05-4622-ag Valenzuela Grullon v. Mukasey
1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2007 6 7 (Argued: August 30, 2007 Decided: November 27, 2007 8 Amended: January 7, 2008) 9 10 Docket No. 05-4622-ag 11 12 - - - - - - - - - - - - - - - - - - - -x 13 14 JULIO CESAR VALENZUELA GRULLON, 15 16 Petitioner, 17 18 - v.- 19 20 MICHAEL B. MUKASEY, ATTORNEY 21 GENERAL,* MICHAEL J. GARCIA, 22 EDWARD J. MCELROY, BUREAU OF 23 IMMIGRATION AND CUSTOMS 24 ENFORCEMENT, 25 26 Respondents. 27 28 - - - - - - - - - - - - - - - - - - - -x 29
30 Before: JACOBS, Chief Judge, B.D. PARKER and 31 HALL, Circuit Judges. 32 33 Petition for review of a final order of Immigration
34 Judge John Opaciuch denying cancellation of removal.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General John Ashcroft as respondent in this case. 1 Petitioner failed to appeal the IJ’s order to the BIA,
2 petitioning instead for a writ of habeas corpus. Habeas
3 corpus petition was docketed as a petition for review by
4 operation of law under the REAL ID Act of 2005.
5 DISMISSED.
6 BOZENA ZIEDALSKI, New York, NY, 7 for Petitioner. 8 9 M. JOCELYN LOPEZ WRIGHT, 10 Assistant Director, Office of 11 Immigration Litigation, Civil 12 Division, United States 13 Department of Justice (Peter D. 14 Keisler, Assistant Attorney 15 General and Carol Federighi, 16 Senior Litigation Counsel, on 17 the brief), Washington, D.C., 18 for Respondents. 19 20 DENNIS JACOBS, Chief Judge:
21 Julio Cesar Valenzuela Grullon (“Valenzuela”) petitions
22 for review of an order of Immigration Judge (“IJ”) John
23 Opaciuch denying his application for cancellation of
24 removal. Valenzuela, who failed to appeal the order of
25 removal to the Board of Immigration Appeals (“BIA”),
26 concedes that his administrative remedies are therefore
27 unexhausted, but asks that the failure to exhaust be excused
28 (and that we reach the merits of his petition). We hold
29 that the exhaustion requirement applicable to Valenzuela’s
2 1 petition, 8 U.S.C. § 1252(d)(1), is statutory and
2 jurisdictional. Further, we conclude that the
3 jurisdictional defect cannot be excused on a ground of
4 manifest injustice. Contra Marrero Pichardo v. Ashcroft,
5 374 F.3d 46, 53 (2d Cir. 2004).
7 I
8 On December 5, 1994, Valenzuela was admitted as a
9 lawful permanent resident from his native Dominican
10 Republic. In December 2001, he was indicted in New York on
11 a series of drug offenses, and pled to a single count in
12 February 2002. He was sentenced to a term of three years to
13 life in prison.
14 One month before his October 2002 release on parole,
15 the INS charged Valenzuela with violating a law related to a
16 controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i).1
17 Upon his parole, Valenzuela was detained by the INS. In
18 December 2002, he filed a petition for habeas corpus in the
19 Southern District of New York, arguing that detention
20 without bond prior to his removal proceedings was
1 The government also alleged initially that Valenzuela had committed an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), but later withdrew that basis for removal. 3 1 unconstitutional. The district court (Griesa, J.) granted
2 the petition on December 20, 2002, and Valenzuela was
3 released. The government’s appeal of that ruling became
4 moot when Valenzuela’s removal proceedings were completed;
5 we therefore vacated the district court’s order.2
6 Throughout his removal proceedings, conducted in the
7 spring of 2003, Valenzuela conceded removability but sought
8 cancellation of removal. In order to establish that he has
9 continuously resided in the U.S. for seven years--a
10 prerequisite to cancellation of removal, see 8 U.S.C. §
11 1229b(a)(2)--Valenzuela would have had to overcome the
12 “stop-time” rule, which provides that “any period of
13 continuous residence . . . shall be deemed to end . . . when
14 the alien has committed an offense . . . that renders the
15 alien inadmissible to the United States.” 8 U.S.C. §
16 1229b(d)(1)(B). Valenzuela argued that the stop-time rule
17 does not terminate a period of continuous residence until
18 the alien is convicted of the removable offense--a
19 consequential distinction for Valenzuela because he pled
20 guilty a few months after the December 2001 expiration of
2 Both parties note that the rationale for the district court’s habeas ruling was in any event subsequently rejected by the Supreme Court in Demore v. Hyung Joon Kim, 538 U.S. 510 (2003). 4 1 the seven-year period, whereas the indictment alleged that
2 the offense was committed on or about August 29, 2001.3
3 The BIA had already rejected Valenzuela’s proposed
4 reading at the time of his hearing before the IJ, see In re
5 Perez, 22 I. & N. Dec. 689 (BIA 1999) (11-4 decision in
6 banc), but Valenzuela urged the IJ to follow the reasoning
7 of the Perez dissent.
8 The IJ denied relief in August 2003.4 Rather than
9 appeal to the BIA, Valenzuela filed a second habeas petition
10 in October 2003 to challenge the order of removal. This
11 habeas petition was pending in the Southern District of New
12 York when the REAL ID Act of 2005, Pub. L. No. 109-13, 119
13 Stat. 231, 311 (2005), took effect on May 11, 2005.
14 Pursuant to Section 106(c) of that Act, the district court
15 ordered the habeas corpus petition transferred to this
16 Court, where it was docketed as a petition for review.
3 Valenzuela’s brief professes uncertainty as to the precise date he committed the offense to which he pled guilty. He concedes, however, that the date of his arrest-- November 29, 2001--fell within the seven-year period following his admission to the United States. 4 We do not know the actual grounds for the order of removal because the oral decision is not included in the record on this appeal (a consequence of Valenzuela’s failure to appeal to the BIA, discussed below); in all likelihood, however, one ground was Perez. 5 1 Valenzuela concedes his failure to exhaust
2 administrative remedies before petitioning this Court for
3 review, but he contends that any failure to exhaust should
4 be excused because (1) appeal to the BIA would have been
5 futile, (2) his appeal raises constitutional claims, and (3)
6 dismissing his petition would cause a “manifest injustice.”
7 On the merits, Valenzuela argues that the stop-time rule is
8 ambiguous as to whether continuous residence is terminated
9 by commission of an offense or by conviction, and that the
10 Perez dissent correctly concluded that the trigger is
11 conviction.
12 The government urges us to dismiss the petition for
13 review on exhaustion grounds because Valenzuela never
14 appealed to the BIA. On the merits, the government defends
15 the BIA’s interpretation of the stop-time rule in Perez as
16 consistent with the plain language of the statute and argues
17 that Valenzuela is therefore barred from applying for
18 cancellation of removal.
20 II
21 When the REAL ID Act of 2005, Pub. L. No. 109-13, 119
22 Stat. 231, 311 (2005), became effective, Valenzuela’s second
6 1 habeas petition (challenging his order of removal), then
2 pending in the Southern District of New York, was
3 transferred to this Court and converted into a petition for
4 review:
5 If an alien’s case, brought under section 6 2241 of title 28, United States Code, and 7 challenging a final administrative order 8 of removal . . . is pending in a district 9 court on the date of the enactment of 10 this division, then the district court 11 shall transfer the case . . . to the 12 court of appeals for the circuit in which 13 a petition for review could have been 14 properly filed . . . . 15 16 § 106(c), 119 Stat. at 311; see also Marquez-Almanzar v.
17 INS, 418 F.3d 210, 215 (2d Cir. 2005). The REAL ID Act
18 speaks generally to the manner in which converted petitions
19 are to be treated upon transfer here:
20 The court of appeals shall treat the 21 transferred case as if it had been filed 22 pursuant to a petition for review under 23 such section 242, except that subsection 24 (b)(1) of such section shall not apply. 25 26 § 106(c), 119 Stat. at 311. In other words, converted
27 petitions are to be treated as ordinary petitions for review
28 in all respects except as to the filing deadline (8 U.S.C. §
29 1252(b)(1)).
30 The question, then, is whether Valenzuela’s converted
31 petition is governed by 8 U.S.C. § 1252(d)(1) (“A court may
7 1 review a final order of removal only if . . . the alien has
2 exhausted all administrative remedies available to the alien
3 as of right”), or whether the sole exhaustion rule
4 Valenzuela violated is a “judicial (common-law) [rule],
5 [which is] discretionary and includes a number of
6 exceptions[,]” Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir.
7 2003).
8 We have not had occasion to decide whether § 1252(d)
9 requires that aliens appeal to the BIA before petitioning
10 this Court for review. But our jurisprudence makes that
11 supposition. For example, we dismissed a habeas appeal in a
12 case that had never been before the BIA, holding that the
13 “limitations imposed by § 1252(d) on a court’s ability to
14 ‘review’ final orders of deportation extend[ed] to habeas
15 corpus review.” Theodoropoulos v. INS, 358 F.3d 162, 170
16 (2d Cir. 2004); see also Lin Zhong v. U.S. Dep’t of Justice,
17 480 F.3d 104, 118 (2d Cir. 2006) (“[W]e have jurisdiction to
18 review the ‘final order of removal’ entered against Lin, so
19 long as a decision has been rendered on his application by
20 an IJ and appealed to the BIA--the two administrative
21 remedies available to him as of right.”); cf. Marrero
22 Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004) (“We
8 1 therefore hold that, notwithstanding a habeas petitioner’s
2 failure to exhaust his claims before the BIA, as required by
3 section 1252(d), we nonetheless have jurisdiction to
4 consider the petitioner’s claim if it is necessary to avoid
5 manifest injustice.” (emphasis added)).
6 Squarely presented with the issue for the first time in
7 this appeal, we hold that the exhaustion provision of §
8 1252(d)(1) requires aliens, inter alia, to appeal to the BIA
9 before petitioning for review in this Court.
11 III
12 The next question is whether the statutory exhaustion
13 requirement of § 1252(d)(1)--that a court may review a final
14 order of removal only if the alien has exhausted all
15 administrative remedies available to him as of right--is
16 jurisdictional or merely “mandatory.”5 See Lin Zhong, 480
17 F.3d at 119. Mandatory requirements (we have said) are
18 subject to waiver, id., and are therefore less absolute than
19 jurisdictional requirements.
5 We need not deal here with the third category of exhaustion requirements--those that are judge-made, prudential rules of administrative law--because we hold that the exhaustion requirement that governs Valenzuela’s petition is statutory. See Part II, supra. 9 1 In Lin Zhong, 480 F.3d at 119-20, we distinguished
2 between jurisdictional and mandatory rules, partly by resort
3 to the Supreme Court’s caveat that
4 [c]larity would be facilitated . . . if 5 courts and litigants used the label 6 “jurisdictional” not for claim-processing 7 rules, but only for prescriptions 8 delineating the classes of cases 9 (subject-matter jurisdiction) and the 10 persons (personal jurisdiction) falling 11 within a court’s adjudicatory authority. 12 13 Eberhart v. United States, 546 U.S. 12, 16 (2005) (internal
14 quotation marks and citation omitted). Subsequent to Lin
15 Zhong, the Supreme Court sharpened the analysis. In Bowles
16 v. Russell, 127 S. Ct. 2360 (2007), the Court held that a
17 limit on extensions of time to appeal, see 28 U.S.C. §
18 2107(c), was jurisdictional largely because “of the fact
19 that [the] time limitation is set forth in a statute.”
20 Bowles, 127 S. Ct. at 2364. The Court explained:
21 Because Congress decides whether federal 22 courts can hear cases at all, it can also 23 determine when, and under what 24 conditions, federal courts can hear them. 25 Put another way, the notion of 26 “subject-matter” jurisdiction obviously 27 extends to “classes of cases . . . 28 falling within a court’s adjudicatory 29 authority,” but it is no less 30 “jurisdictional” when Congress forbids 31 federal courts from adjudicating an 32 otherwise legitimate “class of cases” 33 after a certain period has elapsed from
10 1 final judgment. 2 3 Id. at 2365-66 (citations omitted). Bowles emphasized
4 repeatedly that its reasoning was based on the statutory
5 origin of the limitation, and thus made clear that limits
6 expressed in statutes--as to time or “classes of cases”--
7 limit subject-matter jurisdiction. See, e.g., id. at 2366
8 (“As we have long held, when an appeal has not been
9 prosecuted in the manner directed, within the time limited
10 by the acts of Congress, it must be dismissed for want of
11 jurisdiction.” (internal quotation marks omitted) (emphasis
12 added)); id. at 2365 (observing that the Supreme Court’s
13 treatment of its certiorari jurisdiction “also demonstrates
14 the jurisdictional distinction between court-promulgated
15 rules and limits enacted by Congress”).
16 Congress cast § 1252(d)(1) in terms of the courts’
17 authority to review a “class of cases” (petitions for review
18 of a final order of removal) and permitted review “only if
19 the alien has exhausted all administrative remedies
20 available as of right.” One of the administrative remedies
21 available to aliens as of right is an appeal to the BIA. In
22 this way, Congress has instructed the courts that they may
23 not review a final order of removal unless the alien has
11 1 appealed to the BIA. When an exhaustion requirement is
2 statutory and evinces an intent to constrict the ability of
3 courts to adjudicate a class of cases, the limitation is
4 jurisdictional, rather than mandatory only. The requirement
5 might be described as a “claim-processing rule”; but because
6 it is a statutory limit on the Court’s power, it is
7 jurisdictional, not merely mandatory. Accord Magtanong v.
8 Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (citing Bowles
9 and holding that the 30-day time period for filing a
10 petition for review is “mandatory and jurisdictional because
11 it is imposed by statute” (internal citation omitted)).
12 We therefore hold that, as regards the requirement that
13 petitioners appeal to the BIA, § 1252(d)(1) is
14 jurisdictional. We have said as much in dicta. See Lin
15 Zhong, 480 F.3d at 107 (referring to “the clearly
16 jurisdictional requirement of 8 U.S.C. § 1252(d)(1) that
17 cases of this sort be brought to the Executive Office for
18 Immigration Review (i.e., an IJ and the BIA) before they can
19 be considered by courts of appeal”); accord Lin Zhong v.
20 U.S. Dep’t of Justice, 489 F.3d 126, 130 (2d Cir. 2007)
21 (Calabresi, J., concurring in the denial of in banc review)
22 (observing that § 1252(d)(1) uses “language [that] typically
12 1 means that courts do not have jurisdiction to hear a
2 petitioner who has not first brought his case before the
3 available administrative agency”).
4 Given that we are directed by statute to treat
5 converted petitions, such as Valenzuela’s, as ordinary
6 petitions for review, it follows that such converted
7 petitions are likewise subject to § 1252(d)’s jurisdictional
8 bar.
10 IV
11 We are left to decide what exceptions, if any, would
12 allow us to hurdle the jurisdictional bar that prevents us
13 from reviewing the merits of Valenzuela’s petition.
15 A. Futility
16 Valenzuela argues that appealing to the BIA would have
17 been futile in light of the agency’s precedential decision,
18 In re Perez, 22 I. & N. Dec. 689 (BIA 1999). As the Supreme
19 Court explained in Booth v. Churner, “we will not read
20 futility or other exceptions into statutory exhaustion
21 requirements where Congress has provided otherwise.” 532
22 U.S. 731, 741 n.6 (2001). At the same time,
13 1 Booth does allow that exhaustion may 2 not be required “where the relevant 3 administrative procedure lacks 4 authority to provide any relief or 5 to take any action whatsoever in 6 response to a complaint,” because 7 “[w]ithout the possibility of some 8 relief, the administrative officers 9 would presumably have no authority 10 to act on the subject of the 11 complaint, leaving the inmate with 12 nothing to exhaust.” This may 13 technically be less an “exception” 14 to a statutory exhaustion 15 requirement than it is a statement 16 regarding the parameters of that 17 requirement. 18 19 Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003)
20 (internal citations omitted). Booth applies in the
21 immigration context.6
6 Valenzuela cites dicta in Gill v. INS, 420 F.3d 82 (2d Cir. 2005), for the proposition that Booth’s rule against futility exceptions does not operate in the immigration context because Booth was “based on the legislative history of the [Prison Litigation Reform Act], and in particular Congress’s decision to eliminate previously-available statutory exceptions for futility.” Gill, 420 F.3d at 87 n.9. Of course, Gill’s dicta runs counter to the reading of Booth set out in Beharry. Moreover, our own reading of Booth suggests that it is not limited to those circumstances in which the statutory history indicates that Congress took away a previously existing futility exception. See Booth, 532 U.S. at 739 (referring to statutory history as one of two considerations leading to the Court’s holding). Such statutory history may counsel strict adherence to the congressional command, but we are bound to implement congressional limits on our jurisdiction without reference to particular features of statutory history. 14 1 Valenzuela’s futility argument fails because he cannot
2 demonstrate that the BIA was unable to provide the relief
3 that he sought. The BIA could have reconsidered the Perez
4 holding in banc, or it could have certified the question to
5 the Attorney General. See 8 C.F.R. § 1003.1(g); see also
6 Theodoropoulos v. INS, 358 F.3d 162, 173 (2d Cir. 2004)
7 (observing that even though the Attorney General had issued
8 a precedential opinion on the question, the BIA could have
9 sent it back up to him). Valenzuela confuses the likelihood
10 of adherence to precedent with the factual impossibility of
11 relief: “it cannot be said that the IJ and the BIA do not
12 ‘have authority to act on the subject of the [petition],
13 leaving [Valenzuela] with nothing to exhaust.’” Beharry,
14 329 F.3d at 59 (citing Booth, 532 U.S. at 736 n.4); accord
15 Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir. 2003) (even
16 though the BIA had already “definitively decided” the
17 question in a precedential decision, Ҥ 1252(d)(1)[]
18 requires exhaustion as a matter of jurisdiction”). “That
19 [Valenzuela]’s argument would likely have failed is not
20 tantamount to stating that it would have been futile to
21 raise it.” Beharry, 329 F.3d at 62.
22 Taking a different tack, Valenzuela argues that
15 1 regulations requiring any BIA member assigned his case to
2 “streamline” the appeal would have prevented that Board
3 member from referring the appeal to a three-member panel or
4 to an in banc panel of the BIA. But the regulation (set out
5 in the margin7), specifically provided that a single board
6 member could have affirmed without opinion only if he or she
7 “determine[d] that the result reached in the decision under
8 review was correct.” 8 C.F.R. § 1003.1(e)(4)(i). Moreover,
9 as Valenzuela concedes, the regulations specify that one
10 circumstance in which appeals may be assigned to a panel is
11 when there is a “need to reverse the decision of an
12 immigration judge or the Service.” 8 C.F.R. §
13 1003.1(e)(6)(vi).
14 Last, Valenzuela observes that § 1252(d)(1) requires
7 “Affirmance without opinion. (i) The Board member to whom a case is assigned shall affirm the decision of the Service or the immigration judge, without opinion, if the Board member determines that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial; and that (A) The issues on appeal are squarely controlled by existing Board or federal court precedent and do not involve the application of precedent to a novel factual situation; or (B) The factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case.”
8 CFR § 1003.1(e)(4). 16 1 only the exhaustion of “administrative remedies available as
2 of right,” whereas the exhaustion statute in Booth spoke
3 only of “such administrative remedies as are available.”
4 The Ninth Circuit has parsed these phrases to mean that a
5 remedy is available “as of right” within the meaning of §
6 1252(d)(1) only if the remedy is not “constrained by past
7 adverse administrative decisions.” Sun v. Ashcroft, 370
8 F.3d 932, 941-42 (9th Cir. 2004). We reject the Ninth
9 Circuit’s interpretation. The term “as of right” in §
10 1252(d)(1) excuses pursuit only of such remedies as are
11 wholly discretionary. See Arango-Aradondo v. INS, 13 F.3d
12 610, 614 (2d Cir. 1994) (“[T]he failure to move to reopen
13 does not preclude jurisdiction because . . . [it] is a
14 discretionary remedy.”). As the Supreme Court has
15 explained, a statutory requirement for exhausting “remedies”
16 necessarily entails exhausting “processes.” See Booth, 532
17 U.S. at 739 (“[O]ne ‘exhausts’ processes, not forms of
18 relief . . . .”).
19 Valenzuela had a right to appeal the IJ’s order of
20 removal to the BIA. And he was statutorily required to
21 exercise that right before appealing to this Court,
22 notwithstanding his small chance of success. See Lin Zhong
17 1 v. U.S. Dep’t of Justice, 480 F.3d 104, 118 (2d Cir. 2006)
2 (“[I]n the context of [the alien’s] . . . claims, we have
3 jurisdiction . . . so long as a decision has been rendered
4 on his application by an IJ and appealed to the BIA--the two
5 administrative remedies available to him as of right.”
6 (emphasis added)).
8 B. Constitutional Claim
9 Valenzuela argues that his petition is not subject to
10 statutory exhaustion requirements because it presents
11 constitutional claims. The supposed constitutional argument
12 is that the IJ violated Valenzuela’s Due Process rights by
13 misconstruing the stop-time rule to end his period of
14 continuous residence when he committed the crime, as opposed
15 to when he was convicted.
16 Even if the IJ’s interpretation of the stop-time rule
17 were incorrect, such an error would not be a constitutional
18 violation. Accordingly, this is not a constitutional claim.
19 Valenzuela is simply arguing that the IJ erroneously
20 interpreted a statute in such a way that made him legally
21 ineligible for discretionary cancellation of removal. We
22 therefore do not reach the issue of whether there exists a
18 1 constitutional claim exception to § 1252(d).
3 C. “Manifest Injustice”
4 Last, Valenzuela argues that we should excuse his
5 failure to exhaust under the “manifest injustice” exception
6 to the exhaustion requirement. See Marrero Pichardo v.
7 Ashcroft, 374 F.3d 46 (2d Cir. 2004). Our circuit law has
8 made this exception available “even when exhaustion is a
9 jurisdictional matter.” Lin Zhong, 480 F.3d at 107 n.1.
10 In Marrero Pichardo, it was deemed manifest injustice
11 to remove a petitioner because: (1) he had resided in the
12 U.S. for 26 years, (2) he had a wife and daughter in the
13 U.S., (3) he claimed to have no ties to his native Dominican
14 Republic, (4) he had appeared pro se before the IJ, and (5)
15 the law had recently changed in the petitioner’s favor (such
16 that none of his eleven drunk driving convictions would be
17 considered crimes of violence). 374 F.3d at 54. Valenzuela
18 can cite comparable equities. He has resided in the U.S.
19 for 13 years with his sister and mother, from whom he would
20 be separated if deported; he was engaged to an American
21 citizen who was carrying his child, at least as of 2003; he
22 came here as a teenager and says he has “adopted” the United
19 1 States as his home country; and his behavior--after his
2 parole--was “exemplary.” Although Valenzuela had counsel
3 before the IJ, he claims that his counsel failed to inform
4 him of the immigration consequences of pleading guilty.8
5 We noted that the intervening change in law in Marrero
6 Pichardo’s favor was not “collateral,” but rather went to
7 “the very basis of his deportation.” Id. at 54. As to
8 Valenzuela, there was no intervening change in law
9 pertaining to his removability: Valenzuela challenges the
10 correctness of the BIA’s decision in Perez, which goes “to
11 the very basis of his deportation,” but Perez has not been
12 overruled by the BIA or by this Court. Valenzuela instead
13 cites an intervening change in the law affecting the
14 government’s ability to detain him pending removal.9
8 Valenzuela unsuccessfully petitioned a New York state court in 2003 to vacate his conviction on this ground. 9 Specifically, before the IJ ordered Valenzuela removed in August 2003, the Supreme Court upheld as constitutional pre-removal detention of criminal aliens. See Demore v. Hyung Joon Kim, 538 U.S. 510, 531 (2003). Valenzuela notes that ICE then issued a memorandum stating that all persons within Demore’s scope would be called in for interviews, and presumably for detention. His argument is thus that an appeal to the BIA would have somehow increased the likelihood that he would be re-detained. Even assuming (as we do not) that such an anxiety could excuse a failure to appeal, it is unclear why Valenzuela did not fear re-detention when he appeared before the IJ at his master calendar hearings in May and August of 2003--both of which 20 1 Valenzuela’s argument based on a change of law thus does not
2 neatly mirror the facts of Marrero Pichardo, although
3 Valenzuela can claim the higher ground of having committed
4 one offense instead of eleven. But, given that we have been
5 willing to accept even an opinion from another circuit as a
6 sufficient intervening change in law to assert “manifest
7 injustice,” see Gill v. INS, 420 F.3d 82, 88 (2d Cir. 2005),
8 Valenzuela would have a plausible claim to dispensation for
9 “manifest injustice” if we were to uphold that exception to
10 § 1252(d)’s exhaustion requirement.
11 In light of the Supreme Court’s recent opinion in
12 Bowles v. Russell, 127 S. Ct. 2360 (2007), we hold that
13 there is no “manifest injustice” exception to § 1252(d)’s
14 exhaustion requirement.10 Insofar as our earlier opinions
15 have held to the contrary, those opinions are overruled.11
took place after the Supreme Court issued its Demore opinion in April of that year--or when he filed his second habeas petition. 10 At the direction of the Court, the parties submitted additional briefing on whether Bowles, which was filed after the parties submitted briefs, had any impact on this case. 11 In House v. Bell, 126 S. Ct. 2064, 2068 (2006), the Supreme Court recently reaffirmed that “[i]n certain exceptional cases involving a compelling claim of actual innocence,” “the state procedural default rule is not a bar to a federal habeas corpus petition.” The “actual innocence” exception is unaffected by Bowles because “actual 21 1 In Bowles, the Supreme Court considered the
2 applicability of the “unique circumstances” exception to the
3 jurisdictional deadline for filing a notice of appeal. See
4 Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371
5 U.S. 215 (1962); Thompson v. INS, 375 U.S. 384 (1964). The
6 Bowles Court laid the exception to rest: “Because this Court
7 has no authority to create equitable exceptions to
8 jurisdictional requirements, use of the ‘unique
9 circumstances’ doctrine is illegitimate.” 127 S. Ct. at
10 2366.
11 Just as this analysis invalidates the “unique
12 circumstances” exception to the jurisdictional bar created
13 by the filing deadline at issue in Bowles, it likewise
14 invalidates the “manifest injustice” exception to the
15 jurisdictional bar created by 8 U.S.C. § 1252(d)’s
16 exhaustion requirement. Bowles broadly disclaims the
17 “authority” of the federal courts “to create equitable
18 exceptions to jurisdictional requirements.” Id.
20 CONCLUSION
innocence” is an exception to a judge-made rule, while Bowles overrules exceptions to any jurisdictional rule made by Congress, such as is at issue here. 22 1 We have considered the parties’ remaining arguments and
2 find each of them to be without merit. For the foregoing
3 reasons, Valenzuela’s petition is dismissed for lack of
4 jurisdiction.