Singh v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMARJEET SINGH, 
Petitioner-Appellant,
v.
ALBERTO R. GONZALES, Attorney
General; MICHAEL CHERTOFF,
Secretary, Department of No. 05-16005
Homeland Security; NANCY
ALCANTAR, Field Office Director of  D.C. No.
CV-05-02023-CRB
Detentions, Immigration and
Customs Enforcement, Department OPINION
of Homeland Security; CHARLES
DEMORE, District Director,
Immigration and Customs
Enforcement, Department of
Homeland Security,
Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
February 12, 2007—San Francisco, California
Filed August 24, 2007
Before: J. Clifford Wallace, Dorothy W. Nelson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge Wallace
10469
10472 SINGH v. GONZALES
COUNSEL
James Todd Bennett, El Cerrito, California, for the petitioner-
appellant.
Peter D. Keisler, Assistant Attorney General, Civil Division;
David J. Kline, Principal Deputy Director, Office of Immigra-
tion Litigation, Washington, D.C.; and Papu Sandhu, Senior
Litigation Counsel, Office of Immigration Litigation, Wash-
ington, D.C., for the respondents-appellees.
Lee, Gelernt, American Civil Liberties Union, Immigrants’
Rights Project, New York, New York, for amicus curiae
American Civil Liberties Union Foundation.
OPINION
McKEOWN, Circuit Judge:
Amarjeet Singh, a native and citizen of India, brought three
ineffective assistance of counsel (“IAC”) claims through a
SINGH v. GONZALES 10473
habeas petition filed with the district court pursuant to 28
U.S.C. § 2241. Singh’s habeas petition was filed after the
enactment of the REAL ID Act, Pub. L. No. 109-13, § 106,
119 Stat. 231, 310-311 (2005). The district court dismissed
the action for lack of subject matter jurisdiction on the ground
that the REAL ID Act foreclosed Singh’s habeas claims.
The REAL ID Act dramatically changed the means for
judicial review of an order of removal. The Act provides that
a petition for review in the court of appeals is “the sole and
exclusive means for judicial review of an order of removal.”
8 U.S.C. § 1252(a)(5). This case raises an important jurisdic-
tional question about the impact of the REAL ID Act on a
writ of habeas corpus sought by an alien petitioner claiming
ineffective assistance of counsel because of an untimely
appeal to this court. The briefing on this issue has been exten-
sive and the parties have explored the constitutional contours
of the Act’s repeal of the old judicial review rubric in the
Immigration and Nationality Act (“INA”).1
With respect to Singh’s first claim, which relates to his for-
mer attorney’s conduct arising prior to the administrative pro-
ceedings, we affirm the district court’s dismissal because
Singh did not exhaust his administrative remedies. See
Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005) (“We may
affirm the district court on any basis supported by the
record.”).
As for Singh’s second claim, which relates to his former
attorney’s failure to file a timely petition for review with this
court, the district court does have jurisdiction over that claim
and thus we reverse and remand. We do not reach Singh’s
third claim, which piggybacks on the validity of the second
claim. Our decision rests solely on the interpretation of the
1
The American Civil Liberties Union participated as amicus curiae in
oral argument and supplemental briefing, limited to the jurisdictional
questions raised by the REAL ID Act.
10474 SINGH v. GONZALES
REAL ID Act’s jurisdictional provisions. We do not reach the
constitutional claims nor do we offer any judgment on the
merits of Singh’s claims. We hold that a narrow claim of inef-
fective assistance of counsel in connection with a post-
administrative filing of an appeal with the court of appeals
does not require review of an order of removal. Thus, this
claim falls outside the jurisdiction-stripping provisions of the
REAL ID Act.
BACKGROUND
I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS2
The merits of Singh’s IAC claims are not before us. None-
theless, to address the jurisdictional and exhaustion questions,
it is useful to delineate in some detail the nature and timing
of the attorney conduct underlying each of the claims. The
long and twisted path from the Immigration Judge (“IJ”) to
the Board of Immigration Appeals (“BIA”) and back and
forth to this court, and then to the district court, requires some
patience to delineate.
A. LAWYER 1: ASYLUM APPLICATION
Singh entered the United States on February 15, 1996 on a
non-immigrant visa. After overstaying his visa, Singh applied
for political asylum and withholding of removal on April 30,
1996. Singh hired a lawyer (“Lawyer 1”) to file his applica-
tion for asylum and for withholding of removal. Singh’s first
claim is that the “legal representative” of Lawyer 1 made
2
The BIA acknowledges and adjudicates IAC claims in immigration
proceedings. We note that although alien petitioners do not have a Sixth
Amendment right to counsel, precedent in this circuit permits IAC claims
as a due process challenge under the Fifth Amendment. See Ortiz v. INS,
179 F.3d 1148, 1153 (9th Cir. 1999). This claim is not coextensive with
a Sixth Amendment challenge and, as our cases reflect, the contours of the
claim depend on the factual circumstances. But see Magala v. Gonzales,
434 F.3d 523, 526 (7th Cir. 2005).
SINGH v. GONZALES 10475
material changes to Singh’s asylum application without his
consent in order to present a stronger claim for relief.
B. LAWYER 2: REMOVAL PROCEEDING, MOTION TO
REOPEN, AND FIRST PETITION FOR REVIEW
Singh retained a different lawyer (“Lawyer 2”) to represent
him at the removal proceeding. The IJ denied Singh asylum
and withholding of removal, but granted voluntary departure.
Singh, through Lawyer 2, filed a timely appeal of the IJ’s
decision with the BIA, which affirmed the IJ’s decision and
issued a final order of removal on October 3, 2001.
On December 13, 2001, after missing the 30-day deadline
for filing a petition for review with this court,3 Lawyer 2 filed
a timely motion to reopen with the BIA,4 stating that neither
he nor Singh had received the BIA’s decision. Singh’s motion
to reopen requested that the BIA reissue its decision with a
later date so that Singh could file a timely petition for review.
On the same day, Lawyer 2 also filed a late petition for
review with this court. We denied Singh’s petition for review
on the basis that the court lacked jurisdiction due to the
untimeliness of the petition. Singh v. INS, No. 01-71878 (9th
Cir., Feb. 15, 2002). Singh’s second claim is that Lawyer 2
was incompetent in failing to file a timely petition for review
with this court.
3
8 U.S.C. § 1252(b)(1) (“The petition for review must be filed not later
than 30 days after the date of the final order of removal.”).
4
8 C.F.R. § 1003.2(c)(2) (“[A] party may file only one motion to reopen
deportation or exclusion proceedings (whether before the Board or the
Immigration Judge) and that motion must be filed no later than 90 days
after the date on which the final administrative decision was rendered in
the proceeding sought to be reopened . . . .”).
10476 SINGH v. GONZALES
C. LAWYER 3: SECOND AND THIRD PETITIONS FOR REVIEW
AND UNTIMELY MOTION TO REOPEN/RECONSIDER WITH
THE BIA
On April 22, 2002, the BIA concluded that there was no
evidence of mailing error and denied the motion to reopen
filed by Lawyer 2. Singh’s new lawyer (“Lawyer 3”) appealed
the BIA’s denial of the motion to reopen in a second petition
for review. In this petition, Lawyer 3 argued that Lawyer 2
provided Singh ineffective assistance by failing to file a
timely petition for review of the final order of removal. We
denied the petition for review, holding that the BIA did not
abuse its discretion in denying the motion to reopen because
it mailed notice to the last address provided by counsel. Singh
v. INS, No. 02-71360 (9th Cir., Sept. 15, 2003). We declined
to reach the ineffective assistance claim as to Lawyer 2
because that claim had not been presented first to the BIA. Id.On June 11, 2002, Lawyer 3 filed an untimely5 motion to
reopen/reconsider with the BIA. See 8 C.F.R. § 1003.2. In this
motion, Lawyer 3 argued that the first motion to reopen filed
by Lawyer 2 on December 13, 2001, should not count as a
motion to reopen because no new facts had been presented as
required by 8 C.F.R. § 1003.2(c)(1). In addition, the motion
alleged, once again, that Lawyer 2 had provided ineffective
assistance. The BIA denied this motion on the grounds that
the motion was untimely, and that Singh had not satisfied the
procedural requirements set forth in Matter of Lozada.6 Law-
5
A motion to reconsider must be filed with the BIA “within 30 days
after the mailing of the Board decision.” 8 C.F.R. § 1003.2(b)(2).
6
Under Matter of Lozada, an alien alleging ineffective assistance of
counsel generally must: (1) submit an affidavit demonstrating and explain-
ing his agreement with prior counsel regarding legal representation, (2)
submit evidence that he has informed prior counsel of the allegations of
ineffective assistance and provided the attorney with an opportunity to
respond, and (3) file a complaint against the attorney with proper disci-
plinary authorities or explain why such a complaint has not been filed. 19
I. & N. Dec. 637, 639 (BIA 1988).
SINGH v. GONZALES 10477
yer 3 then filed a third petition for review, appealing the
BIA’s denial of the motion to reopen/reconsider. We denied
this petition, holding that the questions raised by the petition
“are so insubstantial as not to require further argument.”
Singh v. Gonzales, No. 03-71681 (9th Cir. Feb. 7, 2005).
Singh’s third claim is that Lawyer 3 failed to effectively pur-
sue an IAC claim against Lawyer 2.
II. SINGH’S HABEAS PETITION
On May 18, 2005, Singh’s fourth and current attorney filed
a habeas petition in the United States District Court for the
Northern District of California, alleging unlawful detention in
violation of his Fifth Amendment right to due process. The
district court dismissed the action for lack of jurisdiction
under the REAL ID Act. On appeal, Singh argues that the
REAL ID Act did not deprive the district court of jurisdiction
over his IAC claims. In the alternative, Singh argues that if
the REAL ID Act eliminated habeas review over his claims,
the Act violates the Suspension Clause and the equal protec-
tion and due process guarantees of the Fifth Amendment.
ANALYSIS
I. SINGH’S CLAIM AGAINST LAWYER 1
[1] Singh’s first IAC claim, which arose prior to his hearing
before the IJ, is barred by his failure to exhaust administrative
remedies, and we need not decide whether the REAL ID Act
precludes habeas review of this claim. See 8 U.S.C.
§ 1252(d)(1).
At the time Singh retained Lawyer 2 to represent him at the
removal hearing, the facts surrounding the allegedly ineffec-
tive representation by Lawyer 1 were known to Singh. Thus,
Singh should have raised this issue before the IJ or the BIA
on direct review. His failure to do so constitutes a failure to
exhaust administrative remedies and he may not raise this
10478 SINGH v. GONZALES
claim for the first time before a federal court. See Sun v. Ash-
croft, 370 F.3d 932, 944 & n.18 (9th Cir. 2004) (holding that
§ 1252(d)(1) applies to alien habeas petitioners).
Singh’s only response to this well-settled rule of exhaustion
is that he cannot now satisfy the administrative exhaustion
requirement because the only remedy that is now available to
him with respect to his claim against Lawyer 1 is a motion to
reopen, and such a motion is now time-barred and
numerically-barred. This argument misses the mark, as Singh
could have presented his first claim of IAC before the IJ and
the BIA on direct appeal. Cf. Edwards v. Carpenter, 529 U.S.
446, 453 (2000) (“The purposes of the exhaustion require-
ment . . . would be utterly defeated if the prisoner were able
to obtain federal habeas review simply by ‘letting the time
run’ so that state remedies were no longer available.” (citation
omitted)). We have held that time and numerical limitations
on motions to reopen may be subject to equitable tolling. See,
e.g., Ray v. Gonzales, 439 F.3d 582, 590 (9th Cir. 2006); Itur-
ribarria v. INS, 321 F.3d 889, 897-99 (9th Cir. 2003). But
where, as here, an alien petitioner fails to pursue an adminis-
trative remedy without excuse,7 he may not “bypass the
administrative scheme that is in place to deal with [such]
claims” by presenting the claim for the first time in a habeas
petition. See Gama Puga v. Chertoff, 488 F.3d 812, 815 (9th
Cir. 2007).
II. SINGH’S CLAIM AGAINST LAWYER 2
A. RES JUDICATA
[2] Singh’s claim of Lawyer 2’s alleged default faces a dif-
7
Because Singh was represented by Lawyers 2 and 3, both of whom he
now alleges were ineffective in representing him, one might query
whether the habeas petition was his first opportunity to raise this claim.
However, Singh has never alleged that Lawyers 2 and 3 were ineffective
in failing to pursue an IAC claim against Lawyer 1.
SINGH v. GONZALES 10479
ferent initial hurdle than his first IAC claim. The government
contends that Singh’s claim against Lawyer 2 is barred by res
judicata because he already raised this claim in his second
petition for review filed on May 22, 2002, as well as in his
motion to reopen/reconsider filed with the BIA on June 11,
2002. The government never asserted res judicata as a defense
in the district court. We therefore deem this defense to be
waived. See Fed. R. Civ. P. 8(c); Rotec Industries, Inc. v. Mit-
subishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003) (“Since
the defense is not one of jurisdiction, [res judicata] generally
cannot be raised for the first time on appeal.”).
[3] Even if the government had not waived the right to
assert the defense of res judicata, this argument fails on the
merits. The government’s position ignores the fact that on
each occasion in which Singh attempted to raise his claim
against Lawyer 2, he was represented by Lawyer 3—the very
same counsel whom he now claims was also ineffective.
There has never been a final judgment on the merits with
respect to Singh’s IAC claim against Lawyer 2. See Valencia-
Alvarez v. Gonzales, 469 F.3d 1319, 1323-24 (9th Cir. 2006)
(“The criteria for the application of res judicata . . . are that
there be a final judgment, rendered on the merits in a separate
action.” (emphasis in original)). In our 2003 decision, we
expressly declined to address the IAC claim because it had
not been procedurally exhausted. Our 2005 decision affirmed
the BIA’s refusal to adjudicate the IAC claim, once again,
because of Lawyer 3’s failure to satisfy the procedural
requirements of Lozada.
Under these circumstances, the application of res judicata
is not appropriate.8 Cf. Gutierrez-Morales v. Homan, 461 F.3d
8In Nunes v. Ashcroft, we held that a merits dismissal of an issue on
direct review precluded the alien from raising the same issue in a habeas
proceeding. 375 F.3d 805, 809-10 (9th Cir. 2003). Nunes presented a very
different scenario than that of Singh because in that case, the issue before
the district court on habeas review had already been decided on the merits
by this court. See id. at 810 (“[W]e hold that Nunes may not relitigate in
district court our decision that he is an aggravated felon.”).
10480 SINGH v. GONZALES
605, 608 (5th Cir. 2006) (“Although this is [petitioner’s] third
trip through the [Fifth Circuit], we find that he could not have
presented his ineffective assistance of counsel claim until
now.”).
B. HABEAS JURISDICTION UNDER THE REAL ID ACT
[4] We next consider a question of first impression—
whether the REAL ID Act precludes habeas review of IAC
claims that arise from an attorney’s failure to file a timely
petition for review of the BIA’s decision. When Congress
enacted the jurisdiction-stripping provisions of the REAL ID
Act in 2005, it was not writing on an empty slate. Rather,
Congress was reacting to what it perceived as a troubling
development in immigration case law. In analyzing the juris-
dictional effect of the REAL ID Act on Singh’s second claim,
it is helpful to consider the legal landscape in which Congress
was legislating. Thus we preface our analysis with a brief dis-
cussion of the relevant statutory background. See generally
Henderson v. INS, 157 F.3d 106, 112-17 (2d Cir. 1998) (pro-
viding historical overview of changes to judicial review in the
INA prior to the enactment of the REAL ID Act).
1. Statutory Background
Between 1961 and 1996, the INA provided that courts of
appeals “shall be the sole and exclusive” forum for judicial
review of orders of deportation. H.R. Rep. No. 109-72, at 172
(2005), as reprinted in 2005 U.S.C.C.A.N. 240, 297. Con-
gressional intent was to abbreviate the process of judicial
review by eliminating “the previous initial step in obtaining
judicial review—a suit in a District Court.” Foti v. INS, 375
U.S. 217, 225 (1963). Habeas review remained available to a
limited class of aliens, including those being held in detention
and those subject to orders of exclusion.9 See H.R. Rep. No.
9
“Prior to the 1996 amendments, the law distinguished between deporta-
tion and exclusion proceedings. Aliens who were physically present in the
SINGH v. GONZALES 10481
87-1086 (1961), as reprinted in 1961 U.S.C.C.A.N. 2950,
2966. This system was designed to ensure that “no alien who
has once had his day in court, with full rights of appeal to the
higher courts, should be permitted to block his removal and
cause unnecessary expense to the Government by further judi-
cial appeals, the only purpose of which is delay.” Id. at 2968.
In 1996, Congress sought to further streamline immigration
proceedings by enacting the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214 (1996), and the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.
L. No. 104-208, 110 Stat. 3546 (1996). Through these two
Acts, Congress repealed the provision allowing habeas review
for certain aliens. In addition, Congress eliminated all forms
of judicial review of deportation orders against certain classes
of criminal aliens. H.R. Rep. No. 109-72, at 172 (discussing
history of AEDPA and IIRIRA regarding habeas review).
[5] The IIRIRA also added § 1252(b)(9) to Title 8, a con-
solidation provision known as the “zipper” clause. Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471,
482 (1999). This section is a “ ‘zipper clause’ in the sense that
it consolidates or ‘zips’ ‘judicial review’ of immigration pro-
ceedings into one action in the court of appeals.” Mahadeo v.
Reno, 226 F.3d 3, 12 (1st Cir. 2000) (discussing INA
§ 242(b)(9), codified at 8 U.S.C. § 1252(b)(9)); see also
Flores-Miramontes v. INS, 212 F.3d 1133, 1140-41 (9th Cir.
2000) (explaining the legislative history of § 1252(b)(9)).
Through this section, “Congress made clear that review of a
final removal order is the only mechanism for reviewing any
United States were placed into deportation proceedings. Exclusion pro-
ceedings dealt with aliens who were literally at the border seeking entry
as well as those who had been physically paroled into the country but who,
through a legal fiction, remained for immigration purposes at the border.
The [Illegal Immigration Reform and Immigrant Responsibility Act of
1996] combined the two proceedings into a new process known as a
‘removal proceeding.’ ” Henderson, 157 F.3d at 111 n.5 (citations omit-
ted).
10482 SINGH v. GONZALES
issue raised in a removal proceeding.” H.R. Rep. No. 109-72,
at 173.
Despite these efforts by Congress to streamline and to place
statutory limitations on judicial review, the Supreme Court
expanded judicial review for criminal aliens just five years
later. In INS v. St. Cyr, the Court held that criminal aliens
could challenge their removal orders in a habeas proceeding
given “the absence of . . . a forum” to review their claims if
habeas were deemed to be unavailable, “coupled with the lack
of a clear, unambiguous, and express statement of congressio-
nal intent to preclude judicial consideration on habeas.” 533
U.S. 289, 314 (2001) (emphasis added). The Court held that
there would be a “serious Suspension Clause issue”10 if the
1996 reforms were read to withdraw all forms of review over
claims of criminal aliens. Id. at 305. The ultimate effect of the
decision in St. Cyr was to allow criminal aliens more judicial
review than they had before the 1996 reforms, and more
review than accorded to non-criminal aliens. H.R. Rep. No.
109-72, at 173.
[6] Congress enacted § 106 of the REAL ID Act to “ad-
dress the anomalies created by St. Cyr and its progeny” by
restoring judicial review “to its former settled forum prior to
1996.” Id. at 174. To achieve these goals, the REAL ID Act
expressly eliminated habeas review over all final orders of
removal, but restored to the appellate courts jurisdiction over
“constitutional claims or questions of law” in all cases—
criminal and non-criminal. 8 U.S.C. § 1252(a)(2)(D). As
described by the Third Circuit, “[t]hese modifications effec-
tively limit all aliens to one bite of the apple with regard to
challenging an order of removal.” Bonhometre v. Gonzales,
414 F.3d 442, 446 (3d Cir. 2005) (emphasis added).
10
Article I, § 9, cl. 2, of the U.S. Constitution provides: “The 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.”
SINGH v. GONZALES 10483
2. Title 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9)
The starting point for any statutory interpretation is the lan-
guage of the statute itself. Landreth Timber Co. v. Landreth,
471 U.S. 681, 685 (1985); United States v. Hoffman, 794 F.2d
1429, 1431 (9th Cir. 1986). Although statutory titles are not
part of the legislation, they may be instructive in putting the
statute in context. See Almendarez-Torres v. United States,
523 U.S. 224, 234 (1998) (“[T]he title of a statute and the
heading of a section are tools available for the resolution of
a doubt about the meaning of a statute.” (quotation marks and
citation omitted)). The title of § 1252 is “Judicial review of
orders of removal.” Indeed, the entire section is focused on
orders of removal.
[7] Sections 1252(a)(5) and 1252(b)(9) are particularly sig-
nificant to our analysis. Section 1252(a)(5) (titled “Exclusive
means of review”), a new provision added to the INA by
§ 106(a)(1)(A)(iii) of the REAL ID Act, states:
Notwithstanding any other provision of law (statu-
tory or nonstatutory), including section 2241 of Title
28, or any other habeas corpus provision, and sec-
tions 1361 and 1651 of such title, 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, except as provided in subsection (e) of this
section.
8 U.S.C. § 1252(a)(5) (emphasis added).
Section 1252(b)(9) (titled “Consolidation of questions for
judicial review”), as we have noted earlier, was originally
enacted by IIRIRA in 1996 to serve as a “zipper clause.” As
originally enacted, § 1252(b)(9) stated:
10484 SINGH v. GONZALES
Judicial review of all questions of law and fact,
including interpretation and application of constitu-
tional and statutory provisions, arising from any
action taken or proceeding brought to remove an
alien from the United States under this subchapter
shall be available only in judicial review of a final
order under this section.
8 U.S.C. § 1252(b)(9) (1997).
[8] The only change that the REAL ID Act imposed on
§ 1252(b)(9) was to add the following language explicitly
prohibiting habeas review:
Except as otherwise provided in this section, no
court shall have jurisdiction, by habeas corpus under
section 2241 of Title 28, or any other habeas corpus
provision, by section 1361 or 1651 of such title, or
by any other provision of law (statutory or nonstatu-
tory), to review such an order or such questions of
law or fact.
8 U.S.C. § 1252(b)(9) (2007).
[9] By virtue of their explicit language, both §§ 1252(a)(5)
and 1252(b)(9) apply only to those claims seeking judicial
review of orders of removal. Section 1252(a)(5) is promi-
nently directed to “judicial review of an order of removal.”
Section 1252(b)(9) explicitly covers “any action taken or pro-
ceeding brought to remove an alien.” To the extent that this
language could be viewed as broader than § 1252(a)(5), as
argued by the government, we are guided by the Supreme
Court. In St. Cyr, the Court confirmed that § 1252(b)(9) “ap-
plies only ‘with respect to review of an order of removal
under [8 U.S.C. § 1252(a)(1)].’ ” 533 U.S. at 313 (emphasis
added) (citing 8 U.S.C. § 1252(b)).11 The Court further
11
Congress’ purpose in enacting § 1252(b)(9) in 1996 was simply “to
consolidate judicial review of immigration proceedings into one action in
SINGH v. GONZALES 10485
emphasized, “[s]ubsection (b)(9) simply provides for the con-
solidation of issues to be brought in petitions for ‘[j]udicial
review’ . . . .” Id. The language added by the REAL ID Act
does nothing to change or undermine that analysis.
The legislative history of the REAL ID Act is consistent
with this conclusion. According to the House Conference
Report on the REAL ID Act, “[u]nlike AEDPA and 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, satisfying constitutional con-
cerns [expressed in St. Cyr].” H.R. Rep. No. 109-72, at 175.
The House Report concluded, “[m]oreover, section 106 would
not preclude habeas review over challenges to detention that
are independent of challenges to removal orders. Instead, the
bill would eliminate habeas review only over challenges to
removal orders.” Id. (emphasis added).
Post-REAL ID Act cases considering the applicability of
§ 1252 have also distinguished between challenges to orders
of removal and challenges that arise independently. See e.g.,
Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006) (hold-
ing that “the REAL ID Act’s jurisdiction-stripping provisions
. . . does [sic] not apply [if the] claim is not a direct challenge
to an order of removal” (emphasis added)); Kumarasamy v.
Att’y Gen., 453 F.3d 169, 172 (3d Cir. 2006) (holding that an
the court of appeals.” St. Cyr, 533 U.S. at 313 (internal quotation marks
omitted); see also Calcano-Martinez v. INS, 232 F.3d 328, 340 (2d Cir.
2000) (“Congress enacted [§ 1252(b)(9)] for the important purpose of con-
solidating all claims that may be brought in removal proceedings into one
final petition for review of a final order in the court of appeals.”). That the
REAL ID Act now precludes habeas review of “questions of law or fact”
arising from “action taken or proceeding brought to remove an alien” sim-
ply means that if the alien fails to consolidate his claims as required under
§ 1252(b)(9), he may not later bring a separate habeas claim to raise
“questions of law or fact” that should have been brought as part of a chal-
lenge to his final order of removal.
10486 SINGH v. GONZALES
alien who is challenging the legality of removal because he
allegedly never received notice of his removal order is “not
seeking review of an order of removal”); Madu v. U.S. Att’y
Gen., 470 F.3d 1362, 1366 (11th Cir. 2006) (holding that a
“petitioner who contests the very existence of an order of
removal does not seek ‘review of an order of removal’ within
the meaning of the REAL ID Act”); Ali v. Ashcroft, 421 F.3d
795, 797 n.1 (9th Cir. 2005) (order denying reh’g) (noting that
jurisdiction-stripping provisions of the REAL ID Act do not
apply to a claim that petitioners may not be removed to a
country that does not have a functioning government, “be-
cause petitioners do not challenge or seek review of any
removal order”).
[10] Therefore, the question before us is whether Singh’s
second IAC claim is a claim that seeks review of a final order
of removal within the meaning of § 1252. An “order of
removal” means “the order of the special inquiry officer, or
other such administrative officer to whom the Attorney Gen-
eral has delegated the responsibility for determining whether
an alien is deportable, concluding that the alien is deportable
or ordering deportation.” See 8 U.S.C. § 1101(a)(47)(A);
Molina-Camacho v. Ashcroft, 393 F.3d 937, 940 (9th Cir.
2004) (noting that 8 U.S.C. § 1101(a)(47)(A), which defines
“order of deportation,” now applies to orders of removal as
well), overruled on other grounds by Lolong v. Gonzales, 484
F.3d 1173 (9th Cir. 2007); Noriega-Lopez v. Ashcroft, 335
F.3d 874, 882-83 (9th Cir. 2003). An order of removal
becomes final upon the earlier of “(i) a determination by the
Board of Immigration Appeals affirming such order; or (ii)
the expiration of the period in which the alien is permitted to
seek review of such order by the Board of Immigration
Appeals.” 8 U.S.C. § 1101(a)(47)(B).
[11] At the time Lawyer 2 filed the late petition for review
before this court, the removal order against Singh had become
final. The alleged ineffective assistance of Lawyer 2 occurred
after the issuance of the final order of removal, and the
SINGH v. GONZALES 10487
claimed injury that Singh suffered as a result was the depriva-
tion of an opportunity for direct review of the order of
removal in the court of appeals. Thus, even assuming the dis-
trict court permits Singh’s habeas petition to proceed and
determines that Lawyer 2 provided ineffective assistance in
failing to file a timely appeal, Singh’s only remedy would be
the restarting of the thirty-day period for the filing of a peti-
tion for review with this court. See Dearinger ex rel. Volkova
v. Reno, 232 F.3d 1042, 1044 (9th Cir. 2000) (“The district
court granted the petition and ordered the government to reen-
ter the BIA’s order denying the appeal and restart the thirty-
day period for filing the petition for review in the court of
appeals.”). In other words, a successful habeas petition in this
case will lead to nothing more than “a day in court” for Singh,
which is consistent with Congressional intent underlying the
REAL ID Act. For these reasons, Singh’s second IAC claim
cannot be construed as seeking judicial review of his final
order of removal, notwithstanding his ultimate goal or desire
to overturn that final order of removal.
The government contends that the BIA has authority to
remedy the type of IAC claim that Singh has alleged against
Lawyer 2 through reissuance of the BIA’s original decision,
thereby allowing the clock to begin ticking anew for the filing
of a timely petition for review. That Singh may have an alter-
native avenue for relief does not change our statutory analy-
sis. Our decision is limited to the question of jurisdiction in
the district court. On remand, we cannot predict what proce-
dural or substantive hurdles Singh might face, such as his fail-
ure to comply with the procedural requirements of Lozada.12
12
Dearinger held only that where, as here, an alien is prevented from fil-
ing an appeal in an immigration proceeding due to counsel’s error, the
alien may seek habeas review in a district court without filing a motion to
reopen. 232 F.3d at 1045 n.4. Dearinger did not address the issue of
Lozada. Although the requirements of Lozada are not “rigidly applied,
especially when the record shows a clear and obvious case of ineffective
assistance,” an alien generally must satisfy the procedural requirements of
Lozada. Ray v. Gonzales, 439 F.3d 582, 587-88 (9th Cir. 2006) (citing
Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002)).
10488 SINGH v. GONZALES
We offer no judgment as to whether the district court will pro-
ceed with the claim on the merits or what additional adminis-
trative remedies may remain for Singh.
We do not take lightly Congress’s general concern over the
proliferation of habeas petitions in the immigration area.
However, we can interpret that concern only in the context of
specific statutory language. The maze of immigration statutes
and amendments is notoriously complicated and has been
described as “second only to the Internal Revenue Code in
complexity.” Castro-O’Ryan v. U.S. Dep’t of Immigration
and Naturalization, 847 F.2d 1307, 1312 (9th Cir. 1988)
(quotation marks and citation omitted). The recent amend-
ments under the REAL ID Act do not make our task any eas-
ier. Nonetheless, we assume that Congress is familiar with the
intricacies of the overlapping laws and that it meant what it
said when it directed the limitations on habeas relief to chal-
lenges to orders of removal. Our decision today is limited to
a narrow class of cases that do not fall within the habeas
restrictions of the REAL ID Act.
CONCLUSION
[12] Sections 1252(a)(5) and 1252(b)(9) of Title 8 do not
preclude habeas review over Singh’s second IAC claim. In
light of this conclusion, we decline to address the parties’ dis-
pute as to whether the REAL ID Act violates the Suspension
Clause, and the due process and equal protection guarantees
of the Fifth Amendment. See Jean v. Nelson, 472 U.S. 846,
854 (1985) (“Prior to reaching any constitutional questions,
federal courts must consider nonconstitutional grounds for
decision.” (quotation marks and citations omitted)).
AFFIRMED in part, REVERSED and REMANDED in
part. Each party shall bear its own costs on appeal.
SINGH v. GONZALES 10489
WALLACE, Senior Circuit Judge, concurring in part in the
judgment:
I agree with the majority that Singh’s claim against Lawyer
1 is barred because he did not exhaust administrative reme-
dies, but I would remand the res judicata issue to the district
court. Under the compulsion of precedent, I am required to
agree with the majority’s jurisdictional determination with
respect to Singh’s claim against Lawyer 2.
I write separately because I doubt there is a constitutional
ineffective assistance doctrine that applies in immigration
proceedings and recommend that our court reconsider the
issue en banc. If there were no such constitutional right in this
case, Singh could not show that “[h]e is in custody in viola-
tion of the Constitution . . . of the United States,” 28 U.S.C.
§ 2241(c)(3), and the district court’s dismissal of the claim
against Lawyer 2 would not be error.
Because “deportation and removal proceedings are civil,
they are not subject to the full panoply of procedural safe-
guards accompanying criminal trials, including the right to
counsel under the Sixth Amendment.” Lara-Torres v. Ash-
croft, 383 F.3d 968, 973 (9th Cir. 2004) (quotations and cita-
tion omitted); see also 8 U.S.C. § 1362 (giving persons in
removal proceedings “the privilege of being represented (at
no expense to the Government) by . . . counsel[ ] authorized
to practice in such proceedings”). Where “[t]here is no consti-
tutional right to an attorney . . . . , a petitioner cannot claim
constitutionally ineffective assistance of counsel.” Coleman v.
Thompson, 501 U.S. 722, 752 (1991). Singh bears the risk of
Lawyer 2’s error resulting in a procedural default. See id. at
752-53.
This makes sense because the effective assistance of coun-
sel is not necessary to render immigration proceedings “full
and fair,” Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th
Cir. 1999) (quotations and citation omitted), which is all that
10490 SINGH v. GONZALES
is required by the Fifth Amendment’s due process guarantee.
For Singh, “[t]he civil remedy is damages for malpractice, not
a re-run of the original litigation.” Magala v. Gonzales, 434
F.3d 523, 526 (7th Cir. 2005); see also Mai v. Gonzales, 473
F.3d 162, 165 (5th Cir. 2006) (“We may assume, without hav-
ing to decide because the issue is not raised, that the Board’s
decision to allow aliens to claim ineffective assistance of
counsel as a basis for reopening deportation proceedings is
within the scope of the Board’s discretionary authority even
though it is probably not compelled by statute or the Constitu-
tion.” (quotations and citation omitted)).
Our court has mistakenly incorporated a criminal case con-
stitutional right into civil cases. This has unnecessarily com-
plicated an already overburdened immigration enforcement
process. I suggest our court reconsider this questionable rule.