Higgs v. Attorney General of United States, 655 F.3d 333

Higgs, born 1981 in the Bahamas, was lawfully admitted as a permanent resident in 1999 and was charged with marijuana offenses in Pennsylvania in 2005.
The Government sought removal under INA §§ 237(a)(2)(B)(i) and (A)(iii); the IJ initially found no removability under (B)(i) due to arguing less than 30 grams, and terminated proceedings in 2008.
After reconsideration, the IJ determined Higgs possessed over 30 grams, making him removable under INA § 237(a)(2)(B)(i); a later interlocutory ruling sought further proof via a property receipt.
In March 2009 the IJ issued an interlocutory ruling; in March–May 2009 a fourth ruling and, finally, a May 21, 2009 Final Order of Removal was issued, but the May order contained no reasoning.
Higgs filed a pro se Notice of Appeal May 26, 2009, attempting to appeal the March 19, 2009 interlocutory ruling; the BIA dismissed as moot, treating it as an interlocutory appeal.
Higgs sought review in the Third Circuit; the court held the Board’s July 2, 2009 dismissal was reviewable and remanded for consideration of two remaining claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board’s dismissal was proper	Higgs's notice should be liberally construed to review the final order of removal.	BIA properly dismissed as moot an interlocutory appeal and need not review the final order.	Board erred by not liberally construing the notice.
Whether the petition for review has jurisdiction under 8 U.S.C. §1252(a)(1)	Final order of removal exists and appeal lies to the Third Circuit.	No final order adjudication and improper notice deprive jurisdiction.	Jurisdiction exists; final order was effectively reviewed.
Whether Higgs exhausted administrative remedies	Notice of appeal reasonably apprised Board of the merits; liberal construction sufficed.	Remedies were not properly exhausted due to interlocutory focus.	Exhaustion adequately satisfied; Board erred in reading the notice.
Whether the notice of appeal sought review of the final removal order	Context and timing show Higgs sought review of May 21 final order, not the March 19 ruling.	Notice identified the March 19 ruling as the subject of appeal.	Notice was to be liberally construed and should have been treated as challenging the final order.
Remand for consideration of merits related to 30-gram finding and citizenship	IJ erred on clear and convincing evidence burden and citizenship status.	Lower court findings stood; merits resolution not required on remand.	Remanded to BIA to consider remaining claims.

Estelle v. Gamble, 429 F.2d 97 (U.S. 1976) (liberal construction of pro se pleadings; fundamental rights)
Haines v. Kerner, 404 U.S. 519 (U.S. 1972) (liberal construction of filings by pro se litigants)
Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180 (3d Cir. 2009) (pro se pleading liberality in pleading)
United States v. Miller, 197 F.3d 644 (3d Cir. 1999) (special obligation to interpret pro se submissions)
Zilich v. Lucht, 981 F.2d 694 (3d Cir. 1992) (courts should liberally construe pro se pleadings)
Mills v. Gov't of Virgin Islands, 634 F.3d 746 (3d Cir. 2011) (liberal interpretation of notices in administrative appeals)
Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993) (pro se litigants receive leeway in pleading and procedure)
Khouzam v. Att'y Gen., 549 F.3d 235 (3d Cir. 2008) (finality of removal and appealability considerations)
Yusupov v. Attorney General, 518 F.3d 185 (3d Cir. 2008) (final order of removal when removability is determined)
Shehu v. Att'y Gen., 482 F.3d 652 (3d Cir. 2007) (finality and reviewability in removal proceedings)
United Fed. of Carpenters v. Holowecki, 552 U.S. 389 (U.S. 2008) (administrative relief procedures and accessibility)
Alaka v. Att'y Gen., 456 F.3d 88 (3d Cir. 2006) (legal standards for question of law review)
Lombardi, Inc. v. Smithfield, 11 A.3d 1180 (Del. 1989) (irreparable harm factor in preliminary injunctions)