Lin Zhong v. United States Department of Justice, Attorney General Gonzales

KEARSE, Circuit Judge,

dissenting.

I respectfully dissent. I would deny the petition for review because the only issues presented here that were exhausted through presentation to the- Board of Immigration Appeals (“BIA” or the “Board”), as required by 8 U.S.C. § 1252 (d)(1), do not show a basis for overturning the decision of the BIA.

The majority, in vacating the BIA decision and ordering a remand, concedes that the issues raised in the petition for review that were presented to the BIA do not warrant relief. See, e.g., Majority Opinion ante at 118 (“Several issues raised in [Lin’s] petition ... were not included in Lin’s brief on appeal to the BIA, and ... they alter the proper disposition of Lin’s petition for review.”); id. at 125 (“[The] issues not raised to the BIA are essential to our view of the merits of Lin’s appeal.”).

But the majority holds that this Court has jurisdiction to review issues that were not raised in a petitioner’s appeal to the BIA. See, e.g., Majority Opinion ante at 121-22 (“[I]n the context of 8 U.S.C. § 1252 (d)(1), the failure to exhaust individual issues before the BIA does not deprive this court of subject matter jurisdiction to consider those issues.” (emphasis in original)). With all due respect, I disagree.

Section 1252(d)(1), enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”), provides that “[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 ....” 8 U.S.C. § 1252 (d)(1) (emphasis added). “Statutory exhaustion requirements such as § 1252(d)(1) are ‘mandatory, and courts are not free to dispense with them.’ ” Foster v. INS, 376 F.3d 75, 77 (2d Cir.2004) (quoting United States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir.2002)). We have generally held that this provision means that we lack jurisdiction to review an issue that was not presented to the BIA See, e.g., Foster, 376 F.3d at 78 (“To preserve a claim, we require ‘[petitioner to raise issues to the BIA in order to preserve them for judicial review.’ ” (quoting Cervantes-Ascencio v. INS, 326 F.3d 83, 87 (2d Cir.), cert. denied, 540 U.S. 990 , 124 S.Ct. 483 , 157 L.Ed.2d 386 (2003) (emphasis in Foster))). “We have been nothing if not clear in requiring that a party *134 may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.” Foster, 376 F.3d at 78 (internal quotation marks omitted); id. at 77 (A “failure to exhaust [as required by § 1252(d)(1) ] constitutes a clear jurisdictional bar.” (internal quotation marks omitted)).

I disagree with the majority’s apparent view that Foster was somehow eroded by Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir.2004), a view reflected in the majority’s statement that “in Abimbola [,] ... decided shortly after Foster and by the same panel, we expressly treated as an open question the jurisdictional effect of a lack of issue exhaustion in a situation in which the government had seemingly waived objection.” Majority Opinion ante at 119 n. 19 (emphasis added). This description by the majority assumes lack of exhaustion; however, the uncertainty as to our jurisdiction in Abimbola arose precisely because there was a question as to whether exhaustion was lacking. The petitioner in Abimbola had in fact presented the pertinent issue to the BIA. The problem was that he had not raised the issue before the Immigration Judge (“IJ”) and that the BIA had not addressed it. We noted that those circumstances “presented] an open question as to whether we have jurisdiction over this claim since Abimbola may not have properly exhausted his administrative remedies as required by 8 U.S.C. § 1252 (d).” Abimbola, 378 F.3d at 180 (emphasis added). Accordingly, the doctrinal question identified in Abimbola was not, as the majority would have it, whether lack of issue exhaustion is jurisdictional; rather, it was whether a petitioner’s failure to raise an issue prior to raising it to the BIA, together with the BIA’s failure to address that issue, constitutes a lack of exhaustion.

Nor do I read Abimbola as stating that the government had waived or could waive the issue-exhaustion requirement. Although noting that the government “ha[d] not offered a jurisdictional objection based on an exhaustion argument for this claim,” we clearly considered the possible absence of exhaustion to present a “jurisdictional issue.” 378 F.3d at 180 . We stated that “it would be unwise” to decide the “particularly difficult and complex” “jurisdictional issue” presented by the possibility that a petitioner’s raising an issue before the BIA without having raised it to the IJ, where the BIA’s ruling does not address the issue, may not constitute the required exhaustion, “without the benefit of argument from both sides.” Id. Since the jurisdictional constraint is not constitutional but statutory, allowing the “exercise [of] hypothetical jurisdiction,” and since we found it “clear that Abimbola’s claim ... [wa]s meritless, we assume[d] jurisdiction to decide the issue but t[ook] no position as to whether Abimbola met the exhaustion requirement in § 1252(d).” Id.

In sum, I view the above passages of the Abimbola opinion as clearly indicating— consistently with the principles enunciated shortly theretofore by the same panel in Foster — that if it were established that Abimbola did not properly exhaust his administrative remedies on the pertinent issue as required by § 1252(d), this Court would not have jurisdiction to consider that issue.

Most importantly, I disagree with the position taken by the majority that § 1252(d)(l)’s requirement that the alien have “exhausted all administrative remedies available to the alien as of right” means simply that we have jurisdiction to consider any issue argued in the alien’s petition to this Court for review, regardless of whether it was presented to the BIA, “so long as a decision has been ren *135 dered on his application by an IJ and appealed to the BIA — the two administrative remedies available to him as of right.” Majority Opinion ante at 118 (emphasis in original). I believe this disregards the purposes and meaning of exhaustion. “[A]t least one of the purposes served by the exhaustion requirement contained in § 1252(d) is to ensure that the INS, as the agency responsible for construing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner’s claims before they are submitted for review by a federal court.” Theodoropoulos v. INS, 358 F.3d 162, 1-71 (2d Cir.), cert. denied, 543 U.S. 823 , 125 S.Ct. 37 , 160 L.Ed.2d 34 (2004). This purpose is not served if an issue raised in the petition for review has not been presented to the Board.

Nor does exhaustion of all available remedies mean simply obtaining a final order. In considering the Prison Litigation Reform Act’s requirement that a prisoner not bring a court action complaining of prison conditions “until such administrative remedies as are available are exhausted,” 42 U.S.C. § 1997e(a), the Supreme Court in Booth v. Churner, 532 U.S. 731 , 121 S.Ct. 1819 , 149 L.Ed.2d 958 (2001), observed that one cannot literally “exhaust” a “remedy”; rather, one is required to exhaust the procedures that could lead to the requested relief:

While the modifier “available” requires the possibility of some relief for the action complained of ... , the word “exhausted” has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered. It would, for example, be very strange usage to say that a prisoner must “exhaust” an administrative order reassigning an abusive guard before a prisoner could go to court and ask for something else .... It makes no sense to demand that someone exhaust “such administrative [redress]” as is available; one “exhausts” processes, not forms of relief....

Id. at 738-39 , 121 S.Ct. 1819 (brackets in original) (emphases added). Thus, I view § 1252(d)(l)’s similar provision that we may not review an order of removal unless the alien has “exhausted all administrative remedies available to the alien as of right” as meaning that the alien must have pursued all of the procedures, available to him in the BIA proceeding in connection with his requests for relief, i.e., presented to the BIA all of the issues he wishes to press in his petition for review, not simply that he must have obtained a final administrative decision.

The view that § 1252(d)(1) restricts the jurisdiction of the courts of appeals to issues that the alien has presented to the BIA has been the prevailing interpretation by the federal courts of appeals that have discussed the question. See, e.g., Foster, 376 F.3d at 77-78 ; Cervantes-Ascencio v. INS, 326 F.3d at 87 (“Despite exhaustion requirements requiring Petitioner to raise issues to the BIA in order to preserve them for judicial review, see 8 U.S.C. § 1252 (d)(1), Petitioner failed to do so on this specific issue. Accordingly, we may not consider it on appeal.”); Zhang v. INS, 274 F.3d 103, 107 (2d Cir.2001) (“a litigant is generally not entitled to, judicial review of a contention not argued to the Board, see § 1252(d)(1)”); Alyas v. Gonzales, 419 F.3d 756, 762 (8th Cir.2005) (“Because [petitioner] failed to present [his due process] argument to the BIA in the first instance, we lack jurisdiction to decide the claim.” (citing 8 U.S.C. § 1252 (d)(1))); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004) (“A petitioner cannot satisfy the exhaustion requirement by making a general challenge to the IJ’s decision, but, rather, must specify which issues form the basis of the appeal.”); Ramani v. Ashcroft, 378 *136 F.3d 554, 560 (6th Cir.2004) (“only claims properly presented to the BIA and considered on their merits can be reviewed by this court”); Xie v. Ashcroft, 359 F.3d 239 , 245 n. 8 (3d Cir.2004) (“we are without jurisdiction to decide [an] issue” as to which “[pjetitioner brings [an] argument for the first time”); Fernandez-Bernal v. Attorney General, 257 F.3d 1304 , 1317 n. 13 (11th Cir.2001) (petitioner “failed to raise this issue before the BIA and, as a result of that failure, we do not have jurisdiction to consider it here. See 8 U.S.C. § 1252 (d)(1)”); Sousa v. INS, 226 F.3d 28, 31 (1st Cir.2000) (“Obviously, [the petitioner] has gone through the administrative proceeding; the problem is that he did not raise there the issue he now seeks to raise in this court.” (emphasis in original)); Singh v. Reno, 182 F.3d 504, 511 (7th Cir.1999) (“Generally, ... an alien who fails to raise an issue below has not fulfilled [§ 1252(d)’s] exhaustion requirement.”); Witter v. INS, 113 F.3d 549, 554 (5th Cir.1997) (“We have no jurisdiction to consider issues that were not presented to or considered at the administrative level on appeal.”).

Further, 8 U.S.C. § 1105a(c) (1994), the predecessor to § 1252(d)(1), included a similar exhaustion requirement, stating that an order of deportation “shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations.” 8 U.S.C. § 1105a(c) (1994). The prevailing interpretation of § 1105a(c) was that it required the alien to present to the BIA any issue as to which he would thereafter seek review in court. See, e.g., Etchu-Njang v. Gonzales, 403 F.3d 577, 582 (8th Cir.2005) (“At least seven circuits, including ours, read former § 1105a(c) to require an alien to exhaust both remedies and issues before the agency .... ” (emphasis in original)); Sousa v. INS, 226 F.3d 28, 31-32 (1st Cir.2000) (“[M]ost circuits, including this one, have described former [§ 1105a(c) ] as a jurisdictional bar where an issue sought to be raised in court was not raised in the agency.”); Der-Rong Chour v. INS, 578 F.2d 464, 468 (2d Cir.1978), ce rt. denied, 440 U.S. 980 , 99 S.Ct. 1786 , 60 L.Ed.2d 239 (1979) (petitioner “never previously presented his ... theory [of eligibility for relief pursuant to a consent decree] to the Board, which precludes review of that claim here”); Margalli-Olvera v. INS, 43 F.3d 345, 350 (8th Cir.1994) (“[C]ourts of appeals have consistently applied [§ 1105a(c) ] as a bar to review of issues not raised before the BIA.”); Ascencio v. INS, 37 F.3d 614, 615-16 (11th Cir.1994) (“Under ... 8 U.S.C. § 1105a(c), a court lacks jurisdiction to consider a claim which has not first been presented to the Board ....”); Ravindran v. INS, 976 F.2d 754, 761 (1st Cir.1992) (“Issues not raised before the Board may not be raised for the first time upon judicial review of the Board’s decisions.... [This] requirement is jurisdictional.”); Rivera-Zurita v. INS, 946 F.2d 118 , 120 n. 2 (10th Cir.1991) (“The failure to raise an issue on appeal to the Board constitutes failure to exhaust administrative remedies with respect to that question and deprives the Court of Appeals of jurisdiction to hear the matter.”); Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.1987) (“Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter.”); Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981) (Petitioner “failed to raise [his estoppel] claims before the BIA. Under 8 U.S.C. § 1105a(c), this failure to exhaust administrative remedies precludes review of his estoppel arguments in this court.”).

I have seen nothing in the legislative history to indicate that in enacting IIRI- *137 RA, Congress meant to expand the jurisdiction of the courts of appeals to entertain petitions for review of orders of removal, and I thus think it appropriate to infer that Congress did not intend to alter the prevailing principle that the courts lacked jurisdiction to consider issues not raised in the proceedings before the BIA. As the Eighth Circuit noted in Etchu-Njang v. Gonzales,

it is “appropriate to assume that our elected representatives, like other citizens, know the law,” Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979), and to recognize that “longstanding acceptance by the courts [of a judicial interpretation], coupled with Congress’ failure to reject that interpretation, argues significantly in favor of accepting] it.” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 602 , 115 S.Ct. 1061 , 131 L.Ed.2d 1 (1995) (internal quotation omitted) (alteration in original); see also Sutherland Statutory Construction § 22:33, at 399 (6th ed. 2002) (“[T]he legislature is presumed to know the prior construction of the original act, and if words or provisions in the act or section amended that had been previously construed are repeated in the amendment, it is held that the legislature adopted the prior construction of the word or provision.”). Whatever the merits of the textual interpretation of § 1105a(c) by the courts prior to the IIRIRA, there is a strong inference that in reenacting the same exhaustion language, Congress intended to continue a statutory requirement that an alien exhaust not only remedies, but also issues, before he may obtain judicial review.

403 F.3d at 582 (emphasis added).

Finally, to the extent that the majority suggests that its ruling — that the § 1252(d)(1) exhaustion requirement does not apply to issues — is limited to those cases in which the-BIA’s decision was a summary affirmance entered in accordance with the Board’s streamlining procedures, see Majority Opinion ante at 122, I do not see that those procedures alter the thrust of the statutory provision’s exhaustion requirement. The BIA’s decision whether to apply the streamlining procedures in a given case depends on the issues presented for appeal, see 8 C.F.R. §§ 1003.1 (d) and (e), and the issues for appeal must be stated by the appellant at the outset:

The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal ... or in any attachments thereto, in order to avoid summary dismissal .... The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. If a question of law is presented, supporting authority must be cited. If the dispute is over the findings of fact, the specific facts contested must be identified.

Id. § 1003.3(b) (emphases added). Thus, “the decision whether to streamline is affected by what issues the petitioner chooses to appeal to the BIA. The failure to include issues may result in a decision to streamline which otherwise would not have been made.” Zara v. Ashcroft, 383 F.3d at 931 .

In sum, the majority holds that “the language” of “§ 1252(d)(1) does not make issue exhaustion a statutory jurisdictional requirement,” because, the majority says, that section “does not expressly proscribe judicial review of issues not raised in the course of exhausting all administrative remedies.” Majority Opinion ante at 120 (emphasis added). Given the present context, to wit, issues presented in a petition for review, I regard the phrase “issues not raised in the course of exhausting all administrative remedies” (emphases added) as an oxymoron. In my view, the very fact *138 that the issues have not been raised in the course of the administrative proceeding means that, as to those issues, the petitioner has not exhausted all administrative remedies.

Finally, as to the explanations given by the majority in its initial, “elarify[ing],” footnote, Majority Opinion ante at 107 n. 1, which follows its statement that the “[jurisdictional] question is determinative of the ... case before us,” id. at 107, I have several observations. I question whether this Court actually has the power to remedy even a manifest injustice when we lack jurisdiction. Further, statements as to what our Court must do in circumstances differing from those here are purely dicta. And it strikes me as odd for the majority to state that it “expects that virtually no case will be decided differently from the way it would be were the [exhaustion] requirement deemed jurisdictional,” id. at 108 n. 1, considering that the instant matter is precisely such a case.

For all of the foregoing reasons, I dissent.