Brooks v. Garland ( 2023 )

Case: 22-60364 Document: 00516844068 Page: 1 Date Filed: 08/02/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-60364
FILED
August 2, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Adetokunbo Abosede Brooks,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A028 988 727
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
In view of Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1116 (2023), the
court sua sponte grants rehearing and substitutes the following for the
opinion previously withdrawn in this matter, Brooks v. Garland, No. 22-
60364, 2023 WL 3254990 (5th Cir. May 4, 2023).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60364 Document: 00516844068 Page: 2 Date Filed: 08/02/2023
No. 22-60364
Adetokunbo Abosede Brooks seeks review of a final decision of the
Board of Immigration Appeals denying her application for waiver of the
requirement to file a joint petition for removal of conditions and ordering her
removed. The only argument she presents for our review is unexhausted
under 8 U.S.C. § 1252(d)(1), and we decline to consider it. Accordingly, the
petition for review is DENIED.
Brooks, a native and citizen of Nigeria, lawfully entered the United
States in 1986 on a six-month visa. Three years later, her status was adjusted
to that of a conditional permanent resident alien based on her marriage to a
U.S. citizen. Brooks timely filed a joint petition to have the conditions on her
permanent resident status removed, and she and her spouse appeared for an
interview before the Immigration and Naturalization Service (“INS”)
concerning the bona fides of their marriage. During his interview, her spouse
stated that he neither saw nor signed the joint petition, and he formally
withdrew from the joint application. Soon after, Brooks and her spouse filed
for divorce, and Brooks filed with the INS an application for waiver of the
requirement to file the joint petition for removal of conditions, claiming that
she entered the marriage in “good faith.” In April 1992, the INS denied
Brooks’ request to waive the filing of the joint petition and formally
terminated her conditional permanent resident status. The INS then
commenced deportation proceedings, for which Brooks did not appear, and
she was ordered removed in absentia in September 1992.
In 2015, Brooks filed a motion with the immigration court seeking
reopening of her case, which the Immigration Judge (“IJ”) granted, because
she did not receive notice of her original hearing. The IJ then heard several
days of testimony from Brooks concerning the circumstances of her marriage.
Upon the hearing’s conclusion, the IJ issued a decision sustaining the charge
of deportation and upholding the INS’ denial of Brooks’ request to waive the
filing of the joint petition. In evaluating the credibility of Brooks’ testimony,
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the IJ applied the framework outlined by § 101(d)(2) of the REAL ID Act of
2005, codified as amended at 8 U.S.C. § 1229a(c)(4)(C). Brooks appealed
the decision to the Board of Immigration Appeals (“BIA”), which affirmed
the IJ’s decision without opinion in 2022. She then filed a petition for review
with this court, arguing that the BIA erred in applying the REAL ID Act’s
credibility framework to the de novo review of her application for relief
because it was filed prior to the passage of the REAL ID Act.
Federal law generally proscribes judicial review of any decision or
action of the Secretary of Homeland Security which is specified to be in his
or her discretion. 1 8 U.S.C. § 1252(a)(2)(B)(ii). The granting of a hardship
waiver for an individual who fails to submit a joint petition for removal of
conditional status is reserved to the discretion of the Secretary of Homeland
Security and thus generally is not subject to our review. Id. § 1186a(c)(4); see
Alvarado de Rodriguez v. Holder, 585 F.3d 227, 233 (5th Cir. 2009). However,
federal law does not preclude “review of constitutional claims or questions
of law raised upon a petition for review filed with an appropriate court of
appeals.” 8 U.S.C. § 1252(a)(2)(D). Whether the BIA, in affirming the IJ’s
decision, applied the correct statutory framework is a question of law, so we
have jurisdiction over this issue.
_____________________
1
Brooks briefly argues that this provision, which was passed as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, should not be applied
retroactively to her final order of removal from 1992. However, that order is no longer
final—the IJ’s granting of Brooks’ motion to reopen vacated her 1992 order of removal. Cf.
Espinal v. Holder, 636 F.3d 703, 706 (5th Cir. 2011) (“[T]his court retains jurisdiction over
a petition for review so long as the BIA’s grant of reconsideration does not materially
change, or effectively vacate, the order under review.”); Pena v. Garland, No. 20-60946,
2022 WL 996574, at *1 (5th Cir. Apr. 4, 2022) (“The BIA has granted a motion to
reopen . . . . In other words, the BIA vacated the order at issue in this petition for review.”
(citing Espinal, 636 F.3d at 705–06)). The BIA’s 2022 decision is the final order of removal
under review, and there is no question that § 1252 applies to that decision.
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Even so, the Government may timely object to our consideration of
arguments that a petitioner failed to exhaust before the BIA. Carreon v.
Garland, 71 F.4th 247, 254 (5th Cir. 2023); see also 8 U.S.C. § 1252(d)(1)
(granting review of a final order of removal only if “the alien has exhausted
all administrative remedies available to the alien as of right”). This
exhaustion requirement is a claim-processing rule, rather than a jurisdictional
one; as such, it is subject to waiver and forfeiture. Santos-Zacaria v. Garland,
143 S. Ct. 1103, 1116 (2023). The Government argues in its briefing that
Brooks did not raise this issue before the BIA—in fact, in her brief in support
of her appeal to the BIA, she argued that the REAL ID Act’s framework for
assessing credibility was controlling. Nowhere did she suggest to the BIA that
her credibility should have been assessed under the pre-REAL ID Act
framework. Because of Brooks’ failure to raise this issue before the BIA, the
Government objects to our consideration of it under § 1252(d)(1)’s
exhaustion requirement. This objection is timely, and we agree with the
Government that the issue is unexhausted. Accordingly, we decline to reach
it. 2
The petition for review is DENIED.
_____________________
2
This decision does not reach whether § 1252(d)(1) is a mandatory claim-
processing rule; rather, we would enforce the exhaustion requirement in this case even if
the rule was not mandatory. See Carreon, 71 F.4th at 257 n.11.
4