Zhong v. U.S. Dept. of Justice

• Decision Date: 31 May 2007
• Docket Number: Docket No. 02-4882-ag.
• Citation: 489 F.3d 126
• Parties: Lin ZHONG, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, & Attorney General Gonzales, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

489 F.3d 126

Lin ZHONG, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, & Attorney General Gonzales, Respondent.

Docket No. 02-4882-ag.

United States Court of Appeals, Second Circuit.

May 31, 2007.

Bruno Joseph Bembi Esq., Law Office of Bruno Joseph Bembi, Esq., Hempstead, NY, for Petitioner.

Edward J. McElroy Esq., U.S. Attorney, EDNY, New York, NY, Jennifer A. Paisner Esq., John Ashcroft Esq., U.S. Dept. of Justice, Washington, DC, for Respondent.

Present: Hon. DENNIS JACOBS, Chief Judge, Hon. GUIDO CALABRESI, Hon. JOSÉ A. CABRANES, Hon. CHESTER J. STRAUB, Hon. ROSEMARY S. POOLER, Hon. ROBERT D. SACK, Hon. SONIA SOTOMAYOR, Hon. ROBERT A. KATZMANN, Hon. B.D. PARKER, Hon. REENA RAGGI, Hon. RICHARD C. WESLEY, and Hon. PETER W. HALL, Circuit Judges.

Judge CALABRESI concurs in the order denying rehearing in banc and files an opinion. Chief Judge JACOBS dissents from the order denying rehearing in banc and files an opinion in which Judges JOSÉ A. CABRANES and RAGGI join.

CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc.

In his strong dissent, the Chief Judge touches on two separate issues. Both are important and deserve serious discussion. The first is primarily of interest to this court and circuit. It asks whether the majority in Zhong v. U.S. Dep't of Justice, 480 F.3d 104 (2d Cir.2007), amending and superseding Zhong v. U.S. Dep't of Justice, 461 F.3d 101 (2d Cir.2006), ignored our rules making previous circuit precedent binding. The second is of more general interest. It questions whether the Zhong majority was correct in its reading of the relevant statute and Supreme Court decisions when it held that exhaustion of issues — as against categories of claims — is a mandatory rather than a jurisdictional requirement.¹

I

In Zhong, the government did not point out that the petitioner had failed to exhaust certain issues before the Board of Immigration Appeals ("BIA"), and instead, fully briefed and argued the merits of those unexhausted issues to us. As a result, the Zhong panel was faced with the question of whether the requirement of issue exhaustion was jurisdictional and had to be raised by the panel sua sponte.

The Chief Judge contends that the Zhong panel should have treated our court's decision in Foster v. INS, 376 F.3d 75 (2d Cir.2004) (per curiam), as controlling on this point. See dissenting op. at 135 (criticizing the Zhong majority for "[d]eparting from this well-settled precedent"). It is true that the Foster opinion contains language which might be taken to suggest that 8 U.S.C. § 1252(d)(1) imposes a jurisdictional issue exhaustion requirement. But because, in Foster, the government pointed out the petitioner's failure to exhaust issues, see Foster, 376 F.3d at 77, any "jurisdictional" language used by that panel was not necessary to the decision, and as such was not binding on later panels.² Significantly, both members of our court who served on the Foster panel and wrote that decision have consistently rejected the Chief Judge's reading of Foster as binding.³ They have authorized me to say that they view the jurisdictional language in Foster as dicta, and that they believe they indicated as much in Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004), which they heard on the same day as Foster.⁴

Given that Foster was not controlling, and that no other binding precedent on point was, or has been, cited to us it was proper for the Zhong panel to treat as an open question the precise nature of this court's issue exhaustion requirement.

In view of the Supreme Court's series of recent and increasingly powerful opinions cautioning lower federal courts against conflating mandatory with jurisdictional prerequisites, see, e.g., Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1681-82, 164 L.Ed.2d 376 (2006); Arbaugh, 126 S.Ct. at 1238, 1245; Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 405, 163 L.Ed.2d 14 (2005) (per curiam); Kontrick v. Ryan, 540 U.S. 443, 455-56, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), and because there was no binding precedent on the question of issue exhaustion, the Zhong majority properly undertook the task of carefully determining whether our court's issue exhaustion requirement should truly be treated as jurisdictional. See Eberhart, 126 S.Ct. at 405 ("Clarity would be facilitated . . . if courts and litigants used the label `jurisdictional' not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." (citation and internal quotation marks omitted)).

The Zhong panel believed that some of the same arguments it found compelling with respect to issue exhaustion could be made about claim exhaustion and whether that requirement is jurisdictional. But because there were longstanding holdings of our court that, in the immigration context, claim exhaustion is a jurisdictional requirement, see Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003); see also Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006), the majority in Zhong properly deemed itself bound. The majority in Zhong concluded that it could, and so should, reach the correct result with respect to the question that remained open — i.e., the nature of issue exhaustion — even as it honored long-standing precedent on claim exhaustion. Although it noted some conceptual difficulties with drawing such a distinction, it concluded the distinction was a permissible one.

This was because our circuit precedents have often distinguished between issues and categories of relief in exhaustion doctrine. Zhong, 480 F.3d at 119 n. 18 (citing cases). Moreover, there is a profoundly practical reason for drawing this line between issue and claim exhaustion. If an exhaustion requirement is treated as implicating subject-matter jurisdiction, then a decision on an issue or claim that turns out not to have been adequately exhausted below would be subject to being attacked collaterally by interested third parties, because the court would have had no authority to act at all. See Arbaugh, 126 S.Ct. at 1240 ("The objection that a federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment."). And that, together with the fact that subject-matter jurisdiction cannot be waived, would impose on courts of appeals "an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from either party." Arbaugh, 126 S.Ct. at 1237. This, in the context of issue exhaustion in immigration cases in this circuit, would impose an unbearable burden.

Whereas the judges of this court have little difficulty examining the administrative record and determining whether particular categories of relief — i.e., claims — have been raised, it would be virtually impossible, as a practical matter, for us thoroughly to search through the record in every case — especially in cases being decided through our Non-Argument Calendar⁵ or in summary fashion — in order to discern whether all relevant issues were adequately raised before the agency. If issue exhaustion is mandatory but not jurisdictional, by comparison, we are able — indeed generally bound — to refuse to consider issues that we discover were not raised below, but we do not have to undertake the unmeetable task of meticulously searching the record in the thousands of immigration cases we review, in order to avoid what could be disastrous, much later, collateral attacks.

Obviously, these practical considerations would not allow us to assume jurisdiction where it does not exist. But given what is at stake, it is important to avoid carelessly treating an exhaustion rule as depriving the reviewing court of any power to hear the case, when closer inspection would reveal the rule to be mandatory but not jurisdictional.

Interestingly — although not surprisingly, given the absence of an issue exhaustion requirement in the language of § 1252(d)(1), and the practical difficulties that deeming issue exhaustion "jurisdictional" would present — some of the circuits which the Chief Judge cites as coming out the opposite way from Zhong on issue exhaustion and jurisdiction have indicated that they thought this was a terrible idea. But they were bound by earlier precedents in their circuits and could do nothing else. See, e.g., Etchu-Njang v. Gonzales, 403 F.3d 577, 581-82 (8th Cir.2005) (noting that "the plain language of § 1252(d)(1) could be read to require only exhaustion of remedies available as of right," but finding itself bound by prior Eighth Circuit precedent); Sousa v. INS, 226 F.3d 28, 31 (1st Cir.2000) (stating that "[i]f we were writing on a clean slate, it would be very tempting to treat" the failure to exhaust issues "as something less than a jurisdictional objection," but concluding that, "[w]hatever our own views, we are bound by precedent to apply the INA exhaustion requirement in a more draconian fashion").⁶ As the opinion in Zhong clearly states, see 480 F.3d at 107, 120 n. 20, it was because we were not bound by precedent that the majority in Zhong could reach what I will argue in Part II was the correct result as to issue exhaustion.

I do not doubt that the Chief Judge and his fellow dissenters read Foster as being a holding on this point. That is without question their right. But, in the end, it is not up to one judge, or even three judges, to say what is holding and what is not; that is ultimately up to the majority of the court, and the whole court — perhaps guided by the Foster panel — has voted overwhelmingly that review en banc of Zhong on this ground is not warranted.

II

The second question, though perhaps less fraught with emotion, is the more important one: Did the majority in Zhong, in holding that...