E.O.H.C. v. Secretary United States Depart

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 19-2927
_______________
E.O.H.C.; M.S.H.S., a minor child,
Appellants
v.
SECRETARY UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; COMMISSIONER
UNITED STATES CUSTOMS & BORDER PROTECTION;
DIRECTOR UNITED STATES IMMIGRATION &
CUSTOMS ENFORCEMENT; FIELD OFFICE DIRECTOR
PHILADELPHIA UNITED STATES IMMIGRATION &
CUSTOMS ENFORCEMENT
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5:19-cv-03204)
District Judge: Honorable Joshua D. Wolson
_______________
Argued: November 12, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Filed: February 13, 2020)
_______________
Anthony Vale
Michael S. DePrince [ARGUED]
Pepper Hamilton
3000 Two Logan Square
Philadelphia, PA 19103
Tobias Barrington Wolff [ARGUED]
3501 Sansom Street
Philadelphia, PA 19104
Bridget Cambria
Cambria & Kline
532 Walnut Street
Reading, PA 19601
Amy Maldonado
Law Office of Amy Maldonado
333 Albert Avenue, Suite 610
East Lansing, MI 48823
Counsel for Appellants
Joseph H. Hunt
William C. Peachey
Erez Reuveni
Archith Ramkumar [ARGUED]
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
William M. McSwain
Veronica J. Finkelstein
Anthony St. Joseph
2
Paul J. Koob
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellees
_________________
OPINION OF THE COURT
_________________
BIBAS, Circuit Judge.
This case raises the age-old question: “If not now, when?”
Mishnah, Pirkei Avot 1:14. For aliens who are challenging their
removal from the United States, the answer is usually “later.”
But not always. And not here.
Federal district courts rarely have jurisdiction to hear dis-
putes relating to removal. That is because the Immigration and
Nationality Act (INA) strips them of jurisdiction over all
claims “arising from any action taken or proceeding brought to
remove” aliens. 8 U.S.C. § 1252(b)(9). Instead, an alien must
typically litigate his removal-related claims before an immi-
gration judge. Then, after an order of removal, he may appeal
to the Board of Immigration Appeals. Only after that may he
file a petition for review with a court of appeals. Usually, dis-
trict courts are not part of this process.
But some immigration-related claims cannot wait. When a
detained alien seeks relief that a court of appeals cannot mean-
3
ingfully provide on petition for review of a final order of re-
moval, § 1252(b)(9) does not bar consideration by a district
court. Neither does § 1252(a)(4), a provision that generally re-
quires Convention Against Torture claims to await a petition
for review. For if these provisions did bar review of all claims
before the agency issues a final order of removal, certain ad-
ministrative actions would effectively be beyond judicial re-
view. If “later” is not an option, review is available now.
Appellants E.O.H.C. and M.S.H.S., his seven-year-old
daughter, came from Guatemala through Mexico to the United
States. The Government seeks to return them to Mexico while
it decides whether to grant them asylum or instead remove
them to Guatemala. They brought several claims in the District
Court, challenging the Government’s authority to return them
to Mexico. The District Court dismissed all their claims for
lack of subject-matter jurisdiction. We see things differently.
One claim, involving the statutory right to counsel, arises
from the proceedings to remove them to Guatemala, so it can
await a petition for review. But the rest of the claims challenge
the Government’s plan to return them to Mexico in the mean-
time. For these claims, review is now or never. So we will af-
firm in part and reverse and remand in part.
I. BACKGROUND
A. Facts
E.O.H.C. and M.S.H.S. are from Mixco, Guatemala, a city
plagued by violent crime. Fleeing that violence, they traveled
north through Mexico. In April 2019, they crossed into the
United States and turned themselves in to U.S. Customs and
4
Border Patrol officers. The Government began proceedings to
remove them to Guatemala, setting a June hearing date in San
Diego.
Ordinarily, aliens detained pending removal proceedings
would be housed in the United States. But in December 2018,
the Department of Homeland Security announced a new policy
called the Migrant Protection Protocols. Under those Protocols,
the Government now takes many aliens who cross the United
States-Mexico border and returns them to Mexico while they
await their immigration hearings. See Migrant Protection Pro-
tocols, U.S. Dep’t Homeland Security (Jan. 24, 2019),
https://www.dhs.gov/news/2019/01/24/migrant-protection-
protocols; see also 8 U.S.C. § 1225(b)(2)(C) (authorizing the
Government to “return” certain aliens who “arriv[e] on land . . .
from a foreign territory contiguous to the United States” to that
neighboring country pending removal proceedings). The Pro-
tocols thus apply to aliens who have no ties to Mexico.
Under the Protocols, the Government returned E.O.H.C.
and his daughter to Mexico to await their hearing. They were
left to fend for themselves in Tijuana, a dangerous and violent
city. Fortunately, a local family took them in.
When he and his daughter came to San Diego for their hear-
ing, E.O.H.C. told the immigration judge that he did not fear
going back to Guatemala. He later alleged that a Customs and
Border Protection officer advised him to say this. He was not
represented by counsel at the time and says that he did not un-
derstand that this was bad advice. The immigration judge de-
nied asylum and ordered appellants removed to Guatemala.
E.O.H.C. waived the right to appeal, allegedly because he
5
feared that the Government would return them to Mexico if
they pursued an appeal. After the hearing, they were trans-
ferred to an immigration detention facility in Berks County,
Pennsylvania, to await removal.
B. Procedural history
While appellants were detained in Berks County, they ap-
pealed to the Board of Immigration Appeals. Before the Board,
they argued that E.O.H.C.’s appeal waiver was invalid because
he had made it under duress. The Board granted them an emer-
gency stay of removal pending appeal. But the stay order did
not make clear whether it prevented their return to Mexico or
only their removal to Guatemala. And the Government flew
them back to San Diego, apparently to return them to Mexico.
So appellants filed an emergency mandamus petition in the
U.S. District Court for the Eastern District of Pennsylvania.
The Government then brought them back to Berks County for
the time being, where they remain detained today. If the Gov-
ernment prevails in this case, it still plans to return them to
Mexico.
In their mandamus petition and preliminary-injunction mo-
tion, appellants alleged that returning them to Mexico pending
their appeal to the Board would violate the law in four ways.
First, they argued that the Government lacks statutory author-
ity to apply the Protocols to them. The Protocols, they asserted,
are invalid because they were adopted in violation of the Ad-
ministrative Procedure Act. And even if the Protocols were
valid, they added, the statutory authorization for that policy
6
does not extend to aliens entering the United States in their cir-
cumstances.
Second, they argued that returning them to Mexico would
interfere with their relationship with their lawyer. This inter-
ference, they claimed, would violate their constitutional and
statutory rights to counsel. See U.S. Const. amend. V (Due Pro-
cess Clause); 8 U.S.C. § 1362.
Third, they argued that returning them to Mexico would vi-
olate the United States’s treaty obligations. In particular, the
Convention Against Torture forbids “return[ing] (refouler) or
extradit[ing] a person to another State where there are substan-
tial grounds for believing that he would be in danger of being
subjected to torture.” Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment art. 3,
¶ 1, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S.
85, 114. And the Refugee Convention prohibits “expel[ling] or
return[ing] (‘refouler’) a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, mem-
bership of a particular social group or political opinion.” Con-
vention Relating to the Status of Refugees art. 33, ¶ 1, July 28,
1951, 189 U.N.T.S. 150, 176. The duty not to remove aliens to
a place where they will face persecution is known as the “non-
refoulement” obligation. See, e.g., INS v. Cardoza-Fonseca,
480 U.S. 421, 440 (1987).
Fourth, they argued that returning M.S.H.S., a minor, to
Mexico would violate the United States’s commitments under
the 1997 Flores Settlement Agreement. See Stipulated Settle-
ment Agreement, Flores v. Reno, No. CV-85-4544-RJK(Px)
7
(C.D. Cal. Jan. 17, 1997) (Flores Settlement Agreement). That
Agreement sets forth the “nationwide policy for the detention,
release, and treatment of minors” in immigration custody. Id.
¶ 9. By its terms, “[a]ny minor who disagrees” with the Gov-
ernment’s treatment of her may sue the Government to enforce
her rights under the Agreement. Id. ¶ 24(B). The Agreement
remains in effect today, under the continued oversight of a dis-
trict judge in the Central District of California. Flores v. Barr,
934 F.3d 910, 912 (9th Cir. 2019); see Flores v. Barr, 407
F. Supp. 3d 909, 914 (C.D. Cal. 2019) (holding that August
2019 regulations have not ended the Agreement), appeal dock-
eted, No. 19-56326 (9th Cir. Nov. 15, 2019).
After a hearing, the District Court dismissed appellants’
four claims, holding that it lacked subject-matter jurisdiction
over all of them. 396 F. Supp. 3d 477, 480 (E.D. Pa. 2019). It
observed that their statutory challenges to the Protocols and
their right-to-counsel claims arise from their removal proceed-
ings. Id. at 486–88. So, it reasoned, they must await a final or-
der of removal and only then bring these claims in the court of
appeals. Id.; see 8 U.S.C. § 1252(b)(9) (limiting jurisdiction
over legal questions “arising from any action taken or proceed-
ing brought to remove an alien”). It also held that 8 U.S.C.
§ 1252(a)(4) stripped it of jurisdiction over the nonrefoulement
claim. 396 F. Supp. 3d at 488–89. And it held that it lacked
federal-question jurisdiction over the Flores claim because the
Flores Settlement Agreement is not a federal law, and it could
not enforce another court’s injunction. Id. at 485.
8
On appeal, we address only these jurisdictional questions,
not the merits. Whether or not the District Court had jurisdic-
tion, we have jurisdiction under 28 U.S.C. § 1291 to review its
decision. We review de novo the District Court’s dismissal for
lack of subject-matter jurisdiction. Free Speech Coal., Inc. v.
Att’y Gen. of the U.S., 677 F.3d 519, 530 (3d Cir. 2012).
II. THIS CASE IS NOT MOOT AND
WE CAN RESOLVE IT NOW
To start off, we address two recent developments related to
this case. Before we address the District Court’s jurisdictional
holdings, we must first satisfy ourselves that these develop-
ments have not mooted this appeal. See, e.g., Whiting v. Krass-
ner, 391 F.3d 540, 544 (3d Cir. 2004). We hold that they have
not and that we can resolve it now.
First, after we heard oral argument, the Board issued an
opinion questioning whether E.O.H.C.’s waiver of appellate
rights was knowing and intelligent. Matter of H-C-, slip op. at
1 (B.I.A. Dec. 4, 2019). It remanded to the immigration judge
for further proceedings on his and his daughter’s asylum appli-
cation. Id. at 1–2. That remand does not moot this case. The
Government has stated that if appellants’ challenge to the Pro-
tocols fails, it will return them to Mexico. Whatever the posture
of their proceedings before the agency, this remains a live
threat unless and until the two receive asylum or are removed
to Guatemala.
Second, after oral argument, appellants filed a habeas peti-
tion in the District Court, seeking release from custody. Soon
after that, an immigration judge granted M.S.H.S.’s request for
9
bond and ordered her released to the custody of her mother,
who apparently lives in the United States. But as far as we
know, M.S.H.S. is still at the Berks County facility.
The District Court denied appellants’ motion for a prelimi-
nary injunction ordering the Government to release E.O.H.C.
along with M.S.H.S. or give him a bond hearing. They then
filed a notice of appeal in this Court, and we consolidated that
appeal with this one. E.O.H.C. v. Att’y Gen. U.S., No. 20-1163.
Both appeals are now before this Court.
That newly consolidated appeal does not affect this one.
The legal issues in the two appeals are different. The first one
challenges the Government’s decision to return appellants to
Mexico pending a decision on their asylum application. The
legal issues turn on the scope of several jurisdiction-stripping
provisions in the INA and on the Flores Settlement Agreement.
The second appeal, by contrast, challenges appellants’ contin-
ued detention in Berks County. It has nothing to do with Mex-
ico or the Protocols. The legal issues there involve substantive
and procedural due process and the First Amendment. Because
the challenges and salient legal issues do not overlap, we need
not decide the second appeal at the same time as this one.
Though we consolidated the two appeals, we have decided to
resolve them separately.
Plus, even if both appellants were to be released from Berks
County on bond, the Government could still return them to
Mexico under the Protocols. True, the Government suggests
that the Protocols might not continue to apply to E.O.H.C. and
that habeas relief could hamper the Government’s ability to re-
turn appellants to Mexico. And the Government does assert
10
that after her release on bond, the Protocols cannot apply to
M.S.H.S. But in neither case does it offer a reason why the Pro-
tocols would no longer apply. So while the Government claims
that habeas relief would moot all questions about the Protocols,
it falls far short of satisfying the “heavy burden” it bears. See
Seneca Res. Corp. v. Township of Highland, 863 F.3d 245, 254
(3d Cir. 2017).
Having assured ourselves that the controversy between the
parties is still live and that the issues in this appeal are distinct
from those in the second one, we will now address the District
Court’s grounds for dismissing appellants’ challenges to their
return to Mexico.
III. THE SCOPE OF 8 U.S.C. § 1252(b)(9)
The INA limits judicial review in several ways. First, it bars
challenging removal orders in district court. Instead, aliens
must bring those challenges in a “petition for review filed with
an appropriate court of appeals.” 8 U.S.C. § 1252(a)(5). District
courts lack jurisdiction over those challenges to removal. See
id.District courts also lack jurisdiction to review most claims
that even relate to removal. To prevent piecemeal litigation, the
INA usually requires aliens to bring their claims together. In
particular, § 1252(b)(9) provides that if a legal claim “aris[es]
from any action taken or proceeding brought to remove an al-
ien,” then “[j]udicial review of all questions of law and fact . . .
shall be available only in judicial review of a final order” of
removal. Because judicial review of a final order of removal is
11
available only in the court of appeals, district courts cannot re-
view these “arising from” claims either.
This appeal is about appellants’ interim return to Mexico,
not their permanent removal to Guatemala. The District Court
held that under § 1252(b)(9), it lacked jurisdiction over several
of the claims. So most of the jurisdictional questions depend
on § 1252(b)(9)’s scope: What exactly counts as an “action
taken or proceeding brought to remove an alien”? And when
does a “question[ ] of law [or] fact . . . aris[e] from” that “action
. . . or proceeding”?
For § 1252(b)(9) to apply, we must (1) identify the “action
taken or proceeding brought to remove” appellants and (2) sat-
isfy ourselves that their challenges “aris[e] from” that action or
proceeding. 8 U.S.C. § 1252(b)(9). The touchstones of our
analysis are two presumptions, both of which support review-
ability. One is the usual “strong presumption in favor of judi-
cial review of administrative action.” INS v. St. Cyr, 533 U.S.
289, 298 (2001). The other is “the general rule that ‘the nar-
rower construction of a jurisdiction-stripping provision is fa-
vored.’ ” Alli v. Decker, 650 F.3d 1007, 1013 n.9 (3d Cir. 2011)
(quoting ANA Int’l Inc. v. Way, 393 F.3d 886, 891 (9th Cir.
2004)).
A. Now-or-never claims do not “aris[e] from any
action taken or proceeding brought to remove an
alien”
We start with the statutory text. The relevant “action taken”
cannot be the Government’s return of appellants to Mexico.
While the claims here “aris[e] from” that action, the action was
12
not taken to “remove” them from the United States. “Removal”
is a term of art in immigration law that means sending an alien
back permanently to his country of origin. See Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 108 n.3 (2d Cir. 2007). Interim
return to Mexico is not part of the process of removal to Gua-
temala. If anything, it makes removal more difficult, because
the Government must first bring appellants back to the United
States to continue their removal proceedings.
On the other hand, the Supreme Court has left open whether
detention pending an asylum ruling counts as an “action[ ]
taken . . . to remove an alien from the United States.” See Jen-
nings v. Rodriguez, 138 S. Ct. 830, 840 & n.2 (2018) (plurality
opinion). In any event, the removal proceedings are “proceed-
ings brought to remove” appellants from the United States to
Guatemala.
But then we must confront the start of the phrase: whether
the issues here are “arising from” that action or those proceed-
ings. We hold that they are not. Though the phrase looks quite
broad, we are not writing on a blank slate. In recent years, we
and other circuits have wrestled with the scope of the phrase
“arising from.” But the Supreme Court has had the most recent
word. In each of its last two Terms, it has addressed when
§ 1252(b)(9) strips jurisdiction over challenges to immigration
detention. A majority of the Court has not settled on a precise
reading of that provision. Yet the Justices appear to agree that
now-or-never claims like the ones here do not “aris[e] from”
detention or removal proceedings and so may go forward.
13
In Jennings, each Justice appeared to agree that
§ 1252(b)(9) does not bar challenges to conditions of confine-
ment, unlike challenges to removal or perhaps the fact of con-
finement. Jennings dealt with a class of detained aliens who
claimed that the INA gave them the right to periodic bail hear-
ings. 138 S. Ct. at 839. That challenge was not brought in a
petition for review alongside a challenge to a final order of re-
moval, so the Court had to address whether the provision
stripped jurisdiction over the claim. See id. at 838.
A three-Justice plurality reasoned that § 1252(b)(9) does
not bar every removal-related claim. The plurality rejected a
broad reading of the phrase “arising from” that would “make
claims of prolonged detention effectively unreviewable.” Jen-
nings, 138 S. Ct. at 840. The plurality recognized that the
phrase “arising from,” read literally, could encompass all
claims that would not exist but for the Government’s decision
to remove an alien. Id. This sort of “uncritical literalism,” the
plurality noted, could lead to “extreme” and “staggering re-
sults” that “no sensible person could have intended.” Id. (inter-
nal quotation marks omitted). So but-for causation is not
enough. Because the aliens were not challenging a removal or-
der, the process of deciding removability, or the Government’s
decision to detain them or seek removal, the provision did not
strip jurisdiction. Id. at 841.
Concurring in part and in the judgment, Justice Thomas
(joined by Justice Gorsuch) took a broader view of
§ 1252(b)(9). He reasoned that it “must at least cover congres-
sionally authorized portions of the deportation process that
necessarily serve the purpose of ensuring an alien’s removal.”
14
Jennings, 138 S. Ct. at 854. So it must limit “challenge[s] to
the fact of [an alien’s] detention” to the petition-for-review
process. Id. at 855 (emphasis in original). But even he
acknowledged that challenges to conditions of confinement
may well fall outside § 1252(b)(9)’s scope. Id.
Justice Breyer, writing for the three dissenters, read
§ 1252(b)(9) more narrowly. He argued that this provision does
not apply when a detainee does not challenge an order of re-
moval itself. Id. at 876. Because the Jennings detainees were
“challeng[ing] their detention without bail, not an order of re-
moval,” jurisdiction was left “unaffected.” Id.
The Justices largely reprised these positions in Nielsen v.
Preap, 139 S. Ct. 954 (2019). Like Jennings, Preap was
brought by a class of aliens challenging whether the INA au-
thorized their detention. Id. at 960–61. A three-Justice plurality
repeated the Jennings plurality’s view that § 1252(b)(9) does
not bar challenges to detention rather than removal. Id. at 962.
And the same two concurring Justices from Jennings restated
their broader view of the provision. Id. at 974 (Thomas, J., con-
curring in part and concurring in the judgment).
We distill a simple principle from Jennings, Preap, and the
presumptions favoring judicial review. That principle informs
how we read the phrase “arising under.” We must ask: If not
now, when? If the answer would otherwise be never, then
§ 1252(b)(9) poses no jurisdictional bar. In other words, it does
not strip jurisdiction when aliens seek relief that courts cannot
meaningfully provide alongside review of a final order of re-
moval. As the First Circuit has noted, the point of the provision
is to channel claims into a single petition for review, not to bar
15
claims that do not fit within that process. See Aguilar v. U.S.
ICE, 510 F.3d 1, 11 (1st Cir. 2007).
That is why the Supreme Court has called § 1252(b)(9) the
“ ‘zipper’ clause.” Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 483 (1999). The provision is designed
to channel claims together for judicial review. Id. That is also
why the provision is captioned “Consolidation of Questions for
Judicial Review.” 8 U.S.C. § 1252(b)(9) (emphasis added). It
does not reach “claims that are independent of, or wholly col-
lateral to, the removal process,” like “claims that cannot effec-
tively be handled through the available administrative pro-
cess.” Aguilar, 510 F.3d at 11; accord J.E.F.M. v. Lynch, 837
F.3d 1026, 1032 (9th Cir. 2016) (collecting cases); Reply Br.
16 (interpreting Chehazeh v. Att’y Gen. of the U.S., 666 F.3d
118 (3d Cir. 2012)); Oral Arg. Tr. 20–21.
Some hypotheticals drive the point home. Consider a de-
tained alien who needs halal or kosher food, or a diabetic who
alleges that the Government is depriving him of insulin. Or
take Jennings’s example of a challenge to prolonged detention.
See 138 S. Ct. at 840 (plurality opinion). Under the Govern-
ment’s reading, these aliens could get no judicial review until
the Board enters their final orders of removal. That cannot be
so. For one, the final order of removal may never come. Even
if it does, review and relief may come too late to redress these
conditions of confinement. Id.; see McNary v. Haitian Refugee
Ctr., Inc., 498 U.S. 479, 484 (1991) (holding that the INA did
not strip jurisdiction over certain claims because otherwise
“meaningful judicial review . . . would be foreclosed”).
16
The now-or-never principle governs here too. Although ap-
pellants must await a final order of removal to challenge their
removal to Guatemala, § 1252(b)(9) does not bar their chal-
lenges to their temporary return to Mexico. So as we will dis-
cuss, most of their claims may proceed.
To be clear, we do not decide whether or when Congress
can strip jurisdiction. See Osorio-Martinez v. Att’y Gen. U.S.,
893 F.3d 153, 166 (3d Cir. 2018). We are simply applying the
usual presumptions favoring judicial review in reading the law
that Congress has passed. Even though this dispute may flow
from an “action taken or proceeding brought to remove an al-
ien,” now-or-never challenges like most of the ones here do not
“aris[e] from” that action or proceeding. Following Jennings
and Preap, we will not read § 1252(b)(9) so broadly as to bar
all review of those claims.
B. Section 1252(b)(9) does not bar review of the
Protocols claim, the nonrefoulement claim, or the
Flores claim
Appellants claim that the Government lacks statutory au-
thority to apply the Protocols to them and return them to Mex-
ico. Under our reading of § 1252(b)(9), the District Court had
jurisdiction over that claim. Like the one in Jennings, this
claim does not challenge the Government’s “decision to detain
them in the first place or to seek removal” or “even . . . any part
of the process by which their removability will be determined.”
138 S. Ct. at 841 (plurality opinion). They allege that Tijuana
is dangerous, so returning them poses a grave danger. By the
time there is a final order of removal to Guatemala (if that ever
17
happens), it will be too late to review or remedy their return to
Mexico in the meantime.
The same logic explains why § 1252(b)(9) does not bar the
nonrefoulement claim or the Flores claim. Both claims allege
injuries that would be caused by appellants’ interim return to
Mexico, not their final removal to Guatemala. Neither claim
can be redressed at the end of the removal proceedings. So nei-
ther is barred by that provision. And if we were to hold that
§ 1252(b)(9) bars district courts from considering conditions-
of-confinement claims under Flores, we would be gutting the
Flores Settlement Agreement. The INA does not require that,
so we will not do so.
The Government asks us to reach the merits of the Proto-
cols claim and hold that they are indeed authorized by statute.
We leave that question to the District Court in the first instance.
On remand, it should consider whether the Protocols may be
applied to arriving aliens who are deemed inadmissible be-
cause they lack valid entry documents, whether appellants fall
within that class, and whether the Protocols are authorized for
non-Mexicans who come to the United States through Mexico.
See 8 U.S.C. § 1225(b)(1)(A)(i) (authorizing expedited re-
moval of certain arriving aliens who lack valid entry docu-
ments); id. § 1225(b)(2)(C) (authorizing the return of certain
aliens to a contiguous foreign country if they “arriv[e] on land
. . . from” that country).
18
C. Section 1252(b)(9) bars review of the statutory
right-to-counsel claim but not the constitutional one
The now-or-never principle also resolves appellants’ right-
to-counsel claims. The District Court dismissed both claims for
lack of jurisdiction under § 1252(b)(9). The statutory version
of this claim “aris[es] from” the removal proceedings and can
await a petition for review. But the constitutional version does
not “aris[e] from” the removal proceedings and cannot await
later review. So the District Court had jurisdiction to hear the
constitutional version but not the statutory one.
Appellants allege that returning them to Mexico would in-
terfere with their relationship with counsel. First, they raise this
claim under the Fifth Amendment’s Due Process Clause. They
argue that returning them to Mexico would hinder their ongo-
ing access to and communication with their counsel. We do not
reach the merits of that claim. See Ponce-Leiva v. Ashcroft, 331
F.3d 369, 374–75 (3d Cir. 2003) (noting that the scope of the
constitutional right to counsel in immigration proceedings is
unsettled). It is enough to note that the constitutional violation,
as alleged, arises not from the efforts to remove them to Gua-
temala, but from those to return them to Mexico in the mean-
time. And the constitutional harm from those matters could not
be remedied after a final order of removal. Because this too is
a now-or-never claim, § 1252(b)(9) does not bar a district
court’s review. The District Court erred in holding otherwise.
Second, they also allege that returning them to Mexico
would violate their statutory right to counsel. But the INA’s
right-to-counsel provision grants the right only “[i]n any re-
19
moval proceedings before an immigration judge and in any ap-
peal proceedings before the Attorney General from any such
removal proceedings.” 8 U.S.C. § 1362. The right is limited to
the “proceeding[s] brought to remove” them to Guatemala, so
appellants’ claim “aris[es] from” those proceedings. Id.§ 1252(b)(9). And this is not a now-or-never claim. It has noth-
ing to do with conditions of confinement or temporary return.
The statutory right is tied to the removal proceedings them-
selves, so there is no irreparable harm. The court of appeals can
redress any deprivation of counsel in the removal proceedings
before the alien is removed. Thus, the District Court rightly
dismissed this claim.
IV. THE DISTRICT COURT HAD JURISDICTION
OVER THE NONREFOULEMENT CLAIM
Appellants also argue that returning them to Mexico would
violate the United States’s nonrefoulement obligations. The
District Court found that appellants had raised a nonre-
foulement claim under the Convention Against Torture but not
under the Refugee Convention. We disagree. Appellants have
in fact preserved the nonrefoulement claim under both treaties.
But because the District Court addressed only the Convention
Against Torture version of the claim, we will not say anything
about the Refugee Convention here. Instead, we will leave that
question for the District Court on remand.
The District Court held that it lacked jurisdiction over the
Convention Against Torture nonrefoulement claim under 8
U.S.C. § 1252(a)(4). The Government agrees but argues that a
different provision of the INA bars jurisdiction too:
§ 1252(a)(2)(B)(ii).
20
Our review of these arguments is colored by the presump-
tions of reviewability discussed above. So the Government
faces an uphill battle. When the Government argues that a stat-
utory scheme “prohibit[s] all judicial review” of agency deci-
sionmaking, it bears a “heavy burden.” Mach Mining, LLC v.
EEOC, 575 U.S. 480, 486 (2015) (quoting Dunlop v.
Bachowski, 421 U.S. 560, 567 (1975)). We look to whether
“the congressional intent to preclude judicial review is ‘fairly
discernible in the statutory scheme.’ ” Block v. Cmty. Nutrition
Inst., 467 U.S. 340, 351 (1984) (quoting Ass’n of Data Pro-
cessing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970)). In
discerning that intent, we look at the statute’s “text, structure,
and purpose.” Elgin v. U.S. Dep’t of Treasury, 567 U.S. 1, 10
(2012).
Here, the Government fails to overcome the presumptions
of reviewability and satisfy its heavy burden. Sections
1252(a)(4) and (a)(2)(B)(ii) do not bar review of appellants’
nonrefoulement claim. We will thus reverse the District
Court’s dismissal.
A. Section 1252(a)(4) does not bar review of
Convention Against Torture challenges to the
temporary return to Mexico
The District Court read § 1252(a)(4) to bar appellants’ non-
refoulement claim under the Convention Against Torture. That
provision reads:
21
Notwithstanding any other provision of law
(statutory or nonstatutory), including [28 U.S.C.
§ 2241 (habeas corpus)] or any other habeas cor-
pus provision, and [28 U.S.C. § 1361 (mandamus
against federal officers) and 28 U.S.C. § 1651(All Writs Act)], 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 any cause or claim
under the United Nations Convention Against
Torture . . . .
At first glance, this provision appears to support the Gov-
ernment’s position. But a closer reading of its text, informed
by the statute’s structure, history, and context, shows that
§ 1252(a)(4) was designed to bar aliens from using habeas cor-
pus to bring duplicative Convention Against Torture claims. In
other words, the provision by its terms limits, but does not elim-
inate, these claims. It does not bar claims, like the one here,
that cannot be meaningfully brought in a petition for review.
Read in that context, this provision does not overcome the
strong presumptions in favor of review.
1. The text of § 1252(a)(4) does not eliminate but limits re-
view of all Convention Against Torture claims to petitions for
review. The Government and District Court are right that the
text seems clear. The phrase “sole and exclusive means for ju-
dicial review” is strong, and its qualifications are few. And
“any cause or claim under the . . . Convention Against Torture”
is broad—especially the word “any,” which we usually read
broadly. E.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214,
218–19 (2008). Finally, the “[n]otwithstanding” clause and its
22
statutory cross-references confirm that, with narrow excep-
tions, the statute displaces the writs of mandamus and habeas
corpus, as well as any other writ under the All Writs Act.
But the text of the provision says nothing about barring
Convention Against Torture claims. It says only that there is
one “sole and exclusive means” of bringing these claims. The
text assumes that there will be one Convention claim, not zero.
We explore the reason for that wrinkle next.
2. The statutory history shows that § 1252(a)(4) was meant
to bar only duplicative litigation like habeas petitions, not all
forms of review. The history of this provision sheds light on the
text. In its 2001 decision in St. Cyr, the Supreme Court read the
INA not to strip habeas jurisdiction over certain aliens’ chal-
lenges to orders of removal. 533 U.S. at 304–05. Applying a
presumption in favor of preserving habeas jurisdiction, it held
that the INA’s text lacked a statement clear enough to rebut
that presumption. Id. at 299–300, 314. So aliens could bring
both habeas petitions and petitions for review of their removal
orders. Id. at 314.
In response, Congress passed the REAL ID Act of 2005,
which added various provisions to § 1252, including subsection
(a)(4). Pub. L. No. 109-13, div. B, § 106(a)(1)(B), 119 Stat.
231, 310. “In the REAL ID Act, Congress provided precisely
what had been lacking in the statutory provisions at issue in St.
Cyr—a clear statement within the legislation itself explicitly
depriving the judiciary of habeas jurisdiction.” Khouzam v.
Att’y Gen. of U.S., 549 F.3d 235, 245 (3d Cir. 2008). In partic-
ular, “section 106 [of the REAL ID Act] was crafted using St.
Cyr as a roadmap.” Id. The statute amended several existing
23
INA provisions by adding explicit references to habeas juris-
diction, making perfectly clear that district courts lack jurisdic-
tion to hear certain challenges under 28 U.S.C. § 2241 “or any
other habeas corpus provision.” E.g., REAL ID Act
§ 106(a)(2), 119 Stat. at 311 (amending 8 U.S.C. § 1252(b)(9));
REAL ID Act § 106(a)(3), 119 Stat. at 311 (amending 8 U.S.C.
§ 1252(g)). And it added § 1252(a)(4), which “explicitly
depriv[es] the judiciary of habeas jurisdiction” over “any cause
or claim under [the Convention Against Torture].” Khouzam,
549 F.3d at 245; see REAL ID Act § 106(a)(1)(B), 119 Stat. at
310.
There is one important difference between § 1252(a)(4) and
its sister provisions of the REAL ID Act: only the latter speak
of jurisdiction. Section 106(a)(2) of the REAL ID Act ex-
pressly added a jurisdictional bar elsewhere in the INA: “Ex-
cept as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus . . . or by any other provision of
law (statutory or nonstatutory), to review [a final] order [of re-
moval] . . . .” 119 Stat. at 311. That sentence expressly bars ju-
risdiction. But § 1252(a)(4) does not. Rather, it merely chan-
nels review. In other words, Congress chose to strip jurisdic-
tion expressly in one provision but omitted that language from
a neighboring one it added to the same statute at the same time.
We presume that Congress omitted that language intentionally.
See Sebelius v. Cloer, 569 U.S. 369, 378 (2013).
As this history shows, the REAL ID Act’s amendments to
the INA were designed to stop aliens who are fighting orders
of removal from getting two bites at the apple: a petition for
24
review in the court of appeals plus a habeas petition in the dis-
trict court. See Khouzam, 549 F.3d at 245–46. That is why the
texts of § 1252(a)(4) and its sister provisions list 28 U.S.C.
§ 2241 “or any other habeas corpus provision,” as well as man-
damus and other writs that could be abused to get second, third,
or fourth bites at the apple.
But that is also why the text of § 1252(a)(4) speaks not of
barring jurisdiction or claims, but of the “sole and exclusive
means” of bringing claims. That language presumes that a
Convention Against Torture claim, like an attack on a removal
order, can be brought once and once only. It is not about
whether there will be review, but when, where, and how.
Considering this history, the better reading of “any cause or
claim” in § 1252(a)(4) is to require that all Convention Against
Torture claims that can be raised in a petition for review be
brought that way once and for all. Subsection (a)(4) does not
bar now-or-never claims: claims that could not be meaning-
fully redressed by petition for review after a final order of re-
moval.
3. The statutory structure and context confirm that
§ 1252(a)(4) does not bar Convention Against Torture claims
that would otherwise escape review. Our reading of
§ 1252(a)(4) also fits better with our and the Jennings plural-
ity’s reading of § 1252(b)(9). It would be an odd statute that let
aliens bring conditions-of-confinement or temporary-return
claims immediately but singled out Convention Against Tor-
ture claims for harsher treatment. And barring these claims
could violate the United States’s treaty obligations under the
Convention. “Absent explicit statutory language, we have been
25
extremely reluctant to find congressional abrogation of treaty
rights.” Washington v. Wash. State Commercial Passenger
Fishing Vessel Ass’n, 443 U.S. 658, 690 (1979); accord
Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of Transp.,
724 F.3d 230, 234–36 (D.C. Cir. 2013) (collecting cases). So
we read § 1252(a)(4), like § 1252(b)(9), not to bar now-or-
never claims like the one here: that the Government’s policy of
temporarily returning aliens to Mexico violates the Conven-
tion.
In short, § 1252(a)(4) funnels Convention Against Torture
claims into a single petition for review. But it does not ex-
pressly strip jurisdiction over Convention claims that cannot
await a petition for review. Its text, in light of its structure, his-
tory, and context, does not overcome the strong presumptions
favoring judicial review.
B. Section 1252(a)(2)(B)(ii) does not bar review of
appellants’ nonrefoulement claims
The Government also claims that a different provision of
the INA bars review of the nonrefoulement claims. With one
exception not relevant here, that provision bars jurisdiction
over challenges to “decision[s] or action[s] of the Attorney
General or the Secretary of Homeland Security[,] the authority
for which is specified . . . to be in the discretion of the Attorney
General.” 8 U.S.C. § 1252(a)(2)(B)(ii). The Government ar-
gues that the putative statutory support for the Protocols gives
the Attorney General discretion to return aliens to the contigu-
ous foreign country from which they came. See id.§ 1225(b)(2)(C) (providing that the Attorney General “may re-
turn” certain aliens (emphasis added)).
26
The Government assumes that the Protocols are “author-
ized by statute.” Appellees’ Br. 44. It thus assumes that the
Secretary is exercising “lawful statutory authority.” Id. at 45.
But appellants “do not seek review of the Attorney General’s
exercise of discretion.” Zadvydas v. Davis, 533 U.S. 678, 688
(2001). “[R]ather, they challenge the extent of the Attorney
General’s authority under the . . . statute. And the extent of that
authority is not a matter of discretion.” Id. After all, no execu-
tive official has discretion to commit ultra vires acts. In any
event, “[a]ny lingering doubt about the proper interpretation of
8 U.S.C. § 1252(a)(2)(B)(ii) would be dispelled by . . . the pre-
sumption favoring judicial review of administrative action.”
Kucana v. Holder, 558 U.S. 233, 251 (2010). So
§ 1252(a)(2)(B)(ii) does not apply.
C. We need not decide whether there is a private right
of action under the Convention Against Torture
The Government also argues that we should affirm the dis-
missal of the Convention Against Torture nonrefoulement
claim on the merits. It suggests that appellants have not pre-
served the claim, since they initially described it as arising un-
der the Administrative Procedure Act. And it asserts that in any
case, there is no private right of action under international
agreements. But the District Court ruled only that § 1252(a)(4)
barred jurisdiction over any claims under the Convention
Against Torture. This jurisdictional bar is the only question
that we address. We leave the merits of that and other claims
to the District Court. On remand, the District Court should ad-
dress the merits of this claim as well as appellants’ Refugee
Convention claim.
27
V. THE DISTRICT COURT HAD JURISDICTION
OVER THE FLORES CLAIM TOO
Finally, we turn from the INA to a more general issue of
federal subject-matter jurisdiction. Appellants argue that re-
turning M.S.H.S. to Mexico would violate her rights under the
Flores Settlement Agreement. The District Court dismissed
this claim for lack of jurisdiction, holding that federal district
courts other than the Central District of California may not hear
claims under that Agreement. We disagree.
Paragraph 24(B) of the Flores Settlement Agreement pur-
ports to let minors enforce their rights under the agreement “in
any United States District Court with jurisdiction and venue
over the matter.” That is not enough. As the District Court and
Government rightly note, the parties’ consent cannot create
subject-matter jurisdiction where it would not otherwise exist.
Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702 (1982).
But we hold that subject-matter jurisdiction does otherwise
exist because federal common law governs. So we will reverse
the District Court’s dismissal of this claim too.
A. District courts have jurisdiction over cases in which
the United States or a federal agency is a party to a
contract
Under settled law, there is federal-question jurisdiction
over the Flores claim. The Agreement is a contract. The United
States, through the Attorney General, is a party to that contract.
See, e.g., Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55
28
(1978) (“[O]fficial-capacity suits generally represent only an-
other way of pleading an action against an entity of which an
officer is an agent . . . .”). Appellants seek to enforce the United
States’ obligations under that contract. So their claim is gov-
erned by federal common law. And because federal common
law is federal law, disputes governed by it “aris[e] under the . . .
laws . . . of the United States.” 28 U.S.C. § 1331. So there is
subject-matter jurisdiction.
1. The Flores Settlement Agreement works as a contract
here. Consent decrees are hybrids, with attributes of both con-
tracts and injunctions. See United States v. ITT Cont’l Baking
Co., 420 U.S. 223, 236 & n.10 (1975); Holland v. N.J. Dep’t
of Corr., 246 F.3d 267, 277 (3d Cir. 2001). A party can enforce
its rights under a consent decree by asking the supervising
court to hold the violator in contempt. When it does, a consent
decree works as an injunction. But when a party seeks not to
punish but to enforce the other party’s commitments under the
agreement, the consent decree works more like a contract. See
ITT Cont’l, 420 U.S. at 236 (“[C]onsent decrees and orders
have many of the attributes of ordinary contracts.”).
Here, it works like a contract. M.S.H.S. is not asking the
Court to hold the Department of Homeland Security or the At-
torney General in contempt for violating her rights under the
Flores Settlement Agreement. Instead, she seeks only to vindi-
cate what she claims are her contractual rights under that set-
tlement. In other words, she claims that the Government is vi-
olating its contractual duties. As the District Judge overseeing
the Flores Settlement Agreement in the Central District of Cal-
ifornia has repeatedly recognized, the settlement is a “binding
29
contract.” See, e.g., Flores, 407 F. Supp. 3d at 931. So this suit
is like any other suit alleging that the United States has
breached its contractual obligations. As we explain next, these
suits are governed by federal common law.
2. The United States is a party to this contract, so federal
common law governs. This contract is not between private par-
ties. It includes the United States, because the Attorney Gen-
eral, the Department of Justice, and the predecessor to the De-
partment of Homeland Security entered into it. And when the
United States is a party to a contract, federal common law gov-
erns that contract. See Boyle v. United Techs. Corp., 487 U.S.
500, 504 (1988); Clearfield Tr. Co. v. United States, 318 U.S.
363, 366–67 (1943).
True, “[t]here is no federal general common law.” Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938) (emphasis added). But
federal common law does govern those pockets of law “marked
by pressing interests of the United States.” Wallach v. Eaton
Corp., 837 F.3d 356, 365 n.11 (3d Cir. 2016). Those pockets
include cases “concerned with the rights and obligations of the
United States.” Tex. Indus., Inc. v. Radcliff Materials, Inc., 451
U.S. 630, 641 (1981). The terms of a consent decree agreed to
by the United States are such obligations. Thus, disputes about
the meaning of consent decrees to which the United States or a
federal agency is a party are governed by federal common law.
3. The Flores claim, governed by federal common law, sup-
ports federal-question jurisdiction. “[C]laims founded upon
federal common law” arise under the laws of the United States
and support federal-question jurisdiction. Illinois v. City of
Milwaukee, 406 U.S. 91, 100 (1972). This is because rules
30
fashioned by federal courts exercising their common-law-mak-
ing authority “are as fully ‘laws’ of the United States as if they
had been enacted by Congress.” Id. (quoting Romero v. Int’l
Terminal Operating Co., 358 U.S. 354, 393 (1959) (Brennan,
J., dissenting in part and concurring in part)). In other words,
“there is no longer any question that the word ‘laws’ within the
meaning of § 1331[ ] embraces claims founded upon federal
common law.” Ne. Dep’t ILGWU Health & Welfare Fund v.
Teamsters Local Union No. 229 Welfare Fund, 764 F.2d 147,
154 (3d Cir. 1985). Because the United States is a party to the
Flores Settlement Agreement through its officers and agencies,
contractual claims to enforce that settlement arise under federal
common law. Thus, there is federal-question jurisdiction here.
We note that this rule applies only to consent decrees to
which the United States is a party (either directly or through a
federal agency). We have no occasion to consider whether fed-
eral common law governs federal consent decrees between pri-
vate parties. See Evoqua Water Techs., LLC v. M.W. Water-
mark, LLC, 940 F.3d 222, 236–37 (6th Cir. 2019) (Bush, J.,
concurring).
4. The Government’s counterarguments fail. In response,
the Government argues that a breach-of-consent-decree claim
“do[es] not belong in federal court, ‘unless there is some inde-
pendent basis for federal jurisdiction.’ ” Appellees’ Br. 18
(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 382 (1994)). With that much we agree. Even though there
was federal jurisdiction over the original dispute that led to the
Flores Settlement Agreement, that fact alone does not entail
continuing federal jurisdiction to enforce the Agreement. In
31
Kokkonen, for instance, a federal district court had subject-
matter jurisdiction over the original dispute that led to the set-
tlement. See 511 U.S. at 376. Yet it lacked jurisdiction to en-
force that settlement agreement later. See id. at 380. So far, so
good.
But the calculus changes when the United States is a party
to the agreement. When the United States (or its agent) is a
party, the contract claim arises under federal common law. The
Government disagrees, but the cases it cites are distinguisha-
ble. Several involved only private parties. See Kokkonen, 511
U.S. at 376–77; Shaffer v. GTE N., Inc., 284 F.3d 500, 501 (3d
Cir. 2002); Bowen v. Monus (In re Phar-Mor, Inc. Sec. Litig.),
172 F.3d 270, 272–73 (3d Cir. 1999). And the ones in which
the United States was a party involved damages claims against
the United States. In these cases, the problem was that the
Tucker Act’s limited waiver of sovereign immunity bars bring-
ing such claims (whether or not they stem from settlement
agreements) except in the Court of Federal Claims. See Munoz
v. Mabus, 630 F.3d 856, 863–64 & n.5 (9th Cir. 2010); Shaffer
v. Veneman, 325 F.3d 370, 372–73 (D.C. Cir. 2003); see also
28 U.S.C. § 1491(a)(1). And the Eleventh Circuit’s brief, un-
published per curiam opinion relied heavily on the settlement
agreement’s specific reservation of jurisdiction in a different
court. Slaughter v. U.S. Dep’t of Agric., 555 F. App’x 927, 929
(11th Cir. 2014) (per curiam). Even if we found that analysis
persuasive, the Flores Settlement Agreement contains no such
exclusive reservation of jurisdiction when it comes to an indi-
vidual minor’s claims. See Flores Settlement Agreement
¶ 24(B).
32
Nor are we persuaded by the Government’s argument from
the text of paragraph 24(B) of the Flores Settlement Agree-
ment. The Government argues that the word “jurisdiction” in
the Agreement would be superfluous if there were already sub-
ject-matter jurisdiction in the district courts as a whole. But as
the Government itself argues elsewhere, the word “jurisdic-
tion” in the parties’ agreement cannot create subject-matter ju-
risdiction on its own. By the same logic, we cannot see how
jurisdiction can somehow be divested simply to avoid creating
surplusage in the language of this particular contract. When de-
ciding jurisdiction, we look not to the language of the contract
but to the usual principles of Article III and § 1331. Those prin-
ciples support jurisdiction here.
B. Questions about the proper district court go to
venue, not jurisdiction
As a rule, subject-matter jurisdiction does not vary from
district court to district court. Take the general federal-question
jurisdiction statute, 28 U.S.C. § 1331. It vests original jurisdic-
tion over cases arising under the Constitution, federal law, or
treaties in “[t]he district courts.” Id.; see also id. § 1332(a)
(vesting diversity jurisdiction in “[t]he district courts”); id.
§ 1333 (vesting admiralty, maritime, and wartime-prize juris-
diction in the “[t]he district courts”). To be sure, jurisdiction
over certain classes of cases is vested in particular courts. For
instance, jurisdiction over contractual damages claims against
the United States is vested exclusively in the Court of Federal
Claims. See id. § 1491(a)(1); see also, e.g., 35 U.S.C. § 293(vesting exclusive jurisdiction over foreign patentees in the
Eastern District of Virginia). But such cases are the exception,
33
not the rule. In general, the district courts as a whole either all
have or all lack subject-matter jurisdiction.
The District Court thought that rule did not govern this
case. It correctly recognized that each court “has the inherent
power to enforce its own orders,” but generally lacks the power
to enforce orders of other courts. 396 F. Supp. 3d at 485; see,
e.g., Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958, 970 (11th
Cir. 2012). But as we explained, that is not what M.S.H.S. is
trying to do here. Instead, she is trying to vindicate her con-
tractual rights under the Flores Settlement Agreement. And
though the District Court worried about forum shopping, the
Government took that risk when it agreed to the consent de-
cree. The Agreement itself contemplates that its enforcement
will extend to “any United States District Court with jurisdic-
tion and venue over the matter.” Flores Settlement Agreement
¶ 24(B).
To be sure, it may well be the norm that the responsibility
to enforce a consent decree lies solely with the district judge
who entered it. See Local No. 93, Int’l Ass’n of Firefighters v.
City of Cleveland, 478 U.S. 501, 523 n.13 (1986) (describing
consolidated enforcement as one of the advantages of consent
decrees). And cases of in rem jurisdiction may involve other
jurisdictional limitations. See, e.g., Alderwoods, 682 F.3d at
969. But we see no general jurisdictional bar to another district
court’s taking part in enforcing a consent decree when one
party sues to enforce its terms.
Finally, we note that the District Court raised its ground for
dismissing M.S.H.S.’s Flores claim sua sponte and that it de-
34
clined appellants’ offer of supplemental briefing. Our adver-
sarial system relies on giving each side a full and fair oppor-
tunity to air its best arguments and authorities. Rarely should a
court address a complex issue without the benefit of briefing.
* * * * *
Immigration claims ordinarily proceed from an immigra-
tion judge through the Board of Immigration Appeals to the
court of appeals by petition for review of a final removal order.
Review by district courts is not the norm. But neither is this
case. Most of the claims here cannot await a petition for re-
view. By the time appellants are ordered removed to Guate-
mala (if ever), it will be too late to review their claims about
their return to Mexico in the meantime. Only their statutory
right-to-counsel claim will still be redressable. So the INA
does not bar review of the remaining claims. And there is fed-
eral-question jurisdiction over the Flores claim. Because the
United States is a party to the Flores Settlement Agreement,
the contract claim is governed by federal common law and so
arises under federal law. In short, the District Court has juris-
diction over most of the claims. We will thus affirm the dis-
missal of the statutory right-to-counsel claim and otherwise re-
verse and remand for the District Court to address the merits.
35