Shepherd v. Holder

Decision Date08 May 2012
Docket NumberNo. 11–9520.,11–9520.
Citation678 F.3d 1171
PartiesKairi Abha SHEPHERD, a/k/a Kara Shepherd, a/k/a Kairi A. Shepherd, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit


Alan L. Smith, Salt Lake City, UT, for Petitioner.

Jesse M. Bless, Trial Attorney, (David V. Bernal, Assistant Director, with him on the brief), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before HARTZ, O'BRIEN, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

This case is about the government's repeated efforts to remove Kairi Abha Shepherd from the United States on the ground she is a criminal alien. In the initial removal proceeding, the government did not effectively contest Ms. Shepherd's claim to automatic citizenship under the Child Citizenship Act of 2000(CCA), 8 U.S.C. § 1431, and the Immigration Judge (IJ) dismissed for lack of jurisdiction.

The very next day, the government initiated a new removal proceeding, explaining to the same IJ that it had made a mistake and now realized that Ms. Shepherd was too old to qualify under the CCA for citizenship. The IJ eventually decided that his initial ruling precluded the government from relitigating Ms. Shepherd's citizenship or alienage status, and he terminated the proceeding. The government successfully appealed to the Board of Immigration Appeals (BIA), which held that collateral estoppel did not apply and remanded to the IJ, who ordered removal.

Ms. Shepherd then petitioned this court for review. Her petition requires us to decide whether we have jurisdiction under 8 U.S.C. § 1252(a)(2)(C), which limits judicial review of orders to remove criminal aliens. We therefore must ascertain as a jurisdictional fact whether Ms. Shepherd is a citizen or an alien, using the procedures that Congress prescribed in 8 U.S.C. § 1252(b)(5) for that purpose. We find that her alien status precludes our jurisdiction. Her issue preclusion argument based on the IJ's first decision is unavailing because administrative collateral estoppel does not apply to our § 1252(b)(5) analysis. Accordingly, we dismiss her petition for review.


Ms. Shepherd was an orphaned baby in India when she was brought to this country for adoption in 1982 by a U.S. citizen. Her adoptive mother died when she was eight years of age, and she was thereafter cared for by guardians. There is no record of any effort by Ms. Shepherd or her guardians to petition for her citizenship.

In March and May 2004, Ms. Shepherd was convicted in Utah of attempted forgery and third-degree forgery. After she served her time, the government initiated removal proceedings against her, alleging she was a criminal alien subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii) based on the convictions.

At an initial hearing before the Immigration Judge (IJ), government counsel noted that Ms. Shepherd's history suggested she might be able to prove she became a U.S. citizen through adoption under the CCA's automatic citizenship provision, 8 U.S.C. § 1431. This provision directs that [a] child born outside of the United States automatically becomes a citizen of the United States” when three conditions are fulfilled: (1) At least one parent of the child is a citizen of the United States”; (2) The child is under the age of eighteen years”; and (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.” Id. § 1431(a); see also id. § 1431(b) (clarifying that an adopted child may qualify for automatic citizenship).

Citizenship constitutes the ‘denial of an essential jurisdictional fact’ in a deportation proceeding.” Duarte–Ceri v. Holder, 630 F.3d 83, 87 (2d Cir.2010) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922)); see also Omolo v. Gonzales, 452 F.3d 404, 407 (5th Cir.2006) (“Only aliens are removable under the Immigration and Nationality Act.”). Accordingly, the IJ continued the hearing so that Ms. Shepherd could retain counsel and attempt to muster the necessary proof to secure dismissal of the removal proceeding.1

At the ensuing hearing, Ms. Shepherd offered what everyone involved deemed sufficient documentation to establish citizenship under § 1431: an immigrant visa showing she had arrived in the U.S. as a legal permanent resident, and a certified copy of her subsequent adoption decree. Based on these documents, the IJ dismissed the case without prejudice for lack of jurisdiction, because “the Government is unable to ... prove the respondent's not a citizen of the United States.” Admin. R. at 276. The parties waived appeal. Id. at 506.

The next day, however, the government initiated a second removal proceeding based on the same grounds as the first. The government explained that it had overlooked an important fact at the prior hearing: the automatic citizenship provision of the CCA did not apply to Ms. Shepherd because she was no longer a child “under the age of eighteen years” on February 27, 2001, the effective date of the CCA.2See Gomez–Diaz v. Ashcroft, 324 F.3d 913, 915–16 (7th Cir.2003) (collecting cases holding CCA did not retroactively afford citizenship to children who did not satisfy its conditions on its effective date). The IJ noted that the government's initiation of the second removal proceeding raised issues of administrative preclusion and ordered the parties to brief the matter.

After another hearing, the IJ held that the second removal proceeding was not barred by administrative res judicata because the first proceeding had been dismissed without prejudice. The IJ went on to rule, however, that the government was collaterally estopped from relitigating the jurisdictional fact of alienage/citizenship that had been found in Ms. Shepherd's favor in the first proceeding. Thus, lacking jurisdiction to proceed against Ms. Shepherd, the IJ terminated the second removal proceeding.

The government appealed to the BIA, which reversed the IJ's collateral estoppel ruling. The BIA held that collateral estoppel did not apply because “the record does not demonstrate that the issue of [Ms. Shepherd's] citizenship was actually litigated or clearly adjudicated” in the first proceeding. Admin. R. at 5. The BIA remanded for further proceedings and the entry of a new decision. On remand, the IJ ordered Ms. Shepherd removed. She then filed the instant petition for review directly from the IJ's removal order, challenging the BIA's prior rejection of collateral estoppel on the issue of her citizenship.


This appeal raises a host of jurisdictional issues. We first address whether Ms. Shepherd has met the requirements of finality and exhaustion in the underlying administrative proceedings to qualify for review in this court. We next consider whether the passage of time overcomes the premature filing of her petition to this court. Finally, we analyze whether 8 U.S.C. § 1252(a)(2)(C), which generally bars appeals of removal orders by criminal aliens, constitutes a jurisdictional bar to Ms. Shepherd's petition.

A. Finality and Exhaustion

The unusual route Ms. Shepherd took to reach this court, bypassing (a second) appeal to the BIA, implicates two basic jurisdictional prerequisites for a petition for review: the “final order of removal” required by 8 U.S.C. § 1252(a)(1), and the “exhaust[ion] [of] all administrative remedies available to the alien as of right” required by § 1252(d)(1).

The finality concern, implicated by her direct resort to the court of appeals following the IJ's decision, is not a problem.3 An appeal to the BIA is not necessary to make a removal order final for purposes of judicial review. Such an order becomes final either through appeal to and affirmance by the BIA, id.§ 1101(a)(47)(B)(i), or through “expiration of the period in which the alien is permitted to seek review” by the BIA, id.§ 1101(a)(47)(B)(ii). Thus, bypassing the BIA and directly seeking judicial review of an IJ's removal order does not violate the jurisdictional condition of finality because the period to seek BIA review has expired.

The exhaustion issue is more complicated. Generally, [n]eglecting to take an appeal to the BIA constitutes a failure to exhaust administrative remedies as to any issue that could have been raised, negating the jurisdiction necessary for subsequent judicial review.” Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir.2007) (internal quotation marks omitted). We must address whether bypassing an available final appeal to the BIA constitutes a failure to exhaust when the issue for which the alien later seeks judicial review was already resolved by the BIA in an earlier appeal in the same case.

The relevant statutory language includes only one qualification to the exhaustion requirement: the remedy to be exhausted must be available to the alien as of right. 8 U.S.C. § 1252(d)(1) (emphasis added). Ms. Shepherd had a right of appeal to the BIA after the IJ's removal order, and we know of no statute or regulation limiting this right of appeal so as to exclude matters, such as the collateral estoppel ruling at issue here, that had been resolved by the BIA on an interlocutory or interim appeal in the same case. Although Ms. Shepherd may have had little expectation of success in a second appeal to the BIA on the collateral estoppel issue, we cannot assume that review through a second appeal was unavailable to her as a matter of right.

There is, however, another consideration based upon the concept of exhaustion itself. Exhaustion is generally understood to require one complete presentation of an issue. See generally Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)). Courts...

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