Gicharu v. Carr, 983 F.3d 13

Background

Gicharu entered the U.S. in 2003 and applied for asylum, withholding, and CAT relief; an IJ denied relief and ordered removal in May 2011.
He appealed to the BIA; both he and his counsel failed to update their addresses of record as required by 8 C.F.R. §1003.38(e).
In March 2013 the BIA affirmed and a final removal order was mailed to addresses of record; the mailings were returned undeliverable and Gicharu alleges he did not receive actual notice until late April/May 2013.
He filed a motion to reopen in 2015 asserting ineffective assistance of counsel and defective service; the BIA denied the motion and the First Circuit affirmed denial on petition for review in Feb. 2018.
Gicharu then sued in district court under the APA and sought habeas relief to compel the BIA to rescind/reissue the March 2013 order; the district court assumed jurisdiction but dismissed on the merits. On appeal the First Circuit held the district court lacked subject-matter jurisdiction and affirmed the dismissal of the complaint (vacating the merits ruling).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court has jurisdiction over APA/habeas claims seeking reissuance of a removal order	Gicharu: APA and habeas permit district-court relief to compel reissuance	Gov't: INA §1252(a)(5)/§1252(b)(9) channels review to courts of appeals and strips district courts	Held: Jurisdiction lacking under §1252(b)(9); claims must proceed (if at all) via petition for review
Whether claims of defective service and ineffective assistance are "independent" or "arise from" removal proceedings	Gicharu: Service/counsel claims are collateral and thus outside §1252(b)(9)	Gov't: Service rules and right-to-counsel are integral to removal process; such claims could be raised before BIA	Held: Claims "arise from" removal proceedings and are channelled to the courts of appeals
Whether precedent (e.g., Singh) allowing district-court reissuance claims controls	Gicharu: Singh and some circuits treat reissuance/existence-of-order claims as outside §1252(b)(9)	Gov't: Singh is distinguishable and incorrect here because relief requires merits review of the removal order	Held: Court declines to follow Singh; ineffective-assistance claim requires review of merits and falls within §1252(b)(9)
Constitutional challenges (Due Process / Suspension Clause) to channeling	Gicharu: Channeling forecloses meaningful review and violates Due Process and Suspension Clause	Gov't: Administrative reopening and appellate review suffice; habeas suspension not implicated because relief sought is not release from custody	Held: Rejected — due process satisfied by administrative + appellate review; Suspension Clause not implicated

Key Cases Cited

Aguilar v. U.S. Immigr. & Customs Enf't, 510 F.3d 1 (1st Cir. 2007) (interpreting §1252(b)(9) and distinguishing collateral claims)
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (plurality opinion addressing scope of "arising from")
Tobeth-Tangang v. Gonzales, 440 F.3d 537 (1st Cir. 2006) (BIA's mailing obligation and service rules start filing clocks)
Lozada v. INS, 857 F.2d 10 (1st Cir. 1988) (standards for ineffective-assistance-of-counsel claims before the BIA)
Mata v. Lynch, 576 U.S. 143 (2015) (treating review of BIA denials to reopen as reviewable under §1252)
Franco-Ardon v. Barr, 922 F.3d 23 (1st Cir. 2019) (prejudice requirement in ineffective-assistance claims tied to ability to overturn removal)
Pineda v. Whitaker, 908 F.3d 836 (1st Cir. 2018) (discussing equitable tolling for untimely motions to reopen as an open question)
Zeru v. Gonzales, 503 F.3d 59 (1st Cir. 2007) (ineffective-assistance claims require a reasonable probability of prejudice)
Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) (contrary view that some reissuance/existence claims fall outside §1252(b)(9))
Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020) (clarifying Suspension Clause context and habeas remedies)