Sousa v. Immig. & Nat.

• Decision Date: 31 July 2000
• Docket Number: No. 99-2049,99-2049
• Citation: 226 F.3d 28
• Parties: (1st Cir. 2000) ARTUR MANUEL SOUSA,Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE,Respondent. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 28

226 F.3d 28 (1st Cir. 2000)

ARTUR MANUEL SOUSA,Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE,Respondent.

No. 99-2049

United States Court of Appeals For the First Circuit

Heard July 31, 2000

Decided September 22, 2000

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

William E. Graves, Jr. with whom Desai & Graves was on brief for petitioner.

Brenda M. O'Malley, Office of Immigration Litigation, Civil Division, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, were on brief for respondent.

Before Boudin and Lipez, Circuit Judges, and Casellas, ^* District Judge.

BOUDIN, Circuit Judge.

The petitioner in this case, Artur Manuel Sousa, is a 31-year-old native and citizen of Portugal. He entered the United States with his parents as an immigrant in 1971. On June 29, 1990, Sousa was convicted of unarmed robbery in the Superior Court in Cambridge, Massachusetts and given a suspended sentence of 3 to 5 years of imprisonment. In 1996, Sousa was found to be in violation of the terms of his probation and was ordered to serve the suspended prison term.

On September 3, 1998, the Immigration and Naturalization Service ("INS") began removal proceedings against Sousa, charging him with being removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") (codified at 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. II 1996)) [U.S. Code references are to this edition unless otherwise indicated], because he had been convicted of an aggravated felony as defined in section 101(a)(43)(F) of the INA (codified at 8 U.S.C. 1101(a)(43)(F)). "Removal" is a generic term now used to include what used to be called deportation.

After two adjournments to allow Sousa to seek counsel, he appeared pro se on March 5, 1999, and the immigration judge decided to proceed with the removal hearing. After the judge explained to Sousa his procedural rights, Sousa admitted that he was a citizen of Portugal and that he had been convicted of unarmed robbery and sentenced to 3 to 5 years in prison. He also conceded that he was subject to removal for having committed a crime of violence for which the sentence was at least one year. See INA 101(a)(43)(F), 237(a)(2)(A)(iii) (codified at 8 U.S.C. 1101(a)(43)(F), 1227(a)(2)(iii)). The judge found Sousa removable for having been convicted of an aggravated felony and also found him ineligible for discretionary relief from removal.

Sousa then obtained legal counsel and appealed the removal order to the Board of Immigration Appeals ("BIA"). In his notice of appeal Sousa contended that the judge should have permitted him to apply for a waiver of deportation under INA section 212(c) or, alternatively, that the petitioner should have been permitted to apply for cancellation of removal under new INA section 240A. ¹ Sousa did not claim, in the notice of appeal or the brief submitted to the BIA, that he was not an aggravated felon.

The BIA dismissed the appeal on August 12, 1999. It rejected Sousa's claim that he should be permitted to apply for a section 212(c) waiver, noting that section 212(c) had been repealed, see note 1, above, and finding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") had expressly made the repeal of section 212(c) effective for all cases commencing on or after April 1, 1997. IIRIRA 309(a), (c)(1) (codified at 8 U.S.C. 1101 note). This, of course, includes Sousa's case.

The BIA did not directly discuss the alternative claim for cancellation of removal under section 240A, seemingly because Sousa did not press that possibility when he briefed his case on review. While both section 212(c) and 240A provide for discretionary relief in similar terms, section 240A relief is expressly made unavailable to aggravated felons. INA 240A (codified at 8 U.S.C. 1229b). Sousa now appeals to this court in accordance with INA section 242 (codified at 8 U.S.C. 1252), claiming for the first time that he is not removable as an aggravated felon. He also contends that he should have been permitted by the INS to apply for relief from removal.

At the outset, the government argues that we lack subject matter jurisdiction over this appeal. Section 242(a)(2)(C) of the INA (codified at 8 U.S.C. 1252(a)(2)(C)) provides in relevant part that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered" by the statutory provision making aggravated felons removable. The government's brief says that "[t]he Court's exercise of its authority to determine its jurisdiction in this case should go no further than determining that there is an administratively final order of removal against Sousa entered on the basis of the BIA's and immigration judge's facially legitimate finding that Sousa is removable for an aggravated felony conviction."

The government's position, from which it sensibly retreated at oral argument, is too broad. Under the INA, our jurisdiction is eliminated only if the petitioner is (1) an alien who is (2) removable for having committed one of the criminal offenses specified in the statute. Sousa challenges the existence of one of these jurisdiction-stripping facts: he argues that he has not committed a crime that renders him removable. To determine whether we lack jurisdiction over this case, we must therefore determine whether he is correct. Thus INA section 242(a)(2)(C) is not a bar to our considering Sousa's claim that he is not removable as an aggravated felon. Other circuits have reached the same conclusion. E.g., Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000); Bell v. Reno, 218 F.3d 86, 89 (2d Cir. 2000); Galindo-Del Valle v. Attorney General, 213 F.3d 594, 598 (11th Cir. 2000); Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999).

Alternatively, and with more basis, the government argues that we lack subject matter jurisdiction because Sousa failed to assert this claim--that he is not an aggravated felon--before the immigration judge and the BIA and thus failed to exhaust administrative remedies as required by INA section 242(d)(1) (codified at 8 U.S.C. 1252(d)). That provision states in relevant part: "A court may review a final order of removal only if--(1) the alien has exhausted all administrative remedies available to the alien as of right . . . ." Obviously, Sousa has gone through the administrative proceeding; the problem is that he did not raise there the issue he now seeks to raise in this court.

If we were writing on a clean slate, it would be very tempting to treat Sousa's forfeit of his claim as something less than a jurisdictional objection. After all, in both criminal and civil cases coming from district courts, an appellate court has the option to recognize "plain error," e.g., Fed R. Crim. P. 52(b); Fed. R. Evid. 103(d). Although the test is a stringent one, United States v. Olano, 507 U.S. 725, 732-35 (1993), it leaves open the opportunity for a reviewing court to avoid a miscarriage of justice in extreme cases. United States v. Gandia-Maysonet, 98-1144, slip op. at 9-10 (1st Cir. Sept. 13, 2000). The common law requirement of exhaustion is a fairly flexible rule with many judicially created exceptions. Davis, Administrative Law 15.2 (3d ed. 1994).

Whatever our own views, we are bound by precedent to apply the INA exhaustion requirement in a more draconian fashion. The Supreme Court regards exhaustion requirements imposed by statute as more rigid than the common law doctrine, ² even though (as here) the statutes are rarely explicit in ruling out exceptions. Not much precedent exists as to section 242(d), but it merely "restates" its precursor, former INA section 106(c) (codified at 8 U.S.C. 1105a(c) (1994)). H.R. Conf. Rep. No. 104-828, 1996 WL 563320, at *478 (Sept. 24, 1996). And most circuits, including this one, have described former INA section 106(c) as a jurisdictional bar where an issue sought to be raised in court was not raised in the agency. ³

Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out exceptions. The best founded is one suggested by the Supreme Court, and explicitly recognized in this and other circuits, where a resort to the agency would be futile because the challenge is one that the agency has no power to resolve in the applicant's favor. Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999); Ravindran, 976 F.2d at 762. See generally Mathews v. Eldridge, 424 U.S. 319, 329-30 & n.10 (1976). See also Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999); Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985). Sousa says that his case is analogous because the BIA had already rejected the same attack on aggravated felon status that he wishes to make in this case.

A close parsing of his claims and the BIA decision he relies upon as foreclosing them indicates that these claims were not resolved by the BIA until after Sousa's appeal had been decided. See In re Truong, Int. Dec. 3416 (BIA 1999). However this may be, the Supreme Court has said that merely because the agency has previously rejected an argument is no basis for failing to make the claim in one's own case.

It is urged in this case that the Commission had a predetermined policy on this subject which would have required it to overrule the objection if made. While this may well be true, the Commission is obliged to deal with a large number of like cases. Repetition of the objection in them might lead to a change of policy, or, if it did not, the Commission would at least be put on notice of the accumulating risk of wholesale reversals being incurred by its persistence. Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple...