Soberanes v. Comfort

• Decision Date: 21 September 2004
• Docket Number: No. 03-1388.,03-1388.
• Citation: 388 F.3d 1305
• Parties: Juan SOBERANES, Petitioner-Appellant, v. Michael COMFORT, Acting District Director, United States Immigration and Naturalization Service, Denver, Colorado; John Ashcroft, United States Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

388 F.3d 1305

Juan SOBERANES, Petitioner-Appellant, v. Michael COMFORT, Acting District Director, United States Immigration and Naturalization Service, Denver, Colorado; John Ashcroft, United States Attorney General, Respondents-Appellees.

No. 03-1388.

United States Court of Appeals, Tenth Circuit.

September 21, 2004.

Ordered Published November 3, 2004.

Appeal from the United States District Court for the District of Colorado, Wiley Daniel, J.

COPYRIGHT MATERIAL OMITTED

Patrick C. Hyde of Patrick C. Hyde, P.C., Denver, CO, for Petitioner-Appellant.

John W. Suthers, United States Attorney, Nina Y. Wang, Assistant United States Attorney, Denver, CO, for Respondents-Appellees.

Before TACHA, Chief Judge, MURPHY, Circuit Judge, and CAUTHRON,^* Chief District Judge.

OPINION

CAUTHRON, Chief Judge.

Petitioner Juan Soberanes is in custody pending the execution of a 1996 deportation order that he never appealed to the Bureau of Immigration Appeals (BIA). Currently that order is, indirectly, the subject of a petition for review in the U.S. Court of Appeals for the Ninth Circuit, filed by petitioner following the denial of a subsequent motion to reopen. Petitioner also filed a habeas petition in the federal district court for Colorado challenging his deportation proceeding and attendant confinement. He now appeals the denial of that petition. We deny relief for three basic reasons, each relating to a distinct group of issues. First, challenges to the unappealed deportation order are not properly before us: if never brought before the BIA, they are unreviewable for failure to exhaust administrative remedies; if exhausted by the motion to reopen, they are subject to direct review in the Ninth Circuit and procedurally barred here. Second, as to petitioner's broader challenges to the immigration statutory scheme, which are outside the scope of administrative review and, hence, unaffected by exhaustion concerns, we agree with the district court that the challenges are meritless. Finally, as to confinement, petitioner has failed to identify any error in the district court's determination that he has been properly confined while awaiting resolution of his various legal challenges to deportation.

A brief elaboration on the relevant procedural facts will suffice to frame the dispositive issues on appeal. Petitioner, a native of Peru, illegally entered the United States in January 1990. He applied for asylum in California four years later. In August 1996, an immigration judge (IJ) denied asylum and ordered petitioner deported, but granted him a voluntary departure by September 23, 1996. Petitioner did not appeal to the BIA, nor did he voluntarily depart, and his deportation order became final when the time for administrative appeal expired. See Onwuneme v. INS, 67 F.3d 273, 276 (10th Cir.1995).¹

In early 2001, petitioner applied for adjustment of status based on marriage to a U.S. citizen. When he appeared for an interview in California in July 2002, he was taken into custody for execution of the extant deportation order. He filed a motion to reopen the deportation proceeding, which the IJ denied as untimely. After the BIA summarily affirmed that ruling, he filed a petition for review in the Ninth Circuit, which is still pending. In the meantime, he was transferred to Colorado, where he filed a habeas petition seeking release from custody on various grounds, some involving the merits of his administrative proceedings. The district court denied the petition and this appeal followed.²

Specific Challenges to Deportation/Asylum Determination (Failure to Exhaust and Procedural Bar)

Neglecting 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. Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999) (following Rivera-Zurita v. INS, 946 F.2d 118, 120 n. 2 (10th Cir.1991)). While we have thus far had occasion to apply this exhaustion rule only in the context of petitions for review, we see no reason for excepting habeas proceedings—traditionally constrained by exhaustion principles in other contexts— from its natural reach. Many circuits, applying the exhaustion requirement that was contained in 8 U.S.C. § 1105a(c) (repealed) prior to passage of IIRIRA and is now contained in 8 U.S.C. 1252(d)(1),³ have held the failure to exhaust issues before the BIA bars judicial review through habeas just as it does through a petition for review. See, e.g., Sun v. Ashcroft, 370 F.3d 932, 937-41 (9th Cir.2004) (applying § 1252(d)(1)'s exhaustion requirement in accord with four other circuits); Kurfees v. United States INS, 275 F.3d 332, 335-37 (4th Cir.2001) (applying § 1105a(c)'s exhaustion requirement); Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir.1990) (same). Following that accepted view, we lack jurisdiction to review the unappealed deportation order issued by the IJ in 1996.

This jurisdictional prohibition extends not only to substantive issues, but to constitutional objections that involve "administratively correctable procedural errors, even when those errors are failures to follow due process." Akinwunmi, 194 F.3d at 1341 (quotation omitted). Thus, petitioner's complaints about omissions by counsel and associated inadequacies in his evidentiary and review proceedings fall within the prohibition. Id.; Baria v. Reno, 94 F.3d 1335, 1340 (9th Cir.1996). We note, however, that the means for administratively correcting an instance of ineffective assistance of counsel is a motion to reopen, id., and petitioner did eventually pursue this avenue through appeal to the BIA. Thus, we turn to the question whether the disposition of that motion is subject to collateral habeas review when direct review was also available—indeed, is pending in another circuit. At this point, our analysis shifts from administrative exhaustion to procedural bar. See Latu v. Ashcroft, 375 F.3d 1012, 1017 (10th Cir. 2004) (distinguishing two procedural concepts); see also Akinwale v. Reno, 216 F.3d 1273, 1279 n. 11 (11th Cir.2000); cf. Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th Cir.2004) (identifying same distinct procedural bar issue, separate from principle of administrative exhaustion, though referring to it in circuit's unique vernacular as "prudential" requirement of "exhaustion of judicial remedies").

"Generally, a habeas petition cannot be used to substitute for direct appeal." Latu, 375 F.3d at 1012. Consequently, an alien subject to deportation may not bypass available direct review in the court of appeals in favor of a collateral habeas attack in the district court. Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 (10th Cir.2003). But by the same token, if an alien raises issues that would fall outside the jurisdictional scope of a petition for review, "he has not failed to seek an available judicial remedy, and he is not procedurally barred from habeas review in the district court." Latu, 375 F.3d at 1017 (approving habeas review of removal based on alien's status as aggravated felon, direct review of which is barred under 8 U.S.C. § 1252(a)(2)(C)) (emphasis added). The ineffective assistance/due process issues raised here could have been (and perhaps are being) pursued in a petition for review from the denial of petitioner's motion to reopen.⁴ See, e.g., Siong v. INS, 376 F.3d 1030, 1035-36 (9th Cir.2004); Arreaza-Cruz v. INS, 39 F.3d 909, 912 (9th Cir.1994). Accordingly, the matter is not properly before us in this habeas proceeding.

Constitutional Challenges to Deportation Statutes

Petitioner's broad constitutional challenges to deportation statutes are on a different footing. "Courts have carved out an exception to the exhaustion requirement for constitutional challenges to the immigration laws, because the BIA has no jurisdiction to review such claims." Akinwunmi, 194 F.3d at 1341. With exhaustion constraints thus removed, petitioner's statutory challenges are unaffected by his failure to appeal the IJ's deportation order or by any procedural infirmity in his later motion to reopen. Moreover, unlike the petition for review in the Ninth Circuit, which is limited to the motion to reopen, Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir.2004), our habeas review can encompass statutory challenges that relate directly to the initial determination of asylum and deportation.

These challenges were, however, properly rejected on the merits by the district court. As it recognized, petitioner's constitutional objections to 8 U.S.C. § 1231(a)(5) are simply inapposite. The statute deals with summary reinstatement of removal orders when "an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal." Petitioner did not leave the country under the 1996 deportation order. Thus, when he was taken into custody in 2002, a previously executed order was not reinstated; rather, a pending order was enforced.

Petitioner also challenged the retroactive application of 8 U.S.C. § 1229b, which specifies conditions for cancellation of removal that are stricter than those specified in 8 U.S.C. § 1254(a)(1) (repealed) for suspension of deportation, the pre-IIRIRA equivalent. The district court correctly held this challenge foreclosed by circuit precedent. See Lockett v. INS, 245 F.3d 1126, 1129 (10th Cir.2001).

Challenge to Detention

Challenges to immigration detention are properly brought directly through habeas. Zadvydas v. Davis, 533 U.S. 678, 687-88, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). And the exhaustion deficiencies we have noted in other respects do not affect habeas jurisdiction over such claims. See Arango Marquez v. INS, 346 F.3d 892, 896 (9th Cir.2003); Hoang v. Comfort, 282 F.3d 1247, 1254-55 (10th Cir.2002), cert. granted and judgment vacated on other grounds sub nom. by Weber v. Hoang, 538 U.S. 1010, 123 S.Ct. 1963, 155 L.Ed.2d 846 (20...