Lin Zhong v. United States Department of Justice, & Attorney General Gonzales

NEWMAN, prudent, only path Present: JON O. JOHN M. indeed the available to JR., WALKER, (1) and CHESTER J. this Court is to issue order that STRAUB, Judges. Circuit majority opinion, vacates the partial judg-

ment, and order to the issue of brief reme- (2) ORDER dy; stay briefing vacates as moot the remedy; on the issue of remands WALKER, JR., M. Circuit JOHN the case to the District Court with instruc- Judge. judgment govern- tions enter for the 7, 2006, By order dated March this court pursuant ment I Carhart. believe that briefing on the stayed further issue of requires Carhart this result. remedy the decision pending Su preme v. Carhart. Court Gonzales On 18, 2007, Supreme

April Court ren — Carhart,

dered decision its U.S.

—, 167 L.Ed.2d

(2007). Following practice our usual

allowing parties their views

following Supreme a relevant Court deci sion, see, e.g., City Muhammad v. N.Y. Corr., Cir.

1997); Vasquez, United States Cir.1996), parties we offer the

the opportunity to comment on the effect appeal.

of Carhart on this Accordingly, hereby it is ORDERED ZHONG, Petitioner, Lin file, parties days, shall within 14 briefs,

letter not to exceed ten double- spaced pages, setting forth their views on UNITED STATES DEPARTMENT OF the appropriate disposition appeal. JUSTICE, Attorney & General The judgment of the district court Gonzales, Respondent. STAYED forthwith. 02-4882-ag. Docket No.

STRAUB, Judge, dissenting: Circuit Appeals, United States Court of No presentation further of views is nec Second Circuit. essary or appropriate within the context of this case. image the mirror of this May 31, 2007. case, the United States has held the statute at issue is constitu Bruno Joseph Bembi Esq., Law Office — Carhart, tional. Gonzales v. U.S. Bembi, Joseph of Bruno Esq., Hempstead, —, NY, for Petitioner. (2007). There simply remedy is no avail able much requiring less one the further McElroy Esq., Edward J. Attorney, U.S. expression of views the context of this EDNY, York, NY, New A. Jennifer Pais- ease. Esq., ner John Esq., Dept, Ashcroft

Accordingly, Justice, DC, Washington, dissent the order Respon- directing briefing further and believe the dent.

127 categories of claims—is JACOBS, against issues—as Hon. DENNIS Present: jurisdictional CALABRESI, than a mandatory rather a Hon. GUIDO Judge, Chief CABRANES, requirement.1 Hon. A. Hon. JOSÉ STRAUB, Hon. J. CHESTER POOLER, Hon. ROBERT S.

ROSEMARY SOTOMAYOR, SACK, SONIA Hon. D. point government did the KATZMANN, Hon. A. ROBERT Hon. to ex- had failed petitioner that the out RAGGI, PARKER, REENA Hon. B.D. of the Board issues before haust certain WESLEY, Hon. and C. RICHARD Hon. instead, (“BIA”), and Appeals Immigration HALL, Judges. Circuit W. PETER the merits of argued and fully briefed in the concurs Judge CALABRESI As a re- to us. unexhausted issues those and files rehearing in banc denying order the sult, was faced with Zhong panel the dissents Judge JACOBS opinion. an Chief requirement of whether the of question in banc rehearing denying the order and had jurisdictional exhaustion issue Judges JOSÉ in which opinion and files sponte. sua panel the be raised join. and RAGGI A. CABRANES the Judge contends The Chief CALABRESI, concurring Judge, Circuit our have treated Zhong panel should rehearing en banc. in denial the INS, F.3d in 376 decision Foster court’s (2d curiam), as control- (per dissent, the Chief strong In his at dissenting op. point. See ling on this Both are issues. separate on two touches majority for Zhong the (criticizing discussion. and deserve serious important prece- from this well-settled “[departing to this of interest primarily The first dent”). opinion true the Foster It is It whether circuit. asks and taken to Justice, might be language Dep’t contains Zhong in v. U.S. 1252(d)(1)imposes that 8 U.S.C. Cir.2007), suggest amending and F.3d 104 require- issue Jus- a Zhong v. U.S. superseding because, Foster, govern- (2d Cir.2006), But ignored ment. tice, failure to petitioner’s out the pointed prece- ment circuit making previous rules Foster, issues, gen- of more exhaust The second is binding. dent by that language used any “jurisdictional” whether questions It interest. eral decision, necessary to the was not reading its majority was correct pan- later binding on was not as such Supreme Court and relevant statute and of our both members Significantly, exhaustion of els.2 it held when decisions be accorded dispositions ... should question asks fined differently, this second 1. Stated whether, whether light precedential of 8 U.S.C. effect on law, regulations adjudicate and case authority to the relevant had federal court statutory juris- (citations quo- exhaustion is matter and internal claim in suit” or, instead, diction, non-juris- mandatory ais omitted)); Paese marks tation Hartford cf. subject to a requirement that 435, 443, dictional Co., Accident Ins. Life few, limited, exceptions. case law has (noting that "our discussing the when somewhat casual Corp., 546 U.S. Arbaugh v. Y & H 2. See requirements judicially-created 1235, 1242-43, L.Ed.2d 1097 502(a)(1)(B) ERISA]” and [of under section "[jlurisdiction ... (noting that acknowledging court has "occasion- that this meanings” many, and that many, too word of language when dis- ally 'jurisdictional’ use[d] Court, than other less "no requirements,” but cussing the exhaustion courts, profligate in its has sometimes been ad- ERISA to exhaust term,” holding “that a failure cautioning that “unre- but use court who served on the Foster tional’ rules, for claim-processing but wrote decision consistently re only for prescriptions delineating the jected the Chief Judge’s reading of Foster classes of (subject-matter cases jurisdic- binding.3 They tion) have authorized me to persons (personal jurisdic- say they jurisdictional tion) that view the lan falling within a adjudicatory court’s guage dicta, (citation Foster as and that they authority.” quotation internal they believe indicated omitted)). as much Abimbo marks 173, la Ashcroft, 378 F.3d 180 Cir. The Zhong believed that some of 2004), they heard on the same day the arguments same it found compelling Foster,4 as with respect to issue exhaustion could be Given that Foster was not controlling, made about claim whether and that binding no other precedent on that jurisdictional. But be- was, point been, or has cited to us it was cause there were longstanding holdings of proper Zhong for the panel to treat as an that, our court in the immigration context, open question precise nature of this claim jurisdictional exhaustion is a require- court’s issue exhaustion requirement. ment, see Beharry v. Ashcroft, 51, (2d Cir.2003); 59 see Karaj also v. Gon- In view Supreme Court’s series of zales, 113, Cir.2006), 119 recent and increasingly powerful opinions majority in Zhong properly deemed itself cautioning lower federal against courts bound. majority The in Zhong concluded conflating mandatory jurisdictional could, it should, and so reach the see, prerequisites, e.g., Day v. McDonough, correct result with respect question 198, 547 U.S. 126 1681-82, S.Ct. 164 open i.e., remained the nature of (2006); — L.Ed.2d 376 Arbaugh, 126 S.Ct. at issue exhaustion —even as it honored long- 1238, 1245; States, Eberhart v. United 546 standing precedent on claim exhaustion. U.S. Although it noted conceptual some difficul- curiam); (per Ryan, Kontrick v. ties with drawing such distinction, it 443, 455-56, 124 S.Ct. concluded the distinction permissible was a (2004), L.Ed.2d 867 and because there was one. no binding precedent on exhaustion, prop- This was because our precedents circuit erly undertook the task of carefully deter- have often distinguished between issues mining whether our court’s issue exhaus- and categories of relief in exhaustion doc- tion requirement truly should be treated trine. F.3d at 119 n. (citing jurisdictional. as Eberhart, cases). 126 S.Ct. Moreover, there is a profoundly at 405 (“Clarity would be facilitated ... practical if reason for drawing this line be- courts and litigants ‘jurisdic- used the label tween issue and claim exhaustion. If an ministrative jurisdictional, remedies is not but characterization of Rule filing 33's limitations defense''); is an affirmative 'jurisdictional' ”). United States v. as Canova, (2d Cir.2005) 347-48 (acknowledging Court, that the Supreme judge The third on the visiting was a court, circuits, and each of our sister had judge and as such has had no occasion to previously filing referred limit of express Fed. his views on the matter. R.Crim.P. "jurisdictional,” 33 as recog- but nizing light "[i]n [the Abimbola, 4. See 378 F.3d at (suggesting Court’s] ambiguity discussion of the in the that the effect of lack of exhaus- 'jurisdictional,'

word might it appropriate be government tion where object fails explore for us to meaning past issue). open of our in the thousands the record searching impli- treated review, in order to we cases immigration then jurisdiction, subject-matter cating later, disastrous, much could be turns out avoid what claim that an issue on decision attacks. exhausted collateral adequately being attacked subject be would below considerations Obviously, practical these be- parties, third interested collaterally by jurisdiction to assume allow us would no authori- have had would court cause the what is given not exist. But it does where at Arbaugh, all. See act at ty to carelessly stake, to avoid it is important a federal (“The objection depriving rule as treating an exhaustion Fed. jurisdiction, subject-matter lacks hear any power to reviewing court of 12(b)(1), may raised Proc. Rule Civ. would re- inspection case, closer when the initiative, its on own by a court party, not mandatory but be rule to veal the after even litigation, in the any stage at jurisdictional. And judgment.”). entry of the and trial subject- surprising not Interestingly although fact the that that, together — waived, exhaus of an issue be absence given cannot the jurisdiction ly, matter language of appeals “an in on courts impose tion would 1252(d)(1), practical to determine difficulties obligation and independent exists, “jurisdic jurisdiction subject-matter exhaustion deeming issue whether that challenge from of the circuits absence in the would even tional” —some coming at out as Arbaugh, Judge cites party.” the Chief either in Zhong of issue exhaustion on issue This, context way in opposite circuit, would in this indicated cases immigration jurisdiction and burden. idea. unbearable a terrible this was impose thought they that by precedents earlier they were bound But court have judges of this Whereas nothing else. do could in their circuits administra- examining the difficulty little Gonzales, 403 Etchu-Njang v. See, e.g., par- determining whether tive record (8th (noting 577, 581-82 F.3d e., claims— relief —i categories of ticular §of language plain “the that virtually raised, be it would have been only exhaustion require be read could matter, for us practical aas impossible, finding but right,” as of available remedies record through the to search thoroughly prece Eighth Circuit by prior itself bound being de- in cases especially every case— (1st 28, INS, dent); Sousa Calen- Non-Argument through our cided writ we were (stating “[i]f that order summary fashion—in or in dar5 very slate, it would a clean ing on issues were relevant all discern whether to exhaust the failure to treat” tempting If agency. raised before adequately jurisdic than a something less “as ju- not but mandatory that, concluding objection,” but tional are able— we risdictional, comparison, views, “[wjhatever we bound own to con- refuse generally bound—to indeed INA exhaustion apply by precedent were not discover that we sider issues fashi in a more draconian to under- below, not have do but we raised clearly on”).6 opinion theAs meticulously task unmeetable take the circuits, their finding, based on 6. These Rule 0.29 Interim Local Circuit 5. See Second they were bound precedents, prior own Non-Argu- procedures for the (establishing also jurisdictional, issue exhaustion to treat Calendar). ment the issue exhaus- exceptions to suggested states, see 480 F.3d at 120 n. it we may review a final order of removal was because we were not bound prece- only after “the alien has exhausted all dent majority in Zhong could administrative remedies available to the reach what I argue will in Part II was the alien right.” as of That language typically correct result as to issue exhaustion. means that courts jurisdiction do not have do doubt that the Chief petitioner hear a who has not first his fellow dissenters read Foster as being brought his case before the available ad a holding point. on this That is without ministrative agency. But, right. their end, in the it is 18, 119, 120-21; 118 n. see also Coleman to one up judge, or even judges, three v. Thompson, to say what is holding not; and what is (discussing ultimately up requirement, found in 28 U.S.C. court, and the whole perhaps guid- court— 2254(b)(1) (1990), amended by Antiter ed the Foster voted over- —has rorism and Effective Death Penalty Act of whelmingly that review en banc of Zhong 104-132, Pub.L. § 104(2)(3),110 Stat. on ground this is not warranted. 1214, that a petitioner habeas “exhaust[] the remedies available in the courts of the

II State,” and interpreting it to mean that The second question, though perhaps petitioner “[a] habeas who has defaulted less fraught emotion, with is the more his federal claims in state court meets the important one: Did majority the in Zhong, technical requirements exhaustion; for in holding that exhaustion, issue though there are no state any remedies longer mandatory, is not jurisdictional, correctly ‘available’ to added)). him” (emphasis interpret what the It statute and relevant not, however, does require? ease law in itself proscribe judi cial review of issues not raised in the A course of exhausting those administrative 1252(d)(1), Section judicial remedies.7 review And as Supreme Court has provision analyzed in Zhong, states that observed, “requirements of administrative requirement lion might per- nevertheless be failure to BIA,” exhaust his claims before the Sousa, mitted. See ("Even 226 F.3d at 32 may such failure be excused where necessary impose where statutes require- exhaustion to avoid injustice”). "manifest The Chief Supreme has, ment despite Judge, consistently position with the he takes jurisdiction, rhetoric of excep- carved out case, Gill, and, in this dissented from in that tions."); see Etchu-Njang, also 403 F.3d at dissent, also criticized the reasoning of Matre ("[A]ssum[ing] 581-85 for sake argu- of Gill, ro Pichardo. See 420 F.3d at 95-97 ment that there be exceptions to the issue (Jacobs, J., dissenting). But Gill and Marrero requirement.’’). exhaustion By allowing such Pichardo nonetheless remain the of law "exceptions,” have, effect, these circuits in circuit, only which is the thing Zhong said treating the issue exhaustion re- about those cases. quirement truly jurisdictional (despite the they words were use). bound precedent to It is useful to compare language We, course, 1252(d)(1), have similarly allowed for which makes no mention of is- such “exceptions" exhaustion, in the context of sue claim language that Con- INS, exhaustion. See Gill v. gress 87- has in used other statutes. See Woelke (2d Cir.2005) (stating willingness to NLRB, hear & Romero Framing, Inc. 456 U.S. unexhausted prevent claims order to "man- (1982) injustice”); ifest see also Marrero (holding Pichardo v. appeals court juris- lacked Ashcroft, Cir.2004) (hold- F.3d diction to objections review not raised before that, ing "notwithstanding petitioner's ...a the National Labor Relations Board because a mandatory. See issue exhaustion largely creatures exhaustion issue (“[0]ur court has at 119 Zhong, 480 107- 580 U.S. Apfel, Sims statute.” an issue exhaustion consistently applied (2000); L.Ed.2d 08, 120 S.Ct. review petitions requirement (explaining F.3d at Zhong, 480 also BIA.”).8 in the Court observed how, “as the 2080], 107-08, 120 S.Ct. [Sims, moves Judge’s dissent But Chief contexts, expressly has, in other Congress proposi- these uncontroversial past well into requirements exhaustion issue written judi- tions, seeking to transform issue make it wished when statutes” rule into exhaustion cially-imposed issue orig (emphasis jurisdictional doing, it so requirement. jurisdictional inal)). questions: separate two conflates imposes a stat- itself no whether course, in cases in even Of re- issue exhaustion utory ex- statutory issue exhaustion (2) whether, the ab- quirement; of administra- principles ists, well-settled we statutory requirement, impose a sence a court may lead law tive nonetheless, one. have, imposed ourselves non-jurisdictional mandatory though —is- — in ef- argue, Judge appears The Chief is' And this requirement. sue exhaustion consis- fect, “our has that because agency’s when an happen likely to most re- issue exhaustion tently applied an require regulations own 134,- op. at such dissenting quirement,” “courts for then appeals, in administrative necessarily jurisdic- en- regularly [will] action reviewing agency mandatory. Alterna- rather than tional require- of that bypassing against the sure Judge contends tively, the Chief to consider unexhausted refusing ment a 1252(d)(1) include be read to should § 108, Sims, 120 S.Ct. at 530 U.S. issues.” require- exhaustion issue jurisdictional regula- BIA’s Accordingly, since text of the statute though exhaustion, ment —even see 8 issue require tions do agen- one—because not include does 1003.3(b), long held court has § C.F.R. (“PLRA”), pro which Act of 1995 jurisdictional Reform provided for a expressly statute 665, brought with shall be "[n]o id. at vides that action requirement); see exhaustion issue 160(e) § section prison conditions under (quoting respect 29 U.S.C. S.Ct. 2071 law, objection title, ed.), (1982 provided any that "no other or Federal which this 1983 of ... urged Board before the not been that has ... until such administrative prisoner (emphasis by the court” be considered shall added)); are available exhausted.” as are remedies Comm.’n Federal Power see also exhaus held previously Although we had 492, Co., U.S. Gas Colorado Interstate "mandatory,” Hand- PLRA is under the tion (hold- 467, 497, L.Ed. 583 75 S.Ct. non-jurisdic to be exhaustion berry held such Act, 19(b) Gas of the Natural ing that section did PLRA light the fact that the tional in objection provided "[n]o which require the exhaustion expressly describe considered shall be of the Commission order Jones See also jurisdictional. as ment objection unless such appeals] [of the court 921, 910, 918, — U.S. —, Bock, 127 S.Ct. urged the Commission before have been shall that, (2007) (holding while statutory exhaustion re- issue imposed ...” that exhaustion no "[flhere added)). (emphasis quirement PLRA,” the “failure mandatory under defense”). Com an .exhaust is affirmative exhaus- of our treatment example an 8. For exhaustion pare the PLRA’s “mandatory” but not requirements as tion expressly 1252(d)(1), also does not Thompson, Handberry v. "jurisdictional,” provide for Cir.2006), we in which require all, say that such' much less jurisdic- mandatory, but interpreted as jurisdictional. Litigation ment would tional, Prison language cy’s regulation requires issue exhaustion language. cases, Since those like the ma- during administrative appeals. Both lines jority in Zhong, treated issue exhaustion argument unpersuasive. as mandatory but not jurisdictional, we every reason to Sims, believe that

In the Su- noted preme Court endorsed that treatment impose courts often as mandatory issue ex- well. haustion rules when the agency’s reg- own require ulations the exhaustion of The Chief Judge’s dissent relies on appeals. administrative 530 U.S. at —Bock, Jones v. —, 127 S.Ct. 120 S.Ct. 2080. The Court then ap- cited 910, 166 (2007), L.Ed.2d 798 and Woodford provingly, examples of such issue ex- v. Ngo, — U.S. —, 126 S.Ct. work, haustion rules at the Fourth Cir- (2006), L.Ed.2d 368 for the proposition cuit’s decision in South Carolina v. U.S. that “exhaustion of administrative reme Labor, (4th dies” means whatever an agency, through Circuit’s, Cir.1986), and the Ninth opinion its regulations, says’ it means. See dis Sears, FTC, Roebuck and Co. v. senting op. at 135-37. words, other (9th Cir.1982). 398 n. 26 Signifi- despite the fact contains both of cantly, opinions those treated issue jurisdictional issue exhaustion require exhaustion as mandatory, jurisdic- but not ment, the Chief would have us treat tional. the BIA’s regulations as if they were Carolina, In South the Fourth Circuit themselves And, the statute. equally im that, held because the state had failed to portantly, he wants tous read the agency issues, exhaust certain had state regulations requiring issue exhaustion ifas waived those issues. 795 F.2d at 378. they made such Sears, Similarly, in the Ninth Circuit stat- rather than mandatory. that, ed in considering whether party One may doubt whether an administra issues, had exhausted what was at stake tive agency can either jurisdiction confer

was whether party had “waived reli- on courts deprive courts of it. Kon ance on them.” 676 F.2d at Cf. 397-98. trick, 540 U.S. at (“Only Moreover, the Ninth Circuit Sears ex- Congress may determine a lower federal plained that “a reviewing court will refuse court’s subject-matter jurisdiction.”). One to consider contentions presented be- may certainly doubt it in the absence of fore the administrative proceeding at the any express authorization to that effect by time,” appropriate except in “exceptional ” Congress. But one need not reach those circumstances. Id. at (emphasis 398 add- questions agree with the ed). holding in And, the fact that the Ninth Circuit Zhong. For the agency regulations deal “exceptional treated circumstances” as rel- ing with issue in the immigra is, evant course, at all of inconsistent with tion context do not speak themselves in jurisdictional truly requirement. canWe clearly jurisdictional Rather, terms. readily conclude the Sears and South regulations administrative use language Carolina did not courts think that what that can readily be read to make issue was play in those jurisdiction. cases was exhaustion mandatory, which exactly is Significantly, the Sims Court cited Sears Zhong how reads it. See and South Carolina with approval as ex- at 121-22. amples of in which cases courts properly imposed issue exhaustion requirements Jones and do not affect this Woodford even in the of express absence statutory result.9 In Woodford, the Supreme Court

133 (2d Jan.6, 2006); v. Wilson 144 Cir. the F.3d under exhaustion” “proper held (2d Cir.2006); Gonzales, 111, 123 471 re- non-jurisdictional PLRA’s Feng v. Bureau Citi also Jin Gao an see compliance “demands quirement Srvs., 2007 WL Immigration zenship and proce- other critical deadlines agency’s (2d 1233598, Fed.Appx. Apr.26, 21 Cir. 230 system adjudicative because dural rules 2007) order); Li v. (summary Chai imposing Gon without effectively can function 1206943, zales, Fed.Appx. 85 126 228 Woodford, 2007 WL orderly structure.” some 2007) order); (2d (summary Apr.25, but this does enough, Cir. Fair at 2386. 1180417, INS, 228 jurisdictional. 2007 WL v. such deadlines Ahmed not make 2007) (sum (2d Apr.20, to make Cir. Congress Fed.Appx. has intended 78 And when has, itself, order); it Lin v. Bureau jurisdictional mary Juan Citi rules procedural Srvs., supra note 2007 WL Immigration zenship to that effect. spoken (2d 13, so 1109272, CirApr. it did not do 57 Fed.Appx. The fact 228 Gonzales, then, 2007) order); that no such 1252(d)(1), (summary indicates Bah v. (2d intended. 1113091, Fed.Appx. jurisdictional 227 24 2007 WL intent, and 2007) order); Congress’s expressed 5, (summary it Guo Cir.Apr. And Gen., procedures, agency’s 2007 WL Att’y Zhi Lin v. U.S. meaning statutory (2d Cir.Apr. govern Fed.Appx. 93 222 making 1252(d)(1), guide courts 2007) order); Zhen Pan v. (summary Xiu determinations. Gen., their 222 Fed. own 2007 WL Att’y 2007) (2d Mar.23, (summary Cir.

Appx. order); Jus Li v. U.S. Ying Yee B tice, Fed.Appx. 33 2007 WL dissent, express- Judge, in his The Chief 2007) order); (2d Mar.21, (summary Cir. Zhong, all that, as a result the fear es Gonzales, 2007 WL v. Gjuraj ap- on considered be sorts of (sum 2007) (2d Mar.21, Cir. Fed.Appx. 75 BIA which, the statute and under peal Gonzales, 2007 order); v. Purwanto mary not to reviewed. ought regulations, (2d Cir. Fed.Appx. WL it worry, but his sympathize with can 2007) order); Mar.16, (summary Lhamo if a valid concern only become would 212 Fed. Appeals, Immigration Bd. of on a misapplied. And to be Zhong were Cir.2007) order); (2d (summary Appx. that, pudding proof like Gen., 214 Fed. Att’y v. U.S. Rong Zheng eating. always in the order); (summary Appx. Gonzales, Fed.Appx. Kapllaj v. down, Zhong opinion in came Since order); Hayat (summary Gon and cited applied has been Cir.2006) (2d zales, Fed.Appx. 904 Gonzales, 205 v. Lewis of cases. See number order); Jiang v. U.S. Hai (2d (summary Sun Cir.2007); Steevenez F.3d 132 481 (2d Justice, (2d Fed.Appx. 205 882 Cir.2007); Dep’t Gonzales, 114 476 F.3d v. order); Kuang Ju (summary Gonzales, 2 119 n. Karaj 462 v. (2d Gonzales, Fed.Appx. 201 95 v. Zheng (2d Cir.2006); Dep’t v. Chen Xiao Ji order); v. Ya-Ling (2d (summary Justice, n. 1 Cir. 320 120, 122 Cir. Gonzales, Fed.Appx. 2006), Dec.7, superseding amending order); v. 2006) Fang Yi He Justice, (summary Chen v. U.S. Xiao Ji therefore, ability agency address the do exhaustion The PLRA's defense, jurisdiction. see a court’s non-jurisdictional expand affirmative diminish to Jones, Woodford, at 921. Jones and Board Immigration Appeals, jurisdictional,11 198 Fed. permissible is it appro (2d Cir.2006) Appx. 88, 89 (summary priate or to read agency regulations un der); Qiu Gonzales, Fang Chen v. der making issue exhaus (2d Cir.2006) Fed.Appx. (summary or tion mandatory jurisdictional. but not The der); Gonzales, Jiang Xiao Lian v. 194 majority in Zhong said that it was. The (2d Cir.2006) Fed.Appx. 72 (summary or overwhelming majority of our court has der); Gonzales, Makeka 198 Fed.Appx. opted not to review that decision en bane. (2d Cir.2006) order). (summary great respect With the dissenting views, I believe that exactly decision was every cases, one of these Zhong has right. correctly applied deny consider- ation where the issue was not brought JACOBS, DENNIS Judge, Chief before the BIA—and to do so because whom JOSÉ A. CABRANES and REENA raising such issues mandatory, even RAGGI, Circuit Judges, concur, dissenting though jurisdictional.10 In other from the denial of rehearing in banc. words, in, far sky from the falling it is still “A review final order of there, shining bright. and is only removal if ... the alien has exhausted

[*] v * # alien as of all administrative remedies available to the right .... ” 8 U.S.C. 1252(d)(1). Thus Congress foreclosed In the end the in Zhong is a our review of challenges that an alien quite (1) simple one. Given failed at the agency’s factfind- powerful Court’s statements courts ing appellate levels. The majority of a should be reluctant juris make issues panel divided says that we can reaeh unex- dictional than mandatory rather unless hausted issues subject only nevertheless — statutory it, language requires see Day, to our discretion and to the spongy test of 1681-82; 126 S.Ct. at Arbaugh, 126 S.Ct. injustice.” “manifest panel The 1245; Eberhart, 405; 126 S.Ct. at Kon seems to that Congress think has shut the trick, 455-56, 540 U.S. at 906; S.Ct. door with the intention that we should Sims, 107-08, also 530 U.S. at climb the window. (2) 2080; given the fact that our precedents compel do not us to make issue Our law subject on this has been well exhaustion in immigration jurisdic cases settled to contrary. As ma- (3) tional; given enormous burden that jority concedes, “our court consistently has calling issue applied an issue would in impose practice on courts like petitions for review from the BIA.” Zhong ours which deluged cases; with those Justice, U.S. Dep’t and finally, given very Cir.2007). small—if per- Kearse’s dissent in results that flow from suasively attacks the —differences deviation of calling exhaustion mandatory but not majority analysis and the they use get 10. The only exception we have found since tions that jurisdic- some courts have read into Gonzales, Jiang is You v. 2007 WL tional language. supra note 6. 1113527, (2d Fed.Appx. 228 25 Apr.3, Cir. 2007) order) (summary (reviewing unexhaust- 11. Especially in view "exceptions” to ed light government’s waiver), issue in of and jurisdictional bars that using jurisdic- courts I do not whether know in Jiang facts You tional language have supra created. See note might permitted review excep- under the 6.

135 I do not think Concurring Op. at 129. upon her improve I cannot they go. where is a value so precedent to my repeat- in adherence point dissent, there is and event, dismissed; any pan- from the those easily is taken in dissent it. This ing I not because do something review else: seek of in banc have done denial els could be- majority makes know what in banc. review to insufficient precedent that our lieve from our Choosing depart instead to case, precedent that our this decide precedent, the well-settled one panel. be set aside could the discretion says that we do have to now appeal to us on presented review issue BIA, to the and presented not v. INS held in Foster opinion Our 2004 review such an that we must moreover of our review precludes a “manifest necessary prevent if ex- that were not claims of reserving power injustice” free are not BIA: “[CJourts at the —thus hausted arbitrary captious. the requirement with” dispense BIA in or- “raise issues to petitioner speak not in Although the statute does review.” judicial them preserve der “issues,” exhausting many words so (2d (emphasis 75, 77-78 F.3d 376 no sense to read held that it makes Foster (internal omit- marks quotation original) in way: “Accepting any other the statute ted). peti- that a in ... Foster held “We improp- removal is statement that blanket issue below have raised an tioner all claims would as sufficient to exhaust er INS, 420 v. appeal.” it on Gill rule since th[e] [exhaustion] eviscerate (2d (emphasis 82, 86 F.3d (as do) nearly all he was could claim alien down, every Foster came original). Since judicial apply for and then removable applied its this has judge of active exhausted theory he had his review on summary order holding usually— This holding at 78. remedies.” 376 F.3d nature of the settled recognition opin- in our consistently applied has appeals other Ten courts proposition.1 See, Ashcroft, 464 v. F.3d e.g., Iouri ions. they all the issue—and have addressed Cir.2006) (“[T]his (2d particular 172, 177 we did.2 the same conclusion reached before the BIA argument was raised two of the cir- notes that Judge Calabresi to exhaust faded Petitioners therefore only because this cuits reached conclusion (emphasis administrative remedies.” their precedents earlier “they were bound added)). nothing else.” could circuits and do their 75, Ashcroft, INS, 387 F.3d 80 See, v. Fed.Appx. See Makhoul 85 2. e.g., v. 178 Damko Cir.2004); Ashcroft, (1st v. Jie Xie 359 Xin BCIS, Cir.2006); (2d 190 v. Qin Di Chen Cir.2004); 239, (3d v. Asika n. 8 F.3d 245 (2d Cir.2006); v. Islamovic Fed.Appx. 101 (4th 264, n. Ashcroft, 267 3 Cir. 362 F.3d Cir.2006); (2d Gonzales, Fed.Appx. 47 192 2004); Ashcroft, Wang 260 F.3d Kuang-Te v. Justice, Dep’t 188 Fed. Meiying v. U.S. Lin Cir.2001); 448, (5th v. Ash Ramani 452-453 (2d Cir.2006); Huang v. Xian 28 Xian Appx. Cir.2004); (6th croft, 558-60 378 F.3d Cir.2006); (2d Gonzales, Fed.Appx. 107 187 (7th Gonzales, 481 Pjetri v. Gonzales, Fed.Appx. 41 v. Yong Gui Liu Gonzales, Cir.2006); Alyas 419 F.3d v. Gonzales, Cir.2006); (2d Zheng Yun Yu (8th Cir.2005); Morales-Alegria v. Gon Cir.2006); (2d v. Gon Fed.Appx. Xharo (9th Cir.2006); zales, 1058-59 449 F.3d Cir.2006); zales, Yan Fed.Appx. 28 INS, 120 & n. Rivera-Zurita Justice, 161 Fed. Fang Wang v. U.S. Cir.1991); (10th v. Attor Fernandez-Bernal Cir.2005). (11th General, n. 13 Appx. ney Cir.2001).

II appellate process. internal 530 U.S. 106-12, 120 S.Ct. 147 L.Ed.2d 80 by Panels of this Court bound (2000).3 appeals Sims ruled that to the precedents prece- unless and until those Security Appeals Social Council need not Supreme dents aré the Court overruled reversal; specify grounds for but the anal- sitting in banc. or this Court ysis compels opposite used Sims the Goord, Nicholas v. immigration conclusion the context. Cir.2005). Nothing Supreme the The security Court concluded that social justified departure has said could have the regulations did require issue exhaus- that the ma- precedent Circuit tion, but observed that “it is common for jority has made. agency’s regulations require an Supreme spoken plainly The Court has exhaustion in appeals,” administrative id. as to how the inferior courts should under at 120 S.Ct. and the it example requirements. stand statutory exhaustion a regulation cited of that does require as (as Congress says When it did in much—and therefore would necessitate is- 1252(d)(1)) § petitioner that a must have closely sue tracks the words exhaustion — all administrative “exhausted remedies immigration of its analog. Compare 20 right,” petitioner available as of the must 802.211(a) § (petitions C.F.R. for review agency’s do so in accordance with that by the Benefits Review Board must “list —Bock, procedures. See Jones v. U.S. specific the issues to be considered on —, 910, 923, 127 S.Ct. 1003.3(b) (“The appeal”), § with 8 C.F.R. (2007) (“[I]t the prison’s requirements party taking appeal identify ... that define the boundaries proper appeal reasons for the ... [including] the exhaustion.”). The Court has findings fact, law, the conclusions of emphasized thus that the existence of an both, being that are challenged.”). issue exhaustion does not hinge solely statutory wording: on “Prop In considering agency’s appellate er compliance exhaustion demands with an process, the Sims Court examined the agency’s deadlines and other proce critical agency’s seeking directions to those to file adjudicative dural system rules because appeal agency, within the and inferred effectively can function without imposing that much, the “Council depend does not if orderly some structure on the course of its all, at on identify claimants to issues for — proceedings.” v. Ngo, U.S. Woodford 111-12, review.” 530 at 120 S.Ct. —, 2378, 2386, 165 L.Ed.2d 368 422.205(a) (citing § 20 C.F.R. (2006). HA-520). contrast, Form By the Execu- Apfel

Thus Sims the Court ascer- tive Immigration Office for Review ex- tained the need for issue exhaustion pressly instructs aliens to “give specific examining agency’s regulations why you its details disagree with the Immi- regulations The Sims Court consulted 1252(d)(1). tion such as I propriety determine of an exhaustion rule agree Kearse that Foster reached because statute issue in that case made right making answer in this determina- exhausting no remedies, reference administrative (Kearse, tion. See 480 F.3d at 137 405(g) (requiring U.S.C. ("Given context, dissenting) decision”). only a "final While Sims is con- wit, presented review, petition in a judicial imposition cerned with of an issue regard phrase 'issues not raised in the requirement, analysis the Court’s exhausting course all administrative reme- agency processes should inform our deter- added) (emphases dies’ oxymoron.”). as an scope statutory mination of the of a exhaus- 1252(d)(1) event, us what § tells “specify and to Judge’s decision” gration review,” par- not what the conclusion(s) “court the fact, of the finding(s) of the do; be should not so its mandate ties challenging.” both, you law, that are or of an affirmative to the status reduced EOIR-26, http://www. available Form statutory demon- context defense.4 The C.F.R. also usdoj.gov/eoir/; express chose to why Congress strates § 1003.38. power. on our § as a limitation only to empowered appeals Courts Ill removal, not to re- final orders of review application for adjudicate underlying the precedent, bypass to our Having decided some- we cannot review Because relief.5 pretense a majority makes panel the duty or BIA no occasion thing that the had circumstances for the criteria laying down decide, not be freed from the we should to limited) might in which we (purportedly 1252(d)(1) by § the absence constraint failure to a ignore petitioner’s excuse or gov- the objection or government aof BIA. the issues before exhaust instead to demon- undertaking ernment’s issue is merit- unpreserved that an majority would consider strate First, panel the less. objected ap- on government the whether to exhaust. petitioner’s to the failure

peal consider majority would next The (This at 107 n. 125. Zhong, 480 F.3d summarily, and BIA whether the affirmed ground of distinction purported as a raised that sum- the senseless inference draws Foster). present the case between all of the IJ’s mary adopts affirmance consideration, legitimate this a Even were peti- if the denying even grounds for relief lack from the be inferred no waiver should of them. than all challenged fewer tioner where, as government why the objection presume But F.3d at 125. Zhong, 480 no reason here, had issues government the BIA considers and decides that why from our it? And argued we would deviate were not assume can be a broader waiver BIA conducts precedent. If that the well-settled assume here, anywhere. summary disposi- issuing inferred it can be before inferred review opinion? an it issues may simply deem than it does when panels future tion And Gonzalez-Roque, 301 render ‘insufficiently United States objection specific’ (“Although issue—which waiver record, it is entire considering has access BIA as essential regards meri- possibly it for obligated to search case— not in the unexhausted issues.”). suspects One appellate torious meaningless. 2349(a) (limiting States, Compare § 28 U.S.C. 5. v. United Eberhart Cf. removal to orders of jurisdiction over final 15-16, L.Ed.2d 14 of, enjoining, validity "determining Federal Rule of (holding a violation of aside, or in suspending, in whole setting or for the fil- 33's Procedure deadline Criminal agency”), and 8 U.S.C. part, the order trial, which is for a ing of a motion new 1252(a)(1) (incorporating reference § "Any ... must be prefaced with motion of the Administrative jurisdictional limitations filed,” to); timely objected Johnson must be Act, seq.), § 2341 et 28 U.S.C. Orders Review Testman, (permitting a federal 405(g) with 42 U.S.C. requirement (holding modify- affirming, judgment "a court to issue Act, 42 Litigation U.S.C. Reform Prison of the Commis- ing, reversing the decision 1997e(a), "No ac- prefaced with which is Security ... without remand- of Social sioner waivable). brought,” is tion shall rehearing”). ing the cause for a (Kearse, J., is dissenting). that this consideration raised the F.3d at 138 The majority chiefly way as a panel improvised by panel to embar- idea itself was a adopting BIA for streamlined this court in rass the Marrero Pichardo v. Ash croft, practices. appeal is the role of the fed- from the denial of habeas “[I]t operat- sought by eral dictate the internal relief a felon courts to who failed alto ing gether appeal of the BIA.” Kambolli v. to order deportation rules Gon- his (2d Cir.2006). zales, to the BIA. As 52-54 Cir. 2004). it happens, rulings our Court follows a similar Recent had called into § question rule. 2d R. 0.23. See Cir. whether Marrero Pichardo could aggravated be deemed an felon on the Last, panel majority would consider basis of his DUI convictions—of which factfinding whether “additional is neces- (hence there were eleven the manifest in sary,” Zhong, 480 F.3d at 107 n. 125. justice). elsewhere, As I have observed just way This another saying is tenably only Marrero Pichardo can stand panel may appeal any consider on issue it propositions already for two laid down in the record without regard sees to may Court: [i] “courts not be any whether it was raised to the BIA. In by congressional ju bound limitations on event, 1252(a)(1), under 8 U.S.C. “the risdiction that raise prob constitutional may taking not order the of addition- lems”; requirements [ii] al evidence.” “do if apply possibility there is no The proffered by pan- considerations relief from the administrative agency, majority el amount to no effective limita- which event the administrative officers willingness tion on the panel of a to disre- presumably would authority have no to act gard so, issue exhaustion at will.6 And subject complaint, on the leaving the restraint, an effort to create the illusion of [complainant] nothing to exhaust.” panel only holds Gill, J., (Jacobs, 95-97 dissent in which a panel ignore eases (internal omitted). ing) citations Marrero 1252(d)(1) doing those which so more, Pichardo nothing stands for “prevent would injustice.” manifest (if certainly any does not authorize pan us Zhong, F.3d at 107 n. 1. could) opinion el to reach unexhausted is panel The majority’s discussing footnote BIA, an appeal sues on from the or to injustice” pure “manifest dicta because injustices assume that truly that are “man (manifest not) injustice no has been ifest” will have been overlooked event, identified in any this case. In I petitioners themselves. Judge share skepticism Kearse’s concern- IV

ing “whether actually this Court has the power remedy injustice even a manifest The majority opinion makes its jurisdiction.” when lack we why § 480 case for leaves issue ex- issue, particular Calabresi offers comfort in the form and reach it at will after of 26 cases decided after came down in dispensing essentially meaningless with the panels grasp opportunity did not Zhong majority criteria the formulated as a presented decide a never to the BIA. supposed power restraint on the abuse of Concurring Op. at 133-34. This score is of- event, discretion. the score cited re- response floodgate argument fered as a to a only happened flects what has thus far—while do danger not make. The institutional is not pending. this in banc initiative has been Pan- many panels opportunity will take the judicial els be less inclined to exercise issues; many decide such single it is that a Stay restraint in the future. tuned. designate will be able to itself to decide case discretion; it makes haustion of America STATES UNITED this Court any member why it. follow

bound (as has this one is settled an issue When precedent follow been), panels VOELKER, Appellant. Daniel apply it-they simply revisit no occasion No. 05-2858. judges summary So order. by rule only need precedent a to undo a mind with of Appeals, United States and select patience a await such case Third Circuit. if it had the issue to decide themselves deviation settled. Such already 13, 2006. July Argued: a disci- something is precedent banc consider in should court plined 5, 2007. June Opinion Filed and con- the coherence preserve order to rejecting By jurisprudence.

sistency of its consider review, we decline

in banc impor- “exceptional

together dispute is

tance,” no one can one which uniformi-

“necessary or maintain to secure 35(a). P. R.App. Fed. in our

ty” Circuit. can

Sometimes, proceedings banc opin- of draft circulation

obviated Court; active members to the

ion then advised are public and the

litigants objection interposed. that no

footnote This in this case.7 not done

That was only be- can be effective

circumvention rusty and is practice so our in banc

cause will allow its desuetude

cumbersome review. past full to skate

single panel however, token, any other

By the same equal authority may equal

panel —with equal legitimacy

occasion —overrule holding. pros- This majority’s and risks institutionally dangerous,

pect rulings and of our currency

debasing

opinions. a case review of in banc a substitute for two of advises that

7. Calabresi consistently cited as curiam judges signed per principle has been whose three who Court, the most willing upon by concede that liti- Foster relied authority by this Concur- ruling in it be dicta. significant other courts adopted ten gants, and that the Op. do not think ring appeals. possible authors approbation of two informal

Case Details

Case Name: Lin Zhong v. United States Department of Justice, & Attorney General Gonzales

Court Name: Court of Appeals for the Second Circuit

Date Published: May 31, 2007

Citation: 489 F.3d 126

Docket Number: Docket 02-4882-ag

Court Abbreviation: 2d Cir.