UNITED STATES OF AMERICA v. EUPHREM KIOS DOHOU, Appellant
No. 19-1481
United States Court
January 28,
AMBRO, KRAUSE, and BIBAS, Circuit Judges
PRECEDENTIAL; On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:16-cr-00065-001); District Judge: Honorable Robert D. Mariani; Argued: November 13, 2019
Quin M. Sorenson [ARGUED] Office of Federal Public Defender 100 Chestnut Street, Suite 306 Harrisburg, PA 17101
Counsel for Appellant
Michelle L. Olshefski [ARGUED] Office of United States Attorney 235 North Washington Avenue, Suite 311 P.O. Box 309 Scranton, PA 18503
David J. Freed Joanne M. Sanderson Office of United States Attorney 228 Walnut Street, PO Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108
Counsel for Appellee
OPINION OF THE COURT
BIBAS, Circuit Judge.
Immigration judges’ decisions are presumptively subject to review by Article III courts. Euphrem Kios Dohou never petitioned for review of his final removal order. But now that he is being criminally prosecuted for hindering removal based on that order, he seeks to attack it collaterally. The Government responds that the District Court lacked jurisdiction to decide that collateral challenge. And the District Court agreed.
We disagree. We hold that a removal order that was never in fact reviewed by an Article III judge remains subject to collateral attack in a hindering-removal prosecution based on that order. The Immigration and Nationality Act authorizes such collateral attacks so long as the original removal order was not “judicially decided.”
On the merits, Dohou‘s ineffective-assistance claim requires factfinding. The District Court must also decide whether a statutory- or prudential-exhaustion doctrine bars relief. So we will also remand.
I. BACKGROUND
In 1992, Dohou came from Benin to the United States on a visitor‘s visa. He became a lawful permanent resident a few years later. More than a decade after that, he was convicted of conspiring to traffic marijuana. That crime is an aggravated felony, which made him removable.
When Dohou was released from prison in 2015, the Department of Homeland Security began removal proceedings. To start the process, it served him with a notice to appear before an immigration judge at a date and time to be set later. He then hired an immigration lawyer. After a hearing, the immigration judge ordered Dohou removed to Benin. He never appealed to the Board of Immigration Appeals, or filed a petition for review in the appropriate court of appeals.
Federal agents repeatedly tried to take Dohou to the airport to remove him. Each time, they say, he resisted them. So federal prosecutors got involved, and a grand jury indicted him for the crime of hindering his removal. See
Dohou moved to dismiss that indictment, asserting that it rested on an invalid removal order for two reasons: First, he argued that the absence of a date and time for his removal hearing on the notice to appear deprived the immigration judge of the authority to order him removed. And second, he argued that his counsel before the immigration judge had given ineffective assistance, making his removal proceedings fundamentally unfair.
The District Court denied Dohou‘s motion. It reasoned that because he had been convicted of an aggravated felony,
Dohou now appeals. We review the District Court‘s jurisdictional holding de novo. United States v. Charleswell, 456 F.3d 347, 351 (3d Cir. 2006). On the merits, we review questions of law de novo and findings of fact for clear error. Id.
To decide jurisdiction, we must reconcile two provisions of the Immigration and Nationality Act (the Act). Under
Dohou was convicted of a drug crime (which is an aggravated felony, to boot). So this appeal presents two questions: Does
We hold for Dohou on both issues. Section 1252(b)(7)(A) lets him collaterally attack his removal order because the immigration judge‘s order has not been “judicially decided.” And
A. Section 1252(b)(7) grants the District Court jurisdiction to review the validity of Dohou‘s removal order
Under
Dohou argues that his removal order has not been “judicially decided” because no Article III judge has reviewed it. The Government counters that Dohou‘s failure to seek direct judicial review made his order “judicially decided.” We agree with Dohou: the statute‘s text, structure, and context require actual review by an Article III judge—not just an immigration judge, and not just the possibility of judicial review.
We start with the text. While “decided” can refer to decisions by either judges or executive officials, the adverb “judicially” means that the subject, the decider, must be a judge. See Decision, Black‘s Law Dictionary (11th ed. 2019) (“[a] judicial or agency determination“); Judicial, Black‘s Law Dictionary, supra (“[o]f, relating to, or by the court or a judge“). In the federal system, that normally means an Article III judge. By contrast, decisions by administrative officials in the Executive Branch, like immigration judges or the Board of Immigration Appeals, are more aptly described as “nonjudicial” or “quasi-judicial.” See Decision, Black‘s Law Dictionary, supra (defining “nonjudicial decision” as “[a] legal determination rendered by a special tribunal or a quasi-judicial body“); Quasi-Judicial, Black‘s Law Dictionary, supra (“[o]f, relating to, or involving an executive or administrative official‘s adjudicative acts“).
This dichotomy between administrative and judicial decisions runs throughout the structure of
Interpreting “judicially” to refer only to Article III courts also makes sense in light of the broader statutory scheme. The government may prosecute an alien for hindering
The Government does not deny this premise. Rather, it argues that Dohou could have sought judicial review (by appealing first to the Board and then to a court of appeals) but failed to do so. But the text requires more than that. Elsewhere, the Act focuses on whether the alien had “the opportunity for judicial review.”
The availability of review is not enough. Section 1252(b)(7) focuses instead on whether there was an actual judicial decision. Here, there was not. So this provision grants jurisdiction over Dohou‘s collateral attack.
B. Section 1252(a)(2)(C) did not strip the District Court of its § 1252(b)(7) jurisdiction
The District Court denied Dohou‘s motion to dismiss on a different ground. It reasoned that
We hold that
1. Unlike other immigration provisions,
Congress worded these provisions differently, and not all use language designed to reach collateral attacks. Some bar only “review” of removal orders. See
This “relating to” language is “typically construed as having a broad, expansive meaning“—one much broader than the text of
But when a jurisdiction-stripping provision in the Act omits capacious phrases like “relating to,” it bars only direct review. See Charleswell, 456 F.3d at 352 n.4. In Charleswell, we reasoned that
When Congress includes broad jurisdiction-stripping language in one section of the Act “but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (quoting Bates v. United States, 522 U.S. 23, 29–30 (1997)). In other words, Congress‘s failure to include the broad “relating to” language in
2. The presumption of Article III review favors construing jurisdiction-stripping provisions narrowly. Even if the Government‘s broader reading of
We presume that the Executive Branch‘s actions are subject to judicial review. This presumption is “well-settled” and traces its lineage back to the foundations of our Republic. Kucana v. Holder, 558 U.S. 233, 251–52 (2010) (quoting Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63 (1993)); see Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986) (quoting Chief Justice Marshall in United States v. Nourse, 34 U.S. (9 Pet.) 8, 28–29 (1835)). That presumption applies not only to statutes that foreclose judicial review, but also to those (like the provision here) that may limit avenues of relief. See Abbott Labs. v. Gardner, 387 U.S. 136, 140–41 (1967) (applying the presumption to allow pre-enforcement review of administrative action).
To displace our presumption in favor of judicial review, Congress must speak clearly. Before reading a statute so
The parties spill much ink debating whether we should read
In short,
III. ON THE MERITS, WE REMAND FOR FACTFINDING BUT REQUIRE EXHAUSTION
Dohou moved to dismiss his criminal indictment as resting on an invalid removal order. He alleged that his notice to appear was defective and that ineffective assistance of counsel made his immigration proceedings fundamentally unfair.
Dohou‘s procedural claim is already foreclosed by our precedent, so we will resolve it here. But his ineffective-assistance claim is fact-intensive, so we will remand it to the District Court. Although we doubt that
A. Our precedent forecloses Dohou‘s procedural claim
Dohou tries to expand the Supreme Court‘s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Citing Pereira, he argues that the charging document that began his removal process (the notice to appear) was invalid because it omitted the date and time when he had to appear. See id. at 2109–11, 2114–16. Because invalid charging documents cannot start removal proceedings, he argues, the immigration judge lacked jurisdiction to find him removable.
But we have already rejected this claim. In Nkomo, we held that Pereira applies only when an alien seeks discretionary cancellation of removal under
B. We remand Dohou‘s ineffective-assistance-of-counsel claim for factfinding
Before the District Court, Dohou argued that his immigration counsel had provided ineffective assistance. Counsel allegedly failed to present evidence of how bad conditions are in Benin, Dohou‘s home country. Dohou argues that but for counsel‘s failure, he would have been eligible for deferral of removal under the Convention Against Torture.
C. On remand, the District Court should consider exhaustion
Before remanding, we confront an unsettled question of law. Under
Section 1326(d) is a different provision in the same Act, governing collateral attacks in prosecutions for illegal reentry. Dohou brings a
Some district courts have applied
But we need not decide it here. Even if the statute does not require exhaustion, courts may, prudentially, require exhaustion. “It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief.” Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Here, if Congress has not mandated exhaustion by statute, “sound judicial discretion [would] govern[]” its application. McCarthy v. Madigan, 503 U.S. 140, 144 (1992).
Prudential exhaustion would require us to balance the alien‘s interest in prompt access to the federal courts with the government‘s institutional interest in exhaustion. Id. at 146. But even when courts might otherwise require exhaustion, they may excuse it when, for instance, “waiver, estoppel, tolling or futility” applies. Wilson v. MVM, Inc., 475 F.3d 166, 174 (3d Cir. 2007). We also excuse prudential exhaustion “when the challenged agency action presents a clear and unambiguous violation of statutory or constitutional rights.” Susquehanna Valley All. v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 245 (3d Cir. 1980).
Dohou claims that his lawyer‘s ineffective assistance violated his constitutional right to due process. So even if he did not exhaust, the clear-violation exception could apply. Perhaps other exceptions could too. But we leave it to the District Court to decide in the first instance these statutory and prudential issues and whether Dohou in fact exhausted his claims.
* * * * *
No Article III court has yet reviewed the validity of Dohou‘s removal order, so it has never been “judicially decided.” Under
On remand, the District Court must find facts and decide whether Dohou‘s immigration lawyer provided ineffective assistance, making his removal order (and thus his criminal prosecution based on it) fundamentally unfair. It must also consider whether the statute requires exhaustion, whether prudentially to require exhaustion, and if so whether that violation was clear enough to excuse prudential exhaustion.