Musau v. Carlson
| Decision Date | 17 October 2012 |
| Docket Number | No. 11-3105,11-3105 |
| Parties | JULIUS MUSAU, Petitioner - Appellant, v. KENNETH CARLSON, District Director, Immigration and Customs Enforcement in Kansas City; ERIC H. HOLDER, JR., Attorney General of the United States, in his official capacity; JANET NAPOLITANO, U.S. Department of Homeland Security, in her official capacity as Secretary; UNITED STATES ATTORNEY, Respondents - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Kan.)
ORDER AND JUDGMENT*Before KELLY, McKAY, and O'BRIEN, Circuit Judges.
Julius Musau, an alien subject to a final order of removal, appeals from the district court's dismissal of his 28 U.S.C. § 2241 petition for a writ of habeascorpus. The district court dismissed for lack of subject matter jurisdiction, finding that Mr. Musau was challenging a final order of removal and that the REAL ID Act, 8 U.S.C. § 1252(a)(5), took away district court jurisdiction to hear such challenges. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a), and we reverse and remand for further proceedings.
Mr. Musau came to the United States from Kenya in 1991 to attend college in Kansas. Aplt. App. 18. In 2007, long after his student visa had expired, Mr. Musau was arrested in connection with a federal investigation of tax fraud. Id. at 19. He gave federal agents information and evidence relating to his roommates and acquaintances, and was released; but he received a notice to appear before an immigration judge based on his illegal presence in the United States. Id.
Meanwhile, during the pendency of Mr. Musau's immigration proceedings, Mr. Musau's brother—still in Kenya—allegedly received phone calls threatening Mr. Musau. The motivation for the threats presumably was Mr. Musau's role as a witness against his former roommates and acquaintances. Mr. Musau's brother received the first of these calls on March 12, 2010, prior to Mr. Musau's immigration hearing and ultimate grant of voluntary departure on March 18, 2010. Id. at 20. The record does not indicate when Mr. Musau (as opposed to his brother) actually became aware of the threatening calls; he did not mention thecalls to the immigration judge ("IJ") at the March 18 hearing. The calls continued through July. Id.
Mr. Musau did not move to reopen immigration proceedings based on these threatening calls. Instead, he filed a § 2241 petition and an emergency motion for stay of removal on August 3, 2010. In his petition, Mr. Musau claimed, among other things, that his deportation would violate the Convention Against Transnational Organized Crime ("CATOC"). Id. at 20-21. He acknowledged in his petition that he had not exhausted administrative remedies relating to his CATOC claim, but alleged that neither an IJ nor the Board of Immigration Appeals ("BIA") had any authority to grant him relief. Id. at 20.
The government filed a motion to dismiss, alleging that the district court lacked jurisdiction to hear Mr. Musau's petition.1 The district court concluded that: (1) 8 U.S.C. § 1252(a)(5) and (b)(9) apply to habeas petitions alleging violations of treaty-based rights, (2) circuit court review is an appropriate and sufficient substitute for the writ of habeas corpus concerning challenges to orders of removal, and (3) Mr. Musau had not shown that no forum existed for his CATOC claims, which should have been raised before an immigration tribunal through, for example, a motion to reopen. Musau v. Carlson, No. 10-2427-KHV,at 8-12 (D. Kan. Mar. 24, 2011) (unpublished); Aplt. App. 12-16. With respect to the last finding, the district court explained that Mr. Musau had not shown (a) that immigration tribunals had no authority to entertain his CATOC claim or (b) that review by a federal court of appeals was insufficient. Aplt. App. 13-16. Based on those conclusions, the district court dismissed Mr. Musau's petition for lack of subject matter jurisdiction under 8 U.S.C. § 1252(a)(5) and Federal Rule of Civil Procedure 12(b)(1). Musau, slip op. at 2, 12; Aplt. App. 6, 16.
On appeal, Mr. Musau argues that the district court erred in concluding that it lacked subject matter jurisdiction over his petition.2 The government maintains that the district court lacked jurisdiction. Aplee. Br. 19-20.
We review a district court's dismissal under Rule 12(b)(1) de novo. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011).
On appeal, Mr. Musau reiterates that he has no means, other than his petition for a writ of habeas corpus, by which to enforce his rights under the CATOC. He appears to be correct, at least at present, insofar as immigrationtribunals are concerned. IJs and the BIA have no authority to grant any relief to an alien unless and until the Attorney General promulgates regulations granting them such authority. See, e.g., In re H-M-V-, 22 I. & N. Dec. 256, 258 (B.I.A. 1998) (). The government has not identified any statute or regulation authorizing an IJ or the BIA to recognize or enforce rights under the CATOC, and we are not aware of any.3 For the same reasons, we reject the government's arguments that Mr. Musau failed to exhaust available remedies before immigration tribunals; there apparently was nothing to exhaust. If the CATOC creates any rights to which Mr. Musau is entitled, wholly discretionary relief from the Attorney General or his delegates would be insufficient; "mercy" does not protect rights.
We also question the district court's interpretation of Rranci v. Attorney General, 540 F.3d 165 (3d Cir. 2008). The district court seemingly read Rranci as suggesting that immigration tribunals have some authority to consider and resolve CATOC claims. Aplt. App. 15 (). But the Third Circuit merely recognized that the CATOC "calls into question whether theGovernment may put [an informant] in harm's way . . . after using his cooperation" in a criminal proceeding, and ultimately remanded to the BIA to let the BIA, itself, declare whether it had authority to consider CATOC claims. Rranci, 540 F.3d at 178-79. According to counsel for Mr. Musau, the BIA has not resolved Mr. Rranci's case in the nearly four years since it was remanded. Oral Argument, 6:30 to 6:52. Regardless, the absence of a statute or regulation granting an IJ or the BIA authority to consider such claims would, by the BIA's own precedent, appear determinative. See H-M-V-, 22 I. & N. Dec. at 258.
Separately, it is not clear whether Mr. Musau could have petitioned the Eighth Circuit4 for review of his order of removal, and the parties have not really addressed this point.5 Specifically, an alien must file a petition for review within thirty days of a final order of removal. 8 U.S.C. § 1252(b)(1). We know that Mr. Musau became aware of the threats against him prior to August 3, 2010, because he discussed those threats in his habeas petition; but we otherwise have no evidence regarding when Mr. Musau became aware of those threats. The threatening phone calls apparently began six days before Mr. Musau was orderedremoved, and continued through July; but the phone calls allegedly were made to Mr. Musau's brother, rather than to Mr. Musau himself. The record does not indicate when Mr. Musau became aware of the threats and no evidentiary hearing was held. If Mr. Musau was not aware of the threats within thirty days of his removal order becoming final, he apparently could not ask the Eighth Circuit to review his removal order. See id. And filing a motion to reopen or reconsider with the IJ likely would not have helped, as the IJ apparently lacked any authority to do anything about those threats vis-a-vis the CATOC.
Resolution of Mr. Musau's petition would have required the district court to first determine whether it had jurisdiction to consider that petition: whether, assuming Mr. Musau was entitled to any protection under the CATOC, he could pursue relief in immigration proceedings or before the Eighth Circuit. If not, the district court would have had to determine whether Mr. Musau was, in fact, entitled to protection under the CATOC: whether the CATOC creates any rights, and whether Mr. Musau is entitled to protection based on any such rights. The district court was premature in concluding that Mr. Musau could have sought to enforce any rights to which he is entitled before an immigration tribunal without any evidence that immigration tribunals could, in fact, consider CATOC claims. The district court again erred by assuming that Mr. Musau could petition the Eighth Circuit for relief without first evaluating whether Mr. Musau could have filed for such relief as required by statute.
We do not conclude that 8 U.S.C. § 1252(a)(5) unconstitutionally suspends the writ of habeas corpus. Rather, we conclude that the district court has jurisdiction to determine its jurisdiction; it may, and indeed must, determine whether the REAL ID Act, 8 U.S.C. § 1252(a)(5), unconstitutionally suspends the writ of habeas corpus. In making that determination the first time, the district court erred by making two assumptions that are not supported in fact or in law. We therefore remand to the district court with instructions to determine, in order, (1) whether, assuming he is entitled to protection under the CATOC, Mr. Musau could have sought relief from an immigration tribunal or the Eighth Circuit, and (2) whether the CATOC creates any protections and whether Mr. Musau is entitled to relief under any such protections. For purposes of this analysis, wholly discretionary relief (e.g., unreviewable prosecutorial or administrative discretion) appears insufficient to protect any such rights.
The dissent apparently does not disagree that...
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