Bonhometre v. Gonzales

• Decision Date: 15 July 2005
• Docket Number: No. 04-2037.,04-2037.
• Citation: 414 F.3d 442
• Parties: Frebert BONHOMETRE, Petitioner, v. Alberto GONZALES, Attorney General of the United States;<SMALL><SUP>*</SUP></SMALL> Immigration and Naturalization Service.
• Court: U.S. Court of Appeals — Third Circuit

414 F.3d 442

Frebert BONHOMETRE, Petitioner, v. Alberto GONZALES, Attorney General of the United States;^* Immigration and Naturalization Service.

No. 04-2037.

United States Court of Appeals, Third Circuit.

Argued March 8, 2005.

Filed July 15, 2005.

COPYRIGHT MATERIAL OMITTED

James M. Tyler, (Argued), Schubert, Bellwoar, Cahill & Quinn, Philadelphia, Pennsylvania, for Petitioner.

Peter D. Keisler, Donald E. Keener, Alison Marie Igoe, (Argued), United States Department of Justice, Civil Division, Washington, D.C., Sonya F. Lawrence, Office of United States Attorney, Philadelphia, PA, for the Government.

Before SCIRICA, Chief Judge, and ROTH and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Before us is what originally was the Government's appeal from an order of the United States District Court for the Eastern District of Pennsylvania (Dalzell, J.) granting Frebert Bonhometre's petition for writ of habeas corpus. See Bonhometre v. Ashcroft, 306 F.Supp.2d 510 (E.D.Pa.2004). The District Court ruled that the Board of Immigration Appeals violated Mr. Bonhometre's Fifth Amendment right to procedural due process by failing to advise him of his potential eligibility for relief from removal. What is now before us is a petition for review alleging the same procedural due process violations as were asserted in Mr. Bonhometre's habeas petition. After consideration of what has become a procedurally-problematic case, we concluded that we need not reach the merits of the procedural due process challenge¹ alleged here because Mr. Bonhometre did not exhaust the administrative remedies that were available to him as of right at the agency level. Consequently, we deny his Petition for Review and reverse the District Court's grant of habeas corpus.

I. FACTS

Frebert Bonhometre is a native and citizen of Haiti who was granted temporary legal residency status on September 15, 1989. His common-law wife and three children are all United States citizens. On December 12, 1995, Mr. Bonhometre plead guilty in the Commonwealth of Massachusetts to armed robbery, assault and battery, and assault with a dangerous weapon. He was sentenced to a prison term of not more than three years.

Mr. Bonhometre served two years of his sentence before he was released into the custody of the Immigration and Naturalization Service² ("INS") on July 18, 1997. The INS initiated removal proceedings, charging him with removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act of 1952 ("INA"), which requires removal of any alien convicted of an aggravated felony at any time after admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(iii) (1998); see also 8 U.S.C. § 1101(a)(43)(F) (1997) (defining "aggravated felony" to include "a crime of violence ... for which the term of imprisonment [is] at least one year."). At his September 17, 1997, removal proceeding, a United States Immigration Judge ("IJ") ordered Mr. Bonhometre removed to Haiti. He then appealed to the Board of Immigration Appeals ("BIA"), raising two issues: (1) the IJ erred in determining that he was deportable because his criminal offense occurred before the enactment of section 440 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"); and (2) AEDPA is unconstitutional. The BIA dismissed his appeal.

Despite the removal order that had been filed against him, the INS released Mr. Bonhometre in October, 2000. It was not until he attempted to renew a work permit in May, 2003, that the Government again took him into custody. Mr. Bonhometre thereafter filed a habeas corpus petition pro se. The District Court appointed counsel for him, and directed counsel to amend the habeas corpus petition. In this amended petition, Mr. Bonhometre asserted that he was denied procedural due process when the IJ failed to advise him that he could have asked for relief under sections 212(c) and 212(h) of the INA,³ as well as under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). The District Court found that he had not exhausted the available administrative remedies before the BIA, but concluded that his procedural due process claim was "wholly collateral" to the relevant INA review provisions, and that the BIA had no expertise in adjudicating such a procedural due process claim. The District Court therefore concluded that it had subject matter jurisdiction pursuant to the Supreme Court's holding in Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-16, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994), despite Mr. Bonhometre's failure to exhaust, and, after considering the merits of his Fifth Amendment challenge, granted his petition. The Government appealed, and argument was heard by this Court on March 8, 2005.

II. JURISDICTION AND STANDARD OF REVIEW

During the pendency of our deliberations on this matter, Congress amended section 1252 of Title 8 of the United States Code via the Real ID Act of 2005, Pub.L. 109-13, 119 Stat. 231 ("Real ID Act"). Under the new judicial review regime imposed by the Real ID Act, a petition for review is now the sole and exclusive means of judicial review for all orders of removal except those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(5) (1999 & Supp.2005). Our jurisdiction was also enlarged, as we now have the authority to consider constitutional claims or questions of law raised in a criminal alien's petition for review. 8 U.S.C. § 1252(a)(2)(D) (2005); see Papageorgiou v. Gonzales, 413 F.3d 356, 2005 WL 1490454, *2 (3d Cir. Jun.24, 2005) (noting that, while the Real ID Act permits judicial review of constitutional claims or questions of law raised by criminal aliens, this Court's jurisdiction remains nonetheless subject to the unamended jurisdictional limitations of 8 U.S.C. § 1252). Moreover, all habeas corpus petitions brought by aliens⁴ that were pending in the district courts on the date the Real ID Act became effective (May 11, 2005) are to be converted to petitions for review and transferred to the appropriate courts of appeals. See Real ID Act, Pub.L. 109-13, Div. B, Title I, § 106(c). These modifications effectively limit all aliens to one bite of the apple with regard to challenging an order of removal, in an effort to streamline what the 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). See H.R. Conf. Rep. No. 109-72, at 173-75 (2005).

In the Real ID Act, however, the Congress was silent as to what was to be done with an appeal from a district court habeas decision that is now pending before a court of appeals. Despite this silence, it is readily apparent, given Congress' clear intent to have all challenges to removal orders heard in a single forum (the courts of appeals), id. at 174, that those habeas petitions that were pending before this Court on the effective date of the Real ID Act are properly converted to petitions for review and retained by this Court. We thus generally have jurisdiction to consider such a petition pursuant to section 242(a) of the INA. 8 U.S.C. § 1252(a) (1999 & Supp.2005).⁵

Even though this habeas appeal has turned into a petition for review, our standard of review remains the same. We review whether Mr. Bonhometre's procedural due process rights were violated de novo, Abdulrahman v. Ashcroft, 330 F.3d 587, 596-97 (3d Cir.2003), which is the same standard that would have been applied to our review of the District Court's grant of his petition for habeas corpus, Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir.2002).

III. DISCUSSION

In view of the atypical procedural posture of this case and the effect of the Real ID Act, we will consider the District Court's opinion to be non-existent, and will address the procedural due process claims raised by Mr. Bonhometre in his opening brief to the District Court as if they were raised in a petition for review before us in the first instance. In his now-converted-Petition for Review, Mr. Bonhometre contends that the agency violated his Fifth Amendment due process rights by failing to advise him that he had the opportunity to request relief from his removal order under sections 212(c) and 212(h) of the INA, as well as under the CAT. These claims were not raised before the BIA at any point.

A.

We begin, as we always must when reviewing agency determinations, with a determination of whether we have subject matter jurisdiction to consider Mr. Bonhometre's claims. As a general rule, an alien must exhaust all administrative remedies available to him as of right before the BIA as a prerequisite to raising a claim before us. 8 U.S.C. § 1252(d)(1) (1999) (emphasis added); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005). To exhaust a claim before the agency, an applicant must first raise the issue before the BIA or IJ, Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir.1989), so as to give it "the opportunity to resolve a controversy or correct its own errors before judicial intervention." Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.2004). The Supreme Court has instructed that "[t]he doctrine of administrative exhaustion should be applied with a regard for the particular administrative scheme at issue." Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). We thus remain cognizant of the fact that the exhaustion terms of section 1252(d)(1) must be examined with Congress's intent concerning the provision's scope in mind, especially in light of the modifications made to the section by the Real ID Act.⁶

We have previously rejected an exception to section 1252(d)(1)'s requirement of administrative exhaustion before the BIA based on futility. See Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir.2003) (rejecting the argument that exhaustion is excused where further administrative proceedings would be futile because the BIA...