Xiao v. Barr, s. 92-15389

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before POOLE, FERNANDEZ, and T.G. NELSON; POOLE
• Citation: 979 F.2d 151
• Parties: Wang Zong XIAO, Plaintiff-Appellee, v. William P. BARR, in his capacity as Attorney General of the United States; William T. McGivern, Jr., in his capacity as United States Attorney for the Northern District of California; Reginald L. Boyd, in his capacity as United States Marshal for the Northern District of California; D. Eugene McNary, in his capacity as Commissioner of the Immigration and Naturalization Service; and David Ilchert, in his capacity as District Director of the Immigration and Naturalization Service, Defendants-Appellants. (Two Cases)
• Docket Number: Nos. 92-15389,92-16272,s. 92-15389
• Decision Date: 30 October 1992

Page 151

979 F.2d 151 Wang Zong XIAO, Plaintiff-Appellee,
v.
William P. BARR, in his capacity as Attorney General of the
United States; William T. McGivern, Jr., in his capacity as
United States Attorney for the Northern District of
California; Reginald L. Boyd, in his capacity as United
States Marshal for the Northern District of California; D.
Eugene McNary, in his capacity as Commissioner of the
Immigration and Naturalization Service; and David Ilchert,
in his capacity as District Director of the Immigration and
Naturalization Service, Defendants-Appellants. (Two Cases) Nos. 92-15389, 92-16272. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Oct. 5, 1992.
Decided Oct. 30, 1992.

Page 152

Steven R. Valentine, Deputy Asst. Atty. Gen., Lauri Steven Filppu, Mark C. Walters, Alexander H. Shapiro, Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Cedric C. Chao and Annette P. Carnegie, Morrison & Foerster, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before POOLE, FERNANDEZ, and T.G. NELSON, Circuit Judges.

POOLE, Circuit Judge:

I.

Pursuant to 8 U.S.C. § 1182(d)(5)(A), appellee Wang Zong Xiao ("Wang") was paroled into this country from the People's Republic of China ("PRC") to testify at the trial of Leung Tak Lun, Chico Wong, and Andrew Wong. Wang had allegedly participated in a conspiracy to import heroin from Shanghai to San Francisco inside condoms sewn into the body cavities of dead goldfish. The Leung trial ended disastrously for the government, however, when the court declared a mistrial in response to Wang's revelations that Chinese authorities had tortured and coerced him into confessing and testifying falsely. Wang initially sought asylum, but then on February 5, 1990, he filed a complaint seeking declaratory and injunctive relief to prevent his return to the PRC or delivery into the custody of PRC officials. ¹ On February 10, 1990, the district court entered a preliminary injunction, ordering that Wang remain

Page 153

in the custody of the United States Marshal for the Northern District of California, and enjoining the United States from returning Wang to the PRC. This order was to remain in effect pending final adjudication of Wang's request for asylum.

On July 29, 1991, Wang's request for asylum was denied. On February 18, 1992, the INS terminated Wang's immigration parole and served him with notice that he was being placed in administrative exclusion proceedings. On the same day, Wang requested a hearing on his previously filed Motion for Partial Summary Judgment on his Eleventh Cause of Action, which alleged that the government is "without legal authority over [Wang's] person and may not remove [Wang] from the United States or return [him] to Chinese custody."

On February 20, the district court granted Wang a preliminary injunction preventing the government from moving forward with exclusion or deportation proceedings until final adjudication of the motion for partial summary judgment, and final resolution of all appeals arising therefrom. Four months later, the district court filed an opinion and order granting summary judgment on the eleventh cause of action, and permanently enjoining the government from taking any further action against Wang which could place him in jeopardy of a return to the PRC.

The government appeals both the preliminary injunction and the grant of summary judgment, alleging that the district court lacked jurisdiction to enjoin exclusion proceedings, that the district court erred in concluding that the INS lacked jurisdiction to place Wang in exclusion proceedings, and that the court erred in granting the preliminary injunction and summary judgment. We have consolidated the appeals, and we now reverse.

II.

We must first review the district court's exercise of subject matter jurisdiction over Wang's claim that the Immigration and Naturalization Service ("INS") lacked jurisdiction over him. We review questions of subject matter jurisdiction de novo. El Rescate Legal Services v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir.1991).

The Immigration and Nationality Act ("INA") requires that "[a]n order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations...." 8 U.S.C. § 1105a(c). The district court premised its exercise of jurisdiction on its belief that exhaustion was not required since Wang was not appealing an order of exclusion, but rather contesting the INS' authority to place him into exclusion proceedings.

We have, however, interpreted the statutory exhaustion requirement of section 1105a(c) more copiously than the reading given it by the district court. Beginning with Siaba-Fernandez v. Rosenberg, 302 F.2d 139 (9th Cir.1962), we have consistently held that "Congress intended to deny judicial review to aliens who failed to take advantage of their right to administrative remedies." Id. at 141. Thus, in that case, we had no jurisdiction to review an order of deportation from which the appellant failed to appeal to the Board of Immigration Appeals. In Mir v. Rosenberg, 390 F.2d 627, 628 (9th Cir.1967), this holding was extended to exclusion proceedings, and in Sotelo Mondragon v. Ilchert, 653 F.2d 1254 (9th Cir.1980), we confirmed that failure to exhaust administrative remedies deprives a district court of jurisdiction "to consider the propriety of the ... exclusion hearing" even where "there was no actual decision on exclusion but its absence is attributable to [the alien's] abandonment of the exclusion proceedings...." Id. at 1255-56. Thus, even when an alien is not, strictly speaking, seeking to attack a final order of exclusion, judicial review is precluded if the alien has failed to avail himself of all administrative remedies, one of which is the exclusion hearing itself.

In exercising jurisdiction, the district court relied on several cases which have found...