Gicharu v. Carr

• Citation: 983 F.3d 13
• Decision Date: 16 December 2020
• Docket Number: No. 19-1864,19-1864
• Parties: Samuel Kinuthia GICHARU, Plaintiff, Appellant, v. Donna CARR, in her capacity as Chief Clerk of the Board of Immigration Appeals; James McHenry, in his capacity as Director of the Executive Office for Immigration Review; Michael E. Horowitz, in his capacity as Inspector General, Civil Rights & Civil Liberties Complaints, U.S. Department of Justice, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

983 F.3d 13

Samuel Kinuthia GICHARU, Plaintiff, Appellant,

v.Donna CARR, in her capacity as Chief Clerk of the Board of Immigration Appeals; James McHenry, in his capacity as Director of the Executive Office for Immigration Review; Michael E. Horowitz, in his capacity as Inspector General, Civil Rights & Civil Liberties Complaints, U.S. Department of Justice, Defendants, Appellees.

No. 19-1864

United States Court of Appeals, First Circuit.

December 16, 2020

Joanna M. Golding, Framingham, MA, with whom Barker, Epstein & Loscocco was on brief, for appellant.

Kevin C. Hirst, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, William C. Peachey, Director, Office of Immigration Litigation, Yamileth G. Davila, Assistant Director, and Michael A. Celone, Senior Litigation Counsel, were on brief, for appellees.

Before Thompson and Kayatta, Circuit Judges.^*

KAYATTA, Circuit Judge.

In 2013, the Board of Immigration Appeals affirmed an order authorizing the removal of Samuel Kinuthia Gicharu to Kenya, his country of origin. Over two years later, Gicharu filed with the BIA a motion to reopen his removal proceedings. The BIA rejected the motion. Gicharu appealed to this court, which affirmed the BIA's decision. Undeterred, Gicharu commenced an action in United States District Court against various officials of the Department of Justice. Claiming a right of action under the Administrative Procedure Act (APA) and under any statutes providing for habeas corpus relief, he sought an order compelling the BIA to rescind and reissue the order of removal it affirmed in 2013 and later refused to reopen. The district court dismissed his complaint on the merits for failure to state a claim. Without reaching the merits, we now dismiss Gicharu's appeal, finding that the district court lacked subject matter jurisdiction. Our reasoning follows.

I.

To assess whether the district court had subject matter jurisdiction, we consider Gicharu's pleadings as well as the record of the proceedings leading up to this appeal. See Aguilar v. U.S. Immigr. & Customs Enf't, 510 F.3d 1, 8 (1st Cir. 2007). Gicharu arrived in the United States on a visitor's visa in 2003. After entering the United States, he filed applications for asylum, withholding of removal, and relief under the Convention Against Torture. In May 2011, an immigration judge denied his applications for relief and ordered him removed. Gicharu, who was represented by counsel, appealed to the BIA. While the appeal was pending, both Gicharu and his counsel changed their mailing addresses. In so doing, neither complied with the applicable BIA regulation requiring them to update their addresses of record, see 8 C.F.R. § 1003.38(e), even after Gicharu's counsel was specifically advised of the regulation.

In March 2013, the BIA affirmed the decision of the immigration judge and issued a final order of removal. In accordance with BIA regulations, copies of the decision were mailed to Gicharu and his counsel at their addresses of record. The copies were returned as undeliverable, presumably because the addresses provided were outdated by the time the BIA issued its decision. Gicharu alleges that, as a result, he did not receive actual notice of the final order of removal until late April or early May 2013 -- after the thirty-day period for filing a petition for review in this court had lapsed, but well before the ninety-day deadline for filing a motion to reopen.

Over two years later, Gicharu moved the BIA to reopen his removal proceedings. Although he had long ago missed the ninety-day deadline for filing a motion to reopen, he argued that his motion should be allowed under the doctrine of equitable tolling because he had received ineffective assistance of counsel. Gicharu asserted, among other things, that his counsel had failed to properly maintain a current address of record with the BIA during the pendency of his appeal, which deprived him of timely notice of the BIA's March 2013 decision. The BIA was not persuaded. It rejected Gicharu's ineffective assistance claim, along with other claims not relevant here, and denied the motion to reopen. Gicharu sought review in this court. In February 2018, we rejected his petition for review and affirmed the BIA's decision. Gicharu v. Sessions, Nos. 16-2520, 17-1455 (1st Cir. Feb. 23, 2018).

In this subsequent action commenced in the district court, Gicharu alleged that service of the BIA's March 2013 final order of removal was defective. Citing the APA, 5 U.S.C. § 706(1), he sought to compel the BIA to reissue the order so as to give him another opportunity to file a timely petition for review and/or a timely motion to reopen. He also sought leave to file a proposed amended complaint, which added allegations regarding ineffective assistance of counsel and a request for habeas relief. The government moved to dismiss the complaint for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and for failure to state a claim under Rule 12(b)(6). The government also opposed Gicharu's motion for leave to file an amended complaint, arguing that the proposed amendment would be futile for the same reasons.

Over the government's objections, the district court concluded that it had jurisdiction over both the APA claim asserted in the operative complaint and the habeas claim asserted in the proposed amended complaint. Nevertheless, the district court granted the government's motion to dismiss the complaint for failure to state a claim and similarly denied Gicharu's motion for leave to file an amended complaint on futility grounds.

II.

We begin (and ultimately end) with the question of subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88–89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). In so doing, we review the district court's assessment of subject matter jurisdiction de novo. See Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009).

A.

The jurisdiction-channeling provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(5), states that "the sole and exclusive means for judicial review of an order of removal" is "a petition for review filed with an appropriate court of appeals." Adding belt to suspenders, section 1252(b)(9) strips federal courts of jurisdiction to decide legal and factual questions arising from an alien's removal in any other context, including on a petition for a writ of habeas corpus:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28, or any other habeas corpus provision ... or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

8 U.S.C. § 1252(b)(9). "As its text makes manifest," section 1252(b)(9) does not preclude judicial review of orders of removal; rather, it is "designed to consolidate and channel review of all legal and factual questions that arise from the removal of an alien into the administrative process, with judicial review of those decisions vested exclusively in the courts of appeals." Aguilar, 510 F.3d at 9 (emphasis omitted).

Of course, "[t]he words ‘arising from’ do not lend themselves to precise application." Id. at 10. But neither are they "infinitely elastic." Id. We have previously explained that interpreting section 1252(b)(9) to eliminate all judicial review of certain removal-related claims would be contrary to Congress's intent of channeling, rather than barring, review of claims arising from the removal process. See id. at 11 ; see also Jennings v. Rodriguez, ––– U.S. ––––, 138 S. Ct. 830, 840, 200 L.Ed.2d 122 (2018) (plurality opinion) (rejecting an interpretation of "arising from" that would make certain claims "effectively unreviewable"). Thus, we have found that claims which cannot be raised in removal proceedings and eventually brought to the court of appeals on a petition for review are "independent of, or wholly collateral to, the removal process," not "arising from" it. Aguilar, 510 F.3d at 11.

This narrow exception for claims not arising from removal proceedings provides no succor for Gicharu. His claims of insufficient service and ineffective assistance of counsel plainly "arise from" the removal process. The regulations governing removal proceedings set forth the method of service of a removal order, imposing on the BIA "an affirmative obligation to mail a copy of its final decision to the alien" or his representative. Tobeth-Tangang v. Gonzales, 440 F.3d 537, 539 (1st Cir. 2006) (citing 8 C.F.R. §§ 292.5(a), 1003.1(f) ); cf. 8 C.F.R. § 1003.13 (providing that in immigration court, "[s]ervice" generally means "physically presenting or mailing a document to the appropriate party or parties"). Among other things, the date of mailing starts the clock on the thirty-day period for filing with the BIA a motion for reconsideration, see 8 C.F.R. § 1003.2(b)(2), and the thirty-day period for filing a petition for review in this court, see Tobeth-Tangang, 440 F.3d at 540 (citing Radkov v. Ashcroft, 375 F.3d 96, 99 (1st Cir. 2004) ). These regulations make clear that the service of a removal order is "inextricably intertwined with[ ] the administrative process that Congress so painstakingly fashioned." Aguilar, 510 F.3d at 13. Similarly, as we recognized in Aguilar, "the alien's right to counsel is part and parcel of the removal proceeding itself." Id. (citing 8 U.S.C. § 1362 ). A claim challenging counsel's effectiveness therefore "possesses a direct link...