Singh v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MASSA SINGH, 
Petitioner, No. 05-74817
v.
 Agency No.
A92-293-501
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 10, 2008—San Francisco, California
Filed July 23, 2008
Before: Stephen Reinhardt, John T. Noonan, Jr. and
Raymond C. Fisher, Circuit Judges
Opinion by Judge Fisher
9099
SINGH v. MUKASEY 9101
COUNSEL
Robert B. Jobe (argued) and Fatma Marouf, Law Offices of
Robert B. Jobe, San Francisco, California, for the petitioner.
Patricia A. Smith (argued), Office of Immigration Litigation,
Emily Anne Radford and Peter D. Keisler, Assistant Attorney
General, Department of Justice, Washington, D.C., for the
respondent.
9102 SINGH v. MUKASEY
OPINION
FISHER, Circuit Judge:
This appeal concerns the right of a criminal alien who was
ordered removed before the enactment of the REAL ID Act
of 2005 to obtain judicial review of his removal order after
the Act became effective on May 11, 2005. Before the REAL
ID Act, “criminal aliens” could obtain judicial review only
through a habeas corpus petition filed with the district court.
After the Act, these aliens — like all aliens — may obtain
judicial review only through a petition for review in the court
of appeals, and the petition must be filed within 30 days of the
issuance of a final order of removal. Petitioner Massa Singh
(“Singh”) filed his current petition for review on August 17,
2005, more than two years after his order of removal became
administratively final and more than three months after the
REAL ID Act was enacted. The government argues that we
lack jurisdiction to consider his untimely petition for review.
For the reasons that follow, we hold that the REAL ID Act
must be construed to give aliens whose removal order became
final before the REAL ID Act a reasonable opportunity to
obtain judicial review. However, we hold that aliens whose
petitions were rendered untimely by the Act had a grace
period of no more than 30 days from the effective date of the
Act in which to seek such review. Because Singh’s petition
was filed more than 30 days after the REAL ID Act was
signed into law, we dismiss his petition.
I.
Singh is a native and citizen of India who has been a legal
permanent resident of the United States since 1990. In 2003,
the Department of Homeland Security (“DHS”) charged
Singh with being a removable alien by reason of having com-
mitted an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii)
(providing for removal of an alien convicted of an aggravated
SINGH v. MUKASEY 9103
felony, as defined by § 1101(a)(43)(A)).1 Singh disputed the
charge of removability and applied for various forms of relief
from removal, including relief under former Section 212(c) of
the Immigration and Nationality Act, asylum and withholding
of removal under the Act and the Convention Against Torture.
The immigration judge (“IJ”) sustained the charge of removal,
finding that Singh had been convicted of an aggravated fel-
ony, and denied Singh any relief from removal. Singh
appealed to the Board of Immigration Appeals (“BIA”),
which affirmed in July 2004.
At the time the BIA dismissed Singh’s appeal, the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”) stripped the courts of appeals of their juris-
diction to consider petitions for review brought by “criminal
aliens,” including individuals such as Singh. See Pub. L. No.
104-208, Div. C, § 306, 110 Stat. 3009-546, 3009-647, codi-
fied at 8 U.S.C. § 1252(a)(2)(C) (2000).2 These aliens could,
instead, obtain judicial review of their removal orders by fil-
ing a habeas corpus petition with the district court under 28
U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 305-14
(2001). This bifurcated system meant that criminal aliens pro-
ceeded down one path to review and non-criminal aliens
down another. The system’s complexities were even greater
for those aliens who disputed whether they were, in fact,
properly ordered deported as criminal aliens. These aliens had
to file a petition for review first, then the court of appeals
would, in the exercise of its “jurisdiction to determine [its]
own jurisdiction,” decide whether the individual was, in fact,
a criminal alien subject to the jurisdictional bar. See Ye v. INS,
1
Hereinafter, all citations are to Title 8 of the United States Code unless
otherwise noted.
2
Section 1252(a)(2)(C) (2000) provided that “[n]otwithstanding any
other provision of law, no court shall have jurisdiction to review any final
order of removal against an alien who is removable by reason of having
committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) . . .
of this title. . . .”
9104 SINGH v. MUKASEY
214 F.3d 1128, 1131 (9th Cir. 2000). Only after the petition
for review had been dismissed for lack of jurisdiction could
the alien then file a petition for habeas corpus in the district
court and bring other legal challenges to his removal order.
See Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 542 (9th
Cir. 2004).
After Singh’s removal order became final, Singh dutifully
started down this path to judicial review. In August 2004, he
filed a timely petition for review in this court, arguing that his
misdemeanor conviction for committing a lewd and lascivious
act upon a child was not an aggravated felony for purposes of
immigration law. On February 15, 2005, we held that Singh
was an aggravated felon and dismissed his petition for review
for lack of jurisdiction, citing IIRIRA’s jurisdiction-stripping
provisions. Singh v. Gonzales, No. 04-73907 (9th Cir. Feb.
15, 2005). Singh does not dispute that at that point he was free
to file a habeas corpus petition in the district court at any time
if he wished to make any legal or constitutional challenges to
his order of removal. He did not do so. He was also not under
any time pressure to do so. Habeas corpus petitions under
§ 2241, unlike petitions for review, may be filed by any indi-
vidual “in custody under or by authority of the United States”
and are not subject to a timely filing requirement. See 28
U.S.C. § 2241(c)(1).
So things stood for Singh until May 11, 2005, when Presi-
dent Bush signed into law the REAL ID Act of 2005
(“RIDA”), Pub. L. No. 109-13, Div. B, 119 Stat. 231, codified
as amended at 8 U.S.C. § 1252. Section 106(a) of RIDA elim-
inated habeas corpus as an avenue of review for aliens seek-
ing to challenge a final order of removal, making petitions for
review in the courts of appeals the “sole and exclusive means
for judicial review” of a removal order. See § 1252(a)(5). At
the same time, Congress restored jurisdiction to the courts of
appeals over petitions for review brought by criminal aliens,
creating a unitary path of review for criminal and non-
criminal aliens alike. See § 1252(a)(2)(D) (permitting review
SINGH v. MUKASEY 9105
of “constitutional claims or questions of law” raised by any
alien in a petition for review); see also Puri v. Gonzales, 464
F.3d 1038, 1041-42 (9th Cir. 2006) (describing how RIDA
created jurisdiction over criminal aliens’ petitions for review).
Importantly, however, Congress did not modify the require-
ment that petitions for review must be filed within 30 days of
the issuance of a final order of removal by the BIA. See
§ 1252(b)(1).
RIDA ensured that on a forward-going basis, all aliens
could obtain judicial review if they filed a petition for review
within 30 days of their final order of removal. RIDA was less
clear, however, in addressing the position of aliens who were
caught up in the transition — namely, aliens such as Singh,
whose orders of removal became final more than 30 days
before RIDA, but who could not have filed a petition for
review until after RIDA. Congress provided that all currently
pending habeas corpus petitions should be transferred to the
courts of appeals and treated as timely filed petitions for
review, but it did not provide any mechanism for review for
aliens who did not have a habeas corpus petition pending. See
RIDA § 106(c). If the 30-day filing requirement were applied
to Singh, his opportunity to seek judicial review was already
foreclosed on the day RIDA became law. Congress therefore
overnight moved Singh from the position of having an unlim-
ited amount of time to seek review through a habeas corpus
petition, to having no ability to seek review at all.
Finding his right to file a habeas corpus petition suddenly
withdrawn, Singh sought to obtain review of his removal
order in the Ninth Circuit Court of Appeals after RIDA
became law in May 2005. On July 6, 2005, he asked us to
recall our mandate on his previously dismissed petition for
review, arguing that we should now exercise jurisdiction in
light of RIDA. We ultimately denied his request to recall the
mandate, but before we did, he filed a second petition for
review on August 17, 2005, which is the one we consider
here. In this petition he argues that RIDA provides us with
9106 SINGH v. MUKASEY
jurisdiction to consider his legal and constitutional claims
against his removal order. He further argues that if RIDA
does not provide such jurisdiction, he would be without any
opportunity for judicial review of his removal order in viola-
tion of the Suspension Clause of the Constitution. He there-
fore urges us to read RIDA in a way that would preserve
judicial review and avoid this constitutional pitfall.
II.
A.
[1] The Suspension Clause provides that “[t]he Privilege of
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. 1, § 9, cl. 2. The Supreme Court
has held that “[b]ecause of that Clause, some judicial inter-
vention in deportation cases is unquestionably required by the
Constitution.” St. Cyr, 533 U.S. at 300 (internal quotation
marks omitted). Judicial intervention need not occur through
a writ of habeas corpus, however. Congress may eliminate the
writ without running afoul of the Suspension Clause so long
as it provides “a collateral remedy which is neither inadequate
nor ineffective to test the legality of a person’s detention.”
Swain v. Pressley, 430 U.S. 372, 381 (1977); see also St. Cyr,
533 U.S. at 314 n.38 (“Congress could, without raising any
constitutional questions, provide an adequate substitute [for
habeas corpus] through the courts of appeals.”). An adequate
substitute for habeas corpus must fulfill the traditional role of
the writ, which is to give the petitioner “a meaningful oppor-
tunity to demonstrate that he is being held pursuant to ‘the
erroneous application or interpretation of relevant law.’ ”
Boumediene v. Bush, 128 S. Ct. 2229, 2266 (2008) (quoting
St. Cyr, 533 U.S. at 302). A petition for review with the court
of appeals constitutes “an adequate substitute for district court
habeas corpus jurisdiction.” Puri, 464 F.3d at 1042; see also
Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007)
(holding that a petition for review is “an adequate substitute”
SINGH v. MUKASEY 9107
for habeas corpus); Alexandre v. U.S. Att’y Gen., 452 F.3d
1204, 1206 (11th Cir. 2006) (per curiam) (same).
[2] Whether RIDA created an adequate substitute for
habeas corpus for those aliens to whom a petition for review
is available, however, is different from whether RIDA created
any adequate substitute for those aliens for whom it is no lon-
ger available. Unlike in previous cases where we have upheld
RIDA against Suspension Clause challenges, Singh never had
the ability to obtain judicial review of the merits of his
removal through a petition for review filed within 30 days of
his removal order. Cf. Puri, 464 F.3d at 1043; Iasu v. Smith,
511 F.3d 881, 888 (9th Cir. 2007) (holding that RIDA’s elimi-
nation of habeas corpus does not violate the Suspension
Clause where the petitioner “had a means for seeking relief
(direct review) . . . . [and] simply failed to pursue the relief
that the statutory scheme allows”). By the time RIDA created
jurisdiction in this court over Singh’s petition for review,
more than 30 days had elapsed since his final order of
removal was entered, and so his petition would appear barred
by the timely filing requirement. See § 1252(b)(1).
The government argues that, in enacting RIDA, Congress
simply did not intend that aliens such as Singh have a way of
obtaining judicial review. The government notes that Con-
gress provided a mechanism to transfer pending habeas peti-
tions to the courts of appeals, indicating that Congress
considered the plight of aliens whose time to file a petition for
review had expired, and chose to protect only those who had
already acted affirmatively to preserve their rights. See RIDA
§ 106(c). Singh argues, to the contrary, that Congress’ express
purpose in enacting RIDA was to provide all aliens with some
mechanism for review of their constitutional and legal claims.
Applying the 30-day timely filing requirement to bar his
claim would both contravene Congress’ intent as well as vio-
late the Suspension Clause. He therefore suggests that we
have jurisdiction to consider his petition for review, seem-
ingly irrespective of when it was filed.
9108 SINGH v. MUKASEY
[3] Both the Second and Third Circuits have recently con-
sidered the exact question presented here. In Kolkevich v.
Att’y Gen., 501 F.3d 323, 335 (3d Cir. 2007), the Third Cir-
cuit concluded that depriving aliens such as Singh of all right
to judicial review would “risk running afoul of the Suspension
Clause,” and that RIDA does not evince a clear intent to elim-
inate these aliens’ right to review. The Second Circuit adopted
the same analysis in Ruiz-Martinez v. Mukasey, 516 F.3d 102(2d Cir. 2008). We now join these circuits in holding that
RIDA should not be construed to have eliminated all possibil-
ity of judicial review for aliens, such as Singh, who did not
have the opportunity to file a petition for review before
RIDA. To accept that Congress eliminated habeas corpus
without providing these aliens with any substitute for review
would pose serious Suspension Clause concerns. See St. Cyr,
533 U.S. at 300.
[4] Contrary to the government’s suggestion here, there is
no clear language in the statute to suggest that “Congress took
the extraordinary step of suspending the writ with respect to
those who, like [petitioner], received final orders of removal
more than 30 days prior to the Act’s enactment.” Kolkevich,
501 F.3d at 334. Rather, the RIDA amendments form a
“patchwork of different statutes that, individually, have no
direct effect on [petitioner’s] appeal.” Id. at 335. In particular,
the 30-day timely filing requirement for petitions for review
predated RIDA, and there is no indication that Congress
intended this provision to block review for aliens who could
not have obtained review before RIDA’s enactment. Because
RIDA does not “express a clear and unambiguous statement
of Congress’ intent” to deprive Singh of judicial review, we
hold that RIDA does not foreclose that opportunity. See St.
Cyr, 533 U.S. at 299-300 (“[I]f an otherwise acceptable con-
struction of a statute would raise serious constitutional prob-
lems, and where an alternative interpretation is fairly possible,
we are obligated to construe the statute to avoid such prob-
lems.”) (internal quotation marks and citation omitted).
SINGH v. MUKASEY 9109
We draw support for this conclusion from the legislative
history of RIDA. As the Third Circuit explained, “RIDA’s
legislative history makes clear that, rather than intending it to
deprive aliens of judicial review, Congress saw the Act as a
vehicle by which it could ensure that all aliens received an
equal opportunity to have their challenges heard.” Kolkevich,
501 F.3d at 335. The House Report accompanying RIDA
states that
[u]nder section 106, all aliens who are ordered
removed by an immigration judge will be able to
appeal to the BIA and then raise constitutional and
legal challenges in the courts of appeals. No alien,
not even criminal aliens, will be deprived of judicial
review of such claims. Unlike AEDPA or IIRIRA,
which attempted to eliminate judicial review of
criminal aliens’ removal orders, section 106 would
give every alien one day in the court of appeals, sat-
isfying constitutional concerns. The Supreme Court
has held that in supplanting the writ of habeas corpus
with an alternative scheme, Congress need only pro-
vide a scheme which is an ‘adequate and effective’
substitute for habeas corpus . . . . By placing all
review in the courts of appeals, [RIDA] would pro-
vide an ‘adequate and effective’ alternative to habeas
corpus.
H.R. Rep. No. 109-72, at 174-75, U.S. Code Cong. & Admin.
News 2005, pp. 240, 299-300 (internal citations omitted)
(emphasis added) (hereinafter “House Report”). This lan-
guage makes clear that Congress not only intended to provide
“all aliens” with a right to review, it also shows that Congress
drafted RIDA to comply with the requirements of the Suspen-
sion Clause and the Supreme Court’s holding in St. Cyr. See
id. (emphasis added); see also Kolkevich, 501 F.3d at 335,
Ruiz-Martinez, 516 F.3d at 117.
9110 SINGH v. MUKASEY
B.
[5] Our conclusion that RIDA should not be construed to
deprive Singh of all right to judicial review does not, how-
ever, define the contours of that right. Even if Congress
intended to allow a criminal alien to file a petition for review
after the effective date of RIDA, this does not determine “how
much time he should be afforded in which to do so.”
Kolkevich, 501 F.3d at 336. That Congress did not intend to
extinguish Singh’s right to obtain judicial review completely
does not mean Congress intended to give him an unlimited
amount of time in which he could seek it. In addressing this
very question, the Third Circuit concluded that aliens for
whom a petition for review was previously unavailable should
have no more than a 30-day “grace period” from the enact-
ment of RIDA — that is, until June 11, 2005 — in which they
could file a petition for review. See id. at 337. The Second
Circuit adopted a similar rule. See Ruiz-Martinez, 516 F.3d at
117.
[6] Congress may subject an alien’s right to review to rea-
sonable procedural limitations such as filing deadlines, which
necessarily have the effect of cutting off the rights of those
who do not act in a timely fashion. See Stone v. INS, 514 U.S.
386, 405 (1995); Magtanong v. Gonzales, 494 F.3d 1190,
1191 (9th Cir. 2007) (per curiam). “[V]ehicles for review . . .
are not available indefinitely without limitation.” Daniels v.
United States, 532 U.S. 374, 381 (2001). Even a constitutional
right “may be forfeited . . . by the failure to make timely
assertion of the right before a tribunal having jurisdiction to
determine it.” United States v. Olano, 507 U.S. 725, 731
(1993) (quoting Yakus v. United States, 321 U.S. 414, 444
(1944)). Singh does not dispute that non-criminal aliens seek-
ing judicial review before RIDA, and criminal aliens seeking
review after RIDA, lose their right to review if they do not
bring a timely petition for review, and that such a limitation
on the availability of review is not inconsistent with the Sus-
pension Clause.
SINGH v. MUKASEY 9111
[7] In determining what constitutes a reasonable window of
time in which Singh should be allowed to bring his appeal, we
are strongly influenced by Congress’ desire in enacting RIDA
to equalize the rights of criminal and non-criminal aliens and
facilitate the removal of criminal aliens from the United
States. In the House Report that accompanied RIDA, Con-
gress criticized the bifurcated system of review that resulted
from the Supreme Court’s interpretation of IIRIRA in St. Cyr.
Specifically, Congress noted that
[a]mong the many problems caused by St. Cyr, the
most significant is that this decision allows criminal
aliens to delay their expulsion from the United States
for years.
Furthermore, because of St. Cyr, aliens who have
committed serious crimes in the United States are
generally able to obtain more judicial review than
non-criminal aliens. . . . Not only is this result unfair
and illogical, but it also wastes scarce judicial and
executive resources.
House Report at 298-99. Thus if we were to allow a criminal
alien such as Singh an unlimited amount of time to bring his
petition for review, when a similarly situated non-criminal
alien would have had only 30 days from the date of the final
order of removal to bring his petition, we would frustrate
Congress’ purpose. Therefore, we join the Second and Third
Circuits in holding that aliens in Singh’s position should “be
afforded 30 days from the date of RIDA’s enactment to bring
their claims — that is, until June 11, 2005.” Kolkevich, 501
F.3d at 337; see also Ruiz-Martinez, 516 F.3d at 117.
[8] Applying this rule to Singh’s case, we lack jurisdiction
to consider his petition for review. Singh’s present petition
was filed on August 17, 2005, more than three months after
RIDA was enacted. Singh urges us to adopt a different rule in
his case, arguing that he had no notice that his petition for
9112 SINGH v. MUKASEY
review needed to be filed within 30 days of RIDA’s enact-
ment. The signing into law of RIDA on May 11, 2005, how-
ever, put Singh on sufficient notice that jurisdiction over his
petition now rested with the court of appeals and that he
would need to act promptly to obtain review. RIDA funda-
mentally changed the system of judicial review for criminal
aliens, withdrawing habeas corpus from the district courts and
restoring jurisdiction in the courts of appeals. Congress did
not, however, amend the 30-day timely filing requirement,
indicating that Congress still expected aliens to act quickly to
preserve their rights. Yet Singh did not seek to recall the man-
date on his first petition for review for nearly two months
after RIDA, and did not file the current petition until nearly
a month after that. We are not unsympathetic to the uncertain-
ties Singh faced with RIDA’s enactment, and are mindful of
the efforts his counsel made to deal with them. Nonetheless,
we believe the 30-day rule is reasonable and we cannot
exempt Singh from its consequences. His petition for review
was untimely, and must be dismissed for lack of jurisdiction.
See Kolkevich, 501 F.3d at 337.
III.
[9] Lastly, we reject Singh’s suggestion that we have
authority to construe his current petition for review as a peti-
tion for review nunc pro tunc, or as if it were filed on the date
of his first petition in August 2004. “Nunc pro tunc signifies
now for then, or in other words, a thing is done now, which
shall have the same legal force and effect as if done at [the]
time when it ought to have been done.” United States v. Allen,
153 F.3d 1037, 1044 (9th Cir 1998) (quoting Black’s Law
Dictionary 964 (5th ed. 1979)). The doctrine is considered
part of the “inherent power of the court to make its records
speak the truth.” Id. We have emphasized that the power is
a limited one, and may be used only where necessary
to correct a clear mistake and prevent injustice. It
does not imply the ability to alter the substance of
SINGH v. MUKASEY 9113
that which actually transpired or to backdate events
to serve some other purpose. Rather, its use is lim-
ited to making the record reflect what the . . . court
actually intended to do at an earlier date, but which
it did not sufficiently express or did not accomplish
due to some error or inadvertence.
United States v. Sumner, 226 F.3d 1005, 1009-10 (9th Cir.
2000) (internal quotation marks and citations omitted); see
also Transamerica Ins. Co. v. South, 975 F.2d 321, 325 (7th
Cir. 1992) (noting that “a nunc pro tunc order is typically used
to correct clerical or ministerial errors,” but as a general rule
does not enable the court to make “substantive changes affect-
ing parties’ rights”). Singh’s earlier petition was not dis-
missed through any clerical mistake or error of law, but rather
was properly dismissed under the law as it existed at the time,
as Singh himself concedes. Singh points to no authority to
support his theory that we have authority to backdate his cur-
rent petition for review to the date of his earlier, properly dis-
missed petition for review.
CONCLUSION
Because Singh’s petition for review was not brought within
30 days of the enactment of RIDA, we lack jurisdiction to
consider his claims.
DISMISSED.