                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 17, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 JULIUS MUSAU,

          Petitioner - Appellant,
                                                        No. 11-3105
 v.                                        (D.C. No. 2:10-CV-02427-KHV-KMH)
                                                         (D. Kan.)
 KENNETH CARLSON, District
 Director, Immigration and Customs
 Enforcement in Kansas City; ERIC H.
 HOLDER, JR., Attorney General of
 the United States, in his official
 capacity; JANET NAPOLITANO,
 U.S. Department of Homeland
 Security, in her official capacity as
 Secretary; UNITED STATES
 ATTORNEY,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and O’BRIEN, Circuit Judges.



      Julius Musau, an alien subject to a final order of removal, appeals from the

district court’s dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
corpus. The district court dismissed for lack of subject matter jurisdiction,

finding that Mr. Musau was challenging a final order of removal and that the

REAL ID Act, 8 U.S.C. § 1252(a)(5), took away district court jurisdiction to hear

such challenges. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a),

and we reverse and remand for further proceedings.



                                Factual Background

      Mr. Musau came to the United States from Kenya in 1991 to attend college

in Kansas. Aplt. App. 18. In 2007, long after his student visa had expired, Mr.

Musau was arrested in connection with a federal investigation of tax fraud. Id. at

19. He gave federal agents information and evidence relating to his roommates

and acquaintances, and was released; but he received a notice to appear before an

immigration judge based on his illegal presence in the United States. Id.

      Meanwhile, during the pendency of Mr. Musau’s immigration proceedings,

Mr. Musau’s brother—still in Kenya—allegedly received phone calls threatening

Mr. Musau. The motivation for the threats presumably was Mr. Musau’s role as a

witness against his former roommates and acquaintances. Mr. Musau’s brother

received the first of these calls on March 12, 2010, prior to Mr. Musau’s

immigration hearing and ultimate grant of voluntary departure on March 18, 2010.

Id. at 20. The record does not indicate when Mr. Musau (as opposed to his

brother) actually became aware of the threatening calls; he did not mention the

                                        -2-
calls to the immigration judge (“IJ”) at the March 18 hearing. The calls

continued through July. Id.

      Mr. Musau did not move to reopen immigration proceedings based on these

threatening calls. Instead, he filed a § 2241 petition and an emergency motion for

stay of removal on August 3, 2010. In his petition, Mr. Musau claimed, among

other things, that his deportation would violate the Convention Against

Transnational Organized Crime (“CATOC”). Id. at 20-21. He acknowledged in

his petition that he had not exhausted administrative remedies relating to his

CATOC claim, but alleged that neither an IJ nor the Board of Immigration

Appeals (“BIA”) had any authority to grant him relief. Id. at 20.

      The government filed a motion to dismiss, alleging that the district court

lacked jurisdiction to hear Mr. Musau’s petition. 1 The district court concluded

that: (1) 8 U.S.C. § 1252(a)(5) and (b)(9) apply to habeas petitions alleging

violations of treaty-based rights, (2) circuit court review is an appropriate and

sufficient substitute for the writ of habeas corpus concerning challenges to orders

of removal, and (3) Mr. Musau had not shown that no forum existed for his

CATOC claims, which should have been raised before an immigration tribunal

through, for example, a motion to reopen. Musau v. Carlson, No. 10-2427-KHV,


      1
        The government also argued that Mr. Musau was not “in custody.” Aplt.
App. 16 n.11. The district court did not reach this argument, and the government
renews it on appeal. The government is wrong. See, e.g., Aguilera v.
Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).

                                        -3-
at 8-12 (D. Kan. Mar. 24, 2011) (unpublished); Aplt. App. 12-16. With respect to

the last finding, the district court explained that Mr. Musau had not shown (a) that

immigration tribunals had no authority to entertain his CATOC claim or (b) that

review by a federal court of appeals was insufficient. Aplt. App. 13-16. Based

on those conclusions, the district court dismissed Mr. Musau’s petition for lack of

subject matter jurisdiction under 8 U.S.C. § 1252(a)(5) and Federal Rule of Civil

Procedure 12(b)(1). Musau, slip op. at 2, 12; Aplt. App. 6, 16.

      On appeal, Mr. Musau argues that the district court erred in concluding that

it lacked subject matter jurisdiction over his petition. 2 The government maintains

that the district court lacked jurisdiction. Aplee. Br. 19-20.



                                     Discussion

      We review a district court’s dismissal under Rule 12(b)(1) de novo. Lucero

v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011).

      On appeal, Mr. Musau reiterates that he has no means, other than his

petition for a writ of habeas corpus, by which to enforce his rights under the

CATOC. He appears to be correct, at least at present, insofar as immigration


      2
         Mr. Musau also requested that this court strike the government’s response
brief and impose against the government sanctions, attorney’s fees, or both, based
on continued assertion of erroneous facts throughout the case. The government
moved to file a corrected brief; Mr. Musau opposed the motion. The court
understands the facts. The motion to strike, for sanctions, and for attorney’s fees
and costs is denied. The government’s motion to file a corrected brief is granted.

                                        -4-
tribunals are concerned. IJs and the BIA have no authority to grant any relief to

an alien unless and until the Attorney General promulgates regulations granting

them such authority. See, e.g., In re H-M-V-, 22 I. & N. Dec. 256, 258 (B.I.A.

1998) (“Initially, we note that the jurisdiction of this Board, and of the

Immigration Judge, is limited by statute and regulation to that which has been

delegated by the Attorney General.”). The government has not identified any

statute or regulation authorizing an IJ or the BIA to recognize or enforce rights

under the CATOC, and we are not aware of any. 3 For the same reasons, we reject

the government’s arguments that Mr. Musau failed to exhaust available remedies

before immigration tribunals; there apparently was nothing to exhaust. If the

CATOC creates any rights to which Mr. Musau is entitled, wholly discretionary

relief from the Attorney General or his delegates would be insufficient; “mercy”

does not protect rights.

      We also question the district court’s interpretation of Rranci v. Attorney

General, 540 F.3d 165 (3d Cir. 2008). The district court seemingly read Rranci as

suggesting that immigration tribunals have some authority to consider and resolve

CATOC claims. Aplt. App. 15 (“In Rranci, the Third Circuit contemplated that

immigration courts have authority to consider a claim under CATOC.”). But the

Third Circuit merely recognized that the CATOC “calls into question whether the

      3
        During repeated questioning on this point, counsel for the government
eventually conceded that he was “not exactly sure” whether an IJ or the BIA has
such authority. Oral Argument, 14:12 to 17:25.

                                         -5-
Government may put [an informant] in harm’s way . . . after using his

cooperation” in a criminal proceeding, and ultimately remanded to the BIA to let

the BIA, itself, declare whether it had authority to consider CATOC claims.

Rranci, 540 F.3d at 178-79. According to counsel for Mr. Musau, the BIA has not

resolved Mr. Rranci’s case in the nearly four years since it was remanded. Oral

Argument, 6:30 to 6:52. Regardless, the absence of a statute or regulation

granting an IJ or the BIA authority to consider such claims would, by the BIA’s

own precedent, appear determinative. See H-M-V-, 22 I. & N. Dec. at 258.

      Separately, it is not clear whether Mr. Musau could have petitioned the

Eighth Circuit 4 for review of his order of removal, and the parties have not really

addressed this point. 5 Specifically, an alien must file a petition for review within

thirty days of a final order of removal. 8 U.S.C. § 1252(b)(1). We know that Mr.

Musau became aware of the threats against him prior to August 3, 2010, because

he discussed those threats in his habeas petition; but we otherwise have no

evidence regarding when Mr. Musau became aware of those threats. The

threatening phone calls apparently began six days before Mr. Musau was ordered



      4
         Mr. Musau’s immigration proceedings took place within the jurisdiction
of the Eighth Circuit. We have jurisdiction over this appeal because he filed his
habeas petition in Kansas.
      5
         The dissent is confident that Mr. Musau could have petitioned the Eighth
Circuit for review of his CATOC claim, regardless of whether he presented that
claim to immigration authorities. This has not been argued or addressed by Mr.
Musau or the government on appeal.

                                         -6-
removed, and continued through July; but the phone calls allegedly were made to

Mr. Musau’s brother, rather than to Mr. Musau himself. The record does not

indicate when Mr. Musau became aware of the threats and no evidentiary hearing

was held. If Mr. Musau was not aware of the threats within thirty days of his

removal order becoming final, he apparently could not ask the Eighth Circuit to

review his removal order. See id. And filing a motion to reopen or reconsider

with the IJ likely would not have helped, as the IJ apparently lacked any authority

to do anything about those threats vis-a-vis the CATOC.

      Resolution of Mr. Musau’s petition would have required the district court

to first determine whether it had jurisdiction to consider that petition: whether,

assuming Mr. Musau was entitled to any protection under the CATOC, he could

pursue relief in immigration proceedings or before the Eighth Circuit. If not, the

district court would have had to determine whether Mr. Musau was, in fact,

entitled to protection under the CATOC: whether the CATOC creates any rights,

and whether Mr. Musau is entitled to protection based on any such rights. The

district court was premature in concluding that Mr. Musau could have sought to

enforce any rights to which he is entitled before an immigration tribunal without

any evidence that immigration tribunals could, in fact, consider CATOC claims.

The district court again erred by assuming that Mr. Musau could petition the

Eighth Circuit for relief without first evaluating whether Mr. Musau could have

filed for such relief as required by statute.

                                          -7-
      We do not conclude that 8 U.S.C. § 1252(a)(5) unconstitutionally suspends

the writ of habeas corpus. Rather, we conclude that the district court has

jurisdiction to determine its jurisdiction; it may, and indeed must, determine

whether the REAL ID Act, 8 U.S.C. § 1252(a)(5), unconstitutionally suspends the

writ of habeas corpus. In making that determination the first time, the district

court erred by making two assumptions that are not supported in fact or in law.

We therefore remand to the district court with instructions to determine, in order,

(1) whether, assuming he is entitled to protection under the CATOC, Mr. Musau

could have sought relief from an immigration tribunal or the Eighth Circuit, and

(2) whether the CATOC creates any protections and whether Mr. Musau is

entitled to relief under any such protections. For purposes of this analysis,

wholly discretionary relief (e.g., unreviewable prosecutorial or administrative

discretion) appears insufficient to protect any such rights.

      The dissent apparently does not disagree that there is nothing in the record

to support the idea that immigration tribunals have authority to address CATOC

claims. Instead, the dissent’s entire premise rests on the assumption that the

Eighth Circuit could have reviewed Mr. Musau’s petition one way or another, had

he simply asked it to do so. That may be true, but that assumption is premature

on this record. The district court plainly has jurisdiction to consider its

jurisdiction and consider argument and evidence. On remand, the district court

must first determine whether Mr. Musau could have pursued his CATOC claim

                                         -8-
before immigration tribunals or the Eighth Circuit, and may develop facts as

needed to make that determination. If Mr. Musau could not have pursued his

CATOC claim in either forum, the district court must then determine whether Mr.

Musau is entitled to relief under the CATOC, and, if so, whether the REAL ID

Act unconstitutionally suspends the writ of habeas corpus as applied to Mr.

Musau.

      REVERSED and REMANDED.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       -9-
No. 11-3105, Musau v. Carlson, et al.
O’Brien, Circuit Judge, dissenting:


        This decision turns back the clock on the Immigration and Nationality Act

(“INA”) to a time when chaos reigned—petitioners could choose the forum for

their removal challenge—delay was inevitable (and welcome), and the decisions

were uneven, a piecemeal, dual-track system that gave rise to the 1996

amendments to the INA and, later, the REAL ID Act. I am compelled to dissent.

        The heart of this matter is whether implementation of the Immigration

Statutes according to their terms results in a suspension of the writ of habeas

corpus. 1 It does not. I begin by recounting the evolution of the statutes as dictated
         0F




by the Supreme Court. That is followed by a review of the procedural posture of

the case. Finally, I will explain how the immigration statutes could have provided

Musau a meaningful and adequate opportunity for judicial review of the legal issue

he presents had he made a good faith effort to follow them.

                                 I. Legal Background

        Before 1996, an alien could challenge a removal order either in the courts of

appeals with a petition for review of executive action, or in the district courts by

way of a petition for habeas relief. In 1996 Congress made a comprehensive


1
    “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when
in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const.
Art. I, § 9, cl. 2.
revision of the immigration laws. Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), enacted on September 30, 1996, 110 Stat.

3009-546. Along with a host of other changes it consolidated review of final

orders of removal in the courts of appeals 2 and, to make that change effective,
                                           1F




stripped the district courts of habeas jurisdiction to consider such matters. But, in

INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court scuttled the jurisdiction-

stripping provision because congressional intent was not sufficiently clear. It

noted that Congress did not provide an alternative forum for judicial review of the

precise legal issues St. Cyr presented in his habeas petition and cautioned about

foreclosing habeas remedies without providing a substitute judicial forum for

review of the legal issues presented. Doing so, the Court said, would present a

“serious Suspension Clause issue.” See Id. at 305. Wishing to avoid a

constitutional problem, it construed the statute as preserving a right to bring

removal-related habeas petitions in the district courts. Nevertheless, it left the door

open; review by the courts of appeals might be a sufficient substitute for habeas

corpus “[i]f it were clear that the question of law could be answered in [that]

forum.” Id. at 314.




2
    There are minor exceptions not relevant here.

                                           2
      In response to St. Cyr, Congress enacted the REAL ID Act of 2005. Pub. L.

No. 119-13, Div. B., 119 Stat. 302. Among other things, it finished the job it

started a decade earlier—again routing all removal challenges into the courts of

appeals. This time it was emphatically clear; there would be no more district court

involvement in the review of removal orders, and specifically not by way of habeas

corpus. The REAL ID Act makes a petition for review the “sole and exclusive

means” for judicial review of removal orders and gives the courts of appeals

exclusive jurisdiction to consider petitions for review of removal orders,

notwithstanding “any other provision of law (statutory or nonstatutory), including

section 2241 of Title 28, or any other habeas corpus provision.” 8 U.S.C. §

1252(a)(5). It goes on to provide, with respect to the restrictions on judicial

review, that “the terms ‘judicial review’ and ‘jurisdiction to review’ include habeas

corpus review. . . .” Id.

      To address the constitutional concerns raised by the Supreme Court in St.

Cyr, the REAL ID Act provides for review in the courts of appeals of

“constitutional claims or questions of law” raised in a petition for review. 3 Id. §
                                                                             2F




1252(a)(2)(D). Courts have construed this language as embracing the same types


3
  To the limited extent it might inform the debate, the conference report on the
REAL ID Act documents Congress’s intention to provide removable aliens with
judicial review commensurate in scope with habeas corpus, but only in the courts
of appeals. H.R. REP. NO. 109-72, 109TH CONG., AT 174.

                                           3
of issues traditionally cognizable under habeas review. See, e.g., Luna v. Holder,

637 F.3d 85, 94 (2d Cir. 2011); Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir.

2007).

      The REAL ID Act has proved resilient in the face of multiple challenges

under the Suspension Clause. Since the law’s enactment in 2005, countless

petitioners have sought habeas review in the district courts on the theory that the

revised INA procedure is inadequate to test the legality of their removal. See, e.g.

Luna, 637 F.3d at 87; Muka v. Baker, 559 F.3d 480, 483-85 (6th Cir. 2009);

Mohamed, 477 F.3d at 526. They have complained about the timing rules, the

restrictions on new evidence, the unavailability of equitable tolling, as well as

other procedural discrepancies that arguably distinguishes a petition for review

from the habeas writ. Until today, none had succeeded; the courts of appeals

considering the issue have all concluded the REAL ID Act provides an adequate

substitute for habeas corpus. See Luna, 637 F.3d at 94 (“This Court has construed

‘the intent of Congress’s restoration under the REAL ID Act rubric of

constitutional claims or questions of law to encompass the same types of issues

that courts traditionally exercised in habeas review over Executive detentions.”);

Mohamed, 477 F.3d at 526 (“[The REAL ID Act affords] a remedy as broad in

scope as a habeas petition.”); Muka, 559 F.3d at 485 (same); Kolkevich v. Att’y

Gen. of United States, 501 F.3d 323, 332 (3d Cir. 2007) (“There is no question that

                                          4
the current regime, in which aliens may petition for review in a court of appeals

but may not file habeas, is constitutional.”); Iasu v. Smith, 511 F.3d 881, 888 (9th

Cir. 2007) (same); Alexandre v. United States Att’y Gen., 452 F.3d 1204, 1206

(11th Cir. 2006) (“[The petition for review] offers the same review as that formerly

afforded in habeas corpus which provided legal, but not factual or discretionary,

determinations.”)

      It comes down to this. Irrespective of the reach of the writ of habeas corpus,

Congress may suspend it provided it creates a substitute remedy adequate to test

the legality of the alien’s detention. Swain v. Pressley, 430 U.S. 372, 381 (1977).

In considering the adequacy of substitute remedies, the Supreme Court has

distinguished statutes circumscribing habeas review from those merely

streamlining it. See Boumediene v. Bush, 553 U.S. 723, 776-77 (2008). With

respect to statutes in the latter category, structural reforms intended to simplify or

expedite the functional equivalent of habeas review are permitted provided they

leave the substance of the remedy intact. Id. In United States v. Hayman, for

instance, the Supreme Court decided Congress could lawfully replace traditional

habeas review for federal prisoners with a procedure allowing them to raise legal

challenges to their criminal judgment in a motion to the sentencing court under 28

U.S.C. § 2255. 342 U.S. 205, 223-24 (1952). Section 2255 was enacted to address

procedural difficulties with the administration of habeas review in federal district

                                           5
courts. It improved the process by routing challenges to a conviction or sentence

from a possibly remote court into the sentencing court where the facts of the case

are familiar. As the Court observed, “the sole purpose was to minimize the

difficulties encountered in habeas corpus hearings by affording the same rights in

another and more convenient forum.” Id. at 219. Similarly, in Swain, the Court

concluded Congress did not violate the Suspension Clause by requiring prisoners

sentenced in the Superior Court of the District of Columbia (SCDC) to seek

collateral review there rather than the federal district court, the traditional forum

for such claims. 430 U.S. at 374-78. Since it had no reason to doubt the SCDC’s

competency to conduct collateral review, and since the scope of that review was

commensurate with habeas corpus, the Supreme Court rejected the Suspension

Clause challenge. Id. at 384.

      As a substitute for the inefficiencies of habeas review in immigration cases

Congress invested the courts of appeals with plenary authority and responsibility to

review legal issues relating to removal orders. Musau prefers what is, for him, a

more convenient path. Unfortunately, his efforts have met with success.

                              II. Procedural Background

      Immigration and Customs Enforcement (ICE) commenced removal

proceedings against Musau by serving him with a notice to appear. On March 18,

2010, he appeared as directed and conceded removability. He requested voluntary

                                           6
departure, which the immigration judge (IJ) granted; alternatively he was required

to be removed to Kenya. He made no mention of threats against him or the

CATOC. 4 3F




      In spite of his request for voluntary departure, Musau failed to depart on July

16, 2010, as required. Even though he could have timely done so, he made no

attempt to avail himself of extant procedural remedies in the immigration court to

reconsider the removal order or reopen the case to address newly discovered

evidence, such as threats to do him harm. Nor did he seek relief from elsewhere

4
  The pertinent portion of the CATOC is Article 24, which concerns protection of
witnesses. It provides:
1. Each State Party shall take appropriate measures within its means to provide
effective protection from potential retaliation or intimidation for witnesses in
criminal proceedings who give testimony concerning offences covered by this
Convention and, as appropriate, for their relatives and other persons close to them.
2. The measures envisaged in paragraph 1 of this article may include, inter alia,
without prejudice to the rights of the defendant, including the right to due process:
       (a) Establishing procedures for the physical protection of such persons, such
       as, to the extent necessary and feasible, relocating them and permitting,
       where appropriate, non-disclosure or limitations on the disclosure of
       information concerning the identity and whereabouts of such persons;
       (b) Providing evidentiary rules to permit witness testimony to be given in a
       manner that ensures the safety of the witness, such as permitting testimony
       to be given through the use of communications technology such as video
       links or other adequate means.
3. States Parties shall consider entering into agreements or arrangements with other
States for the relocation of persons referred to in paragraph 1 of this article.
4. The provisions of this article shall also apply to victims insofar as they are
witnesses.
Convention against Transnational Organized Crime, art. 24, Nov. 15, 2000, 2225
U.N.T.S. 209 (Treaty No. I-39574).


                                          7
within the Department of Justice. Instead, on August 16, 2010, he filed this habeas

petition, raising for the first time his claimed fear of returning to Kenya and his

need for protection from criminal elements arising from his cooperation with law

enforcement officials in 2007. His prayer for relief reads:

      [P]etitioner hereby requests this court to grant the following relief:
      (1) Recognize jurisdiction over this case;
      (2) Issue a judgment declaring that the removal of Petitioner from the
      United States to Kenya violates the Convention Against Transnational
      Organized Crime, the U.S. Constitution, and international law as
      alleged herein;
      (3) Issue an order allowing Petitioner to review any and all
      information concerning himself provided by ICE and/or DHS, or by
      any other agent or agency of the United States Government, to the
      Government of Kenya;
      (4) Issue an order allowing Mr. Musau to remain in the United States
      with his family, free of detention, until a final administrative and
      judicial decision has been made on his application for protection
      under the Convention Against Transnational Organized Crime;
      (5) Issue an order providing for an award of attorneys’ fees and costs;
      and
      (5) [sic] Provide for such other relief as may be just and reasonable.


      The district court specifically addressed his Suspension Clause arguments, 5    4F




saying: “Section 1252(a)(5) does not strip all alien rights to habeas review of


      5
         Generally, and particularly in this case, subject matter jurisdictional issues
must be resolved before considering the merits of a claim. See, e.g., Steel Co. v.
Citizens for a Better Environment, 523 U.S, 83, 99 (1998); Butler v. BioCare Med.
Tech, 348 F.3d 1163, 1166 (10th Cir, 2003). The district court confronted Musau’s
constitutional challenge to the REAL ID Act straight on, devoting nearly four
pages of its order to explaining how the Act provides an adequate substitute for
habeas corpus and, accordingly, why there is no Suspension Clause problem.

                                           8
removal orders; it requires them to consolidate all claims in one forum, i.e. the

court of appeals. This statutory scheme provides an adequate substitute for habeas

review by allowing judicial review of final orders of removal in the courts of

appeals. As such, Section 1252 does not unconstitutionally suspend the writ of

habeas corpus.” (Musau, slip op. at 9) (internal citations omitted). It also

addressed his claim that, absent habeas, there was no forum where he might apply

for witness protection under the treaty. “On this record, petitioner has not shown

that no forum exists to raise his CATOC claim.” Id. at 12. Since Musau had a

forum in which to present his claims (one of the courts of appeals), it decided

§1252(a)(5) did not suspend the writ and, accordingly, dismissed the habeas

petition because it was without jurisdiction to consider it on the merits. 8 U.S.C. §

1252(a)(5) and (b)(9).

      The majority opinion identifies the district court’s presumed error:

      The district court was premature in concluding that Mr. Musau could
      have sought to enforce any rights to which he is entitled before an
      immigration tribunal without any evidence that immigration tribunals
      could, in fact, consider CATOC claims. The district court again erred
      by assuming that Mr. Musau could petition the Eighth Circuit for
      relief without first evaluating whether Mr. Musau could have filed for
      such relief as required by statute. (Majority Op. at 8).

And it prescribes the antidote:

      We therefore remand to the district court with instructions to




                                          9
      determine, in order, (1) whether, assuming he is entitled to protection
      under the CATOC, Mr. Musau could have sought relief from an
      immigration tribunal or the Eighth Circuit, and (2) whether the
      CATOC creates any protections and whether Mr. Musau is entitled to
      relief under any such protections. For purposes of this analysis,
      wholly discretionary relief (e.g., unreviewable prosecutorial or
      administrative discretion) appears insufficient to protect any such
      rights. (Id.).

                                    III. Discussion


      I respectfully disagree with the majority decision and its approach to the

issues presented. Factual findings are unnecessary; we are confronted with pure

legal questions—whether a court of appeals could have considered Musau’s

CATOC claim and, if so, whether that access to the courts is sufficient to prevent a

suspension of the writ problem. Even if we were to assume factual findings are

necessary, existing procedures afford a reviewing court of appeals sufficient means

to accommodate that need. The district courts have no habeas jurisdiction and

their interference is unnecessary, even unproductive.

      In proceeding under 28 U.S.C. § 2241, Musau did precisely what the REAL

ID Act says he cannot do—seek habeas relief from a final order of removal. The

district court was required to dismiss the petition unless doing so would deny

Musau the minimum level of judicial inquiry required by the Suspension Clause.

Nothing short of a constitutional problem could justify ignoring the § 1252(a)(5)

jurisdictional bar. See Swain, 430 U.S. at 381. Either the bar is unconstitutional as

                                         10
applied to Musau’s petition, making habeas review proper, or the bar is

constitutional, leaving the district court without jurisdiction. Musau properly

recognized the issue—his habeas petition claims the immigration law affords him

no effective means of obtaining a judicial determination of the rights he may have

under the CATOC, and that failure amounts to a suspension of the writ. On

appeal, he continues that refrain. 6
                                  5F




        The Suspension Clause ensures that “some judicial intervention in

deportation cases is unquestionably required by the Constitution.” St. Cyr, 533

U.S. at 300-01 (quotations omitted); see also Boumediene, 553 U.S. at 773-75.

The Supreme Court has not precisely defined the level of judicial intervention

required, but it did recall that such review historically embraced questions of law,

including “the erroneous application or interpretation of statutes,” challenges to

6
    Musau summarizes his argument on appeal as follows:

I. The Statute Prohibiting Habeas Review Suspends the Writ of Habeas Corpus
Without an Adequate Alternative for Individuals Seeking Protection Under the
CATOC.
A. Statement of Law Regarding Habeas Corpus.
B. The Statute Suspends the Writ of Habeas Corpus.
C. No Alternative Forum Exists For an Alien to Bring a Claim For Protection
Under the CATOC.
D. Because No Alternative Forum is Available for Mr. Musau’s Claim, suspension
of the Writ is Unconstitutional, and the District Court Retained Jurisdiction.
(App. Op. Br. at 4-5.)




                                         11
“Executive interpretations of the immigration laws,” and “questions of law that

arose in the context of discretionary relief.” St. Cyr, 533 U.S. at 302, 307. Those

observations should have framed the inquiry here.

      Musau contends a petition for review is not an adequate substitute for habeas

in this case because the Attorney General has not delegated authority (assuming

such authority exists) to the immigration courts to adjudicate claims under the

CATOC. 7 Although he does not say so expressly, his argument appears to
         6F




embrace the related (and necessary) contention that the courts of appeals are

powerless to consider claims beyond the ken of the immigration courts. He is

wrong.

      Existing law and procedure afford Musau not only a judicial forum for airing

his complaints, but also an effective remedy for a demonstrated violation of law.

He chose not to avail himself of the established procedure. Since the jurisdiction

of the immigration courts depends upon delegated authority from the Attorney

General, see Matter of H-M-V, 22 I. & N. Dec. 256, 258 (BIA 1998), he

conveniently decided it would have been futile to present his claim to an entity

7
  It is not necessary to address the contentious issue of whether the CATOC
creates rights enforceable in the immigration context. Nor is it necessary to
address what I perceive as the government’s argument that Musau’s fears of
retaliation could have been remedied by seeking asylum or relief under the
Convention Against Torture. Our only concern is whether a court of appeals could
have addressed and resolved those issues.


                                         12
powerless to address it. 8 A habeas petition may well be more expeditious for an
                       7F




alien under a deportation order because it avoids the sometimes tedious path of

agency adjudication followed by appropriately deferential judicial review.

Nevertheless, the proper path begins, but does not necessarily end, in the

immigration courts. If Musau could not obtain relief at the agency level, he would

still have had a forum to present his CATOC claim for consideration by the Eighth

Circuit, 9 under the provision allowing for review of “questions of law.” See 8
       8F




U.S.C. § 1252(a)(2)(D). And the courts of appeals can afford complete relief in

appropriate cases, as detailed in 8 U.S.C. § 1252(b) and 28 U.S.C. § 2342. In

Boumediene the Supreme Court observed, with respect to suspension of the writ

arguments, “[w]hat matters is the sum total of procedural protections afforded to

the detainee at all stages, direct and collateral.” 553 U.S. at 783. We need to keep




8
  Musau’s argument is exceedingly narrow—too narrow. It seems to be that if he
brought his CATOC claim to the immigration court, then the IJ or, on review, the
Board of Immigration Appeals would dismiss for lack of jurisdiction to decide the
claim, which may be true. And, his argument continues, if he were to seek review
of the agency’s jurisdictional decision , a court of appeals would only review the
jurisdiction question and would never reach the merits of his treaty claim. The
latter link of his argument chain is demonstrably wrong.
9
 Although Musau filed his habeas petition in the federal district of Kansas, his
immigration hearing was conducted in Kansas City, MO, the nearest immigration
court. Accordingly, had Musau petitioned for review from his final order of
removal, he would have been required to do so in the Eighth Circuit. See 8 U.S.C.
§ 1252(a)(5).

                                         13
our eye on the ball—the total procedural protection put in place by the REAL ID

Act, not merely the role of the immigration court.

      Musau’s assertion that federal appellate courts lack jurisdiction to consider

claims beyond the ken of the agency is incorrect. Nothing in the statute suggests

Congress intended to preclude courts of appeals from reviewing claims outside the

adjudicatory authority of the agency. If anything, granting authority to review

“constitutional claims or questions of law” 8 U.S.C. § 1252(a)(2)(D) is potent

evidence of the opposite intention, as many constitutional claims are outside the

adjudicatory scope of the agency. See Morgan v. Gonzales, 495 F.3d 1084, 1090

(9th Cir. 2007) (agency lacks power to grant relief over due process and equitable

estoppel claims); Pasha v. Gonzales, 433 F.3d 530, 536 (7th Cir. 2005) (“[The

BIA] refused to adjudicate the constitutionality of the statutes under which it

operates. . . .”); Garcia-Ramirez v. Gonzales, 423 F.3d 935, 938 (9th Cir. 2005)

(“Retroactivity challenges to immigration laws implicate legitimate due process

considerations that need not be exhausted in administrative proceedings because

the BIA cannot give relief on such claims.”); In re L-S-J, 21 I. & N. Dec. 973, 974

(BIA 1997). It is inconceivable that Congress, in providing for review of

“constitutional claims” by the courts of appeals, intended to confine such review to

the infinitely small subset of such claims that can actually be brought before the

agency.

                                         14
      Assuming the improbable (that the statutes are ambiguous as to the scope of

judicial review) does not aid Musau’s cause. If a statute admits of two possible

interpretations, one rendering the statute constitutional and one rendering it

unconstitutional, we are obliged to take the first course. Nat’l Fed. of Indep. Bus.

v. Sebelius, --- S. Ct. ---, 2012 WL 2427810, at *23 (June 28, 2012). Here, to

avoid a suspension of the writ problem, we must take an expansive view of the

constitutional and statutory issues a court of appeals can address on a petition for

review and the methods by which that review can be accomplished. Not only is

such a view necessary to avoid constitutional problems, but it implements the

congressional intent evident in the text, structure and quite evident purpose of the

relevant statutes. 8 U.S.C. § 1252(a) (judicial review of removal orders is

governed by 28 U.S.C. § 2341, et seq.); 28 U.S.C. § 2342 (courts of appeals have

“exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to

determine the validity of [final orders of the immigration courts].”

      Musau seems to be working under the assumption that a claim outside the

agency’s jurisdiction cannot be raised in a petition for review because it would

arrive in the court of appeals without the necessary factual development. 10 But this
                                                                            9F




10
   This may explain why he spends so much time addressing the obstacles to relief
at the agency level and so little time discussing his potential remedy in the court of
appeals.

                                          15
assumption would be incorrect. See 8 U.S.C. § 1252(d) (“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 . . . .” (emphasis supplied). If Musau

correctly suspected his claim could not be adjudicated at the agency level, he could

have bypassed the immigration courts and petitioned the Eighth Circuit directly,

claiming exhaustion would have been futile. McQueen v. Colorado Springs Sch.

Dist. No. 11, 488 F.3d 868, 874 (10th Cir. 2007) (“Exhaustion is not required

where it would be futile or fail to provide adequate relief.”) (quotation omitted);

Schmitt v. Maurer, 451 F.3d 1092, 1095 (10th Cir. 2006) (“[The exhaustion rule]

does not prevent a court from reviewing a final order of removal where there are

no administrative remedies available.”); Frango v. Gonzales, 437 F.3d 726, 729

(8th Cir. 2006); Sousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000) (holding that

exhaustion can be circumvented where “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.”); see also Booth v. Churner, 532 U.S. 731, 736 n.4 (2001).

      In the event an administrative record was unavailable—the result,

presumably, of the agency’s refusal to entertain the claim—judicial review would

have been proper under the Hobbs Act, 28 U.S.C. § 2347(b)(3), which governs

appellate review of administrative orders resulting from proceedings in which no

hearing took place. The Hobbs Act authorizes the courts of appeals to transfer a

                                          16
case to the district court for an evidentiary hearing where there are genuine issues

of material fact and an administrative hearing is not required by law. 11 Id. The
                                                                       10F




appropriateness of such a transfer depends on the legal sufficiency of the claim—

that is, on whether the petitioner has, on the facts alleged, presented a “colorable”

legal argument. See Morgan, 495 F.3d at 1090. Petitioners presenting colorable

claims for relief have a right to an evidentiary hearing, and the transfer procedure

gives effect to that right in cases where the claim could not be asserted before the

agency. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 496-97

n.2 (1999) (Ginsburg, J. concurring); Morgan, 495 F.3d at 1090; Gallo-Alvarez v.

Ashcroft, 266 F.3d 1123, 1129 (9th Cir. 2001); Coriolan v. INS, 559 F.2d 993,

1003 (5th Cir. 1977) (overruled on other grounds); see also Gulf Power Co. v. INS,

187 F.3d 1324, 1335 (11th Cir. 1999); Exportal Ltda v. United States, 902 F.2d 45,

48 n.3 (D.C. Cir. 1990); Radio Relay Corp. v. FCC, 409 F.2d 322, 329-30 (2d Cir.




11
   Where an administrative hearing is required by law, the proper course is remand
to the agency. See 28 U.S.C. § 2347(b)(2). But if the agency is without
jurisdiction to hear claims under the CATOC, which I assume for the purpose of
this analysis, Musau’s claim could have been transferred to the district court rather
than remanded to the agency. In either case, however, § 2347 would have afforded
an adequate substitute by providing Musau an opportunity to bring forth evidence
to substantiate his legal claim.


                                          17
1969); Lake Carriers’ Ass’n v. United States, 414 F.2d 567, 568 (6th Cir. 1969). 12   11F




The transfer procedure is in keeping with the Supreme Court’s admonition that

petitioners are entitled to “careful consideration and plenary processing of their

claims including full opportunity for presentation of the relevant facts,” and that

even where Congress has been silent on “methods for securing facts,” federal

courts would have an “inescapable obligation” on certain occasions to order

discovery. Harris v. Nelson, 394 U.S. 286, 299 (1969).

      Taken together, the procedures in the Hobbs Act and the INA offered Musau

a fair opportunity to test the legality of his removal. Undoubtedly, adjudicating

claims not asserted to the agency presents the court of appeals with procedural

challenges concerning the resolution of material facts. See Morgan, 495 F.3d at

109. However, in fashioning a system substituting for habeas, Congress is

constrained only by its obligation to ensure the available remedies are not

meaningfully more limited than would be available in habeas review. See Swain,

430 U.S. at 381.


12
   The Hobbs Act provides an appropriate procedure for finding facts in the
absence of an administrative record, but it does not provide the only procedure.
Federal Rule of Appellate Procedure 48, which allows the courts of appeals to
appoint a special master to hold hearings and make recommendations relating to
his findings, stands out as a feasible alternative. See F.C.C. v. ITT World Comm.,
466 U.S. 463, 469 (1984). In any event, I am confident the Eighth Circuit,
sensitive to the necessity of a full judicial inquiry, could have made provision for
fact finding.

                                          18
      In this case, Musau could have challenged his removal by presenting a

colorable legal claim to the court of appeals, substantiated by affidavit(s). If there

were no material factual disputes, the court could then decide the extent of

Musau’s constitutional, statutory or treaty rights. If factual disputes were evident,

they could first be determined by the district court in a transfer proceeding. In any

event, his remedy would have been commensurate with habeas corpus in all

respects save for the use of the appellate court as a screening body to determine the

sufficiency of the claim, a difference which goes more to form than substance. See

Felker v. Turpin, 518 U.S. 651, 664 (1996) (holding that AEDPA gatekeeping rule

restricting petitioners’ ability to bring new claims in successive habeas actions

does not suspend the writ because the provision “simply transfers from the district

court to the court of appeals a screening function which would have previously

been performed by the district court [under 28 U.S.C. § 2254].”). Much like the

procedures the Supreme Court upheld in Swain and Hayworth, this procedure

ensures appropriate judicial review by a court of appeals, as Congress intended.

Since the scope of the remedy was functionally equivalent to habeas corpus, the

additional procedural step would not have raised the “serious constitutional

question” presented by a law precluding judicial review altogether. See Thunder

Basin Coal Co. v. Raich, 510 U.S. 200, 215 n.20 (1994); Moralez-Izquierdo, 600




                                          19
F.3d 1084, 1085 (9th Cir. 2010) (“The mere possibility that a challenge might

require further fact-finding does not require habeas corpus jurisdiction.”).

      The Supreme Court recently reinforced this point in Elgin v. Dep’t of the

Treasury, where it concluded there was nothing “extraordinary in a statutory

scheme that vests reviewable factfinding authority in a non-Article III entity that

has jurisdiction over an action but cannot finally decide the legal question to which

the facts pertain.” 132 S. Ct. 2126 (2012). Elgin holds that the Civil Service

Reform Act (CSRA) provides the exclusive framework of judicial review for

federal employees challenging adverse employment actions, even when their

challenge raises constitutional claims outside the statutory authority of the Merit

Systems Protection Board (MSPB), the body charged with adjudicating the

employment disputes at the administrative level. Id. at 2138. In those cases, the

Court explained, the employees can still raise a constitutional challenge in the

Federal Circuit, which, like the courts of appeal in the immigration setting, has

virtually plenary authority to review questions of law. Id. at 2138-39.

      The Court acknowledged the review process may be more involved in cases

where an employee raises a constitutional challenge, requiring the Federal Circuit

to consider the constitutional question for the first time on appeal from the MSPB,

only to send the case back to the MSPB in the event that factual development is

necessary. But the prospect of an extra procedural step was not enough to

                                         20
persuade the Court that the CSRA scheme is unworkable in constitutional cases.

For one thing, the CSRA’s objective of creating an integrated scheme of review

would be “seriously undermined if, as petitioners would have it, a covered

employee could challenge a covered employment action first in a district court, and

then again in one of the courts of appeals, simply by alleging that the statutory

authorization for such action is unconstitutional.” Id. at 2135. For another, the

Federal Circuit is “fully capable of providing meaningful review of petitioners’

claims.” Id. at 2133. Just as the Hobbs Act provides a mechanism for factfinding

in the immigration setting, the CSRA “accommodates an employee’s potential

need to establish facts relevant to his constitutional challenge” by empowering the

MSPB to develop a factual record for the Federal Circuit. Id. at 2138.

      The majority worries, unnecessarily in my view, that the record is unclear as

to when Musau became aware of the threats to his safety.

      The threatening phone calls apparently began six days before Mr.
      Musau was ordered removed, and continued through July; but the
      phone calls allegedly were made to Mr. Musau’s brother, rather than
      to Mr. Musau himself. The record does not indicate when Mr. Musau
      became aware of the threats and no evidentiary hearing was held. If
      Mr. Musau was not aware of the threats within thirty days of his
      removal order becoming final, he apparently could not ask the Eighth
      Circuit to review his removal order. See id. And filing a motion to
      reopen or reconsider with the IJ likely would not have helped, as the
      IJ apparently lacked any authority to do anything about those threats
      vis-a-vis the CATOC.

(Majority Op. at 7) (emphasis in original).

                                         21
It seems to assume the closing of the time within which to seek review of a

removal order somehow entitles an immigrant to habeas relief. But the passing of

a limitations period does not amount to a suspension of the writ. For instance, a

motion to reopen is barred if filed more than 90 days after a removal order is

entered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). In any event

Musau could have filed a timely petition to reopen with the immigration court. If

his petition were to have been denied he could have sought judicial review of the

denial, Infanzon v Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004) (petition to

reopen is a separate, appealable order), opening the issue and all it might entail for

review by the Eight Circuit. Musau claims the motion to reopen statute is subject

to manipulation by the government and thus cannot be an adequate substitute for

habeas review, citing Boumediene, 553 U.S. at 765-66, and Tenth Circuit cases,

since overruled, imposing the bar. This court has invalidated the departure bar.

Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc)

(overruling Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009) and Mendiola

v. Holder, 585 F.3d 1303(10th Cir. 2009). In any event those are legal issues we

could and should address, if necessary, rather than remanding to the district court.

      Musau had two pathways to relief under the INA’s statutory scheme: 1) He

could have petitioned for relief from the agency and then sought judicial review of

an unfavorable decision (by the Eighth Circuit) or, 2) he could have bypassed the

                                          22
immigration court and proceeded directly to the circuit court claiming that trying to

exhaust unavailable remedies would be futile and therefore unnecessary. 13 In either
                                                                           12F




event, the Eighth Circuit would have had jurisdiction to review the petition and

grant appropriate relief. It could have, for example, enjoined removal until it could

resolve his rights, if any, under the CATOC. 28 U.S.C. § 2342. If it were to

determine that he had enforceable rights under the treaty it could have enjoined

removal until they were honored by the government. Id. 14 13F




      By reinstating habeas review for Musau, the majority opens the district court

doors for similarly situated aliens seeking to challenge their removal based on

theories that cannot be asserted in the immigration courts. The list of claims the

agency cannot adjudicate is considerably longer than the list of claims it can, and

examples of claims outside the agency’s jurisdiction abound in the case law. Most


13
   The majority criticizes the district court for suggesting Rranci v. Attorney
General, 540 F.3d 165 (3d Cir. 2008), demonstrates that immigration tribunals
have some authority to consider and resolve CATOC claims. (Majority Op. at 6).
Even if the district court was wrong in its assessment or there might be some
debate about the propriety of the remedy chosen by the Third Circuit, the case
makes my point. Given the opportunity, circuit courts have the authority to, and
will, address claims such as Musau’s treaty arguments. Congress has provided an
effective substitute for habeas. There has been no suspension of the writ. It makes
another point, as well: petitioners should be required to at least try to use existing
procedures before filing habeas petitions simply supposing they have no other
remedy.
14
   Musau decided to roll the dice with his habeas petition. It may now be too late
to seek relief from the immigration court. Alea iacta est.

                                          23
fit under the heading of “constitutional claims,” which includes claims for relief

based on due process, equal protection, ineffective assistance of counsel, and

various other theories. See, e.g., Morgan, 495 F.3d at 1090; Pasha, 433 F.3d at

536. But the immigration courts are also without jurisdiction to consider equitable

theories and facial attacks on the INA, to say nothing of more novel theories, like

Musau’s CATOC claim, for which jurisdiction has not been delegated by the

Attorney General. In re H-M-V-, 22 I. & N. at 258. Under the majority’s

reasoning, all of these theories would be amenable to habeas review, and the

district courts would be re-vested with jurisdiction to entertain them.

      The judgment of the district court should be affirmed.




                                          24
