     05-4622-ag
     Valenzuela Grullon v. Mukasey


 1                         UNITED STATES COURT OF APPEALS
 2
 3                             FOR THE SECOND CIRCUIT
 4
 5                                   August Term, 2007
 6
 7         (Argued: August 30, 2007           Decided: November 27, 2007
 8                                            Amended: January 7, 2008)
 9
10                              Docket No. 05-4622-ag
11
12     - - - - - - - - - - - - - - - - - - - -x
13
14     JULIO CESAR VALENZUELA GRULLON,
15
16                       Petitioner,
17
18                 - v.-
19
20     MICHAEL B. MUKASEY, ATTORNEY
21     GENERAL,* MICHAEL J. GARCIA,
22     EDWARD J. MCELROY, BUREAU OF
23     IMMIGRATION AND CUSTOMS
24     ENFORCEMENT,
25
26                       Respondents.
27
28     - - - - - - - - - - - - - - - - - - - -x
29

30           Before:           JACOBS, Chief Judge, B.D. PARKER and
31                             HALL, Circuit Judges.
32
33           Petition for review of a final order of Immigration

34     Judge John Opaciuch denying cancellation of removal.



             *
              Pursuant to Federal Rule of Appellate Procedure
       43(c)(2), Attorney General Michael B. Mukasey is
       automatically substituted for former Attorney General John
       Ashcroft as respondent in this case.
 1   Petitioner failed to appeal the IJ’s order to the BIA,

 2   petitioning instead for a writ of habeas corpus.    Habeas

 3   corpus petition was docketed as a petition for review by

 4   operation of law under the REAL ID Act of 2005.

 5       DISMISSED.

 6                                 BOZENA ZIEDALSKI, New York, NY,
 7                                 for Petitioner.
 8
 9                                 M. JOCELYN LOPEZ WRIGHT,
10                                 Assistant Director, Office of
11                                 Immigration Litigation, Civil
12                                 Division, United States
13                                 Department of Justice (Peter D.
14                                 Keisler, Assistant Attorney
15                                 General and Carol Federighi,
16                                 Senior Litigation Counsel, on
17                                 the brief), Washington, D.C.,
18                                 for Respondents.
19
20   DENNIS JACOBS, Chief Judge:

21       Julio Cesar Valenzuela Grullon (“Valenzuela”) petitions

22   for review of an order of Immigration Judge (“IJ”) John

23   Opaciuch denying his application for cancellation of

24   removal.   Valenzuela, who failed to appeal the order of

25   removal to the Board of Immigration Appeals (“BIA”),

26   concedes that his administrative remedies are therefore

27   unexhausted, but asks that the failure to exhaust be excused

28   (and that we reach the merits of his petition).    We hold

29   that the exhaustion requirement applicable to Valenzuela’s



                                    2
 1   petition, 8 U.S.C. § 1252(d)(1), is statutory and

 2   jurisdictional.   Further, we conclude that the

 3   jurisdictional defect cannot be excused on a ground of

 4   manifest injustice.     Contra Marrero Pichardo v. Ashcroft,

 5   374 F.3d 46, 53 (2d Cir. 2004).

 6

 7                                   I

 8       On December 5, 1994, Valenzuela was admitted as a

 9   lawful permanent resident from his native Dominican

10   Republic.   In December 2001, he was indicted in New York on

11   a series of drug offenses, and pled to a single count in

12   February 2002.    He was sentenced to a term of three years to

13   life in prison.

14       One month before his October 2002 release on parole,

15   the INS charged Valenzuela with violating a law related to a

16   controlled substance.    See 8 U.S.C. § 1227(a)(2)(B)(i).1

17   Upon his parole, Valenzuela was detained by the INS.     In

18   December 2002, he filed a petition for habeas corpus in the

19   Southern District of New York, arguing that detention

20   without bond prior to his removal proceedings was

          1
            The government also alleged initially that Valenzuela
     had committed an aggravated felony, see 8 U.S.C. §
     1227(a)(2)(A)(iii), but later withdrew that basis for
     removal.
                                     3
 1   unconstitutional.     The district court (Griesa, J.) granted

 2   the petition on December 20, 2002, and Valenzuela was

 3   released.   The government’s appeal of that ruling became

 4   moot when Valenzuela’s removal proceedings were completed;

 5   we therefore vacated the district court’s order.2

 6       Throughout his removal proceedings, conducted in the

 7   spring of 2003, Valenzuela conceded removability but sought

 8   cancellation of removal.     In order to establish that he has

 9   continuously resided in the U.S. for seven years--a

10   prerequisite to cancellation of removal, see 8 U.S.C. §

11   1229b(a)(2)--Valenzuela would have had to overcome the

12   “stop-time” rule, which provides that “any period of

13   continuous residence . . . shall be deemed to end . . . when

14   the alien has committed an offense . . . that renders the

15   alien inadmissible to the United States.”     8 U.S.C. §

16   1229b(d)(1)(B).     Valenzuela argued that the stop-time rule

17   does not terminate a period of continuous residence until

18   the alien is convicted of the removable offense--a

19   consequential distinction for Valenzuela because he pled

20   guilty a few months after the December 2001 expiration of

          2
            Both parties note that the rationale for the district
     court’s habeas ruling was in any event subsequently rejected
     by the Supreme Court in Demore v. Hyung Joon Kim, 538 U.S.
     510 (2003).
                                     4
 1   the seven-year period, whereas the indictment alleged that

 2   the offense was committed on or about August 29, 2001.3

 3       The BIA had already rejected Valenzuela’s proposed

 4   reading at the time of his hearing before the IJ, see In re

 5   Perez, 22 I. & N. Dec. 689 (BIA 1999) (11-4 decision in

 6   banc), but Valenzuela urged the IJ to follow the reasoning

 7   of the Perez dissent.

 8       The IJ denied relief in August 2003.4   Rather than

 9   appeal to the BIA, Valenzuela filed a second habeas petition

10   in October 2003 to challenge the order of removal.    This

11   habeas petition was pending in the Southern District of New

12   York when the REAL ID Act of 2005, Pub. L. No. 109-13, 119

13   Stat. 231, 311 (2005), took effect on May 11, 2005.

14   Pursuant to Section 106(c) of that Act, the district court

15   ordered the habeas corpus petition transferred to this

16   Court, where it was docketed as a petition for review.


          3
            Valenzuela’s brief professes uncertainty as to the
     precise date he committed the offense to which he pled
     guilty. He concedes, however, that the date of his arrest--
     November 29, 2001--fell within the seven-year period
     following his admission to the United States.
          4
            We do not know the actual grounds for the order of
     removal because the oral decision is not included in the
     record on this appeal (a consequence of Valenzuela’s failure
     to appeal to the BIA, discussed below); in all likelihood,
     however, one ground was Perez.
                                  5
 1       Valenzuela concedes his failure to exhaust

 2   administrative remedies before petitioning this Court for

 3   review, but he contends that any failure to exhaust should

 4   be excused because (1) appeal to the BIA would have been

 5   futile, (2) his appeal raises constitutional claims, and (3)

 6   dismissing his petition would cause a “manifest injustice.”

 7   On the merits, Valenzuela argues that the stop-time rule is

 8   ambiguous as to whether continuous residence is terminated

 9   by commission of an offense or by conviction, and that the

10   Perez dissent correctly concluded that the trigger is

11   conviction.

12       The government urges us to dismiss the petition for

13   review on exhaustion grounds because Valenzuela never

14   appealed to the BIA.   On the merits, the government defends

15   the BIA’s interpretation of the stop-time rule in Perez as

16   consistent with the plain language of the statute and argues

17   that Valenzuela is therefore barred from applying for

18   cancellation of removal.

19

20                                 II

21       When the REAL ID Act of 2005, Pub. L. No. 109-13, 119

22   Stat. 231, 311 (2005), became effective, Valenzuela’s second


                                   6
 1   habeas petition (challenging his order of removal), then

 2   pending in the Southern District of New York, was

 3   transferred to this Court and converted into a petition for

 4   review:

 5             If an alien’s case, brought under section
 6             2241 of title 28, United States Code, and
 7             challenging a final administrative order
 8             of removal . . . is pending in a district
 9             court on the date of the enactment of
10             this division, then the district court
11             shall transfer the case . . . to the
12             court of appeals for the circuit in which
13             a petition for review could have been
14             properly filed . . . .
15
16   § 106(c), 119 Stat. at 311; see also Marquez-Almanzar v.

17   INS, 418 F.3d 210, 215 (2d Cir. 2005).   The REAL ID Act

18   speaks generally to the manner in which converted petitions

19   are to be treated upon transfer here:

20             The court of appeals shall treat the
21             transferred case as if it had been filed
22             pursuant to a petition for review under
23             such section 242, except that subsection
24             (b)(1) of such section shall not apply.
25
26   § 106(c), 119 Stat. at 311.   In other words, converted

27   petitions are to be treated as ordinary petitions for review

28   in all respects except as to the filing deadline (8 U.S.C. §

29   1252(b)(1)).

30       The question, then, is whether Valenzuela’s converted

31   petition is governed by 8 U.S.C. § 1252(d)(1) (“A court may

                                   7
 1   review a final order of removal only if . . . the alien has

 2   exhausted all administrative remedies available to the alien

 3   as of right”), or whether the sole exhaustion rule

 4   Valenzuela violated is a “judicial (common-law) [rule],

 5   [which is] discretionary and includes a number of

 6   exceptions[,]” Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir.

 7   2003).

 8       We have not had occasion to decide whether § 1252(d)

 9   requires that aliens appeal to the BIA before petitioning

10   this Court for review.   But our jurisprudence makes that

11   supposition.   For example, we dismissed a habeas appeal in a

12   case that had never been before the BIA, holding that the

13   “limitations imposed by § 1252(d) on a court’s ability to

14   ‘review’ final orders of deportation extend[ed] to habeas

15   corpus review.”   Theodoropoulos v. INS, 358 F.3d 162, 170

16   (2d Cir. 2004); see also Lin Zhong v. U.S. Dep’t of Justice,

17   480 F.3d 104, 118 (2d Cir. 2006) (“[W]e have jurisdiction to

18   review the ‘final order of removal’ entered against Lin, so

19   long as a decision has been rendered on his application by

20   an IJ and appealed to the BIA--the two administrative

21   remedies available to him as of right.”); cf. Marrero

22   Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004) (“We



                                   8
 1   therefore hold that, notwithstanding a habeas petitioner’s

 2   failure to exhaust his claims before the BIA, as required by

 3   section 1252(d), we nonetheless have jurisdiction to

 4   consider the petitioner’s claim if it is necessary to avoid

 5   manifest injustice.” (emphasis added)).

 6       Squarely presented with the issue for the first time in

 7   this appeal, we hold that the exhaustion provision of §

 8   1252(d)(1) requires aliens, inter alia, to appeal to the BIA

 9   before petitioning for review in this Court.

10

11                                  III

12       The next question is whether the statutory exhaustion

13   requirement of § 1252(d)(1)--that a court may review a final

14   order of removal only if the alien has exhausted all

15   administrative remedies available to him as of right--is

16   jurisdictional or merely “mandatory.”5    See Lin Zhong, 480

17   F.3d at 119.   Mandatory requirements (we have said) are

18   subject to waiver, id., and are therefore less absolute than

19   jurisdictional requirements.


          5
            We need not deal here with the third category of
     exhaustion requirements--those that are judge-made,
     prudential rules of administrative law--because we hold that
     the exhaustion requirement that governs Valenzuela’s
     petition is statutory. See Part II, supra.
                                     9
 1       In Lin Zhong, 480 F.3d at 119-20, we distinguished

 2   between jurisdictional and mandatory rules, partly by resort

 3   to the Supreme Court’s caveat that

 4            [c]larity would be facilitated . . . if
 5            courts and litigants used the label
 6            “jurisdictional” not for claim-processing
 7            rules, but only for prescriptions
 8            delineating the classes of cases
 9            (subject-matter jurisdiction) and the
10            persons (personal jurisdiction) falling
11            within a court’s adjudicatory authority.
12
13   Eberhart v. United States, 546 U.S. 12, 16 (2005) (internal

14   quotation marks and citation omitted).   Subsequent to Lin

15   Zhong, the Supreme Court sharpened the analysis.     In Bowles

16   v. Russell, 127 S. Ct. 2360 (2007), the Court held that a

17   limit on extensions of time to appeal, see 28 U.S.C. §

18   2107(c), was jurisdictional largely because “of the fact

19   that [the] time limitation is set forth in a statute.”

20   Bowles, 127 S. Ct. at 2364.   The Court explained:

21            Because Congress decides whether federal
22            courts can hear cases at all, it can also
23            determine when, and under what
24            conditions, federal courts can hear them.
25            Put another way, the notion of
26            “subject-matter” jurisdiction obviously
27            extends to “classes of cases . . .
28            falling within a court’s adjudicatory
29            authority,” but it is no less
30            “jurisdictional” when Congress forbids
31            federal courts from adjudicating an
32            otherwise legitimate “class of cases”
33            after a certain period has elapsed from

                                   10
 1            final judgment.
 2
 3   Id. at 2365-66 (citations omitted).    Bowles emphasized

 4   repeatedly that its reasoning was based on the statutory

 5   origin of the limitation, and thus made clear that limits

 6   expressed in statutes--as to time or “classes of cases”--

 7   limit subject-matter jurisdiction.    See, e.g., id. at 2366

 8   (“As we have long held, when an appeal has not been

 9   prosecuted in the manner directed, within the time limited

10   by the acts of Congress, it must be dismissed for want of

11   jurisdiction.” (internal quotation marks omitted) (emphasis

12   added)); id. at 2365 (observing that the Supreme Court’s

13   treatment of its certiorari jurisdiction “also demonstrates

14   the jurisdictional distinction between court-promulgated

15   rules and limits enacted by Congress”).

16       Congress cast § 1252(d)(1) in terms of the courts’

17   authority to review a “class of cases” (petitions for review

18   of a final order of removal) and permitted review “only if

19   the alien has exhausted all administrative remedies

20   available as of right.”    One of the administrative remedies

21   available to aliens as of right is an appeal to the BIA.    In

22   this way, Congress has instructed the courts that they may

23   not review a final order of removal unless the alien has



                                    11
 1   appealed to the BIA.   When an exhaustion requirement is

 2   statutory and evinces an intent to constrict the ability of

 3   courts to adjudicate a class of cases, the limitation is

 4   jurisdictional, rather than mandatory only.   The requirement

 5   might be described as a “claim-processing rule”; but because

 6   it is a statutory limit on the Court’s power, it is

 7   jurisdictional, not merely mandatory.   Accord Magtanong v.

 8   Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (citing Bowles

 9   and holding that the 30-day time period for filing a

10   petition for review is “mandatory and jurisdictional because

11   it is imposed by statute” (internal citation omitted)).

12       We therefore hold that, as regards the requirement that

13   petitioners appeal to the BIA, § 1252(d)(1) is

14   jurisdictional.   We have said as much in dicta.   See Lin

15   Zhong, 480 F.3d at 107 (referring to “the clearly

16   jurisdictional requirement of 8 U.S.C. § 1252(d)(1) that

17   cases of this sort be brought to the Executive Office for

18   Immigration Review (i.e., an IJ and the BIA) before they can

19   be considered by courts of appeal”); accord Lin Zhong v.

20   U.S. Dep’t of Justice, 489 F.3d 126, 130 (2d Cir. 2007)

21   (Calabresi, J., concurring in the denial of in banc review)

22   (observing that § 1252(d)(1) uses “language [that] typically



                                   12
 1   means that courts do not have jurisdiction to hear a

 2   petitioner who has not first brought his case before the

 3   available administrative agency”).

 4          Given that we are directed by statute to treat

 5   converted petitions, such as Valenzuela’s, as ordinary

 6   petitions for review, it follows that such converted

 7   petitions are likewise subject to § 1252(d)’s jurisdictional

 8   bar.

 9

10                                       IV

11          We are left to decide what exceptions, if any, would

12   allow us to hurdle the jurisdictional bar that prevents us

13   from reviewing the merits of Valenzuela’s petition.

14

15          A. Futility

16          Valenzuela argues that appealing to the BIA would have

17   been futile in light of the agency’s precedential decision,

18   In re Perez, 22 I. & N. Dec. 689 (BIA 1999).     As the Supreme

19   Court explained in Booth v. Churner, “we will not read

20   futility or other exceptions into statutory exhaustion

21   requirements where Congress has provided otherwise.”    532

22   U.S. 731, 741 n.6 (2001).    At the same time,


                                    13
 1                 Booth does allow that exhaustion may
 2                 not be required “where the relevant
 3                 administrative procedure lacks
 4                 authority to provide any relief or
 5                 to take any action whatsoever in
 6                 response to a complaint,” because
 7                 “[w]ithout the possibility of some
 8                 relief, the administrative officers
 9                 would presumably have no authority
10                 to act on the subject of the
11                 complaint, leaving the inmate with
12                 nothing to exhaust.” This may
13                 technically be less an “exception”
14                 to a statutory exhaustion
15                 requirement than it is a statement
16                 regarding the parameters of that
17                 requirement.
18
19   Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003)

20   (internal citations omitted).        Booth applies in the

21   immigration context.6


          6
            Valenzuela cites dicta in Gill v. INS, 420 F.3d 82
     (2d Cir. 2005), for the proposition that Booth’s rule
     against futility exceptions does not operate in the
     immigration context because Booth was “based on the
     legislative history of the [Prison Litigation Reform Act],
     and in particular Congress’s decision to eliminate
     previously-available statutory exceptions for futility.”
     Gill, 420 F.3d at 87 n.9. Of course, Gill’s dicta runs
     counter to the reading of Booth set out in Beharry.
     Moreover, our own reading of Booth suggests that it is not
     limited to those circumstances in which the statutory
     history indicates that Congress took away a previously
     existing futility exception. See Booth, 532 U.S. at 739
     (referring to statutory history as one of two considerations
     leading to the Court’s holding). Such statutory history may
     counsel strict adherence to the congressional command, but
     we are bound to implement congressional limits on our
     jurisdiction without reference to particular features of
     statutory history.
                                     14
 1       Valenzuela’s futility argument fails because he cannot

 2   demonstrate that the BIA was unable to provide the relief

 3   that he sought.   The BIA could have reconsidered the Perez

 4   holding in banc, or it could have certified the question to

 5   the Attorney General.   See 8 C.F.R. § 1003.1(g); see also

 6   Theodoropoulos v. INS, 358 F.3d 162, 173 (2d Cir. 2004)

 7   (observing that even though the Attorney General had issued

 8   a precedential opinion on the question, the BIA could have

 9   sent it back up to him).   Valenzuela confuses the likelihood

10   of adherence to precedent with the factual impossibility of

11   relief:   “it cannot be said that the IJ and the BIA do not

12   ‘have authority to act on the subject of the [petition],

13   leaving [Valenzuela] with nothing to exhaust.’”   Beharry,

14   329 F.3d at 59 (citing Booth, 532 U.S. at 736 n.4); accord

15   Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir. 2003) (even

16   though the BIA had already “definitively decided” the

17   question in a precedential decision, “§ 1252(d)(1)[]

18   requires exhaustion as a matter of jurisdiction”).    “That

19   [Valenzuela]’s argument would likely have failed is not

20   tantamount to stating that it would have been futile to

21   raise it.”   Beharry, 329 F.3d at 62.

22       Taking a different tack, Valenzuela argues that



                                   15
 1   regulations requiring any BIA member assigned his case to

 2   “streamline” the appeal would have prevented that Board

 3   member from referring the appeal to a three-member panel or

 4   to an in banc panel of the BIA.     But the regulation (set out

 5   in the margin7), specifically provided that a single board

 6   member could have affirmed without opinion only if he or she

 7   “determine[d] that the result reached in the decision under

 8   review was correct.”    8 C.F.R. § 1003.1(e)(4)(i).   Moreover,

 9   as Valenzuela concedes, the regulations specify that one

10   circumstance in which appeals may be assigned to a panel is

11   when there is a “need to reverse the decision of an

12   immigration judge or the Service.”    8 C.F.R. §

13   1003.1(e)(6)(vi).

14       Last, Valenzuela observes that § 1252(d)(1) requires


          7
            “Affirmance without opinion. (i) The Board member to
     whom a case is assigned shall affirm the decision of the
     Service or the immigration judge, without opinion, if the
     Board member determines that the result reached in the
     decision under review was correct; that any errors in the
     decision under review were harmless or nonmaterial; and that
          (A) The issues on appeal are squarely controlled by
          existing Board or federal court precedent and do not
          involve the application of precedent to a novel factual
          situation; or
          (B) The factual and legal issues raised on appeal are
          not so substantial that the case warrants the issuance
          of a written opinion in the case.”

     8 CFR § 1003.1(e)(4).
                                    16
 1   only the exhaustion of “administrative remedies available as

 2   of right,” whereas the exhaustion statute in Booth spoke

 3   only of “such administrative remedies as are available.”

 4   The Ninth Circuit has parsed these phrases to mean that a

 5   remedy is available “as of right” within the meaning of §

 6   1252(d)(1) only if the remedy is not “constrained by past

 7   adverse administrative decisions.”    Sun v. Ashcroft, 370

 8   F.3d 932, 941-42 (9th Cir. 2004).    We reject the Ninth

 9   Circuit’s interpretation.    The term “as of right” in §

10   1252(d)(1) excuses pursuit only of such remedies as are

11   wholly discretionary.     See Arango-Aradondo v. INS, 13 F.3d

12   610, 614 (2d Cir. 1994) (“[T]he failure to move to reopen

13   does not preclude jurisdiction because . . . [it] is a

14   discretionary remedy.”).     As the Supreme Court has

15   explained, a statutory requirement for exhausting “remedies”

16   necessarily entails exhausting “processes.”     See Booth, 532

17   U.S. at 739 (“[O]ne ‘exhausts’ processes, not forms of

18   relief . . . .”).

19       Valenzuela had a right to appeal the IJ’s order of

20   removal to the BIA.     And he was statutorily required to

21   exercise that right before appealing to this Court,

22   notwithstanding his small chance of success.     See Lin Zhong



                                     17
 1   v. U.S. Dep’t of Justice, 480 F.3d 104, 118 (2d Cir. 2006)

 2   (“[I]n the context of [the alien’s] . . . claims, we have

 3   jurisdiction . . . so long as a decision has been rendered

 4   on his application by an IJ and appealed to the BIA--the two

 5   administrative remedies available to him as of right.”

 6   (emphasis added)).

 7

 8       B. Constitutional Claim

 9       Valenzuela argues that his petition is not subject to

10   statutory exhaustion requirements because it presents

11   constitutional claims.   The supposed constitutional argument

12   is that the IJ violated Valenzuela’s Due Process rights by

13   misconstruing the stop-time rule to end his period of

14   continuous residence when he committed the crime, as opposed

15   to when he was convicted.

16       Even if the IJ’s interpretation of the stop-time rule

17   were incorrect, such an error would not be a constitutional

18   violation.   Accordingly, this is not a constitutional claim.

19   Valenzuela is simply arguing that the IJ erroneously

20   interpreted a statute in such a way that made him legally

21   ineligible for discretionary cancellation of removal.    We

22   therefore do not reach the issue of whether there exists a


                                   18
 1   constitutional claim exception to § 1252(d).

 2

 3       C. “Manifest Injustice”

 4       Last, Valenzuela argues that we should excuse his

 5   failure to exhaust under the “manifest injustice” exception

 6   to the exhaustion requirement.       See Marrero Pichardo v.

 7   Ashcroft, 374 F.3d 46 (2d Cir. 2004).        Our circuit law has

 8   made this exception available “even when exhaustion is a

 9   jurisdictional matter.”   Lin Zhong, 480 F.3d at 107 n.1.

10       In Marrero Pichardo, it was deemed manifest injustice

11   to remove a petitioner because: (1) he had resided in the

12   U.S. for 26 years, (2) he had a wife and daughter in the

13   U.S., (3) he claimed to have no ties to his native Dominican

14   Republic, (4) he had appeared pro se before the IJ, and (5)

15   the law had recently changed in the petitioner’s favor (such

16   that none of his eleven drunk driving convictions would be

17   considered crimes of violence).        374 F.3d at 54.   Valenzuela

18   can cite comparable equities.        He has resided in the U.S.

19   for 13 years with his sister and mother, from whom he would

20   be separated if deported; he was engaged to an American

21   citizen who was carrying his child, at least as of 2003; he

22   came here as a teenager and says he has “adopted” the United


                                     19
 1   States as his home country; and his behavior--after his

 2   parole--was “exemplary.”   Although Valenzuela had counsel

 3   before the IJ, he claims that his counsel failed to inform

 4   him of the immigration consequences of pleading guilty.8

 5       We noted that the intervening change in law in Marrero

 6   Pichardo’s favor was not “collateral,” but rather went to

 7   “the very basis of his deportation.”     Id. at 54.   As to

 8   Valenzuela, there was no intervening change in law

 9   pertaining to his removability: Valenzuela challenges the

10   correctness of the BIA’s decision in Perez, which goes “to

11   the very basis of his deportation,” but Perez has not been

12   overruled by the BIA or by this Court.     Valenzuela instead

13   cites an intervening change in the law affecting the

14   government’s ability to detain him pending removal.9

          8
            Valenzuela unsuccessfully petitioned a New York state
     court in 2003 to vacate his conviction on this ground.
          9
            Specifically, before the IJ ordered Valenzuela
     removed in August 2003, the Supreme Court upheld as
     constitutional pre-removal detention of criminal aliens.
     See Demore v. Hyung Joon Kim, 538 U.S. 510, 531 (2003).
     Valenzuela notes that ICE then issued a memorandum stating
     that all persons within Demore’s scope would be called in
     for interviews, and presumably for detention. His argument
     is thus that an appeal to the BIA would have somehow
     increased the likelihood that he would be re-detained. Even
     assuming (as we do not) that such an anxiety could excuse a
     failure to appeal, it is unclear why Valenzuela did not fear
     re-detention when he appeared before the IJ at his master
     calendar hearings in May and August of 2003--both of which
                                   20
 1   Valenzuela’s argument based on a change of law thus does not

 2   neatly mirror the facts of Marrero Pichardo, although

 3   Valenzuela can claim the higher ground of having committed

 4   one offense instead of eleven.     But, given that we have been

 5   willing to accept even an opinion from another circuit as a

 6   sufficient intervening change in law to assert “manifest

 7   injustice,” see Gill v. INS, 420 F.3d 82, 88 (2d Cir. 2005),

 8   Valenzuela would have a plausible claim to dispensation for

 9   “manifest injustice” if we were to uphold that exception to

10   § 1252(d)’s exhaustion requirement.

11       In light of the Supreme Court’s recent opinion in

12   Bowles v. Russell, 127 S. Ct. 2360 (2007), we hold that

13   there is no “manifest injustice” exception to § 1252(d)’s

14   exhaustion requirement.10   Insofar as our earlier opinions

15   have held to the contrary, those opinions are overruled.11


     took place after the Supreme Court issued its Demore opinion
     in April of that year--or when he filed his second habeas
     petition.
          10
            At the direction of the Court, the parties submitted
     additional briefing on whether Bowles, which was filed after
     the parties submitted briefs, had any impact on this case.
          11
            In House v. Bell, 126 S. Ct. 2064, 2068 (2006), the
     Supreme Court recently reaffirmed that “[i]n certain
     exceptional cases involving a compelling claim of actual
     innocence,” “the state procedural default rule is not a bar
     to a federal habeas corpus petition.” The “actual
     innocence” exception is unaffected by Bowles because “actual
                                   21
 1       In Bowles, the Supreme Court considered the

 2   applicability of the “unique circumstances” exception to the

 3   jurisdictional deadline for filing a notice of appeal.        See

 4   Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371

 5   U.S. 215 (1962); Thompson v. INS, 375 U.S. 384 (1964).        The

 6   Bowles Court laid the exception to rest: “Because this Court

 7   has no authority to create equitable exceptions to

 8   jurisdictional requirements, use of the ‘unique

 9   circumstances’ doctrine is illegitimate.”     127 S. Ct. at

10   2366.

11       Just as this analysis invalidates the “unique

12   circumstances” exception to the jurisdictional bar created

13   by the filing deadline at issue in Bowles, it likewise

14   invalidates the “manifest injustice” exception to the

15   jurisdictional bar created by 8 U.S.C. § 1252(d)’s

16   exhaustion requirement.   Bowles broadly disclaims the

17   “authority” of the federal courts “to create equitable

18   exceptions to jurisdictional requirements.”     Id.

19

20                             CONCLUSION



     innocence” is an exception to a judge-made rule, while
     Bowles overrules exceptions to any jurisdictional rule made
     by Congress, such as is at issue here.
                                   22
1       We have considered the parties’ remaining arguments and

2   find each of them to be without merit.   For the foregoing

3   reasons, Valenzuela’s petition is dismissed for lack of

4   jurisdiction.




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