Sundar v. I.N.S.

• Decision Date: 25 April 2003
• Docket Number: No. 02-13878.,02-13878.
• Parties: Harrypersad SUNDAR, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, United States Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

328 F.3d 1320

Harrypersad SUNDAR, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, United States Attorney General, Respondents-Appellees.

No. 02-13878.

United States Court of Appeals, Eleventh Circuit.

April 25, 2003.

Bernardo Lopez and Daryl E. Wilcox, Fed. Pub. Defenders, Fort Lauderdale, FL, Kathleen M. Williams, Fed. Pub. Def., Miami, FL, for Petitioner-Appellant.

Kathleen M. Salyer, Laura Thomas Rivero, Anne R. Schultz, Miami, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, MARCUS and SUHRHEINRICH^*, Circuit Judges.

CARNES, Circuit Judge:

Harrypersad Sundar, a citizen of Trinidad and Tobago, lived in the United States as a lawful permanent resident until his removal was ordered by an immigration judge because he had committed a crime of moral turpitude. Sundar did not appeal that removal order to the Board of Immigration Appeals, but instead did nothing for four-and-a-half years and then filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus to overturn the removal order. The district court denied the habeas petition because Sundar's failure to appeal the removal order to the BIA constituted a failure to exhaust his administrative remedies as required in 8 U.S.C. § 1252(d)(1).

In this appeal by Sundar from that denial of habeas relief we are faced with the question of whether § 1252(d)(1)'s exhaustion requirement applies in § 2241 habeas proceedings or only in direct appeals to this Court from the BIA. Concluding that it does apply in habeas proceedings, we affirm the district court's denial of the petition.

I.

Sundar entered the United States in 1983 and was granted legal permanent resident status that same year. In 1990, he pleaded guilty in New York to burglary and was sentenced to an indeterminate sentence of not less than two years and not more than six years of imprisonment. In June 1998, Sundar traveled to Trinidad, and upon his return to the United States, the Immigration and Naturalization Service detained him at the airport. Based on his 1990 burglary conviction, the INS issued a notice to appear, which alleged that Sundar was subject to removal from the United States because he had committed a crime of moral turpitude, pursuant to § 212(a)(2)(A)(i)(I) of the Immigration and Naturalization Act (INA), and it began removal proceedings against him.

At the hearing that resulted, the immigration judge decided Sundar was subject to removal on the charge alleged in the notice to appear. According to Sundar, the judge also ruled during the course of the hearing that because he had been convicted of an aggravated felony Sundar was not eligible for discretionary relief under INA § 212(c).¹ On August 6, 1998, the immigration judge entered a removal order. Sundar did not appeal the removal order to the BIA. On November 9, 1998 — eight years after he had been convicted of the aggravated felony that caused the removal — Sundar was finally removed from the United States.²

On May 30, 2002, Sundar filed a habeas petition attacking his 1998 removal. Sundar acknowledges that the immigration judge's ruling that Sundar was not eligible for discretionary relief was consistent with immigration law at the time. See In re Yeung, 21 I. & N. Dec. 610 (BIA 1996) (en banc). However, Sundar argues, INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), an intervening Supreme Court decision, abrogated the prior BIA decisional law on which the immigration judge's ruling was based. As a result, Sundar contends that he is now eligible for relief from deportation under INA § 212, and that the erroneous decision of the immigration judge violated his due process rights.

The district court disagreed. It acknowledged that the Supreme Court's St. Cyr decision establishes that Sundar should have been entitled to seek discretionary relief from deportation under INA § 212 because his aggravated felony conviction, which would have disqualified him from discretionary relief under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (IIRIRA), predated the enactment of the IIRIRA. Habeas relief was nonetheless due to be denied, the court reasoned, because Sundar's failure to appeal the immigration judge's decision to the BIA constitutes a failure to exhaust administrative remedies which precludes him from collaterally attacking the removal order in a habeas petition. Alternatively, on the merits of Sundar's due process claim, the district court decided that because the grant of relief pursuant to INA § 212 is completely discretionary, any detriment from being held ineligible for such relief is purely speculative, meaning Sundar cannot show the violation of a constitutionally protected interest.

II.

The exhaustion requirement applicable to immigration cases is found in 8 U.S.C. § 1252(d)(1), which provides that "[a] court may review a final order of removal only if... the alien has exhausted all administrative remedies available to the alien as of right." We have interpreted that requirement to be jurisdictional, so we lack jurisdiction to consider claims that have not been raised before the BIA. Fernandez-Bernal v. Attorney General, 257 F.3d 1304, 1317 n. 13 (11th Cir.2001) (holding that because of § 1251(d)(1) we lack jurisdiction to review a claim the petitioner does not raise in his appeal to the BIA); Galindo-Del Valle v. Attorney General, 213 F.3d 594, 599 (11th Cir.2000) (same); Asencio v. INS, 37 F.3d 614, 615-16 (11th Cir.1994) (interpreting 8 U.S.C. § 1105a(c) (1995)³ and holding "a court lacks jurisdiction to consider a claim which has not first been presented to the Board").

Although our decisions in Fernandez-Bernal, Galindo-Del Valle, and Asencio were issued in circumstances where the alien had filed petitions in this Court seeking direct review of BIA decisions in removal proceedings, the Fourth Circuit held in Kurfees v. INS, 275 F.3d 332 (4th Cir.2001), that the exhaustion requirement applies in habeas proceedings, too. In that case, Kurfees filed a § 2241 habeas petition challenging an order of deportation on the ground that the immigration judge had failed to establish that she was deportable. Because Kurfees had not appealed the deportation order to the BIA, she had not exhausted her administrative remedies under the then-applicable statute, 8 U.S.C. § 1105a(c) (1995), and for that reason the district court dismissed her habeas petition for lack of jurisdiction. Id. at 336. The Fourth Circuit affirmed, reasoning that Kurfees should not be allowed "to bypass the administrative process by bringing a habeas corpus action in the district court," id., because "Congress has specifically required aliens to exhaust their administrative remedies before going into federal court." Id. at 337. The Court explained why it is essential that the exhaustion requirement be applied in habeas cases as well in direct review proceedings:

While upholding the exhaustion requirement may seem strict in an individual case, exhaustion serves the twin purposes of protecting administrative agency authority and promoting judicial efficiency. The BIA was not given the opportunity to review the case because Kurfees neglected to appeal. The exhaustion doctrine embodies a policy of respect for administrative agencies, which allows them to carry out their responsibilities and "to discover and correct [their] own errors." A rule that allowed parties to circumvent the administrative process under the circumstances of this case would undermine agency functions and clog the courts with unnecessary petitions. The rules are clear: before proceeding to federal court, an alien must exhaust his or her administrative remedies. Kurfees failed to exhaust.

Id. at 336 (internal citation omitted).

We agree with the Fourth Circuit's reasoning in Kurfees, but we have to go beyound it in order to address Sundar's chief argument to the contrary. He argues that because § 1252(d)(1) refers to what a court "may review" (just as the predecessor § 1105a(c) referred to what shall not "be reviewed"), it applies only to direct review proceedings and not to habeas proceedings. That argument finds some support in the observation in the St. Cyr opinion, which was not addressed in the Kurfees decision, that "[i]n the immigration context, `judicial review' and `habeas corpus' have historically distinct meanings." St. Cyr, 533 U.S. at 311, 121 S.Ct. at 2285. Citing St. Cyr, Sundar claims that where an immigration statute places jurisdictional limits on judicial "review" of a final removal order, those restrictions do not apply to habeas review. Id. at 313-14, 121 S.Ct. at 2286-87.

Sundar reads St. Cyr too broadly. The language he relies upon from that opinion arose in a materially different context. The INS asserted in St. Cyr that certain sections of 8 U.S.C. § 1252 (including (a)(1), (a)(2)(C), and (b)(9))⁴ removed entirely from the federal courts the jurisdiction to hear habeas cases involving certain types of immigration orders, even when all administrative remedies had been exhausted. Id. at 310-11, 121 S.Ct. at 2285. Because such a construction would "invoke[ ] the outer limits of Congress' power," id. at 299, 121 S.Ct. at 2279, and "would raise serious constitutional problems," id. at 300, 121 S.Ct. at 2279, it should not be accepted, the Supreme Court explained, absent "a clear statement of congressional intent to repeal habeas jurisdiction," id. at 298, 121 S.Ct. at 2278. That reasoning is consistent with "the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." Id. at 298, 121 S.Ct. at 2278. The statutory references in 8 U.S.C. § 1252(a)(1), (a)(2)(C), and (b)(9) to "review" and "judicial review" were judged not to provide the high degree of clarity required to oust federal habeas jurisdiction entirely.

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