establishes that “it is more likely than not

that he or she would be tortured if removed to the proposed

country of removal.” Wang v. Gonazles, 405 F.3d 134, 139 (3d

Cir. 2005) (quoting 8 C.F.R. § 1208.16(c)(2) (2005)).11 There is

10

We also note that Congress’ decision to repeal section

212(h) waivers retroactively is rationally-related to a legitimate

government purpose. See Usery v. Turner Elkhorn Mining Co.,

428 U.S. 1, 17 (1976).

11

“Torture is defined as any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on

a person for such purposes as obtaining from him or her or a third

person information or a confession, punishing him or her for an act

he or she or a third person has committed or is suspected of having

committed, or intimidating or coercing him or her or a third person,

or for any reason based on discrimination of any kind, when such

11

nothing in the administrative record that was before the IJ or

BIA suggesting that Mr. Bonhometre would have qualified for

relief under the CAT, nor does he point to any evidence

demonstrating as much before us now. The fact that the INS

used a “pre-regulatory administrative process” to determine CAT

eligibility prior to promulgation of the formal regulations now

used does not mean ipso facto that a CAT claim exists. Without

supporting evidence, such a claim has no substance.

IV. CONCLUSION

Despite the unusual posture under which this case arrived

before us, we conclude that we are without jurisdiction to

consider the arguments raised in Mr. Bonhometre’s Petition for

Review. We reiterate that, had these same issues arisen in the

context of a habeas corpus petition, our conclusion would be the

same. Therefore, we deny the Petition and reverse the District

Court’s grant of habeas corpus.

pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2005).

12