Gicharu v. Carr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1864
SAMUEL KINUTHIA GICHARU,
Plaintiff, Appellant,
v.
DONNA CARR, in her capacity as Chief Clerk of the Board of
Immigration Appeals; JAMES MCHENRY, in his capacity as Director
of the Executive Office for Immigration Review; MICHAEL E.
HOROWITZ, in his capacity as Inspector General, Civil Rights &
Civil Liberties Complaints, U.S. Department of Justice,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Thompson and Kayatta,
Circuit Judges.
Joanna M. Golding, with whom Barker, Epstein & Loscocco was
on brief, for appellant.
Kevin C. Hirst, Trial Attorney, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, with whom Joseph
H. Hunt, Assistant Attorney General, Civil Division, William C.

Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C. §
46(d).
Peachey, Director, Office of Immigration Litigation, Yamileth G.
Davila, Assistant Director, and Michael A. Celone, Senior
Litigation Counsel, were on brief, for appellees.
December 16, 2020
KAYATTA, Circuit Judge. In 2013, the Board of
Immigration Appeals affirmed an order authorizing the removal of
Samuel Kinuthia Gicharu to Kenya, his country of origin. Over two
years later, Gicharu filed with the BIA a motion to reopen his
removal proceedings. The BIA rejected the motion. Gicharu
appealed to this court, which affirmed the BIA's decision.
Undeterred, Gicharu commenced an action in United States District
Court against various officials of the Department of Justice.
Claiming a right of action under the Administrative Procedure Act
(APA) and under any statutes providing for habeas corpus relief,
he sought an order compelling the BIA to rescind and reissue the
order of removal it affirmed in 2013 and later refused to reopen.
The district court dismissed his complaint on the merits for
failure to state a claim. Without reaching the merits, we now
dismiss Gicharu's appeal, finding that the district court lacked
subject matter jurisdiction. Our reasoning follows.
I.
To assess whether the district court had subject matter
jurisdiction, we consider Gicharu's pleadings as well as the record
of the proceedings leading up to this appeal. See Aguilar v. U.S.
Immigr. & Customs Enf't, 510 F.3d 1, 8 (1st Cir. 2007). Gicharu
arrived in the United States on a visitor's visa in 2003. After
entering the United States, he filed applications for asylum,
withholding of removal, and relief under the Convention Against
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Torture. In May 2011, an immigration judge denied his applications
for relief and ordered him removed. Gicharu, who was represented
by counsel, appealed to the BIA. While the appeal was pending,
both Gicharu and his counsel changed their mailing addresses. In
so doing, neither complied with the applicable BIA regulation
requiring them to update their addresses of record, see 8 C.F.R.
§ 1003.38(e), even after Gicharu's counsel was specifically
advised of the regulation.
In March 2013, the BIA affirmed the decision of the
immigration judge and issued a final order of removal. In
accordance with BIA regulations, copies of the decision were mailed
to Gicharu and his counsel at their addresses of record. The
copies were returned as undeliverable, presumably because the
addresses provided were outdated by the time the BIA issued its
decision. Gicharu alleges that, as a result, he did not receive
actual notice of the final order of removal until late April or
early May 2013 -- after the thirty-day period for filing a petition
for review in this court had lapsed, but well before the ninety-
day deadline for filing a motion to reopen.
Over two years later, Gicharu moved the BIA to reopen
his removal proceedings. Although he had long ago missed the
ninety-day deadline for filing a motion to reopen, he argued that
his motion should be allowed under the doctrine of equitable
tolling because he had received ineffective assistance of counsel.
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Gicharu asserted, among other things, that his counsel had failed
to properly maintain a current address of record with the BIA
during the pendency of his appeal, which deprived him of timely
notice of the BIA's March 2013 decision. The BIA was not
persuaded. It rejected Gicharu's ineffective assistance claim,
along with other claims not relevant here, and denied the motion
to reopen. Gicharu sought review in this court. In February 2018,
we rejected his petition for review and affirmed the BIA's
decision. Gicharu v. Sessions, Nos. 16-2520, 17-1455 (1st Cir.
Feb. 23, 2018).
In this subsequent action commenced in the district
court, Gicharu alleged that service of the BIA's March 2013 final
order of removal was defective. Citing the APA, 5 U.S.C. § 706(1),
he sought to compel the BIA to reissue the order so as to give him
another opportunity to file a timely petition for review and/or a
timely motion to reopen. He also sought leave to file a proposed
amended complaint, which added allegations regarding ineffective
assistance of counsel and a request for habeas relief. The
government moved to dismiss the complaint for lack of jurisdiction
under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and
for failure to state a claim under Rule 12(b)(6). The government
also opposed Gicharu's motion for leave to file an amended
complaint, arguing that the proposed amendment would be futile for
the same reasons.
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Over the government's objections, the district court
concluded that it had jurisdiction over both the APA claim asserted
in the operative complaint and the habeas claim asserted in the
proposed amended complaint. Nevertheless, the district court
granted the government's motion to dismiss the complaint for
failure to state a claim and similarly denied Gicharu's motion for
leave to file an amended complaint on futility grounds.
II.
We begin (and ultimately end) with the question of
subject matter jurisdiction. See Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 88–89 (1998). In so doing, we review
the district court's assessment of subject matter jurisdiction de
novo. See Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48
(1st Cir. 2009).
A.
The jurisdiction-channeling provision of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1252(a)(5), states that "the
sole and exclusive means for judicial review of an order of
removal" is "a petition for review filed with an appropriate court
of appeals." Adding belt to suspenders, section 1252(b)(9) strips
federal courts of jurisdiction to decide legal and factual
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questions arising from an alien's removal in any other context,
including on a petition for a writ of habeas corpus:
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. Except as otherwise
provided in this section, no court shall have
jurisdiction, by habeas corpus under
section 2241 of Title 28, or any other habeas
corpus provision . . . or by any other
provision of law (statutory or nonstatutory),
to review such an order or such questions of
law or fact.
8 U.S.C. § 1252(b)(9). "As its text makes manifest,"
section 1252(b)(9) does not preclude judicial review of orders of
removal; rather, it is "designed to consolidate and channel review
of all legal and factual questions that arise from the removal of
an alien into the administrative process, with judicial review of
those decisions vested exclusively in the courts of appeals."
Aguilar, 510 F.3d at 9 (emphasis omitted).
Of course, "[t]he words 'arising from' do not lend
themselves to precise application." Id. at 10. But neither are
they "infinitely elastic." Id. We have previously explained that
interpreting section 1252(b)(9) to eliminate all judicial review
of certain removal-related claims would be contrary to Congress's
intent of channeling, rather than barring, review of claims arising
from the removal process. See id. at 11; see also Jennings v.
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Rodriguez, 138 S. Ct. 830, 840 (2018) (plurality opinion)
(rejecting an interpretation of "arising from" that would make
certain claims "effectively unreviewable"). Thus, we have found
that claims which cannot be raised in removal proceedings and
eventually brought to the court of appeals on a petition for review
are "independent of, or wholly collateral to, the removal process,"
not "arising from" it. Aguilar, 510 F.3d at 11.
This narrow exception for claims not arising from
removal proceedings provides no succor for Gicharu. His claims of
insufficient service and ineffective assistance of counsel plainly
"arise from" the removal process. The regulations governing
removal proceedings set forth the method of service of a removal
order, imposing on the BIA "an affirmative obligation to mail a
copy of its final decision to the alien" or his representative.
Tobeth-Tangang v. Gonzales, 440 F.3d 537, 539 (1st Cir. 2006)
(citing 8 C.F.R. §§ 292.5(a), 1003.1(f)); cf. 8 C.F.R. § 1003.13(providing that in immigration court, "[s]ervice" generally means
"physically presenting or mailing a document to the appropriate
party or parties"). Among other things, the date of mailing starts
the clock on the thirty-day period for filing with the BIA a motion
for reconsideration, see 8 C.F.R. § 1003.2(b)(2), and the thirty-
day period for filing a petition for review in this court, see
Tobeth-Tangang, 440 F.3d at 540 (citing Radkov v. Aschroft, 375
F.3d 96, 99 (1st Cir. 2004)). These regulations make clear that
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the service of a removal order is "inextricably intertwined with[]
the administrative process that Congress so painstakingly
fashioned." Aguilar, 510 F.3d at 13. Similarly, as we recognized
in Aguilar, "the alien's right to counsel is part and parcel of
the removal proceeding itself." Id. (citing 8 U.S.C. § 1362). A
claim challenging counsel's effectiveness therefore "possesses a
direct link to, and is inextricably intertwined with," the removal
process. Id.Further, Gicharu's claims could have been pursued before
the BIA, which "refutes any notion" that his claims are
"independent of, or collateral to, the removal process." Id. To
start, Gicharu could have pursued before the BIA his claim for
insufficient service of the March 2013 removal order, which he now
asserts under the APA. Such claims are regularly raised through
the BIA's administrative process and brought before this court
through petitions for review. See, e.g., Aponte v. Holder, 610
F.3d 1, 7 (1st Cir. 2010) (directing the BIA to allow a renewed
motion to reopen based on a defect in service); Tobeth-Tangang,
440 F.3d at 538–40 (reviewing the BIA's denial of a motion to
reopen and concluding that service was not defective); Hossain v.
Ashcroft, 381 F.3d 29, 31-33 (1st Cir. 2004) (directing the BIA to
allow a renewed motion for reconsideration based on insufficient
service); Gomes v. Smith, 381 F. Supp. 3d 120, 122 (D. Mass. 2019)
(stating that an immigration judge had reissued the plaintiff's
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order of removal on a motion to reopen where the plaintiff had
previously been unaware of the removal order).
The BIA also provides a process for adjudicating
ineffective assistance of counsel claims through a motion to
reopen. See Avelar Gonzalez v. Whitaker, 908 F.3d 820, 829 (1st
Cir. 2018) (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st
Cir. 1999)). Aliens who timely file a motion to reopen and satisfy
the governing standards prevail in obtaining reopening. See Matter
of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), aff'd sub nom.
Lozada v. INS, 857 F.2d 10 (1st Cir. 1988) (setting forth the
governing standards); accord In re Zmijewska, 24 I. & N. Dec. 87,
94–95 (BIA 2007) (granting a motion to reopen where an alien
adequately complied with Matter of Lozada). The BIA also
entertains claims for equitable tolling of the filing deadline for
motions to reopen where it is alleged that ineffective assistance
of counsel caused the motion to be untimely. See, e.g., Pineda v.
Whitaker, 908 F.3d 836, 840–41 (1st Cir. 2018) (describing the
BIA's decision on one such claim).1 Though the standard for
establishing equitable tolling is daunting, see id. at 841, it
does not render review by the BIA or the court of appeals
1The legitimacy of the BIA's current practice of applying
equitable tolling principles to untimely motions to reopen remains
"an open question" in the First Circuit. Pineda, 908 F.3d at 841.
For purposes of this case, we assume, without deciding, that
equitable tolling may be available in an appropriate case. See
id.
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unavailable. Indeed, the courts of appeals regularly review
decisions by the BIA on ineffective assistance of counsel claims
asserted through both timely and untimely motions to reopen. See,
e.g., Wang v. Ashcroft, 367 F.3d 25, 27–29 (1st Cir. 2004) (noting
"the sheer volume of ineffective assistance of counsel claims
asserted by deportable aliens" and reviewing the BIA's decision on
one such claim asserted through a timely motion to reopen); Romer
v. Holder, 663 F.3d 40, 43 (1st Cir. 2011) (remanding to the BIA
with instructions to consider the petitioner's equitable tolling
argument on an untimely motion to reopen).
In sum, Gicharu's request that we compel the BIA to
"rescind" the final order of removal necessarily rests on a
contention that something occurred in connection with the issuance
of that order that renders it inequitable to leave in place. That
contention "aris[es] from" the removal proceedings, and our
acceptance of it would require our review of precisely the same
issues regarding sufficiency of service and adequacy of
representation that Gicharu could have raised in his challenge to
the BIA's decision not to reopen.2 Put differently, exercising
jurisdiction over Gicharu's claims would encourage just the sort
of "scattershot and piecemeal" litigation that Congress sought to
2 That Gicharu actually did pursue his claim of ineffective
assistance of counsel in a motion to reopen before the BIA and on
a petition for review in this court well illustrates this point.
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prevent when it enacted section 1252(b)(9). Aguilar, 510 F.3d at
9 (citing H.R. Rep. No. 109–72, at 174 (2005) (Conf. Rep.), as
reprinted in 2005 U.S.C.C.A.N. 240, 299).
B.
Gicharu nevertheless contends that his claims cannot be
found to "aris[e] from" his removal proceedings under
section 1252(b)(9) because that provision "applies only '[w]ith
respect to review of an order of removal under [8 U.S.C.
§ 1252(a)(1)].'" INS v. St. Cyr., 533 U.S. 289, 313 (2001) (first
alteration in original) (quoting 8 U.S.C. § 1252(b)), superseded
on other grounds by statute, REAL ID Act of 2005, Pub. L. No. 109–
13, § 106, 119 Stat. 231, 310–311, as recognized in Nasrallah v.
Barr, 140 S. Ct. 1683, 1690 (2020). He relies on Singh v. Gonzales,
499 F.3d 969, 978–79 (9th Cir. 2007), which held that
section 1252(b)(9) does not apply where, as here, the plaintiff
merely seeks the reissuance of the removal order. He also points
to cases in which other circuits have held, under circumstances
not presented here, that section 1252(b)(9) has no effect on
jurisdiction where the plaintiff does not challenge the merits of
the underlying removal order. See, e.g., Madu v. U.S. Att'y Gen.,
470 F.3d 1362, 1366-67 (11th Cir. 2006) (holding that
section 1252(b)(9) did not apply to bar a claim contesting "the
very existence of an order of removal"); Kumarasamy v. Att'y Gen.,
453 F.3d 169, 172 (3d Cir. 2006) (determining that the petitioner's
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challenge to the existence of a removal order was properly reviewed
as an appeal from the district court's habeas judgment, not as a
petition for review).
Even assuming that the scope of section 1252(b)(9) is so
limited by section 1252(b) -- a position endorsed by only three
Justices in Jennings, 138 S. Ct. at 876 (Breyer, J., dissenting)
-- Gicharu's claims still fall within it. Gicharu argues on appeal
that the BIA's decision denying his 2015 motion to reopen was "in
error" and that the district court "effective[ly] affirm[ed]" that
decision "in error" by dismissing the instant action. In other
words, Gicharu effectively seeks judicial review of the BIA's
decision not to reopen his removal proceedings, which for
jurisdictional purposes is indistinguishable from seeking "review
of a final order of removal" under section 1252(a)(1). See Mata
v. Lynch, 576 U.S. 143, 147 (2015) (citing Kucana v. Holder, 558
U.S. 233, 242, 253 (2010)); accord Thompson v. Barr, 959 F.3d 476,
479–80 (1st Cir. 2020) (citing 8 U.S.C. § 1252(a)(1), (a)(5)).
Moreover, contrary to the Ninth Circuit's reasoning in
Singh, Gicharu's ineffective assistance claim requires at least a
preliminary review of the merits of the underlying removal decision
because relief cannot be granted on that claim absent a showing
that Gicharu is reasonably likely to succeed in overturning the
order of removal if he is permitted to file a timely petition for
review. See Franco-Ardon v. Barr, 922 F.3d 23, 25 (1st Cir. 2019);
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see also Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) ("To
succeed on an ineffective assistance of counsel claim, petitioners
must show 'a reasonable probability of prejudice' resulting from
their former representation." (quoting Saakian v. INS, 252 F.3d
21, 25 (1st Cir. 2001))). We therefore decline to follow the Ninth
Circuit's decision in Singh and hold instead that Gicharu's claims
"aris[e] from" his removal proceedings within the meaning of
section 1252(b)(9).
C.
Gicharu also objects on constitutional grounds to our
conclusion that his claims fall within the scope of
section 1252(b)(9) and outside the district court's jurisdiction.
First, he contends that this result deprives him of the opportunity
to file a timely petition for review of the March 2013 order of
removal, effectively foreclosing all meaningful judicial review of
the merits of the BIA's removal decision in violation of the Due
Process Clause of the Fifth Amendment.3 But, as we have already
explained, the relief that Gicharu's complaint seeks -- reissuance
of the BIA's March 2013 order of removal -- was available, had it
been warranted, through the administrative process, with judicial
review available in the court of appeals under section 1252(a)(1)
3 The Due Process Clause provides that "[n]o person shall
be . . . deprived of life, liberty, or property, without due
process of law." U.S. Const. amend. V.
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and (a)(5). This satisfies due process. See Aguilar, 510 F.3d at
15–16, 18. The fact that Gicharu failed to establish his
entitlement to such relief through his 2015 motion to reopen does
not transform the INA's jurisdiction-channeling provisions into a
due process violation. Cf. Lozada, 857 F.2d at 14 (stating that,
"as a result of the Board's serious consideration of petitioner's
motion to reopen proceedings, he received nearly all the attention
to his case that ever potentially was available" and concluding
that "[h]is due process claim is, therefore, unavailing").
Second, Gicharu contends that, if our interpretation of
section 1252(b)(9) is correct, it violates the Suspension Clause4
because it deprives him of his only opportunity to be heard on
constitutional claims arising from his removal proceedings,
including a claim that his counsel provided ineffective assistance
during his removal hearing, before the final order of removal was
issued. But the Suspension Clause is not implicated where, as
here, the relief sought by the habeas petitioner is "the
opportunity to remain lawfully in the United States" rather than
the more traditional remedy of "simple release" from "unlawful
executive detention." Dep't of Homeland Sec. v. Thuraissigiam,
140 S. Ct. 1959, 1970–71 (2020).
The Suspension Clause provides that "[t]he Privilege of
4
the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it."
U.S. Const., Art. I, § 9, cl. 2.
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III.
Having concluded that Gicharu's APA claim and habeas
claim both arise from his removal proceedings, we hold that the
district court lacked subject matter jurisdiction over those
claims under section 1252(b)(9). We therefore vacate the district
court's ruling on the merits but affirm the dismissal of Gicharu's
complaint.
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