Elgharib v. Napolitano

• Decision Date: 30 March 2010
• Docket Number: No. 09-3029.,09-3029.
• Citation: 600 F.3d 597
• Parties: Fatiha ELGHARIB, Petitioner-Appellant, v. Janet NAPOLITANO et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

600 F.3d 597

Fatiha ELGHARIB, Petitioner-Appellant, v. Janet NAPOLITANO et al., Respondents-Appellees.

No. 09-3029.

United States Court of Appeals, Sixth Circuit.

Argued: January 22, 2010.

Decided and Filed: March 30, 2010.

ARGUED: George A. Katchmer, Jr., Law Office, Yellow Springs, Ohio, for Appellant. Samuel P. Go, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: George A. Katchmer, Jr., Law Office, Yellow Springs, Ohio, for Appellant. Samuel P. Go, United States Department of Justice, Washington, D.C., for Appellee.

Before MERRITT, MOORE, and GIBBONS, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

The Department of Homeland Security ("DHS") ordered Fatiha Elgharib removed in absentia in June 2007 when she failed to appear for her removal hearing. Elgharib failed to appeal, later filed a motion to reopen her removal proceedings, and then did not appeal the denial of that motion. In October 2008, Elgharib filed a petition for a writ of prohibition under 28 U.S.C. § 1651 in the district court to review her order of removal, alleging the removal order was granted without notice or an opportunity to be heard in violation of the Due Process Clause. The district court dismissed Elgharib's petition based on lack of jurisdiction under 8 U.S.C. § 1252(a)(5) & (g). Elgharib timely appeals the district court's dismissal of her petition for a writ of prohibition, arguing that § 1252 does not apply in this case because she has no other remedy available as a noncitizen, that the district court should not be foreclosed from adjudicating her constitutional claim, and that her action is not against the "Attorney General" under the literal terms of § 1252(g). For the reasons that follow, we conclude that Elgharib's arguments are without merit and that the district court correctly dismissed the petition for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Elgharib was served with a Notice to Appear for removal proceedings "on a date to be set" and "at a time to be set." She filed a motion with the Immigration Court in Detroit, Michigan, on May 7, 2004, to terminate removal proceedings, and she alleges that DHS responded that she was not in removal proceedings as of May 25, 2004.¹ Elgharib claims that she never received further notice of a hearing date. When Elgharib subsequently failed to appear for her removal hearing on June 14, 2007, she was ordered removed in absentia. On September 10, 2007, the Immigration Court denied her motion to reopen, and she did not appeal.

On October 27, 2008, Elgharib filed a petition for a writ of prohibition under the All Writs Act, 28 U.S.C. § 1651, and a motion for a temporary restraining order in the U.S. District Court for the Southern District of Ohio, asserting that the district court had jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1361 to review her petition because the removal order was imposed in violation of the Due Process Clause. The district court denied the motion for a temporary restraining order, and it ordered the parties to file memoranda addressing the court's jurisdiction. Both parties timely responded, and the district court, on December 29, 2008, sua sponte dismissed Elgharib's petition without prejudice for lack of subject-matter jurisdiction under 8 U.S.C. § 1252. Elgharib appealed the denial of jurisdiction to this court. Both the district court and a separate panel of this court denied a motion for a stay of removal pending this appeal. In a separate appeal, a panel of this court dismissed Elgharib's petition for review of the Immigration Court's final order of removal. Elgharib v. Holder, No. 09-3012 (6th Cir. Mar. 31, 2009). On April 2, 2009, DHS, through the U.S. Immigration and Customs Enforcement agency ("ICE"), stayed Elgharib's removal for one year.

II. ANALYSIS

This appeal raises only the question of whether the district court had subject-matter jurisdiction over Elgharib's petition for a writ of prohibition, and we do not address the merits of the claims that Elgharib raised in her petition or the Immigration Court's denial of her motion to reopen. Elgharib has bifurcated her appeal into two novel arguments. She claims that 8 U.S.C. § 1252 (also referred to as the REAL ID Act) does not preclude the district court's jurisdiction over her petition because: (1) her action is an original action arising under the Constitution, and the Constitution is not a "provision of law (statutory or nonstatutory)" within the meaning of § 1252(a)(5) & (g)'s clauses limiting jurisdiction; and (2) she challenges an action by the Secretary of DHS and not the Attorney General, so her claim is outside the literal language of § 1252(g).

The district court dismissed Elgharib's petition sua sponte for lack of subject-matter jurisdiction. As we stated in Charvat v. GVN Michigan, Inc.,

"When a decision on subject-matter jurisdiction concerns pure questions of law or application of law to the facts, this court conducts a de novo review." Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir.2007) (en banc). Because the district court's decision was based on pure legal questions and the facts are undisputed for purposes of this appeal, we do not apply the more deferential standard applicable to the district court's factual findings. See id. at 560 ("If the district court's jurisdictional ruling was based on the resolution of factual disputes, then we review those findings for clear error."). "`The party opposing dismissal has the burden of proving subject matter jurisdiction.'" Lacey v. Gonzales, 499 F.3d 514, 518 (6th Cir.2007) (quoting GTE North, Inc. v. Strand, 209 F.3d 909, 915 (6th Cir.), cert. denied, 531 U.S. 957, 121 S.Ct. 380, 148 L.Ed.2d 293 (2000)).

Charvat v. GVN Michigan, Inc., 561 F.3d 623, 627 (6th Cir.2009) (reviewing sua sponte dismissal).

A. The District Court Lacks Jurisdiction to Review Elgharib's Constitutional Claim

1. "Any Other Provision of Law (Statutory or Nonstatutory)" Includes the Constitution

In the REAL ID Act, Congress sought to channel judicial review of an alien's claims related to his or her final order of removal through a petition for review at the court of appeals.² Congress provided in § 1252(a)(5), "Exclusive means of review," that

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section. For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms "judicial review" and "jurisdiction to review" include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).

8 U.S.C. § 1252(a)(5). And in § 1252(g), "Exclusive jurisdiction," Congress provided that

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. § 1252(g). In this case, we must determine whether these provisions preclude jurisdiction over a cause of action challenging a final order of removal based on an alleged violation of rights under the Constitution that was not brought pursuant to the prescribed procedures for judicial review of a final order of removal contained within § 1252. Elgharib argues that these provisions do not preclude the district court from exercising subject-matter jurisdiction over her constitutional claims because the language "any other provision of law (statutory or nonstatutory)" cannot be fairly read to include the Constitution.

We review de novo such questions of statutory interpretation, United States v. Parrett, 530 F.3d 422, 429 (6th Cir.2008), employing a three-step legislative-interpretation framework established by the Supreme Court: "`first, a natural reading of the full text; second, the common-law meaning of the statutory terms; and finally, consideration of the statutory and legislative history for guidance,'" Lockhart v. Napolitano, 573 F.3d 251, 255 (6th Cir. 2009) (quoting United States ex rel. A + Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 442 (6th Cir. 2005) (citing United States v. Wells, 519 U.S. 482, 490-92, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997))). The "natural reading of the full text" requires that we examine the statute for its plain meaning, including "`the language and design of the statute as a whole.'" Id. (quoting Parrett, 530 F.3d at 429). "If the statutory language is not clear, we may examine the relevant legislative history." Parrett, 530 F.3d at 429.

Although there is no precedent directly on point, in Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court held that a prior version of § 1252(g) precluded district-court jurisdiction over resident aliens' selective-enforcement claims under the First Amendment because the claims attacked a discretionary action by the Attorney General that clearly fell within the jurisdictional bar in § 1252(g). Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 482-83, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). At that time, § 1252(g) prevented judicial review "except as provided in this section and...