Zhong v. U.S. Dep't of Justice, Attorney General Gonzales ( 2007 )

02-4882-ag
Zhong v. U.S. Dep’t of Justice, Attorney General Gonzales
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006
____________________
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 31 st day of May, two thousand seven,
Present:
Hon. Dennis Jacobs,
Chief Judge,
Hon. Guido Calabresi,
Hon. José A. Cabranes,
Hon. Chester J. Straub,
Hon. Rosemary S. Pooler,
Hon. Robert D. Sack,
Hon. Sonia Sotomayor,
Hon. Robert A. Katzmann,
Hon. B.D. Parker,
Hon. Reena Raggi,
Hon. Richard C. Wesley,
Hon. Peter W. Hall,
Circuit Judges.
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LIN ZHONG,
Petitioner,
- v.- 02-4882-ag
UNITED STATES DEPARTMENT OF JUSTICE,
& ATTORNEY GENERAL GONZALES,
Respondent.
- - - - - - - - - - - - - - - - - - - -x
Respondent filed a petition for rehearing in banc from
the opinion filed on August 8, 2006. A poll on whether to
rehear this case in banc was conducted among the active
judges of the court upon the request of an active judge of
the court. Because a majority of the court’s active judges
voted to deny rehearing in banc, rehearing in banc is hereby
DENIED. Amended opinions were issued by the panel on
January 17, 2007.
Judge Calabresi concurs in the order denying rehearing
in banc and files an opinion. Chief Judge Jacobs dissents
from the order denying rehearing in banc and files an
opinion in which Judges Cabranes and Raggi join.
FOR THE COURT:
Thomas W. Asreen, Acting Clerk
By: Richard Alcantara, Deputy Clerk
CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc:
In his strong dissent, the Chief Judge touches on two separate issues. Both are important
and deserve serious discussion. The first is primarily of interest to this court and circuit. It asks
whether the majority in Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007), amending
and superseding Zhong v. U.S. Dep’t of Justice, 461 F.3d 101 (2d Cir. 2006), ignored our rules
making previous circuit precedent binding. The second is of more general interest. It questions
whether the Zhong majority was correct in its reading of the relevant statute and Supreme Court
decisions when it held that exhaustion of issues — as against categories of claims — is a
mandatory rather than a jurisdictional requirement.1
I
In Zhong, the government did not point out that the petitioner had failed to exhaust
certain issues before the Board of Immigration Appeals (“BIA”), and instead, fully briefed and
argued the merits of those unexhausted issues to us. As a result, the Zhong panel was faced with
the question of whether the requirement of issue exhaustion was jurisdictional and had to be
raised by the panel sua sponte.
The Chief Judge contends that the Zhong panel should have treated our court’s decision
in Foster v. INS, 376 F.3d 75 (2d Cir. 2004) (per curiam), as controlling on this point. See
dissenting op. at 3 (criticizing the Zhong majority for “[d]eparting from this well-settled
precedent”). It is true that the Foster opinion contains language which might be taken to suggest
that 8 U.S.C. § 1252(d)(1) imposes a jurisdictional issue exhaustion requirement. But because,
1
Stated differently, this second question asks whether, in the light of 8 U.S.C. §
1252(d)(1) and the relevant regulations and case law, issue exhaustion is a matter of statutory
jurisdiction, or, instead, is a mandatory non-jurisdictional requirement that may be subject to a
few, limited, exceptions.
in Foster, the government pointed out the petitioner’s failure to exhaust issues, see Foster, 376
F.3d at 77, any “jurisdictional” language used by that panel was not necessary to the decision,
and as such was not binding on later panels.2 Significantly, both members of our court who
served on the Foster panel and wrote that decision have consistently rejected the Chief Judge’s
reading of Foster as binding. 3 They have authorized me to say that they view the jurisdictional
language in Foster as dicta, and that they believe they indicated as much in Abimbola v. Ashcroft,
378 F.3d 173, 180 (2d Cir. 2004), which they heard on the same day as Foster.4
Given that Foster was not controlling, and that no other binding precedent on point was,
or has been, cited to us it was proper for the Zhong panel to treat as an open question the precise
nature of this court’s issue exhaustion requirement.
In view of the Supreme Court’s series of recent and increasingly powerful opinions
2
See Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235, 1242-43 (2006) (noting
that “[j]urisdiction . . . is a word of many, too many, meanings” and that the Supreme Court, “no
less than other courts, has sometimes been profligate in its use of the term,” but cautioning that
“unrefined dispositions . . . should be accorded no precedential effect on the question whether the
federal court had authority to adjudicate the claim in suit” (citations and internal quotation marks
omitted)); cf. Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 443, 446 (2d Cir. 2006)
(noting that “our case law has been somewhat casual when discussing the judicially-created
exhaustion requirements under section 502(a)(1)(B) [of ERISA]” and acknowledging that this
court has “occasionally use[d] ‘jurisdictional’ language when discussing the exhaustion
requirements,” but holding “that a failure to exhaust ERISA administrative remedies is not
jurisdictional, but is an affirmative defense”); United States v. Canova, 412 F.3d 331, 347-48 (2d
Cir. 2005) (acknowledging that the Supreme Court, our court, and each of our sister circuits, had
previously referred to the filing limit of Fed. R. Crim. P. 33 as “jurisdictional,” but recognizing
that “[i]n light of [the Supreme Court’s] discussion of the ambiguity in the word ‘jurisdictional,’
it might be appropriate for us to explore the meaning of our past characterization of Rule 33’s
filing limitations as ‘jurisdictional’”).
3
The third judge on the panel was a visiting judge and as such has had no occasion to
express his views on the matter.
4
See Abimbola, 378 F.3d at 180 (suggesting that the jurisdictional effect of lack of
exhaustion where the government fails to object was an open issue).
cautioning lower federal courts against conflating mandatory with jurisdictional prerequisites,
see, e.g., Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675, 1681-82 (2006); Arbaugh, 126 S.
Ct. at 1238, 1245; Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 405 (2005) (per
curiam); Kontrick v. Ryan, 540 U.S. 443, 455-56 (2004), and because there was no binding
precedent on the question of issue exhaustion, the Zhong majority properly undertook the task of
carefully determining whether our court’s issue exhaustion requirement should truly be treated as
jurisdictional. See Eberhart, 126 S. Ct. at 405 (“Clarity would be facilitated . . . if courts and
litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions
delineating the classes of cases (subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court’s adjudicatory authority.” (citation and internal quotation
marks omitted)).
The Zhong panel believed that some of the same arguments it found compelling with
respect to issue exhaustion could be made about claim exhaustion and whether that requirement
is jurisdictional. But because there were longstanding holdings of our court that, in the
immigration context, claim exhaustion is a jurisdictional requirement, see Beharry v. Ashcroft,
329 F.3d 51, 59 (2d Cir. 2003); see also Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006), the
majority in Zhong properly deemed itself bound. The majority in Zhong concluded that it could,
and so should, reach the correct result with respect to the question that remained open — i.e., the
nature of issue exhaustion — even as it honored longstanding precedent on claim exhaustion.
Although it noted some conceptual difficulties with drawing such a distinction, it concluded the
distinction was a permissible one.
This was because our circuit precedents have often distinguished between issues and
categories of relief in exhaustion doctrine. Zhong, 480 F.3d at 119 n.18 (citing cases).
Moreover, there is a profoundly practical reason for drawing this line between issue and claim
exhaustion. If an exhaustion requirement is treated as implicating subject-matter jurisdiction,
then a decision on an issue or claim that turns out not to have been adequately exhausted below
would be subject to being attacked collaterally by interested third parties, because the court
would have had no authority to act at all. See Arbaugh, 126 S. Ct. at 1240 (“The objection that a
federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised
by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the
entry of judgment.”). And that, together with the fact that subject-matter jurisdiction cannot be
waived, would impose on courts of appeals “an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from either party.”
Arbaugh, 126 S. Ct. at 1237. This, in the context of issue exhaustion in immigration cases in this
circuit, would impose an unbearable burden.
Whereas the judges of this court have little difficulty examining the administrative record
and determining whether particular categories of relief — i.e., claims — have been raised, it
would be virtually impossible, as a practical matter, for us thoroughly to search through the
record in every case — especially in cases being decided through our Non-Argument Calendar5
or in summary fashion — in order to discern whether all relevant issues were adequately raised
before the agency. If issue exhaustion is mandatory but not jurisdictional, by comparison, we are
able — indeed generally bound — to refuse to consider issues that we discover were not raised
below, but we do not have to undertake the unmeetable task of meticulously searching the record
5
See Second Circuit Interim Local Rule 0.29 (establishing procedures for the Non-
Argument Calendar).
in the thousands of immigration cases we review, in order to avoid what could be disastrous,
much later, collateral attacks.
Obviously, these practical considerations would not allow us to assume jurisdiction where
it does not exist. But given what is at stake, it is important to avoid carelessly treating an
exhaustion rule as depriving the reviewing court of any power to hear the case, when closer
inspection would reveal the rule to be mandatory but not jurisdictional.
Interestingly — although not surprisingly, given the absence of an issue exhaustion
requirement in the language of § 1252(d)(1), and the practical difficulties that deeming issue
exhaustion “jurisdictional” would present — some of the circuits which the Chief Judge cites as
coming out the opposite way from Zhong on issue exhaustion and jurisdiction have indicated that
they thought this was a terrible idea. But they were bound by earlier precedents in their circuits
and could do nothing else. See, e.g., Etchu-Njang v. Gonzales, 403 F.3d 577, 581-82 (8th Cir.
2005) (noting that “the plain language of § 1252(d)(1) could be read to require only exhaustion of
remedies available as of right,” but finding itself bound by prior Eighth Circuit precedent); Sousa
v. INS, 226 F.3d 28, 31 (1st Cir. 2000) (stating that “[i]f we were writing on a clean slate, it
would be very tempting to treat” the failure to exhaust issues “as something less than a
jurisdictional objection,” but concluding that, “[w]hatever our own views, we are bound by
precedent to apply the INA exhaustion requirement in a more draconian fashion”).6 As the
6
These circuits, in finding, based on their own prior precedents, that they were bound to
treat issue exhaustion as jurisdictional, also suggested that exceptions to the issue exhaustion
requirement might nevertheless be permitted. See Sousa, 226 F.3d at 32 (“Even where statutes
impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction,
carved out exceptions.”); see also Etchu-Njang, 403 F.3d at 581-85 (“[A]ssum[ing] for the sake
of argument that there may be exceptions to the issue exhaustion requirement.”). By allowing
such “exceptions,” these circuits have, in effect, not been treating the issue exhaustion
requirement as truly jurisdictional (despite the words they were bound by precedent to use).
opinion in Zhong clearly states, see 480 F.3d at 107, 120 n.20, it was because we were not bound
by precedent that the majority in Zhong could reach what I will argue in Part II was the correct
result as to issue exhaustion.
I do not doubt that the Chief Judge and his fellow dissenters read Foster as being a
holding on this point. That is without question their right. But, in the end, it is not up to one
judge, or even three judges, to say what is holding and what is not; that is ultimately up to the
majority of the court, and the whole court — perhaps guided by the Foster panel — has voted
overwhelmingly that review en banc of Zhong on this ground is not warranted.
II
The second question, though perhaps less fraught with emotion, is the more important
one: Did the majority in Zhong, in holding that issue exhaustion, though mandatory, is not
jurisdictional, correctly interpret what the statute and relevant case law require?
A
Section 1252(d)(1), the judicial review provision analyzed in Zhong, states that we may
review a final order of removal only after “the alien has exhausted all administrative remedies
available to the alien as of right.” That language typically means that courts do not have
jurisdiction to hear a petitioner who has not first brought his case before the available
We, of course, have similarly allowed for such “exceptions” in the context of claim
exhaustion. See Gill v. INS, 420 F.3d 82, 87-88 (2d Cir. 2005) (stating willingness to hear
unexhausted claims in order to prevent “manifest injustice”); see also Marrero Pichardo v.
Ashcroft, 374 F.3d 46, 54 (2d Cir. 2004) (holding that, “notwithstanding a . . . petitioner’s failure
to exhaust his claims before the BIA,” such failure may be excused where necessary to avoid
“manifest injustice”). The Chief Judge, consistently with the position he takes in this case,
dissented from Gill, and, in that dissent, also criticized the reasoning of Marrero Pichardo. See
Gill, 420 F.3d at 95-97 (Jacobs, J., dissenting). But Gill and Marrero Pichardo nonetheless
remain the law of the circuit, which is the only thing Zhong said about those cases.
administrative agency. See Zhong, 480 F.3d at 118 n.18, 119, 120-21; see also Coleman v.
Thompson, 501 U.S. 722, 732 (1991) (discussing the requirement, found in 28 U.S.C. §
2254(b)(1) (1990), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132, § 104(2)(3), 110 Stat. 1214, that a habeas petitioner “exhaust[] the remedies available
in the courts of the State,” and interpreting it to mean that “[a] habeas petitioner who has
defaulted his federal claims in state court meets the technical requirements for exhaustion; there
are no state remedies any longer ‘available’ to him” (emphasis added)). It does not, however, in
itself proscribe judicial review of issues not raised in the course of exhausting those
administrative remedies.7 And as the Supreme Court has observed, “requirements of
administrative issue exhaustion are largely creatures of statute.” Sims v. Apfel, 530 U.S. 103,
107-08 (2000); see also Zhong, 480 F.3d at 121 (explaining how, “as the Supreme Court
observed in [Sims, 530 U.S. at 107-08], Congress has, in other contexts, expressly written issue
exhaustion requirements into statutes” when it wished to make issue exhaustion jurisdictional
(emphasis in original)).
Of course, even in cases in which no statutory issue exhaustion requirement exists, well-
settled principles of administrative law may lead a court to impose a mandatory — though non-
7
It is useful to compare the language of § 1252(d)(1), which makes no mention of issue
exhaustion, with the language that Congress has used in other statutes. See Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645 (1982) (holding that the court of appeals lacked jurisdiction
to review objections not raised before the National Labor Relations Board because a statute
expressly provided for a jurisdictional issue exhaustion requirement); see id. at 665 (quoting 29
U.S.C. § 160(e) (1982 ed.), which provided that “no objection that has not been urged before the
Board . . . shall be considered by the court” (emphasis added)); see also Federal Power Comm’n
v. Colorado Interstate Gas Co., 348 U.S. 492, 497 (1955) (holding that section 19(b) of the
Natural Gas Act, which provided that “[n]o objection to the order of the Commission shall be
considered by the court [of appeals] unless such objection shall have been urged before the
Commission . . .” imposed a statutory issue exhaustion requirement (emphasis added)).
jurisdictional — issue exhaustion requirement. And this is most likely to happen when an
agency’s own regulations require issue exhaustion in administrative appeals, for then “courts
reviewing agency action [will] regularly ensure against the bypassing of that requirement by
refusing to consider unexhausted issues.” Sims, 530 U.S. at 108. Accordingly, since the BIA’s
regulations do require issue exhaustion, see 8 C.F.R. § 1003.3(b), our court has long held that
issue exhaustion is mandatory. See Zhong, 480 F.3d at 119 (“[O]ur court has consistently
applied an issue exhaustion requirement to petitions for review from the BIA.”).8
But the Chief Judge’s dissent moves well past these uncontroversial propositions, by
seeking to transform our judicially-imposed issue exhaustion rule into a jurisdictional
requirement. In so doing, it conflates two separate questions: (1) whether § 1252(d)(1) itself
imposes a statutory jurisdictional issue exhaustion requirement; and (2) whether, in the absence
of any statutory requirement, we have, nonetheless, ourselves imposed one. The Chief Judge
appears to argue, in effect, that because “our court has consistently applied an issue exhaustion
requirement,” dissenting op. at 1, such requirement must necessarily be jurisdictional rather than
mandatory. Alternatively, the Chief Judge contends that § 1252(d)(1) should be read to include a
8
For an example of our treatment of exhaustion requirements as “mandatory” but not
“jurisdictional,” see Handberry v. Thompson, 436 F.3d 52, 59 (2006), in which we interpreted as
mandatory, but not jurisdictional, the language of the Prison Litigation Reform Act of 1995
(“PLRA”), which provides that “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner . . . until such
administrative remedies as are available are exhausted.” Although we had previously held that
exhaustion under the PLRA is “mandatory,” Handberry held such exhaustion to be non-
jurisdictional in light of the fact that the PLRA did not expressly describe the exhaustion
requirement as jurisdictional. See also Jones v. Bock, 127 S. Ct. 910, 918, 921 (2007) (holding
that, while “[t]here is no question that exhaustion is mandatory under the PLRA,” the “failure to
exhaust is an affirmative defense”). Compare the PLRA’s exhaustion requirement to §
1252(d)(1), which also does not expressly provide for an issue exhaustion requirement at all,
much less say that any such requirement would be jurisdictional.
jurisdictional issue exhaustion requirement — even though the text of the statute does not
include one — because the agency’s regulation requires issue exhaustion during administrative
appeals. Both lines of argument are unpersuasive.
In Sims, the Supreme Court noted that courts often impose mandatory issue exhaustion
rules when the agency’s own regulations require the exhaustion of issues in administrative
appeals. 530 U.S. at 108. The Court then cited approvingly, as examples of such issue
exhaustion rules at work, the Fourth Circuit’s decision in South Carolina v. U.S. Dep’t of Labor,
795 F.2d 375, 378 (4th Cir. 1986), and the Ninth Circuit’s opinion in Sears, Roebuck and Co. v.
FTC, 676 F.2d 385, 398 n.26 (9th Cir. 1982). Significantly, both of those opinions treated issue
exhaustion as mandatory, but not jurisdictional.
In South Carolina, the Fourth Circuit held that, because the state had failed to exhaust
certain issues, the state had waived those issues. 795 F.2d at 378. Similarly, in Sears, the Ninth
Circuit stated that, in considering whether the party had exhausted issues, what was at stake was
whether the party had “waived reliance on them.” 676 F.2d at 397-98. Moreover, the Ninth
Circuit in Sears explained that “a reviewing court will refuse to consider contentions not
presented before the administrative proceeding at the appropriate time,” except in “exceptional
circumstances.” Id. at 398 (emphasis added). And, the fact that the Ninth Circuit treated “
exceptional circumstances” as relevant at all is, of course, inconsistent with a truly jurisdictional
requirement. We can readily conclude that the Sears and South Carolina courts did not think
that what was at play in those cases was jurisdiction.
Significantly, the Sims Court cited Sears and South Carolina with approval as examples
of cases in which courts properly imposed issue exhaustion requirements even in the absence of
express statutory language. Since those cases, like the majority in Zhong, treated issue
exhaustion as mandatory but not jurisdictional, we have every reason to believe that the Supreme
Court endorsed that treatment as well.
The Chief Judge’s dissent relies on Jones v. Bock, 127 S. Ct. 910 (2007), and Woodford v.
Ngo, 126 S. Ct. 2378 (2006), for the proposition that “exhaustion of administrative remedies”
means whatever an agency, through its regulations, says it means. See dissenting op. at 4-7. In
other words, despite the fact that § 1252(d)(1) contains no jurisdictional issue exhaustion
requirement, the Chief Judge would have us treat the BIA’s regulations as if they were
themselves the statute. And, equally importantly, he wants us to read the agency regulations
requiring issue exhaustion as if they made such exhaustion jurisdictional rather than mandatory.
One may doubt whether an administrative agency can either confer jurisdiction on courts
or deprive courts of it. Cf. Kontrick, 540 U.S. at 452 (“Only Congress may determine a lower
federal court’s subject-matter jurisdiction.”). One may certainly doubt it in the absence of any
express authorization to that effect by Congress. But one need not reach those questions to agree
with the holding in Zhong. For the agency regulations dealing with issue exhaustion in the
immigration context do not themselves speak in clearly jurisdictional terms. Rather, the
administrative regulations use language that can readily be read to make issue exhaustion
mandatory, which is exactly how Zhong reads it. See Zhong, 480 F.3d at 121-22.
Jones and Woodford do not affect this result.9 In Woodford, the Supreme Court held that
“proper exhaustion” under the PLRA’s non-jurisdictional exhaustion requirement “demands
9
The PLRA’s exhaustion requirement is a non-jurisdictional affirmative defense, see
Jones, 127 S. Ct. at 921. Jones and Woodford, therefore, do not address the ability an agency to
expand or diminish a court’s jurisdiction.
compliance with an agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure.”
Woodford, 126 S. Ct. at 2386. Fair enough, but this does not make such deadlines jurisdictional.
And when Congress has intended to make procedural rules jurisdictional it has, itself, spoken to
that effect. See supra note 7. The fact that it did not do so in § 1252(d)(1), then, indicates that
no such jurisdictional requirement was intended. And it is Congress’s expressed intent, and not
the agency’s procedures, that must govern the statutory meaning of § 1252(d)(1), and guide
courts in making their own jurisdictional determinations.
B
The Chief Judge, in his dissent, expresses the fear that, as a result of Zhong, all sorts of
issues may be considered on appeal which, under the statute and the BIA regulations, ought not
to be reviewed. I can sympathize with his worry, but it would only become a valid concern if
Zhong were to be misapplied. And on a question like that, the proof of the pudding is always in
the eating.
Since the opinion in Zhong came down, Zhong has been applied and cited in any number
of cases. See Lewis v. Gonzales, 481 F.3d 125, 132 (2d Cir. 2007); Steevenez v. Gonzales, 476
F.3d 114 (2d Cir. 2007); Karaj v. Gonzales, 462 F.3d 113, 119 n.2 (2d Cir. 2006); Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 320 n.1 (2d Cir. Dec. 7, 2006), amending and superseding
Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir. Jan. 6, 2006); Wilson v. Gonzales,
471 F.3d 111, 123 (2d Cir. 2006); see also Jin Feng Gao v. Bureau of Citizenship and
Immigration Srvs., 2007 WL 1233598 (2d Cir. Apr. 26, 2007) (summary order); Chai Li v.
Gonzales, 2007 WL 1206943 (2d Cir. Apr. 25, 2007) (summary order); Ahmed v. INS, 2007 WL
1180417 (2d Cir. Apr. 20, 2007) (summary order); Juan Lin v. Bureau of Citizenship and
Immigration Srvs., 2007 WL 11099272 (Apr. 13, 2007) (summary order); Bah v. Gonzales, 2007
WL 1113091 (Apr. 5, 2007) (summary order); Guo Zhi Lin v. U.S. Att’y Gen., 2007 WL 1113011(Apr. 5, 2007) (summary order); Xiu Zhen Pan v. U.S. Att’y Gen., 2007 WL 926710 (2d Cir.
Mar. 23, 2007) (summary order); Yee Ying Li v. U.S. Dep’t of Justice, 2007 WL 869232 (2d Cir.
Mar. 21, 2007) (summary order); Gjuraj v. Gonzales, 2007 WL 869223 (2d Cir. Mar. 21, 2007)
(summary order); Purwanto v. Gonzales, 2007 WL 786349 (2d Cir. Mar. 16, 2007) (summary
order); Lhamo v. Bd. of Immigration Appeals, 2007 WL 247718 (2d Cir. Jan. 25, 2007)
(summary order); Rong Zheng v. U.S. Att’y Gen., 2007 WL 186667 (2d Cir. Jan. 22, 2007)
(summary order); Kapllaj v. Gonzales, 2006 WL 3770881 (2d Cir. Dec. 13, 2006) (summary
order); Hayat v. Gonzales, 2006 WL 3326772 (2d Cir. Nov. 14, 2006) (summary order); Sun Hai
Jiang v. U.S. Dep’t of Justice, 2006 WL 3326756 (2d Cir. Nov. 15, 2006) (summary order);
Kuang Ju Zheng v. Gonzales, 2006 WL 3018146 (2d Cir. Oct. 23, 2006) (summary order); Ya-
Ling v. Gonzales, 198 Fed. Appx. 120, 122 (2d Cir. Sept. 29, 2006) (summary order); Fang Yi
He v. Gonzales, 198 Fed. Appx. 88, 89 (2d Cir. Sept. 20, 2006) (summary order); Qiu Feng Chen
v. Gonzales, 2006 WL 2620348 (2d Cir. Sept. 12, 2006) (summary order); Xiao Lian Jiang v.
Gonzales, 2006 WL 2567699 (2d Cir. Sept. 6, 2006) (summary order); Makeka v. Gonzales,
2006 WL 2494351 (2d Cir. Aug. 29, 2006) (summary order).
In every one of these cases, Zhong has been correctly applied to deny consideration where
the issue was not brought before the BIA — and to do so because raising such issues was
mandatory, even though not jurisdictional.10 In other words, far from the sky falling in, it is still
there, and is shining bright.
****
In the end the question in Zhong is a quite simple one. (1) Given the Supreme Court’s
powerful statements that courts should be reluctant to make issues jurisdictional rather than
mandatory unless statutory language requires it, see Day, 126 S. Ct. at 1681-82; Arbaugh, 126 S.
Ct. at 1245; Eberhart, 126 S. Ct. at 405; Kontrick, 540 U.S. at 455-56; see also Sims, 530 U.S. at
107-08; (2) given the fact that our precedents do not compel us to make issue exhaustion in
immigration cases jurisdictional; (3) given the enormous burden that calling issue exhaustion
jurisdictional would in practice impose on courts like ours which are deluged with those cases;
and finally, (4) given the very small — if any — differences in results that flow from calling
issue exhaustion mandatory but not jurisdictional,11 is it permissible and appropriate to read the
agency regulations under § 1252(d)(1) as making issue exhaustion mandatory but not
jurisdictional. The majority in Zhong said that it was. The overwhelming majority of our court
has opted not to review that decision en banc. With great respect for the dissenting views, I
believe that decision was exactly right.
10
The only exception we have found since Zhong is You Jiang v. Gonzales, 2007 WL
1113527 (2d Cir. Apr. 3, 2007) (summary order) (reviewing unexhausted issue in light of
government’s waiver), and I do not know whether the facts in You Jiang might have permitted
review under the exceptions that some courts have read into jurisdictional language. See supra
note 6.
11
Especially in view of the “exceptions” to jurisdictional bars that courts using
jurisdictional language have created. See supra note 6.
DENNIS JACOBS, Chief Judge, with whom JOSÉ A. CABRANES and
REENA RAGGI, Circuit Judges, concur, dissenting from the
denial of rehearing in banc.
“A court may review a final order of removal only if .
. . the alien has exhausted all administrative remedies
available to the alien as of right . . . .” 8 U.S.C. §
1252(d)(1). Thus Congress foreclosed our review of
challenges that an alien failed to present at the agency’s
factfinding and appellate levels. The majority of a divided
panel says that we can reach unexhausted issues
nevertheless--subject only to our discretion and to the
spongy test of “manifest injustice.” The panel majority
seems to think that Congress has shut the door with the
intention that we should climb in the window.
Our law on this subject has been well settled to the
contrary. As the panel majority concedes, “our court has
consistently applied an issue exhaustion requirement to
petitions for review from the BIA.” Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 119 (2d Cir. 2007). Judge Kearse’s
dissent persuasively attacks the deviation of the panel
majority and the analysis they use to get where they go. I
cannot improve upon her dissent, and there is no point in my
repeating it. This dissent is taken from the denial of in
banc review because I do not know what makes the panel
majority believe that our precedent is insufficient to
decide this case, or that our precedent could be set aside
by one panel.
I
Our 2004 opinion in Foster v. INS held that §
1252(d)(1) precludes our review of claims and of issues that
were not exhausted at the BIA: “[C]ourts are not free to
dispense with” the requirement that a petitioner “raise
issues to the BIA in order to preserve them for judicial
review.” 376 F.3d 75, 77-78 (2d Cir. 2004) (emphasis in
original) (internal quotation marks omitted). “We held in .
. . Foster that a petitioner must have raised an issue below
to present it on appeal.” Gill v. INS, 420 F.3d 82, 86 (2d
Cir. 2005) (emphasis in original). Since Foster came down,
every active judge of this Court has applied its holding--
usually by summary order in recognition of the settled
nature of the proposition. 1 Ten other courts of appeals
1
See, e.g., Damko v. INS, 178 F. App’x 85 (2d Cir.
2006) ; Qin Di Chen v. BCIS, 190 F. App’x 101 (2d Cir. 2006);
Islamovic v. Gonzales, 192 F. App’x 47 (2d Cir. 2006);
Meiying Lin v. U.S. Dep’t of Justice, 188 F. App’x 28 (2d
Cir. 2006); Xian Xian Huang v. Gonzales, 187 F. App’x 107
(2d Cir. 2006); Yong Gui Liu v. Gonzales, No. 04-4475, 2006
U.S. App. LEXIS 14665 (2d Cir. June 9, 2006); Yun Yu Zheng
v. Gonzales, 179 F. App’x 752 (2d Cir. 2006); Xharo v.
Gonzales, 195 F. App’x 28 (2d Cir. 2006); Yan Fang Wang v. U.S.
have addressed the issue--and they all reached the same
conclusion we did.2 Judge Calabresi notes that two of the
circuits reached this conclusion only because “they were
bound by earlier precedents in their circuits and could do
nothing else.” Concurring Op. at [5]. I do not think that
adherence to precedent is a value so easily dismissed; in
any event, those panels could have done something else: seek
review in banc.
Choosing instead to depart from our well-settled
precedent, the panel majority now says that we do have the
discretion to review an issue presented to us on appeal that
was not presented to the BIA, and moreover that we must
review such an issue if necessary to prevent a “manifest
injustice”--thus reserving a power to be arbitrary and
captious.
Although the statute does not speak in so many words of
Dep’t of Justice, 161 F. App’x 130 (2d Cir. 2005).
2
See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004);
Xin Jie Xie v. Ashcroft, 359 F.3d 239, 245 n.8 (3d Cir. 2004);
Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004); Kuang-
Te Wang v. Ashcroft, 260 F.3d 448, 452-453 (5th Cir. 2001);
Ramani v. Ashcroft, 378 F.3d 554, 558-60 (6th Cir. 2004); Pjetri
v. Gonzales, 468 F.3d 478, 481 (7th Cir. 2006); Alyas v.
Gonzales, 419 F.3d 756, 762 (8th Cir. 2005); Morales-Alegria v.
Gonzales, 449 F.3d 1051, 1058-59 (9th Cir. 2006); Rivera-Zurita
v. INS, 946 F.2d 118, 120 & n.2 (10th Cir. 1991); Fernandez-
Bernal v. Attorney General, 257 F.3d 1304, 1317 n.13 (11th Cir.
2001).
exhausting “issues,” Foster held that it makes no sense to
read the statute any other way: “Accepting the blanket
statement that removal is improper as sufficient to exhaust
all claims would eviscerate th[e] [exhaustion] rule since
any alien could claim (as nearly all do) he was not
removable and then apply for judicial review on the theory
he had exhausted his remedies.” 376 F.3d at 78. This
holding has been consistently applied in our opinions. See,
e.g., Iouri v. Ashcroft, 464 F.3d 172, 177 (2d Cir. 2006)
(“[T]his particular argument was not raised before the BIA
and Petitioners therefore failed to exhaust their
administrative remedies.” (emphasis added)).
II
Panels of this Court are bound by our precedents unless
and until those precedents are overruled by the Supreme
Court or by this Court sitting in banc. See Nicholas v.
Goord, 430 F.3d 652, 659 (2d Cir. 2005). Nothing the
Supreme Court has said could have justified the departure
from Circuit precedent that the panel majority has made.
The Supreme Court has spoken plainly as to how the
inferior courts should understand statutory exhaustion
requirements. When Congress says (as it did in §
1252(d)(1)) that a petitioner must have “exhausted all
administrative remedies available as of right,” the
petitioner must do so in accordance with that agency’s
procedures. See Jones v. Bock, 127 S. Ct. 910, 923 (2007)
(“[I]t is the prison’s requirements . . . that define the
boundaries of proper exhaustion.”). The Supreme Court has
thus emphasized that the existence of an issue exhaustion
requirement does not hinge solely on statutory wording:
“Proper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules because no
adjudicative system can function effectively without
imposing some orderly structure on the course of its
proceedings.” Woodford v. Ngo, 126 S. Ct. 2378, 2386
(2006).
Thus in Sims v. Apfel, the Court ascertained the need
for issue exhaustion by examining the agency’s regulations
and its internal appellate process. 530 U.S. 103, 106-12
(2000). 3 Sims ruled that appeals to the Social Security
3
The Sims Court consulted the regulations to determine the
propriety of an exhaustion rule because the statute at issue in
that case made no reference to exhausting administrative
remedies, see 42 U.S.C. § 405(g) (requiring only a “final
decision”). While Sims is concerned with judicial
imposition of an issue exhaustion requirement, the Court’s
analysis of agency processes should inform our determination
of the scope of a statutory exhaustion requirement such as §
1252(d)(1). I agree with Judge Kearse that Foster reached
the right answer in making this determination. See Zhong,
Appeals Council need not specify grounds for reversal; but
the analysis used in Sims compels the opposite conclusion in
the immigration context. The Court concluded that social
security regulations did not require issue exhaustion, but
observed that “it is common for an agency’s regulations to
require issue exhaustion in administrative appeals,” id. at
108, and the example it cited of a regulation that does
require as much--and therefore would necessitate issue
exhaustion--closely tracks the words of its immigration
analog. Compare 20 C.F.R. § 802.211(a) (petitions for
review by the Benefits Review Board must “list the specific
issues to be considered on appeal”), with 8 C.F.R. §
1003.3(b) (“The party taking the appeal must identify the
reasons for the appeal . . . [including] the findings of
fact, the conclusions of law, or both, that are being
challenged.”).
In considering the agency’s appellate process, the Sims
Court examined the agency’s directions to those seeking to
file an appeal within the agency, and inferred that the
“Council does not depend much, if at all, on claimants to
identify issues for review.” 530 U.S. at 111-12 (citing 20
480 F.3d at 137 (Kearse, J., dissenting) (“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.”).
C.F.R. § 422.205(a) and Form HA-520). By contrast, the
Executive Office for Immigration Review expressly instructs
aliens to “give specific details why you disagree with the
Immigration Judge’s decision” and to “specify the finding(s)
of fact, the conclusion(s) of law, or both, that you are
challenging.” Form EOIR-26, available at
http://www.usdoj.gov/eoir/; see also 8 C.F.R. § 1003.38.
III
Having decided to bypass our precedent, the panel
majority makes a pretense of laying down criteria for the
circumstances (purportedly limited) in which we might excuse
or ignore a petitioner’s failure to exhaust issues before
the BIA.
First, the panel majority would consider whether the
government objected on appeal to the petitioner’s failure to
exhaust. Zhong, 480 F.3d at 107 n.1, 125. (This is raised
as a purported ground of distinction between the present
case and Foster). Even were this a legitimate
consideration, no waiver should be inferred from the lack of
objection by the government where, as here, the government
had no reason to assume that we would deviate from our well-
settled precedent. If waiver can be inferred here, it can
be inferred anywhere. And future panels may simply deem an
objection ‘insufficiently specific’ to render the waiver
issue--which the panel majority regards as essential to
considering the unexhausted issues in the present case--
meaningless.
In any event, § 1252(d)(1) tells us what the “court may
review,” not what the parties must do; so its mandate should
not be reduced to the status of an affirmative defense. 4
The statutory context demonstrates why Congress chose to
express § 1252(d)(1) as a limitation on our power. Courts
of appeals are empowered only to review final orders of
removal, not to re-adjudicate the underlying application for
relief. 5 Because we cannot review something that the BIA
had no occasion or duty to decide, we should not be freed
from the constraint of § 1252(d)(1) by the absence of a
4
Cf. Eberhart v. United States, 546 U.S. 12, 15-16 (2005)
(holding that a violation of Federal Rule of Criminal Procedure
33’s deadline for the filing of a motion for a new trial, which
is prefaced with “Any motion . . . must be filed,” must be timely
objected to); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.
2004) (holding that the exhaustion requirement of the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a), which is prefaced
with “No action shall be brought,” is waivable).
5
Compare 28 U.S.C. § 2349(a) (limiting our jurisdiction over
final orders of removal to “determining the validity of, and
enjoining, setting aside, or suspending, in whole or in part, the
order of the agency”), and 8 U.S.C. § 1252(a)(1) (incorporating
by reference the jurisdictional limitations of the Administrative
Orders Review Act, §§ 2341-2353), with 42 U.S.C. § 405(g)
(permitting a federal court to issue “a judgment affirming,
modifying, or reversing the decision of the Commissioner of
Social Security . . . without remanding the cause for a
rehearing”).
government objection or by the government’s undertaking
instead to demonstrate that an unpreserved issue is
meritless.
The panel majority would next consider whether the BIA
affirmed summarily, and draws the senseless inference that a
summary affirmance adopts all of the IJ’s grounds for
denying relief even if the petitioner challenged fewer than
all of them. Zhong, 480 F.3d at 125. But why presume that
the BIA considers and decides issues that were not argued to
it? And why assume that the BIA conducts a broader review
before issuing a summary disposition than it does when it
issues an opinion? See United States v. Gonzalez-Roque, 301
F.3d 39, 47 (2d Cir. 2002) (“Although the BIA has access to
the entire record, it is not obligated to search it for
possibly meritorious appellate issues.”). One suspects that
this consideration is raised by the panel majority chiefly
as a way to embarrass the BIA for adopting streamlined
practices. “[I]t is not the role of the federal courts to
dictate the internal operating rules of the BIA.” Kambolli
v. Gonzales, 449 F.3d 454, 465 (2d Cir. 2006). As it
happens, our Court follows a similar rule. See 2d Cir. R. §
0.23.
Last, the panel majority would consider whether
“additional factfinding is necessary,” Zhong, 480 F.3d at107 n.1, 125. This is just another way of saying that a
panel may consider on appeal any issue it sees in the record
without regard to whether it was raised to the BIA. In any
event, under 8 U.S.C. § 1252(a)(1), “the court may not order
the taking of additional evidence.”
The considerations proffered by the panel majority
amount to no effective limitation on the willingness of a
panel to disregard issue exhaustion at will. 6 And so, in an
effort to create the illusion of restraint, the panel
majority holds that the only cases in which a panel must
ignore § 1252(d)(1) are those in which doing so would
“prevent manifest injustice.” Zhong, 480 F.3d at 107 n.1.
The panel majority’s footnote discussing “manifest
injustice” is pure dicta because no injustice (manifest or
not) has been identified in this case. In any event, I
6
Judge Calabresi offers comfort in the form of 26 cases
decided after Zhong came down in which panels did not grasp
the opportunity to decide a question never presented to the
BIA. Concurring Op. at [11-12]. This score is offered as a
response to a floodgate argument I do not make. The
institutional danger is not that many panels will take the
opportunity to decide many such issues; it is that a single
panel will be able to designate itself to decide a
particular issue, and reach it at will after dispensing with
the essentially meaningless criteria the Zhong majority
formulated as a supposed restraint on the abuse of power and
discretion. In any event, the score cited reflects only
what has happened thus far--while this in banc initiative
has been pending. Panels may be less inclined to exercise
judicial restraint in the future. Stay tuned.
share Judge Kearse’s skepticism concerning “whether this
Court actually has the power to remedy even a manifest
injustice when we lack jurisdiction.” Zhong, 480 F.3d at
138 (Kearse, J., dissenting). The idea itself was
improvised by a panel of this court in Marrero Pichardo v.
Ashcroft, an appeal from the denial of habeas relief sought
by a felon who failed altogether to appeal his order of
deportation to the BIA. 374 F.3d 46, 52-54 (2d Cir. 2004).
Recent rulings had called into question whether Marrero
Pichardo could be deemed an aggravated felon on the basis of
his DUI convictions--of which there were eleven (hence the
manifest injustice). As I have observed elsewhere, Marrero
Pichardo can tenably stand only for two propositions already
laid down by the Supreme Court: [i] “courts may not be bound
by congressional limitations on jurisdiction that raise
constitutional problems”; and [ii] exhaustion requirements
“do not apply if there is no possibility of relief from the
administrative agency, in which event the administrative
officers would presumably have no authority to act on the
subject of the complaint, leaving the [complainant] with
nothing to exhaust.” Gill, 420 F.3d at 95-97 (Jacobs, J.,
dissenting) (internal citations omitted). Marrero Pichardo
stands for nothing more, and certainly does not authorize us
(if any panel opinion could) to reach unexhausted issues on
an appeal from the BIA, or to assume that injustices that
are truly “manifest” will have been overlooked by the
petitioners themselves.
IV
The panel majority opinion makes its case for why §
1252(d)(1) leaves issue exhaustion to discretion; it makes
no case for why any member of this Court is bound to follow
it.
When an issue is settled (as this one has been), panels
that follow precedent have no occasion to revisit it--they
simply apply the rule by summary order. So judges with a
mind to undo a precedent need only await such a case with
patience and select themselves to decide the issue as if it
had not already been settled. Such deviation from precedent
is something that a disciplined court should consider in
banc in order to preserve the coherence and consistency of
its jurisprudence. By rejecting in banc review, we decline
to consider together an issue of “exceptional importance,”
one which no one can dispute is “necessary to secure or
maintain uniformity” in our Circuit. Fed. R. App. P. 35(a).
Sometimes, in banc proceedings can be obviated by the
circulation of a draft opinion to the active members of the
Court; litigants and the public are then advised by footnote
that no objection was interposed. That was not done in this
case. 7 This circumvention can be effective only because our
in banc practice is so rusty and cumbersome that its
desuetude will allow a single panel to skate past full court
review.
By the same token, however, any other panel may--with
equal authority and equal occasion and equal legitimacy--
overrule the panel majority’s holding. This prospect is
institutionally dangerous, and risks debasing the currency
of our rulings and opinions.
7
Judge Calabresi advises that two of the three judges who
signed the per curiam in Foster are willing to concede that the
most significant ruling in it may be dicta. Concurring Op. at
[2]. I do not think that the informal approbation of two
possible authors is a substitute for in banc review of a case
whose principle has been consistently cited as authority by this
Court, relied upon by litigants, and adopted by ten other courts
of appeals.