Lead Opinion
OPINION OF THE COURT
Dаoud Chehazeh appeals the May 24, 2010 order of the United States District Court for the District of New Jersey dismissing, for lack of jurisdiction, his “Petition for Writ of Habeas Corpus and Stay of Removal Proceedings.”
1. Background
A. Factual History
Chehazeh is a Syrian native and citizen who, prior to 1999, lived in Damascus and worked as a travel agent. As part of his business, Chehazeh helped his customers to obtain Saudi Arabian work visas through his contacts in the Saudi Arabian embassy. In 1999, one of those contacts allegedly defrauded Chehazeh of 7 million Syrian lire that Chehazeh had paid to obtain visas. Chehazeh was left indebted to his customers and so borrowed 3.5 million lire from several moneylenders to help meet those debts. Soon afterwards, he travelled to Saudi Arabia to confront the person he believed had defrauded him. After failing in that attempt, he came to the United States rather than returning to Syria. He was admitted to this country on July 3, 2000, on a non-immigrant visa that authorized him to stay here until January 2, 2001. His family in Syria subsequently informed him that his creditors were pursuing legal action against him and had put a lien on his house. Chehazeh claims he was afraid that if he returned to Syria, he would be put in jail, and so he stayed in
Chehazeh settled in Northern Virginia and began attending the Dar al Hijra mosque in Falls Church. Through that affiliation, he became aсquainted with two Saudi men named Hanji Hanjour and Nawaf alHazmi, who told him that they were in the United States studying to become pilots. On at least one occasion, Hanjour and alHazmi visited Chehazeh in his apartment. On September 25, 2001, while watching news coverage of the September 11, 2001 attacks, Chehazeh recognized pictures of Hanjour and al-Hazmi and heard that they were two of the individuals suspected of perpetrating the attacks. Chehazeh “felt compelled to tell the U.S. authorities everything [he] knew about Hanjour and Hamzi [sic].” (App. at 41.) As a result, he made several attempts to contact the FBI, but his efforts were impeded by his inability to speak English.- Finally, on September 28, 2001, he was able to communicate with someone at the FBI and, during an interview that day, provided FBI agents with the information he had regarding Hanjour and al-Hazmi. The FBI brought him in for additional questioning on October 1, 2001, after which— no doubt to his distress — he was detained and placed in the custody of the Immigration and Naturalization Service (“INS”).
B. Procedural History
1. The IJ Decision and the Dismissal of the INS’s Appeal
On October 19, 2001, the INS issued a Notice to Appear charging Chehazeh with being a removable alien. He did not dispute his removability but submitted an application for asylum and sought withholding of removal and relief under the Convention Against Torture (“CAT”). Prior to a merits hearing on his application, Chehazeh was transferred back to FBI custody on a material witness warrant. Although the timing is unclear, it appears that Chehazeh bounced between INS and FBI custody from November 2001 until the date of the eventual hearing on his asylum application on May 24, 2002.
During that hearing, the Immigration Judge (“IJ”) granted Chehazeh’s application for asylum pursuant to 8 U.S.C. § 1158, withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A), and withholding of removal pursuant to the CAT. In so doing, the IJ first found that, although Chehazeh’s application for asylum had not been filed within a year оf his entering the country as required by § 1158(a)(2)(B), his application was still timely because it was motivated by “events that ha[d] happened to [him] since the time that [he was] arrested,” namely, that he had “developed a new fear ... after people realized that [he was] giving information to the FBI.”
Next, the IJ found Chehazeh to be credible and “an exceptional, honest person,” explaining that he had been “arrested only because [he] asked the FBI to please accept information that [he] felt that [he] had that related to terrorists who destroyed the World Trade Center.” (App. at 48.) The IJ also noted that “the FBI ha[d] carefully examined [his] case and [he was deemed] no longer to be of special interest.... That meanft] that what [he’d] said
The IJ then concluded that Chehazeh was a member of a social group comprising hopeless debtors who, the IJ determined, faced a denial of fundamental rights, including the lack of a fair trial and severe prison conditions in Syria. The IJ found that, due to Chehazeh’s membership in that group, there was a “clear likelihood of persecution in Syria should [he] be returned there” and that “[t]he physical abuse that would be lodged against [him] is specifically described by the State Department as torture.” (App. at 60-61.) As a result, the IJ granted his applications for asylum and for withholding of removal.
The INS appealed to the BIA, claiming that the IJ erred by considering Chehazeh’s asylum application to be timely, by finding that he was a member of a social group comprising hopeless debtors, and by finding that he would be unable to obtain a fair trial in Syria. The INS also claimed that the IJ “should have recused hеrself due to her inability to be fair and impartial.” (App. at 311.) With respect to the IJ’s alleged bias, the INS stated:
[The IJ’s] behavior in this matter ... included but is not limited to ordering the Service ... to personally travel to Respondent’s place of detention to assist him in preparing his 1-589 [application for asylum and withholding of removal]. When the Service declined, the, [I]mmigration Judge advised that she would assume Respondent had a meritorious claim and grant him asylum. Ultimately, the Immigration Judge personally reviewed and completed Respondent’s I-589. At the time of the individual hearing prior to obtaining any testimony from Respondent, the Immigration Judge advised that she was ready to render a decision.
(Id.)
Despite filing an appeal, the INS never submitted any briefing and, consequently, the BIA dismissed the appeal on August 20, 2004. The IJ’s order thus became the final outcome of the agency proceedings, or so it appeared.
2. The Reopening of Chehazeh’s Removal Proceedings
Nearly three years later, on August 9, 2007, the Bureau of Immigration and Customs Enforcement (“ICE”), which had succeeded to the responsibilities of the INS,
On December 13, 2007, without explicitly ruling on ICE’s motion to reopen, the BIA “exercise[d] [its] sua sponte authority to reopen proceedings,” pursuant to 8 C.F.R. § 1003.2(a). (App. at 112.) The BIA explained that, because “the FBI has been unable to rule out the possibility that [Chehazeh] poses a threat to the national security of the United States ____reopening and remand of proceedings is warranted under these circumstances.” (Id.) The BIA added — though not, it seemed, as a reason for reopening but as an instruction for further proceedings — that the remand should be “for a new hearing before a different Immigration Judge,” because of “instances in the record” that suggested “that the Immigration Judge wаs not conducting the hearings in a generally fair manner.”
3. Chehazeh’s Petition to the District Court
On November 6, 2009, Chehazeh filed in the District Court his “Petition for Writ of Habeas Corpus and Stay of Removal Proceedings,” listing the Attorney General and the Secretary of Homeland Security as respondents. Chehazeh asked the Court to issue an immediate stay of the removal proceedings, to declare that the BIA’s decision to reopen the proceedings was contrary to law, and to remand with orders for the BIA to reinstate his grant of asylum and to terminate the removal proceedings. He noted that the action arose under the APA and asserted that the District Court could exercise jurisdiction through a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
The government moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), for lack of subject-matter jurisdiction. In particular, the government argued that the Court lacked habeas jurisdiction because Chehazeh was not in “custody” for purposes of habeas corpus, even though he was subject to removal proceedings. The government also argued that the case should be dismissed for several other reasons: because the District Court was deprived of jurisdiction by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005);
On May 24, 2010, the District Court granted the motion to dismiss, holding that Chehazeh was not in custody and therefore there was no basis for habeas jurisdiction. The District Court did not address any of the alternative bases for jurisdiction identified in Chehazeh’s petition. On July 2, 2010, Chehazeh filed a timely Notice of Appeal to our Court.
II. Jurisdiction And Standard Of Review
We have jurisdiction to review the District Court’s decision pursuant to 28 U.S.C. § 1291. Whether the District Court had jurisdiction is the only issue on appeal and is discussed below.
We exercise plenary review over an order dismissing a complaint for lack of subject-matter jurisdiction. Taliaferro v. Darby Twp. Zoning Bd,.,
III. Discussion
On appeal, Chehazeh argues that the District Court erred by concluding that he was not in custody for purposes of habeas review, and that, even if that were correct, the Court could have exercised jurisdiction through a writ of mandamus or a declaratory judgment and erred by failing to address those alternative avenues for relief. Chehazeh also argues that the District Court has jurisdiction pursuant to 28 U.S.C. § 1331 and the APA. The government responds that Chehazeh was not in custody and that, even if some other avenue for review (such as the APA) might otherwise be available, review is precluded by the REAL ID Act. The government further contends that Chehazeh has not exhausted his administrative remedies and that the BIA’s exercise of its sua sponte reopening authority is unreviewable.
We are persuaded that the District Court has jurisdiction under § 1331 and may, under the APA, review Chehazeh’s petition.
The Supreme Court has held that 28 U.S.C. § 1331 “conferfs] jurisdiction on federal courts to review agency action,” “subject only to preclusion-of-review statutes created or retained by Congress.” Califano v. Sanders,
We have previously explained that the APA standards for determining the reviewability of agency decisions are applicable to decision-making in the immigration sphere. See Smriko,
1. The BIA’s Decision to Sua Sponte Reopen Removal Proceedings is Not Committed to Agency Discretion By Law
The government, relying on Calle-Vujiles v. Ashcroft,
The BIA’s authority to sua sponte reopen removal proceedings comes from 8 C.F.R. § 1003.2(a), which states that “[t]he Board may at any time reoрen or reconsider on its own motion any case in which it has rendered a decision.” The regulation provides no guidance on how that authority should be exercised, but the BIA has explained that it is not boundless:
[T]he Board retains limited discretionary powers under the regulations to reopen or reconsider cases on our own motion. That power, however, allows the Board to reopen proceedings sua sponte in exceptional situations not present here. The power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent regulations, where enforcing them might result in hardship.
In re J-.J- 21 I. & N. Dec. 976, 984 (BIA 1997) (emphasis added) (internal citation omitted). It is apparent, therefore, that the BIA views its authority to reopen as being limited and only available in “exceptional situations,” id., not as being “unfettered,” despite the government’s current claim to the contrary. The BIA has consistently relied on that “exceptional situations” limitation, applying it more than fifty times in the year leading up to its decision to reopen Chehazeh’s case, see e.g., In re Juan Marquez,
We have explained that “if an agency ‘announces and follows — by rule or settled
That conclusion is supported by our reasoning in Calle-Vujiles, the case in which we ruled that “decisions not to sua sponte reopen or reconsider are non-reviewable.”
The same is not true, though, when the BIA chooses to exercise its authority to reopen. According to the BIA’s own “settled course of adjudication,” Quarantillo,
[W]e note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.
Moreover, if, as the government insists, the BIA has unfettered power to reopen, nothing would prevent it from reopening and remanding a case to a new immigration judge over and over again until satisfied with the outcome. Neither in its briefs nor at oral argument has the government offered any suggestion of what would prevent such injustice, other than its assurances that we can trust the BIA not to abuse its power. Trust is a fine thing, and the public servants who work to enforce our immigration laws — often with little of the appreciation they are due — are,
Our decision in Cruz v. Attorney General,
We are thus persuaded that there are indeed principled reasons for distinguishing between the reviewability of a BIA decision denying reopening and the reviewability of a BIA decision granting reopening. In sum, because the BIA has limited its reopening authority only to exceptional situations, when it exercises that authority, there is a basis for judicial review to determine whether the agency decision was based upon an exceptional situation.
2. No Statute Precludes Review of the BIA’s Decision
The government argues that, to the extent the District Court might otherwise have jurisdiction, amendments to the immigration laws promulgated by the REAL ID Act preclude judicial review. Specifically, the government cites 8 U.S.C. § 1252(b)(9) and 8 U.S.C. § 1252(g).
Section 1252(b)(9) states:
Judicial review of all questions of law and fact, including interpretation and application of constitutional 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. 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 nonstatutory), to review such an order or such questions of law or fact.
Based on that provision, the government argues that “judicial review of a final order” is the only avenue to review any issue arising from a “proceeding brought to remove an alien.” 8 U.S.C. § 1252(b)(9). There is obvious force to that reasoning, given the quoted text, but the Supreme Court has noted that § 1252(b)(9) is subject to the limitations of § 1252(b), and, therefore, “applies only ‘[wjith respect to review of an order of removal under subsection (a)(1).’ ” INS v. St. Cyr,
While we have not written precedentially on the scope of § 1252(b)(9) after the REAL ID Act, we have addressed the effect of nearly identical language in § 1252(a)(5). In Kumarasamy v. Attorney General, we considered whether a habeas petition that was before us on appeal when the REAL ID Act came into effect should be converted into a petition for review pursuant to 8 U.S.C. § 1252(a)(5).
(b) 8 U.S.C. § 1252(g)
Section 1252(g), titled “Exclusive jurisdiction,” states:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
The government argues that Chehazeh’s claim arises from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute re
Fortunately, the Supreme Court has explained that § 1252(g) has a more limited scope than the government claims for it. In Reno v. American-Arab Anti-Discrimination Committee, the Court said that § 1252(g) was designed to address only three discrete actions by the Attorney General: the “decision or action to commence proceedings, adjudicate cases, or execute removal orders.”
We recognize that BIA decisions may be construed as actions of the Attorney General, see, e.g., 8 C.F.R. § 1003.1(a)(1) (explaining that the members of the BIA are “appointed by the Attorney General to act as the Attorney General’s delegates”), and, therefore, that BIA actions may in some cases implicate § 1252(g). This is not one of those cases, however, because the decision to sua sponte reopen proceedings is not a prosecutorial decision to “commence proceedings, adjudicate cases, or execute removal orders.” Reno,
An argument might be made that a decision to reopen is similar enough in character to a decision to adjudicate a case in the first instance that any reopening should be encompassed within § 1252(g), but we think that position is untenable for two reasons. First, and most importantly, in listing the kinds of “decisions or actions that may be part of the deportation process” but are not encompassed by § 1252(g), the Supreme Court included the decision “to refuse reconsideration of [a removal order].” Id. Thus, the Supreme Court distinguished between the initial adjudication of a case and the reconsideration of that case, declaring that the latter was not encompassed within § 1252(g).
According to the Supreme Court’s analytical construct, § 1252(g) was designed to make unreviewable prosecutorial decisions, not quasi-judicial ones. We therefore conclude that, when the BIA reopens removal proceedings, its action does not constitute a “decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders,” and, thus, claims arising from that action do not fall within the scope of § 1252(g). Because § 1252(g) and § 1252(b)(9) — the only potential statutory barriers identified by the government — do not preclude review, there is apparently no statute that precludes judicial review of the BIA’s decision to reopen Chehazeh’s removal proceedings.
S. The BIA’s Decision to Reopen Chehazeh’s Removal Proceedings is a Final Agency Action
(a) The “Collateral Order Doctrine” Applies to Review of Administrative Decisions
The BIA’s decision to reopen Chehazeh’s case was not a final disposition of the renewed administrative proceedings. Therefore, we must first consider whether agency actiоn that does not conclude administrative proceedings may ever be considered “final agency action” for purposes of Section 704.
A provision analogous to Section 704’s “final agency action” requirement is found in 28 U.S.C. § 1291, which permits appellate review only of “final decisions” of a district court. In that context, it has long been understood that, while “a ‘final decision’ generally is one which ends the litigation on the merits,” Catlin v. United States,
While we have never considered whether the collateral order doctrine applies to judicial review of agency decisions, the nine Courts of Appeals that have addressed the question have all concluded that it does. See Hale v. Norton,
(b) The BIA’s Decision is a Collateral Order
Because the BIA’s decision did not conclude the administrative proceedings on the merits, it is reviewable as a collateral order only if it (1) is “conclusive,” (2) “resolvéis] important questions completely separate from the merits,” and (3) would be “effectively unreviewable on appeal from final judgment in the underlying action.” Digital Equip.,
Chehazeh has already availed himself of the only administrative remedy available to him — asking the BIA to reconsider its decision to reopen — and, therefore, absent judicial review, Chehazeh will be forced to go through a second round of removal proceedings. In light of that fact, the government does not dispute that the BIA’s decision is “conclusive,” and indeed it is.
The government does argue, however, that the other two requirements for collateral review are not present here. First, it contends that the BIA’s decision does not “resolve important questions completely separate from the merits,” id., because the BIA justified its decision to reopen by citing the FBI’s inability to rule out the possibility that Chehazeh is a national security threat. That argument, though, misses the point. While the question of whether Chehazeh is a national security threat does go to the merits of whether he should continue to enjoy asylum, the BIA’s decision neither resolves nor even addresses that question. Instead, the decision addresses whether the FBI’s inability to rule out that possibility warranted reopening the proceedings. The question resolved by the BIA, therefore, was whether the FBI’s inability to determine whether a person is a security threat gives rise to an exceptional situation justifying reopening. That question is separate from the merits of whether Chehazeh is, in fact, a security threat. Similarly, the BIA’s determination that allegations of IJ partiality justified reopening pertains to a question separate from the merits of Chehazeh’s asylum
Second, the government contends that the BIA’s decision is not “effectively unreviewable on appeal from final judgment in the underlying action.” Id. In support of that argument, the government cites Will v. Hallock, in which the Supreme Court held that when a party seeks to avoid trial through collateral order review of a pretrial order, the order is reviewable only if there are “compelling public ends.”
Chehazeh is not seeking collateral review of a pre-trial order so as to avoid litigation. He is seeking, instead, collateral review of a post-adjudication order so as to enforce the result of an adjudication that has already taken place. That there is a legally significant difference between seeking to avoid litigation in the first instance and seeking to avoid relitigating an issue that has already been decided was explicitly recognizеd in Will, and listed as a “compelling public end” that supports collateral order review. The Supreme Court explained that, in the context of a criminal prosecution, while collateral order review was unavailable to avoid trial in the first instance because an individual does not have “a right to be free of all proceedings whatsoever,” collateral order review was available to consider a claim of double jeopardy because “the only way to alleviate the[] consequences of the Government’s superior position was by collateral order appeal.” Id. at 352,
[T]he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.
Should the BIA be free to sua sponte reopen removal proceedings, without the possibility of judicial review, nothing would prevent it, “with all its resources and power” from “mak[ing] repeated attempts to [deport Chehazeh], thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.”
Indeed, in Duvall v. Attorney General we recognized the magnitude of the concerns raised by repeated relitigation when we noted that “[sjubstantive due process may offer some protection against repeated relitigation of the same issue by an administrative agency.”
This case is not about “mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest” — namely the public’s interest in “mitigating the government’s advantage over the individual” and preventing the government from using its superior “resources and power” to re-run removal proceedings except in exceptional situations. Will,
Ip. No “Special Statutory Review” Provision Requires that the Action be Brought in Some Other Form or Forum
“Where the governing statute provides for ‘special statutory review5 ... that is the form that the required judicial review will take.” Smriko,
Thus, because no statute precludes review of the BIA’s decision, which is effectively final and not committed to agency discretion by law, the District Court has jurisdiction to review the decision. We will therefore reverse its order dismissing for lack of jurisdiction.
Because the District Court believed that it did not have jurisdiction over Chehazeh’s petition, it never addressed whether the BIA’s decision to reopen proceedings was warranted by an exceptional situation. We may decide a question not addressed by the District Court when “the record has been sufficiently developed for us to resolve [the] legal issue.” In re Ben Franklin Hotel Assocs.,
With respect to the BIA’s first proffered reason — the FBI’s inability to rule out the possibility that Chehazeh is a national security threat — a “blink” response is that it may not be exceptional. “[Pjroving a negative is a challenge in any context,” Vieth v. Jubelirer,
The BIA has plainly stated that its sua sponte authority is not designed to “circumvent the regulations.” In re J-J- 21 I. & N. Dec. at 984. That authority may, of course, have the effect of circumventing the regulations when an exceptional situation calls for it, but wherever the line between an unexceptional situation and an exceptional situation lies, we wonder whether — on this record — this case is near it. Nevertheless, we cannot say whether the FBI might have heretofore-undiscussed criteria by which it can, in ordinary circumstances, effectively rule out aliens as security threats, and we certainly cannot say with assuranсe that there was not an exceptional reason for some change in the FBI’s assessment of Chehazeh. Thus, the record is insufficient for us to decide the issue.
With respect to the concern that “the Immigration Judge failed to adhere to the role of impartiality assigned to her as one acting in a judicial or quasi-judicial capacity,” (App. at 152), the BIA has not given much detail regarding the allegedly problematic conduct. Most of what we know is from the INS appeal from the initial IJ decision, in which, among other things, the
If, in fact, those allegations are true, they certainly seem unusual and may warrant categorizing the circumstances as exceptional. But, again, based on the record before us, we cannot make that determination. We will therefore remand to the District Court to allow the parties to supplement the record so that that Court can “review the whole record,” 5 U.S.C. § 706, to determine whether there was an exceptional situation that warranted reopening Chehazeh’s removal proceedings.
IV. Conclusion
For the foregoing reasons, we will reverse the District Court’s order dismissing Chehazeh’s petition for lack of jurisdiction and will remand for the District Court to consider whether the BIA’s decision to reopen Chehazeh’s removal proceedings was warranted by an exceptional situation.
Notes
. Although Chehazeh titled his petition as one for "habeas corpus” relief, it in fact requests other forms of relief also, as outlined infra Part 1(B)(3).
. We present the facts as stated in Chehazeh’s testimony at his removal hearing and in his sworn affidavit. Although the Immigration Judge found Chehazeh credible, the BIA reopened Chehazeh’s removal proceedings based, in part, on questions about the Immigration Judge’s impartiality. We do not, therefore, rely on that credibility finding and draw no conclusions about the veracity of Chehazeh’s statements.
. It is also not clear when Chehazeh was released from custody. He states that he was released sometime after August 2002, whereas the INS, in its June 18, 2002 Notice of Appeal, reported that he was not detained as of that date.
. Although the IJ does not cite it, she may have been relying on § 1158(a)(2)(D), which allows tin application to be considered beyond the one-year period if there are "extraordinary circumstances relating to the delay in filing an application.”
. See Biskupski v. Att’y Gen.,
. Chehazeh’s brief addressed a number of other purported "frauds” that were not discussed in the ICE motion but that were mentioned in an affidavit attached to that motion.
. Because the initial decision was sent to a wrong address and Chehazeh did not receive notice of it, the BIA reissued its decision on October 21, 2008.
.Although Chehazeh was not actually in custody, he asserted that the District Court could still exercise habeas jurisdiction because he
.Specifically, the government argued that 8 U.S.C. §§ 1252(b)(9) and 1252(g), as amended by the REAL ID Act, precluded review of Chehazeh’s claims.
. Chehazeh’s removal proceedings are stayed pending the outcome of this aрpeal, pursuant to an order we entered on December 3, 2010.
. We and other courts of appeals have sometimes spoken in terms of “jurisdiction” when addressing judicial power to consider peti
We agree with the Seventh and Eighth circuits that even if Congress has committed discretion to the BIA by law to take or not take certain actions, it has not deprived the District Court or us of jurisdiction to consider a plaintiff’s claim that such action was erroneous pursuant to the APA. The question is whether a plaintiff can state a claim for relief from such action under the APA. See Trudeau,
, The government cites to a not precedential opinion to support its position. Not precedential opinions are, by definition, not binding on this Court, and our internal operating procedures do not allow us to cite and rely upon those opinions. See Internal Operating Procedures 5.7 (3d Cir.2010).
The government also notes our statement from Pllumi v. Attorney General that whether to sua sponte reopen is “committed to the unfettered disсretion of the BIA, [and] we
. In those decisions, the BIA uses the terms "exceptional situations” and “exceptional circumstances” interchangeably.
. We recognize that it may not always be obvious whether a situation is exceptional. That, however, is no impediment to judicial review. The '‘exceptional situations" requirement is, in that regard, similar to the requirement discussed in Smriko that a decision be streamlined only where the “issues raised upon appeal are not so substantial that the case warrants the issuance of a written opinion.”
. Section 1252(b) states: "With respect to review of an order of removal under subseсtion (a)(1) of this section, the following requirements apply Because § 1252(b) only applies "[w]ith respect to review of an order of removal under subsection (a)(1),” which, in turn, provides for "[judicial review of a final order of removal," the provisions in § 1252(b) only apply when, unlike this case, there is a final order of removal issued. Our dissenting colleague nevertheless reads 8 U.S.C. § 1252(b)(6) to manifest a clear congressional intention to require aliens to secure a final order of removal before seeking any type of judicial review of any type of order in any type of forum. (Dissenting Op. at 142; see id. (citing § 1252(b)(6) and arguing that we should not "circumvent Congress’s clear intention to allow aliens only one opportunity to seek review of a motion to reopen as part of the review of the order of removal before a court of appeals.... ”).) Section 1252(b)(6) provides: "When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.” Read in conjunction with subsection (a)(1), the only thing § 1252(b)(6) clearly does is require a motion to reopen or reconsider to be consolidated before us on an appeal when there is a final order of removal. There is no such order here.
. Thus, in Bonhometre v. Gonzales, we stated that § 1252(b)(9), as amended by the REAL ID Act, "effectively limit[s] all aliens to one bite of the apple with regard to challenging an order of removal, in an effort to streamline what Congress saw as uncertain and piecemeal review of orders of removal, divided between the district courts (habeas corpus) and the courts of appeals (petitions for review).”
. The government argues that Kumarasamy actually supports its position. Citing a footnote in Kumarasamy in which we explained that § 1252(b)(9) had been amended by the REAL ID Act to clarify that it “ 'precluded] any habeas corpus review over certain removal-related claims,' " the government asserts that we held that any review of an " ‘action taken or a proceeding brought to remove [an alien]' ” is limited by § 1252(b)(9) to review of a final order, "even if removal proceedings have not yet commenced or no final order of removal is in place.” (Letter Brief of Appellee at 1-2 (July 15, 2011) (quoting Kumarasamy,
. In addition to the Ninth and Eleventh Circuits, the Tenth Circuit, in dicta, has also stated that 1252(b)(9) applies only to review of orders of removal. See Ochieng v. Mukasey,
. Although Aguilar draws a different conclusion than we do on the question of the scope of § 1252(b)(9), the reasoning of Aguilar may still allow review of Chehazeh's claim. There, the First Circuit explained that, while § 1252(b)(9) is not limited to review of orders of rеmoval, it would be "perverse” to read § 1252(b)(9) as encompassing claims that, "by reason of the nature of the right asserted, cannot be raised efficaciously within the administrative proceedings delineated in the INA.”
. We recognize, of course, that refusing to reconsider is not the same as reconsidering. We have already opined that there is a material difference between an agency doing something and refusing to do something. Here, however, that difference only reinforces our point because, as explained in Heckler, when an agency refuses to take action, it is generally afforded a greater degree of deference than when it actually takes action.
. Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) apply here. In Kucana v. Holder, the Supreme Court held that 8 U.S.C. § 1252(a)(2)(B)(ii) applies only to "statutory, but not to regulatory" grants of discretion. — U.S. -,
. We have previously applied Sixth Amendment jurisprudence by analogy in the immigration context. See Fadiga v. Att'y Gen.,
. The government also makes the further claim that the District Court lacks jurisdiction because Chehazeh has not exhausted his administrative remedies. With respect to the harm of being forced to relitigate his case, however, Chehazeh has exhausted the only administrative remedy available to him asking — the BIA to reconsider its order. This is not a case like Duvall v. Elwood, where the alien was " ‘attempting to prevent ... deportation proceeding^] from taking place in the first instance,’ ” and therefore, had not exhausted the remedy of the “deportation ... hearing itself.”
. As mentioned supra at note 15, our dissenting colleague believes that Congress intended a final order of removal to be a condition precedent to judicial review before a federal appellate court. (Dissenting Op. at 142; see id. at 147 n. 8 ("If the established procedures are allowed to go forward as provided in the statute, ... Chehazeh will be able to obtain review of the decision reopening the case upon conclusion of the proceedings.”).) Thus, he rejects our conclusion that no special statutory review provision requires that the action be brought in some other form or forum, and he points to 8 U.S.C. § 1252(a)(2)(D) as support. That statute, however, is not apposite. It provides that the provisions limiting or eliminating judicial review in the Real ID Act do not extend to constitutional or legal questions which the court of appeals may properly consider notwithstanding § 1252(a)(2)’s list of "[mjatters not subject to judicial review.” It does not speak at all to the question of whether relief under the APA must be sought in a particular forum, and it certainly does not establish a rigid protocol whereby an alien must be ordered removed by the BIA before pursuing any relief in any forum.
Dissenting Opinion
dissenting.
Since I conclude that Congress has established a clearly defined system for the courts to review decisions of the Board of Immigration Appeals (“BIA”), which requires that petitions for review be filed with the courts of appeals, and not the district courts, I find that I must respectfully dissent from the majority’s opinion. Congress, by enacting the REAL ID Act, vested courts of appeals with jurisdiction to review orders reopening removal proceedings. 8 U.S.C. § 1252(b)(6).
The majority sets forth the factual and procedural history of this matter in thorough detail. I have nothing to add. Similarly, the majority clearly recites the factors we must review in determining whether the APA applies. As they state, review under the APA is available
if (1) the BIA’s action was not “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2); (2) no statute precluded review, 5 U.S.C. § 701(a)(1); (3) the BIA’s action was a “final agency action,” 5 U.S.C. § 704; and (4) no “special statutory review” provision required that Chehazeh’s action be brought in some other form or forum, 5 U.S.C. § 703.
Majority Dec. at 127.
While I think the majority’s reasoning on factors (1)
As the majority notes, Smriko v. Ashcroft allows for application of the APA only “in the absence or inadequacy” of any “special statutory review” provisions.
Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.
This provision removes the authority to review legal and constitutional claims from district courts. The APA basis for jurisdiction is only available if no “special statutory review” provision requires that the action be brought in some other forum. Here, Congress has provided a basis for review before our Court, not the district court. The statute does not prohibit judicial review, but it does limit that review to the courts of appeals.
Second, 8 U.S.C. § 1252(b)(6) provides that “[w]hen a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.” I do not believe we can circumvent Congress’s clear intention to allow aliens only one opportunity to seek review of a motion to reopen as part of the review of the order of removal before a court of appeals by reading the APA to provide jurisdiction to the district court.
For decades, Congress has expressed its desire to streamline immigration proceedings, endeavoring to “create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens from the United States.” H.R.Rep. No. 72, 109th Cong., 1st Sess., reprinted in 2005 U.S.C.C.A.N. 240 at 297 (2005) (quoting H.R.Rep. No. 1086, 87th Cong. 1st Sess., reprinted in 1963 U.S.C.C.A.N. 2950, 2966 (1961)).
“Congress continued these streamlining reforms when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104-208, 110 Stat. 3546 (Sept. 30, 1996).” Id. at 298. The amendments in IIRIRA “were intended to preclude all district court review of any issue raised in a removal proceeding.” Id. The 2005 amendments were directed at correcting anomalies created by the Supreme Court’s decision in I.N.S. v. St. Cyr,
Further, Congress’s action in consolidating review of motions to reopen with review of the order of removal is consistent with the established practice in appellate review of civil cases involving motions to reconsider, motions to reopen, and decisions vacating default judgment. For example, “[o]rders granting a motion to vacate [default judgment] should be treated in the same way as orders granting a new trial [both of which] set[] the stage for further trial court proceedings [and are] not final. Appeal is properly taken upon conclusion of the proceedings set in motion by the order vacating the judgment.” 15B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3916 (2d ed.) (footnotes omitted). Indeed, “[a]n order granting a new trial ... ordinarily is not final; review is supposed to be available only after completion of the new trial.” Id. at § 3915.5. “Denial of immediate appeal from an order granting a new trial means that the order merges in, and is reviewable on appeal from, the final judgment entered after the new trial or other event that concludes the litigation.” Id. “Few theories are likely to help a party who is anxious to bend the final judgment rule to permit appeal from an order granting a new trial.” Id.
“Congress is expected to legislate against the backdrop of well-established common law principles.” Duvall v. Att’y Gen.,
Given the clear directive of § 1252(b)(6), I find the majority’s discussion of 8 U.S.C. § 1252(g) to be unnecessary to the analysis of the question before us.
To the contrary, I fear that the majority’s decision will create a situation similar to that in Duvall where our Court expressed concern that Duvall’s refusal to testify as to her citizenship during her removal proceeding “would effectively preclude the INS from ever relitigating the issue of alienage or ever securing removal, despite the alien’s ongoing criminal conduct.” Duvall,
In satisfying the third factor — finality of the agency’s decision — the majority applies the collateral order doctrine. Analogizing to review of a post-judgment order in a criminal proceeding where double jeopardy concerns exist, the majority finds that the BIA’s decision to reopen is effectively unreviewable if left until a later time in the litigation. Majority Dec. at 39-43. I disagree with this conclusion for several reasons. Most importantly, in the statute Congress has explicitly provided for review of the BIA’s decision to reopen. Second, both the Supreme Court and our Court have consistently held that application of the collateral order doctrine should be the exception, not the rule. Third, I am disinclined to imbue immigration proceedings with the constitutional protections associated with double jeopardy review.
Having already discussed the statutory directive set forth in § 1252(b)(6), I turn to the general principles underlying application of the collateral order doctrine. The Supreme Court has emphasized its view that the collateral order doctrine should be
Given these strong statements on the narrow scope of the collateral order doctrine, I do not think it is applicable here. The majority analogizes the present situation to that in Abney v. United States,
The situation presented by this case differs from that in Abney in important ways. The issues raised in the motion to reopen are not collateral to or separable from the issues underlying the asylum application. Rather, the new facts introduced by the government directly address, among other points, the question of whether or not Chehazeh committed fraud during the original asylum proceeding.
Additionally, as the Supreme Court has observed, “[a] deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime.... Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.” I.N.S. v. Lopez-Mendoza,
Further, our court has noted that “[wjhile an alien may be eligible for a grant of asylum or an adjustment of status under the immigration laws, he is not entitled to such benefits as a constitutional matter. There is no constitutional right to asylum per se. An alien seeking admission to the United States through asylum ‘requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.’ ” Mudric v. Att’y Gen.,
With those admonitions in mind, I turn to the third prong of the collateral order test — whether the matter at hand will be effectively unreviewable later. The Supreme Court discussed this factor in Mohawk Indus. There, the Court observed that
*146 “the third Cohen question, whether a right is ‘adequately vindicable’ or ‘effectively reviewable,’ simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement.” That a ruling “may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment ... has never sufficed.” Instead, the decisive consideration is whether delaying review until the entry of final judgment “would imperil a substantial public interest” or “some particular value of a high order.”
Id. at 605 (quoting Swint v. Chambers County Comm’n,
The majority expresses concern over the government’s ability to continue to challenge Chehazeh’s grant of asylum, forcing him to relitigate an issue that was already decided. Majority Dec. at 39. I do not share that concern. The issue that will be addressed in the reopened proceeding is the question of whether or not Chehazeh committed fraud during his original asylum application. Requiring Chehazeh to defend himself in a second proceeding does not “imperil a substantial public interest.” To the contrary, I believe thoroughly examining the possible fraud in his original asylum application is a substantial public interest that should be protected. Relitigating his asylum application may place an additional burden on Chehazeh, but that burden is not insurmountable, and is presumably an unusual circumstance.
Further, 8 U.S.C. § 1252(b)(6) requires that review of a motion to reopen be consolidated with the review of the removal order. Congress has spoken clearly on this issue and concluded that review should be had in a single appeal. As a result, Chehazeh would be able to obtain review of the motion to reopen in the future.
Motions to reopen are filed often in immigration proceedings, and some of those motions are granted. In most, if not all, of those cases, the litigants seek review in the appropriate court of appeals, as required by the statute. The only aspect of this case that makes it, as the majority notes, “highly unusual” is Chehazeh’s decision to seek review in the District Court, rather than before us.
. Section 1252(b)(6) provides that "[w]hen a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.”
. While I agree with the majority's ultimate conclusion that the BIA's decision in this case is not discretionary, I would reach that decision by a different, and somewhat shorter, path. The government's motion, filed pursuant to 8 C.F.R. § 1208.24, sought to reopen the proceedings in order to terminate Chehazeh's asylum and withholding of removal. Section 1208.24(f) sets forth specific criteria that the government must establish by a preponderance of the evidence during the reopened proceeding in order to terminate the alien’s asylum or withholding of removal. Arguably, the government, in its motion to reopen, would have to demonstrate a likelihood of success in proving at least one of these factors. As a result, the BIA’s decision to reopen would not be discretionary. Rather, the BIA would be required to evaluate the
. I disagree with the majority’s conclusion that the BIA’s decision to reopen this case constitutes final agency action. I explain my views more fully infra.
. I agree with the majority's conclusion in section III.A.2.a. that no statute precludes judicial review of the BIA’s decision. That discussion, however, focuses only on the impact of the REAL ID Act on the review of habeas corpus petitions vis-a-vis review of orders of removal. I find that analysis inapposite to the question presently before us.
."Before [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996], individuals who were 'ineligible for admission into the United States and were never admitted into the United States were referred to as "excludable,” while aliens who had gained admission, but later became subject to expulsion from the United States, were referred to as "deportable.” ’ After IIRIRA, aliens who were previously referred to as ’excludable’ are termed ‘inadmissible,’ and the term 'removal
"The Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002), eliminated the Immigration and Naturalization Service ("INS”) and assigned INS's enforcement functions to the [Department of Homeland Security]’s Bureau of Immigration and Customs Enforcement ("ICE”).” Khouzam v. Atty. Gen'l,
. I find the majority’s discussion of Kucana v. Holder, - U.S. -,
. "[W]e have not mentioned applying the collateral order doctrine recently without emphasizing its modest scope.” Will v. Hallock,
. Had Chehazeh sought review before our court in the first instance, I would have dismissed the appeal as untimely, as is our normal practice. See, e.g., Dajuste v. Att’y Gen., C.A. No. 11-2652 (3d Cir. Aug. 2, 2011) (order) (dismissing thе petition for review for lack of jurisdiction because the motion to reopen was granted and the proceedings are therefore ongoing before the immigration judge). The parties would then have been able to develop the factual record before an immigration judge, rather than before the District Court, as the majority directs.
The majority cites Kumarasamy v. Att’y Gen.,
While the appeal was pending, Congress enacted the REAL ID Act, which vested jurisdiction for review of orders of removal with the courts of appeals. The REAL ID Act also required that habeas petitions challenging orders of removal before district courts or pending on appeal would be converted to petitions for review of the removal order. We concluded that Kumarasamy’s habeas appeal should
Here, no order of removal exists because Chehazeh sought, by filing for review before the District Court, to avoid the procedures established by Congress. If the established procedures are allowed to go forward as provided in the statute, and as is the normal practice in civil cases, Chehazeh will be able to obtain review of the decision reopening the case upon conclusion of the proceedings.
. I would also conclude that Chehazeh was not in custody for purposes of habeas jurisdiction.