USCA11 Case: 20-14861 Document: 91-2 Date Filed: 06/29/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14861
Non-Argument Calendar
____________________
DIMITAR PETLECHKOV,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Department of Homeland Security
Agency No. A216-634-377
____________________
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2 Order of the Court 20-14861
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Dimitar Petlechkov, proceeding pro se, seeks reconsidera-
tion and clarification of our opinion issued on April 20, 2023.
Among other things, Petlechkov points out that our prior opinion
was abrogated in part by Santos-Zacaria v. Garland,
143 S. Ct. 1103,
1110 (2023), which explains that the exhaustion requirement in
8
U.S.C. § 1252(d)(1) is not jurisdictional.
We grant Petlechkov’s motion for clarification, vacate our
prior opinion, and issue this order for a limited remand to the De-
partment of Homeland Security in its place. We also grant his mo-
tion to waive the requirements for filing paper copies of his mo-
tions. We deny Petlechkov’s motions to take judicial notice and to
supplement the record, and we deny his petition for rehearing as
moot.
Petlechkov seeks review of an order issued by the Depart-
ment of Homeland Security for his expedited removal from the
United States as an alien convicted of an aggravated felony. See
8
U.S.C. §§ 1228; 1227(a)(2)(A)(iii). He contends that the Depart-
ment violated his Fifth Amendment due process rights by failing to
provide notice of the charge of removability and an opportunity to
respond. Specifically, he alleges that the Notice of Intent to Issue a
Final Administrative Removal Order contained in the administra-
tive record was never served on him, contrary to the (illegibly)
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20-14861 Order of the Court 3
signed but unsworn certificate of service on the document. He ar-
gues that even if the Notice had been served on him, he would not
have been able to respond because it did not provide a return ad-
dress. And he argues that if he had been given the opportunity to
respond, he would have shown (among other things) that the res-
titution order relied on by the Department was “insufficient as a
matter of law” to establish that his mail-fraud conviction involved
the amount of loss necessary to qualify as an “aggravated felony”
under
8 U.S.C. § 1227(a)(2)(A)(iii). Obasohan v. U.S. Att’y Gen.,
479 F.3d 785, 791 (11th Cir. 2007), abrogated on other grounds by
Nijhawan v. Holder,
557 U.S. 29 (2009). He asks this Court to va-
cate the order of removal and direct the Department to compen-
sate him in various ways for the time he spent in Department cus-
tody before his removal.
The Attorney General responds, in part, that a deportation
officer “attempted to serve Petlechkov with a Notice of Intent,” but
Petlechkov “refused to acknowledge receipt” of the Notice. Re-
spondent’s Br. at 6. It also argues that we should dismiss the peti-
tion because Petlechkov failed to administratively exhaust his chal-
lenges to removal by raising them in response to the Notice.
Id. at
9 n.2.
Our jurisdiction to review a final order of removal that is
based on the noncitizen’s commission of an aggravated felony is
strictly limited to colorable constitutional claims or questions of
law.
8 U.S.C. § 1252(a)(2)(C)–(D). In addition, under
8 U.S.C.
§ 1252(d)(1), we may review a final order of removal only if “the
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4 Order of the Court 20-14861
alien has exhausted all administrative remedies available to the al-
ien as of right.” The administrative exhaustion provision is not ju-
risdictional, but it speaks in mandatory terms. Santos-Zacaria, 143
S. Ct. at 1110; see
8 U.S.C. § 1252(d)(1). Thus, because the Attorney
General raised the statutory requirement of exhaustion in response
to Petlechkov’s petition, we must enforce it. See Manrique v.
United States,
581 U.S. 116, 121, 125 (2017) (if properly raised by a
party, mandatory claim-processing rules are “unalterable”).
Whether the mandatory claim-processing rule of exhaustion
applies here turns on whether Petlechkov was, in fact, served with
the Notice of Intent and given a reasonable opportunity to respond
to it. If so, we will not review his challenges to the removal order
because he failed to timely raise any of them before the agency dur-
ing his expedited removal proceedings. See Malu v. U.S. Att’y
Gen.,
764 F.3d 1282, 1289 (11th Cir. 2014), abrogated in part by San-
tos-Zacaria, 143 S. Ct. at 1110. If he was not served or given an
opportunity to respond, agency review arguably was not an “avail-
able” administrative remedy for Petlechkov, and his failure to re-
spond to the Notice within the time provided would not bar our
review of his legal challenges to the final order of removal.
We decline to decide the question of service in the first in-
stance. Petlechkov claims that he informed the Department in
writing several times that he had not been served with notice of the
Department’s intent to issue a final order of removal. Both parties
refer to an affidavit filed by Petlechkov and apparently served on
the Department in a related habeas proceeding. But none of those
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20-14861 Order of the Court 5
documents are contained in the administrative record, and they are
thus outside the scope of our review. See
8 U.S.C. § 1252(b)(4)(A).
Nor does the record contain any findings by the Department as to
whether the issuing officer served the Notice of Intent in compli-
ance with agency regulations. See
8 C.F.R. §§ 103.8, 238.1(b). As a
court of review, we are not in a position to make such findings our-
selves. See Gonzales v. Thomas,
547 U.S. 183, 185–86 (2006). “Ra-
ther, ‘the proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation.’”
Id. at
186 (quoting INS v. Orlando Ventura,
537 U.S. 12, 16 (2002)).
We therefore remand the case to the Department for the
limited purpose of determining whether Petlechkov was properly
served with the Notice of Intent and afforded a reasonable oppor-
tunity to respond and supplementing the administrative record
with documents and evidence relevant to its determination. If the
Department concludes on remand that the better course would be
to vacate the removal order and conduct additional proceedings
under
8 U.S.C. § 1228 or to refer the matter to an immigration
judge for proceedings under 8 U.S.C. § 1229a, it should so indicate
in a written decision. See
8 C.F.R. § 238.1. In the meantime, we
retain jurisdiction over the petition for review.
We acknowledge Petlechkov’s report that the Department
has not yet taken any action in response to our April 20, 2023 re-
mand, despite his attempts to communicate with the Department.
We request that the Department expedite the process of obtaining
additional evidence (if necessary) and making its determination.
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6 Order of the Court 20-14861
The Respondent is instructed to submit a status report regarding
the Department’s progress within 30 days of the date of this order.
The parties are instructed to notify the Court within 14 days after
the Department issues its decision on remand, and to file the ex-
panded administrative record as soon as practicable thereafter.
Petlechkov’s motion for clarification of the Court’s opinion
is GRANTED. We VACATE the April 20, 2023 opinion of the
Court and issue this order for a limited remand in its place. We
DENY as moot Petlechkov’s motion for rehearing. We DENY
(without prejudice to renewal) his motions to take judicial notice
and to supplement the record. We GRANT his motion to waive
the rules requiring paper copies of his motions.
It is so ordered.
