Jose Verde-Rodriguez v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1620
_____________
JOSE PEDRO VERDE-RODRIGUEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
Transferred from the United States District Court
for the Western District of Pennsylvania
(No. 2-11-cv-01475)
pursuant to the REAL ID Act of 2005
as a Petition for Review of a Decision of
the Board of Immigration Appeals
(A 092 839 637)
Argued May 14, 2013
_____________
Before: SMITH, FISHER, and CHAGARES, Circuit Judges.
(Filed: August 15, 2013)
Jesse A. Drumm [Argued]
Stephanie Noel [Argued]
Duquesne University School of Law
632 Fisher Hall
600 Forbes Avenue
Pittsburgh, PA 15282
Adrian N. Roe, Esq.
Suite 1331
707 Grant Street
Gulf Tower
Pittsburgh, PA 15219
Counsel for Petitioner/Appellant
Stuart F. Delery, Esq. Principal Dep. Assistant
Attorney General, Civil Division
Michelle G. Latour, Esq. Deputy Director
Papu Sandhu, Esq. Senior Litigation Counsel [Argued]
United States Department of Justice
Office of Immigration Litigation, Civil Division
10300
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent/Appellee
2
_________
OPINION
_________
CHAGARES, Circuit Judge.
In November 2011, Jose Pedro Verde-Rodriguez
(“Verde”) filed a petition for a writ of habeas corpus in the
District Court for the Western District of Pennsylvania
challenging his removal from the United States. The District
Court concluded that it lacked subject matter jurisdiction over
the petition and transferred the case to this Court. We will
dismiss the petition for lack of jurisdiction.
I.
According to his habeas petition, Verde is a native of
Mexico and became a lawful permanent resident of the
United States in 1991. After several convictions for driving
under the influence of alcohol (the “DUI convictions”), Verde
was sentenced to two years and four months in state prison.
In October 1998, Verde was charged with removability based
on his status as an “aggravated felon” due to the DUI
convictions. He appeared before an Immigration Judge (“IJ”)
with seven other Mexican nationals, and the IJ ordered
Verde’s removal on October 28, 1998. Verde returned to the
United States, but was removed to Mexico for a second time
in 2000. He was found in the United States once again in
October 2011. Verde was served with a “Notice of
Intent/Decision to Reinstate Prior Order” on October 24,
2011, reinstating his 1998 removal order. This time, he was
also charged with illegal reentry under 8 U.S.C. § 1326. The
3
United States eventually dropped the § 1326 charge and
allowed him to plead guilty to use of a false Social Security
number in violation of 42 U.S.C. § 408(a)(7)(B). He was
sentenced to time served and a one-year term of supervised
release.
Verde filed a habeas petition seeking to be reinstated
to his status as a U.S. permanent resident or to be granted
cancellation of removal. His principal argument was that his
initial removal was a gross miscarriage of justice because of
procedural shortcomings that occurred during his 1998
removal hearing. He also asserted that because the Supreme
Court later decided that a DUI conviction was not an
aggravated felony, his conviction was not a valid basis for his
original removal.
The District Court dismissed Verde’s petition for lack
of subject matter jurisdiction. It explained that the REAL ID
Act of 2005 “‘eliminated the availability of habeas corpus
relief in the district courts for aliens seeking to challenge
orders of removal.’” Appendix (“App.”) 6 (quoting
Kolkevich v. Att’y Gen. of U.S., 501 F.3d 323, 326 (3d Cir.
2007)). The District Court then provided two reasons for
transferring the case to this Court. First, it concluded that
“jurisdiction would have been proper in the Court of Appeals
for the Third Circuit at the time petitioner’s habeas petition
was filed.” App. 8. Second, the court noted that it had
“serious concerns regarding whether the REAL ID Act should
be construed as eliminating collateral review of deportation
orders which were entered prior to the enactment of the
REAL ID Act, but which could not have been challenged by
petition for a writ of habeas corpus until the detention of a
petitioner years later.” App. 9.
4
II.
We first consider whether we have jurisdiction.
Application of the REAL ID Act, 8 U.S.C. § 1101, et seq., is
central to the resolution of this threshold issue. The REAL
ID Act fundamentally altered the manner in which aliens may
seek review of orders of removal. The law eliminated habeas
corpus review over removal orders and provides 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 entered or
issued under any provision of this chapter.” 8 U.S.C. §
1252(a)(5).1 A petition for review must be filed within thirty
days of the final removal order. 8 U.S.C. § 1252(b)(1). Based
on this requirement, the Government argues that Verde’s
current petition for removal is untimely: while it was filed
within thirty days of the most recent reinstatement of the
order, the Government maintains that the thirty-day window
is not renewed when a removal order is reinstated.
Importantly, we have no jurisdiction over an untimely
petition. See Kolkevich, 501 F.3d 323, 337. 2
A.
1
The statute contains an exception for review of some orders not
relevant here.
2
In addition to the thirty-day deadline, § 1252 also prevents review
of a final order of removal unless “the alien has exhausted all
administrative remedies available to the alien as of right.” 8
U.S.C. § 1252(d)(1). Because the Government’s brief focuses on
the thirty-day deadline and we decide the case on this jurisdictional
basis, we will not address whether Verde properly exhausted his
administrative remedies.
5
The parties first dispute whether the thirty-day time
limit is altered by 8 U.S.C. § 1252(a)(2)(D), which provides
that
[n]othing in subparagraph (B) or (C), or in any
other provision of this chapter (other than this
section) which limits or eliminates judicial
review, shall be construed as precluding review
of constitutional claims or questions of law
raised upon a petition for review filed with an
appropriate court of appeals in accordance with
this section.
Verde essentially argues that this is a freestanding grant of
jurisdiction that eliminates the thirty-day time limit for
constitutional claims or questions of law. But as the
Government points out, § 1252(a)(2)(D) clearly limits its
scope to subparagraph (B) or (C) or any other provision of the
chapter “other than this section.” Because § 1252(b)(1) is in
§ 1252, but is not in subparagraph (B) or (C) of § 1252(a), §
1252(a)(2)(D) cannot logically be read to eliminate the thirty-
day window for filing constitutional claims and questions of
law. Our past interpretation confirms this conclusion. See
Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005)
(“Congress has provided that nothing in 8 U.S.C. §
1252(a)(2)(B), (C), or any other provision of the INA shall
preclude judicial review of such orders, unless such review is
barred by some other provision of 8 U.S.C. § 1252.”).
Accordingly, the thirty-day time limit set forth in §
1252(b)(1) is not altered by § 1252(a)(2)(D).
B.
6
Verde next asserts that his petition was timely because
he filed it within thirty days of the 2011 reinstatement of his
removal order. He argues that under Debeato v. Attorney
General, 505 F.3d 231 (3d Cir. 2007), an alien who has been
removed may challenge a reinstated removal order in the
same manner he would challenge the original order. In
Debeato, the petitioner came to the United States in 1988 and
was arrested on drug charges two years later. After serving
prison time, she was deported because an IJ and the Board of
Immigration Appeals (“BIA”) agreed that she was an
aggravated felon. Id. at 233. She left the United States in
1998, but was found in the country again in 2000. She pled
guilty to illegal reentry and went to prison again; while in
prison, her original deportation order was reinstated. In 2003,
Debeato filed a habeas petition arguing that the IJ erred in her
original deportation proceedings by determining that she was
ineligible for a waiver of deportation. In determining our
jurisdiction, we reviewed the REAL ID Act, citing
Papageorgiou for the proposition that § 1252(a)(2)(D)
removed all jurisdictional bars to review of constitutional
claims and questions of law except for those limitations in §
1252 itself. Id. at 234. Most importantly, we then addressed
the question of how the holding in Papageorgiou applied to 8
U.S.C. § 1231(a)(5), which provides that when a removal
order is reinstated from its original date, the alien is not
eligible to apply for any relief under the chapter. We relied
on Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006),
explaining that § 1231(a)(5) was overridden by §
1252(a)(2)(D), and consequently that we retained jurisdiction
over Debeato’s petition. Debeato, 505 F.3d at 234-35
(“[T]here is no principled reason for reading § 1252(a)(2)(D)
as permitting jurisdiction to review a final removal order, yet
7
denying jurisdiction to review a reinstatement of that very
same order.”).
While Debeato makes clear that § 1252(a)(2)(D)
overrides § 1231(a)(5), that conclusion does not lend much
assistance to our resolution of the question at hand.3 This is
because, as the Government points out, neither Debeato nor
Ramirez-Molina addressed the thirty-day time limit of §
1252(b)(1). Both of those cases involved habeas petitions
that were filed before the existence of a thirty-day limit and
were converted to petitions for review due to the intervening
passage of the REAL ID Act. Further, § 1231(a)(5) is in a
different section of Title 8, Chapter 12 — as noted above, §
1252(a)(2)(D) overrides other sections of Title 8, Chapter 12,
as well as subparagraphs (B) and (C) of subsection §
1252(a)(2), but does not override other provisions contained
in § 1252. Thus, while § 1231(a)(5) should not prevent our
review of the constitutional or statutory questions concerning
a reinstated removal order in general, the case law relied upon
by Verde does not make clear whether the thirty-day time
limit can be circumvented by seeking review of the merits of
an underlying removal order by filing a petition for review
within thirty days of the issuance of a reinstated order.
The Court of Appeals for the Tenth Circuit answered
the question we face today in Cordova-Soto v. Holder, 659
F.3d 1029 (10th Cir. 2011). There, an alien was removed in
2005, but DHS issued a reinstated removal order when she
3
Likewise, our statement that “an order reinstating a prior removal
order is the functional equivalent of a final order of removal,”
Dinnall v. Gonzales 421 F.3d 247, 251 n.6 (3d Cir. 2005)
(quotation marks omitted), was made in a different context and
does not control our decision today.
8
was found in the United States again in 2010. The petitioner
made the same argument Verde makes here: that §
1252(a)(2)(D) overrides the jurisdictional bar contained in §
1231(a)(5). The Court agreed with that as a general matter,
but then cited § 1252(b)(1)’s thirty-day time limit. The Court
easily concluded that “because Ms. Cordova-Soto failed to
file her petition for review within thirty days of her 2005
removal order, we lack jurisdiction to review that order,
including constitutional claims or questions of law.” Id. at
1032; see also Avila v. United States Att’y Gen., 560 F.3d
1281, 1285 (11th Cir. 2009) (“Because Avila failed to exhaust
his administrative remedies or seek timely review of his 1997
deportation order, we lack jurisdiction to review the
underlying validity of that order.”).
We agree with the Court of Appeals for the Tenth
Circuit and hold that filing a petition for review within thirty
days of a reinstated order of removal does not fulfill the
requirements of § 1252(b)(1). We also note that accepting
Verde’s argument here would defeat the purpose of the
statute’s time bar by allowing a challenge to an underlying
removal order any time a reinstated order is issued. The
Court of Appeals for the Ninth Circuit discussed this concern
in Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir.
2007). In that case, the petitioner challenged the
reinstatement of a removal order by arguing that the original
removal proceeding did not provide due process. The Court
refused to review the original proceeding, noting that the
reinstatement order imposed no penalties and did not create
any obstacles to attacking the original order. It went on to
explain that
9
[t]he contrary conclusion would create a new
and wholly unwarranted incentive for aliens
who have previously been removed to reenter
the country illegally in order to take advantage
of this self-help remedy. It would also make a
mockery of aliens who do respect our laws and
wait patiently outside our borders seeking
lawful admission.
Id. at 498.
As a result, Verde’s filing of his appeal within thirty
days after reinstatement of his removal order does not render
his petition timely.
C.
The District Court’s opinion explained that the case
should be transferred to this Court in part because it
“harbor[ed] serious concerns regarding whether [the REAL
ID Act] should be construed as eliminating collateral review
of deportation orders which were entered prior to the
enactment of [the REAL ID Act], but which could not have
been challenged by petition for a writ of habeas corpus until
the detention of a petitioner years later.” App. 9. Its decision
was based principally on Kolkevich, 501 F.3d 323.
In Kolkevich, a Russian national who was a lawful
permanent resident was convicted and incarcerated on
charges of robbery and assault. Kolkevich conceded
removability, but sought relief under the Convention Against
Torture. An IJ granted him relief, but the BIA reversed. That
decision was made in March 2005, fifty-one days before
10
President Bush signed the REAL ID Act. Therefore, when
the BIA’s order was issued, Kolkevich’s only option for
challenging its decision was a habeas petition, “which could
have been filed at any time, without limit, following issuance
of the order of removal.” Id. at 325. Kolkevich did nothing
until filing a habeas petition in April 2006. Our opinion
explained that the REAL ID Act was silent concerning aliens
who were entitled to file habeas petitions after their removal
orders, but did not do so before the REAL ID Act was
enacted. Id. at 329. We reviewed the case to determine
whether Kolkevich should receive extra time to file his
petition due to the change in law that occurred.
We began our analysis with a discussion of the
Suspension Clause, which provides that the writ of habeas
corpus shall not be suspended unless necessary for public
safety. U.S. Const. art. I, § 9, cl. 2. Our case law establishes
that the clause requires at least some judicial review of
deportation cases, and also that the REAL ID Act’s
limitations on the petition right are constitutional. Kolkevich,
501 F.3d at 332 (quotation marks omitted). We first
concluded that we could not read the REAL ID Act in the
fashion the Government urged — it asked us to conclude that
the day before the REAL ID Act’s passage, Kolkevich had an
unlimited right to file a habeas petition, but on the day the
REAL ID Act was passed he suddenly had no access to the
courts. Id. at 334-35. To avoid invalidating the statute, we
held that those in Kolkevich’s situation would be granted
thirty days after the passage of the REAL ID Act (until June
11, 2005) to file a petition for review. Because Kolkevich
had waited almost a year after the REAL ID Act’s passage,
we concluded we lacked jurisdiction to review his claim. Id.
at 337.
11
 The District Court appears to have relied on Kolkevich
to determine that we have jurisdiction because it believed that
otherwise Verde would have been precluded from obtaining
any review of the 1998 removal order. Yet neither the
District Court nor Verde has explained why Verde could not
have filed a petition for review within the thirty days
following the enactment of the REAL ID Act.4 Like
Kolkevich, Verde failed to file suit within the thirty-day
window after the REAL ID Act’s enactment, and
consequently, just as in Kolkevich, we conclude that the
Suspension Clause does not necessitate exercising jurisdiction
here.5
* * * * *
4
The District Court correctly explained that in order to file a
petition for habeas relief, the petitioner must be in custody. App.
9; see also 28 U.S.C. § 2241(c)(1). Yet it pointed to no such
requirement in 8 U.S.C. § 1252, nor did Verde identify any other
obstacle to filing a petition for review. See Jordon v. Att’y Gen. of
U.S., 424 F.3d 320, 328 (3d Cir. 2005) (holding that because
petitioner’s habeas petition was converted to a petition for review
under the REAL ID Act, “whether Jordon was ‘in custody’ under
§2241[] is a jurisdictional inquiry no longer relevant to our
analysis here”).
5
Verde also contends that the Government waived its argument
that the District Court improperly relied on Kolkevich because it
failed to appeal the District Court’s discretionary transfer decision.
Verde’s argument fails for several reasons, principally because we
must accurately discern our own subject matter jurisdiction
regardless of whether the issue was raised in the District Court.
See United States v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects
in subject-matter jurisdiction require correction regardless of
whether the error was raised in district court.”).
12
Because Verde did not comply with the thirty-day
deadline, we have no jurisdiction to review his petition under
§ 1252.
III.
Verde argues that even if we conclude that we have no
jurisdiction under § 1252, we can assert jurisdiction over his
habeas petition because he does not directly challenge an
order of removal;6 instead, he argues that the immigration
hearing leading to his removal was procedurally flawed.7 The
District Court concluded that it had no habeas jurisdiction,
though Verde claims that the court came to that conclusion
only because it separately determined that § 1252 jurisdiction
was proper under Kolkevich.
Because we have held that § 1252(a)(5) does not bar a
habeas petition when a petitioner challenges something other
than an order of removal, Kumarasamy v. Att’y Gen. of U.S.,
453 F.3d 169, 172 (3d Cir. 2006), we must now decide
whether a challenge to the procedure of a removal hearing
qualifies as a challenge to the removal order. In
6
Section 1252 only governs review of orders of removal, and a
petition for review is the exclusive means of review “of an order of
removal entered or issued under any provision of this chapter,
except as provided in subsection (e) of this section.” § 1252(a)(5).
7
Verde complains that he was subjected to a group hearing, that
the IJ’s language indicated that his appeal would be unsuccessful,
that he was not properly informed of the availability of pro bono
counsel, and that “the hearing proceeded under on [sic] the basis of
the false premise that DUI indisputably was an aggravated felony.”
Verde Br. 34.
13
Kumarasamy, the petitioner argued that he was improperly
deported because no removal order was ever entered in his
case. Id. We agreed that the REAL ID Act did not apply, but
found we had no jurisdiction because Kumarasamy was not in
custody when he filed his habeas petition. Id. at 173.
In Nnadika v. Attorney General, 484 F.3d 626, 633 (3d
Cir. 2007), we held that the REAL ID Act did not apply when
the petitioner challenged the Government’s adjudication and
rules concerning asylee relative petitions even though the
denial of relief would result in deportation. While the facts in
Nnadika make it easily distinguishable from the instant case,
our discussion in that case is relevant to the question we face
today. The Nnadika Court made several references to Haider
v. Gonzales, 438 F.3d 902, 910 (8th Cir. 2006), a case in
which the petitioner was ordered removed in absentia. Haider
filed a habeas petition in district court claiming that his due
process rights were violated because he was not served with a
valid notice to appear prior to his removal hearing. Id. at 905.
The district court transferred the case to the Court of Appeals
for the Eighth Circuit because the petition “challenged a final
order of removal.” Id. at 906. The Court of Appeals
consolidated the habeas petition with a preexisting petition
for review and agreed with the district court, concluding that
“Haider’s Petition for Writ of Habeas Corpus does nothing
more than attack the IJ’s removal order.” Id. at 910. After
recounting the holding in Haider, the Nnadika Court
expressed its approval by explaining that “only challenges
that directly implicate the order of removal, such as the
challenge to the notice of the removal hearing in Haider, are
properly the subject of transfer under the REAL ID Act.” 484
F.3d at 632; see also Singh v. Gonzales, 499 F.3d 969, 979
(9th Cir. 2007) (holding that term “order of removal” does not
14
include alien’s ineffective assistance of counsel claim
concerning attorney’s actions taken after order of removal
becomes final).
While this Court has not previously addressed Verde’s
argument, our decision in Bonhometre v. Gonzales, 414 F.3d
442 (3d Cir. 2005), treated a procedural due process claim as
part of a request for review of a final order of removal. In
Bonhometre, the petitioner filed a habeas petition in 2003
arguing that his previous removal order was invalid because
the IJ failed to advise him of certain forms of potential relief.
Id. at 445. The case was decided after the REAL ID Act was
passed, so we converted the habeas petition into a petition for
review. Id. at 446. Beginning our analysis, we explained that
we would “address the procedural due process claims raised
by Mr. Bonhometre in his opening brief to the District Court
as if they were raised in a petition for review before us in the
first instance.” Id. Thus, Bonhometre reflects a view that
procedural due process claims arising from a removal hearing
are properly contained in a petition for review.
Our conclusion in Bonhometre is in accord with
Supreme Court cases that have afforded a broad definition to
terms similar to “order of removal.” In Foti v. Immigration &
Naturalization Service, 375 U.S. 217, 221 (1963), the Court
held that the term “final orders of deportation” included
denials of suspension of deportation. The Court explained
that “all determinations made during and incident to the
administrative proceeding . . . reviewable together by the
Board of Immigration Appeals, such as orders denying
voluntary departure pursuant to § 244(e) [8 U.S.C. § 1254(e)]
and orders denying the withholding of deportation under §
243(h) [8 U.S.C. § 1253(h)], are likewise included within the
15
ambit” of the term. Id. at 229. In part, this was because the
“fundamental purpose behind [the law] was to abbreviate the
process of judicial review of deportation orders in order to
frustrate certain practices which had come to the attention of
Congress, whereby persons subject to deportation were
forestalling departure by dilatory tactics in the courts.” Id. at
224.
The Court came to a similar conclusion in Immigration
& Naturalization Service v. Chadha, 462 U.S. 919 (1983). In
that case, the petitioner’s deportation was suspended by an IJ,
but the House of Representatives passed a resolution stating
that the deportation should not be suspended. Id. at 926. An
IJ then reopened the proceedings to implement the resolution,
and Chadha sought a ruling that the provision of the law
allowing the House resolution was unconstitutional. Id. at
928. Chadha filed a petition for review with the Court of
Appeals for the Ninth Circuit, which “held that the House was
without constitutional authority to order Chadha’s
deportation.” Id.
The jurisdiction of the Court of Appeals was limited to
review “of all final orders of deportation.” Id. at 937
(quotation marks omitted). The Supreme Court held that the
term encompassed Chadha’s situation and that “the term
‘final orders’ in § 106(a) [8 U.S.C. § 1105a(a)] includes all
matters on which the validity of the final order is contingent,
rather than only those determinations actually made at the
hearing.” Id. at 938 (quotation marks omitted). The Court
also emphasized the fact that “the relief [Chadha sought was]
plainly inconsistent with the deportation order.” Id. at 939.
16
 The decisions in Chadha, Foti, Nnadika, and
Bonhometre persuade us to conclude that the term “order of
removal” as used in § 1252(a)(5) was intended to include the
claims Verde raises here. Verde does not challenge the
existence of his removal order, but alleges errors “on which
the validity of the final order [are] contingent,” and the relief
he seeks would clearly be inconsistent with the order of
removal. Chadha, 462 U.S. at 938. The opposite result
would thwart Congress’s goal in passing the REAL ID Act,
which was to “streamline . . . uncertain and piecemeal review
of orders of removal, divided between the district courts
(habeas corpus) and the courts of appeals (petitions for
review).” Bonhometre, 414 F.3d at 446. As we explained in
Kolkevich, “[b]y placing all review in the courts of appeals,
[the REAL ID Act] provide[s] an adequate and effective
alternative to habeas corpus.” 501 F.3d at 335 (quotation
marks omitted). This result does not undermine our holding
in Kumarasamy or other cases in which a petitioner seeks to
file a habeas petition based on something other than an order
of removal. Unlike those cases, Verde’s claims concerning
the process afforded to him at his removal hearing directly
challenge the lawfulness of the removal order and are
intertwined with the IJ’s decision to such an extent that we
must conclude he challenges his order of removal.
Consequently, we have no jurisdiction to review his habeas
petition because of the limitations contained in § 1252(a)(5).
IV.
For the foregoing reasons, we will dismiss Verde’s
petition for lack of jurisdiction.
17