Goonsuwan v. Ashcroft

• Decision Date: 18 May 2001
• Docket Number: No. 00-10349,00-10349
• Citation: Goonsuwan v. Ashcroft, 252 F.3d 383 (5th Cir. 2001)
• Parties: (5th Cir. 2001) ANIRUT GOONSUWAN, also known as DONG A. MANUCY, Petitioner-Appellee, v. JOHN ASHCROFT, U. S. ATTORNEY GENERAL, Respondent-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 383

252 F.3d 383 (5th Cir. 2001)

ANIRUT GOONSUWAN, also known as DONG A. MANUCY, Petitioner-Appellee, v. JOHN ASHCROFT, U. S. ATTORNEY GENERAL, Respondent-Appellant.

No. 00-10349

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

May 18, 2001

Appeal from the United States District Court for the Northern District of Texas.

Before King, Chief Judge, Aldisert ^* and Benavides, Circuit Judges.

Benavides, Circuit Judge

Anirut Goonsuwan, also known as Dong Manucy, the name given to him when he was adopted by his step-father, came to the United States from Thailand with his mother and sister in 1975. From the age of four, Goonsuwan was raised in the United States by his mother and step-father, an Air Force officer. He is unfamiliar with his native Thailand. Goonsuwan does not speak the Thai language and, since his departure, has lost all contact with his relatives in Thailand. The only life and family he knows is here in the United States.

In 1990, in two separate incidents, Goonsuwan was convicted for the offenses of burglary of a motor vehicle and burglary of a habitation. On June 6, 1994, the INS issued an Order to Show Cause charging Goonsuwan as being deportable pursuant to § 241(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(2)(A)(ii), in that at any time after entry, Goonsuwan had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Goonsuwan conceded deportability and applied for a waiver of deportation under § 212(c) of the INA, 8 U.S.C. § 1182(c). ¹ Balancing the factors outlined in Matter of Marin, 16 I&N Dec. 581 (BIA 1978), the immigration judge found that the adverse factors evidencing Goonsuwan's undesirability as a permanent resident outweighed the social and humane factors presented in his favor. The immigration judge therefore denied Goonsuwan's application for a waiver. Goonsuwan appealed the immigration judge's denial of a waiver to the Board of Immigration Appeals ("BIA" or "the Board"). Goonsuwan, represented by the same counsel as at his deportation hearing, did not raise an ineffective assistance of counsel claim before the BIA. The BIA denied his appeal on the merits.

On July 24, 1998, Goonsuwan filed his instant habeas petition in the federal district court for the Western District of Texas alleging ineffective assistance of counsel during his deportation hearing. ² The alleged deficiency in counsel's performance was his failure to introduce documentary evidence that Goonsuwan provided to him on the eve of trial. ³ At the deportation hearing, Goonsuwan's counsel instead relied solely on the testimony of Goonsuwan and his parents. The district court, "convinced that counsel's failure to present relevant and necessary evidence in support of Goonsuwan's application for discretionary relief rendered the proceeding fundamentally unfair and that substantial prejudice resulted," granted petitioner's writ. The district court ordered a new hearing on Goonsuwan's application for waiver of deportation under § 212(c) or that he be released from custody and all further deportation efforts be ceased. The Government moved for reconsideration under Rule 59(e). The district court denied the motion and reaffirmed its previous holding. The Government filed a timely notice of appeal.

Jurisdiction

Although not briefed by the parties in their original submissions, the issue of jurisdiction must be addressed by this Court, sua sponte if necessary. Casteneda v. Falcon, 166 F.3d 799, 801 (5th Cir. 1999). However compelling our desire to reach the merits of a case, we must do so prudently and within our jurisdictional bounds. "Moreover, not only must we be confident of our own jurisdiction, but we are required to ensure that the district court also had jurisdiction to consider the merits." Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2000). Our concern, in this regard, is whether Goonsuwan exhausted his available administrative remedies before seeking habeas relief in the district court. Goonsuwan did not argue his ineffective assistance of counsel claim before the BIA, nor has he filed a motion to reopen his deportation proceedings, a remedy available under INS' regulations, based on his ineffectiveness claim. ⁴ To inform our decision, we ordered the parties to file supplemental briefing on whether the exhaustion requirement of § 106(c) of the INA applies in habeas corpus proceedings; and, if so, whether, under these facts, Goonsuwan was required to file a motion to reopen with the BIA in order to exhaust his administrative remedies. ⁵ Having fully considered the parties' arguments, we conclude that § 106(c), including its exhaustion requirement, applies to Goonsuwan's habeas petition. We further conclude that while generally a motion to reopen is not required to exhaust administrative remedies under § 106(c), Goonsuwan's failure to raise his ineffective assistance of counsel claim before the BIA deprived the district court of jurisdiction to consider the issue in Goonsuwan's petition for habeas corpus.

Whether Goonsuwan was required to exhaust his administrative remedies prior to filing a habeas corpus petition?

The Illegal Immigrant Reform and Immigration Responsibility Act (IIRIRA) created two sets of rules governing immigration proceedings. In determining whether a statutory exhaustion requirement exists, we must initially determine which set of rules - transitional or permanent - governs Goonsuwan's case. IIRIRA's transitional rules apply to removal proceedings that commence before April 1, 1997 and conclude more than thirty days after September 30, 1996. Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1998). Since Goonsuwan's deportation proceedings were initiated on June 6, 1994 and did not conclude until his BIA appeal was denied on February 25, 1997, IIRIRA's transitional rules apply. Requena-Rodriguez, 190 F.3d 299, 302 (5th Cir. 1999); IIRIRA §§ 309(a) and (c)(1). The transitional rules governing judicial review set forth in IIRIRA § 309(c)(4) incorporate § 106(c) of the INA. Santos v. Reno, 228 F.3d 591, 596 (5th Cir. 2000).

Section 106(c) states that unless an alien exhausts his available administrative remedies, the deportation order "shall not be reviewed by any court." The provisions of § 106(c) clearly apply to direct appeals to this Court from Board orders. Goonsuwan argues, however, that § 106(c)'s exhaustion requirement does not apply in habeas corpus proceedings brought pursuant to § 2241. ⁶ Goonsuwan's argument relies on our recent precedent which interpreted the language "shall not be reviewed by any court" in a separate provision of the permanent rules to bar only normal judicial review, and not collateral review. Requena- Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999).

While there are meaningful reasons to give the phrase a different interpretation under § 106(c), we need not rely on them as we have controlling precedent applying § 106(c) in habeas proceedings. ⁷ In Santos v. Reno, we stated broadly that a "[habeas] petition is subject to 8 U.S.C. § 1105a(c) [§ 106(c)]." 228 F.3d at 596. More specifically, this Court has found § 106(c) precludes a district court from reviewing a habeas petition when the petitioner has departed the United States. Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986). The departure limitation on judicial review is contained in the same clause as the exhaustion requirement. See § 106(c) ("An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order."). Construing the departure limitation to apply in habeas, we concluded that "Congress `meant what it said' when it provided that `no court' may review a deportation order once deportation has occurred." Quezada v. INS, 898 F.2d 474, 477 (5th Cir. 1990). Similarly, no court may review a deportation order until an alien exhausts his administrative remedies. If Goonsuwan failed to comply with the statutorily mandated exhaustion requirement in § 106(c), the district court was without jurisdiction to consider his petition. See Townsend v. INS, 799 F.2d 179, 181 (5th Cir.1986) ("When exhaustion is statutorily mandated, the requirement is jurisdictional."); 8 Charles Gordon, Stanley Mailman, & Stephen Yale Loehr, Immigration Law and Procedure § 1.04[3][a][iii] (Matthew Bender rev. ed. 2000) ("Because the INA statutorily mandates exhaustion in removal cases, the requirement is considered jurisdictional and non-waivable when the matter at issue is within the competence of the agency . . . .").

Did Goonsuwan exhaust his available administrative remedies?

Our inquiry thus turns to what is required of Goonsuwan in order to exhaust his administrative remedies. Specifically, must he file a motion to reopen with the BIA in order to exhaust his remedies. Section 106(c) requires a petitioner to exhaust his remedies available "as of right." Goonsuwan argues that the discretionary nature of a motion to reopen removes it from the category of remedies available "as of right." As a general matter, we agree with Goonsuwan and our sister circuits that the filing of a motion to reopen is not required to satisfy § 106(c)'s exhaustion requirement. Arango-Aradondo v. INS, 13 F.3d 610 (2d Cir. 1994); Gebremichael v. INS, 10 F.3d 28, 33 n.13(1st Cir. 1993); White v. INS, 6 F.3d 1312 (8th Cir. 1993); Rhoa-Zamora v. INS, 971 F.2d 26 (7th Cir. 1992); but see Dokic v. INS, 899 F.2d 530, 532 (6th Cir.1990).

Motions to reopen immigration hearings are not authorized by statute, but by the Attorney General in a regulation promulgated pursuant to the INA. INS v. Doherty, 502 U.S. 314, 322, 112 S.Ct. 719 (1992); 8 C.F.R. § 3.2 (1999). This regulation, § 3.2, is framed in negative terms - stating that unless...