Singh v. Napolitano ( 2012 )

11-5052-pr
Singh v. Napolitano
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the United States Court of International Trade, One Federal Plaza, in the City of New
York, on the 16th day of October, two thousand twelve.
PRESENT: REENA RAGGI,
PETER W. HALL,
SUSAN L. CARNEY,
Circuit Judges.
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BILLA SINGH,
Petitioner-Appellant,
v. No. 11-5052-pr
JANET NAPOLITANO, in her official capacity, Secretary,
Department of Homeland Security, ALEJANDRO
MAYORKAS, in his official capacity, Director, United
States Citizenship and Immigration Services, EMILIA
BARDINI, in her official Capacity, Director, San Francisco
Asylum Office, United States Citizenship and Immigration
Services, SUSAN RAUFSER, in her official capacity,
Director, Newark Asylum Office, United States Citizenship
and Immigration Services, MICHAEL PHILLIPS, in his
official capacity, Field Office Director, Buffalo ICE
Detention and Removal Office, United States Department of
Homeland Security,
Respondents-Appellees.
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APPEARING FOR APPELLANT: ROBERT D. KOLKEN (Julie Kruger, on the
brief), Kolken & Kolken, Buffalo, New York.
APPEARING FOR APPELLEES: SHEREASE PRATT, Trial Attorney (Stuart F.
Delery, Acting Assistant Attorney General; David
J. Kline, Director, District Court Section; Colin A.
Kisor, Deputy Director, on the brief), U.S.
Department of Justice, Civil Division, Office of
Immigration Litigation, District Court Section,
Washington, D.C.
Appeal from a judgment of the United States District Court for the Western District
of New York (Michael A. Telesca, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on October 20, 2011, is VACATED and the petition
is REMANDED to the district court with instructions to DISMISS the petition.
Petitioner Billa Singh, a native and citizen of India, who illegally entered this country
in 1993, appeals from a judgment denying his 28 U.S.C. § 2241 petition for a writ of habeas
corpus, in which he alleges that the government violated applicable regulations in rescinding
a grant of asylum that Singh procured in 1995 having failed to disclose that, under a different
name, he had already been denied asylum and ordered excluded from the United States in
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1994.1 We review de novo a district court’s denial of a petition for a writ of habeas corpus
under § 2241. See Lopez v. Terrell, 654 F.3d 176, 180 (2d Cir. 2011). We assume the
parties’ familiarity with the facts and record of prior proceedings, which we reference only
as necessary to explain our decision to vacate the judgment and remand the petition to the
district court with instructions to dismiss it for lack of jurisdiction.
“At its historical core, the writ of habeas corpus has served as a means of reviewing
the legality of Executive detention . . . .” INS v. St. Cyr, 533 U.S. 289, 301 (2001). Thus,
to prevail on his habeas petition, Singh must demonstrate that he is subject to Executive
custody because of the Executive’s errors of law. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 327–28 (2d Cir. 2006) (describing historical scope of habeas review of
immigration detention as broadly encompassing “errors of law”). Singh maintains that the
fact that he is subject to a final order of removal “is sufficient, by itself, to establish the
requisite custody for purposes of 28 U.S.C. § 2241.” Habeas Pet. ¶ 2, J.A. 7 (citing
Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003)); see 8 U.S.C. § 1231(a)(2), (3)
(requiring Attorney General to detain alien subject to final order of removal or place alien
under supervision if not removed within 90 days of date removal order becomes final). He
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The district court determined that it had jurisdiction to consider Singh’s complaint
only as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Singh does
not argue on appeal that other statutory authority provides a basis for jurisdiction over his
complaint, he has abandoned any such argument. See Jackler v. Byrne, 658 F.3d 225, 233
(2d Cir. 2011).
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asserts that his custody pursuant to a final order of removal is illegal because he was granted
asylum, a status precluding removal from the United States. See 8 U.S.C. § 1158(c)(1)(A).
He argues that immigration officials’ attempts to “rescind” his asylum were legally invalid
because the former Immigration and Naturalization Service (“INS”), the predecessor agency
to the U.S. Citizenship and Immigration Service (“USCIS”), failed to follow procedures set
forth in applicable regulations mandating that, before termination of a grant of asylum, an
asylee “be given notice of intent to terminate,” an “interview” with an asylum officer, and
the “opportunity to present evidence showing that he . . . is still eligible for asylum.” 8
C.F.R. § 208.24(c). Accordingly, Singh seeks a declaration that the rescission of his asylum
was ultra vires and violated his due process rights, and he seeks an order compelling the
USCIS to provide him with the asylum termination interview to which he is entitled under
applicable regulations.
Singh asserts that his habeas petition does not challenge the validity or execution of
his removal order, a claim that would be subject to the jurisdictional limitations of 8 U.S.C.
§ 1252. It is apparent, however, that the true error of law identified in his petition is the
Executive’s legal conclusion that he is subject to a final order of removal. Indeed, Singh
alleges that he is subject to the final order of removal only “[b]ecause of the unlawful and
unconstitutional acts of the Respondents in ‘rescinding’ [his] asylum status without due
process of law.” Habeas Pet. ¶ 45, J.A. 18. Adjudicating Singh’s petition would require this
court to determine whether he is presently an asylee who may not be removed from the
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United States absent formal termination of such status consistent with 8 C.F.R. § 208.24(c).
Thus, Singh’s habeas petition indirectly challenges the validity of his final order of removal
and the Attorney General’s ability to execute that order, raising jurisdictional concerns. Cf.
Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (holding “that section 1252(a)(5)’s
jurisdictional bar applies equally to preclude . . . an indirect challenge” to final order of
removal, where petitioner sought writ of mandamus to compel USCIS to adjudicate I-212
application for permission to reapply for admission).
Title 8 U.S.C. § 1252(a)(2)(D) retains jurisdiction for the federal courts to decide
questions of law presented by a final order of removal if they are raised in a petition for
review of final agency action. That jurisdiction is, however, statutorily cabined so that “a
petition for review filed with an appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of an order of removal,” exclusive
even of “habeas corpus review pursuant to section 2241 of Title 28.” 8 U.S.C. § 1252(a)(5);
see Luna v. Holder, 637 F.3d 85, 94 (2d Cir. 2011) (observing that this court has construed
§ 1252(a)(2)(D) to provide jurisdiction to review “same types of issues that courts
traditionally exercised in habeas review over Executive detentions” (internal quotation marks
omitted)). Meanwhile, 8 U.S.C. § 1252(g) makes clear that a decision by the Attorney
General to “execute” a final order of removal is not subject to judicial review. Accordingly,
because Singh acted contrary to these provisions in employing a habeas petition effectively
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to challenge the validity and execution of his removal order, the federal courts are
jurisdictionally barred from reviewing his claims.
Even if Singh’s habeas petition were an appropriate vehicle to raise a legal challenge
to the agency’s rescission of his grant of asylum, and, therefore, its decision to remove him,
we would still lack jurisdiction to review the legality of the agency’s actions because Singh
failed to exhaust his administrative remedies. Pursuant to 8 U.S.C. § 1252(d)(1), “[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,” id., a requirement that is “jurisdictional, not
merely mandatory,” Grullon v. Mukasey, 509 F.3d 107, 112 (2d Cir. 2007). Although Singh
filed a brief in opposition to the INS field office’s sua sponte motion to reconsider and
possibly rescind his grant of asylum, see 8 C.F.R. § 103.5(a)(5)(ii) (requiring field officer to
provide affected party 30 days to submit brief), Singh failed to seek any further agency
review of the rescission decision, despite the INS field office’s instructions that he could
pursue his asylum claim in the Immigration Court. Instead, Singh filed a petition for a writ
of habeas corpus in the United States District Court for the Western District of New York,
which transferred the petition to the Ninth Circuit as a petition for review of his removal
order pursuant to the REAL ID Act. When the Ninth Circuit dismissed Singh’s petition for
review of the removal order, he filed a second habeas petition in the Western District of New
York. Thus, Singh’s failure to exhaust administrative remedies as to any claimed defects in
rescission of his grant of asylum is another reason why we lack jurisdiction over his petition.
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Our determination that we lack jurisdiction makes it unnecessary to address Singh’s
argument that the district court erred in granting the government summary judgment because
he was not prejudiced by the INS’s failure to comply with the procedures specified in
8 C.F.R. § 208.24(c). As a general rule, “[p]arties claiming denial of due process in
immigration cases must, in order to prevail, allege some cognizable prejudice fairly
attributable to the challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d
Cir. 2008) (internal quotation marks omitted). Where procedures are promulgated to ensure
constitutional due process to persons granted asylum who face rescission of that status,
however, such a showing of prejudice with respect to the final result may not be necessary.
See Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993) (holding that petitioner need not show
prejudice from INS’s failure to adhere to regulation, and remand to agency is required if
“regulation is promulgated to protect a fundamental right derived from the Constitution or
a federal statute”). Nevertheless, Singh fails to demonstrate that the alleged § 208.24(c) error
deprived him of constitutional due process. As the Supreme Court has ruled: “The
fundamental requirement of due process is the opportunity to be heard at a meaningful time
and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal
quotation marks omitted). This standard is a flexible one. The INS gave Singh 30 days “to
provide any rebuttal argument or information in response to INS’s intention to rescind [his]
grant of asylum.” JA 57. Singh then filed a timely brief in which he argued that the INS did
not follow its procedures and requested an interview regarding the rescission. In its
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Rescission Notice dated April 23, 2001, the INS informed Singh that he “failed to overcome
the grounds for rescission stated in the motion to reconsider.” JA 67. Even if these
procedures did not afford the specific process detailed in § 208.24(c), they satisfied the
constitutional requirements of a meaningful opportunity to be heard. Morever, it seems
unlikely that compliance with § 208.24(c) procedures would yield any different result in this
case, given that § 208.24(a) provides for the termination of asylum upon “a showing of fraud
in the alien’s application.”
In sum, because Singh raises the alleged § 208.24(c) error in a manner that effectively
challenges a final order of removal, which may not be pursued as a § 2241 petition and, in
any event, is unexhausted in the agency, the federal courts lack jurisdiction to hear Singh’s
claim.
Accordingly, the judgment is VACATED and the petition is REMANDED to the
district court with instructions to DISMISS the petition for lack of jurisdiction.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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