                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2007

Pribec v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3105




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                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 05-3105


                                IOAN PRIBEC;
                               MARIANA PRIBEC,
                                         Petitioners

                                         v.

                           ATTORNEY GENERAL OF
                            THE UNITED STATES,
                                       Respondent



                      On Petition for Review of an Order of
                        The Board of Immigration Appeals
               Immigration Judge: Honorable Donald Vincent Ferlise
                              (No. A73-162-304/5)


                    Submitted Under Third Circuit LAR 34.1(a)
                                January 16, 2007


           Before: McKEE, AMBRO, and STAPLETON, Circuit Judges

                        (Opinion filed: February 20, 2007)



                                    OPINION


AMBRO, Circuit Judge

     The petitioners here, Romanian citizens Ioan and Mariana Pribec, have once been
before our Court challenging the denial by the Board of Immigration Appeals (BIA) of

their application for adjustment of status, 8 U.S.C. § 1255a, and waiver of inadmissibility,

8 U.S.C. § 1182(i). In 2004 we considered the Pribecs’ assignments of error as to that

decision and denied their petition for review. Pribec v. Ashcroft, 100 Fed. Appx. 121,

2004 WL 1326774 (3d Cir. June 15, 2004). The BIA ordered them removed from the

United States.

       Less than two months later, on August 2, 2004, the Pribecs filed a petition for a

writ of habeas corpus in the United States District Court for the Eastern District of

Pennsylvania, which prompted the District Judge to stay the BIA’s order of removal. In

their habeas petition, the Pribecs asserted a violation of their constitutional right to due

process, claiming that the Immigration Judge in their hearing was biased against

immigrants and asylum claims in general.

       On May 11, 2005, Congress passed and the President signed the REAL ID Act of

2005. Pub. L. 109-13, Div. B., 119 Stat. 231, 302. “Under the new judicial review

regime imposed by the Real ID Act, a petition for review is now the sole and exclusive

means of judicial review for all orders of removal . . . .” Bonhometre v. Gonzales, 414

F.3d 442, 445 (3d Cir. 2005) (citing 8 U.S.C. § 1252(a)(5)). Moreover, the courts of

appeals were given exclusive jurisdiction over all constitutional and legal claims in those

petitions. See 8 U.S.C. §§ 1252(a)(2)(d), 1252(a)(5); Bonhometre, 414 F.3d at 445–46.

As a result, the REAL ID Act also provided that all habeas petitions “that were pending

in the district courts on the date the Real ID Act became effective (May 11, 2005) [we]re

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to be converted to petitions for review and transferred to the appropriate courts of

appeals.” Id. at 446 (citing REAL ID Act, Pub. L. 109-13, Div. B, Title I, § 106(c)). The

Pribecs’ arguments that their petition be returned to the District Court, therefore, are

unavailing.

       As to the substance of the Pribecs’ constitutional argument, we will review “an

alien’s claim only where the alien has raised and exhausted his or her remedies as to that

claim.” Khan v. Att’y Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006) (brackets and internal

quotation marks omitted). Although “‘the BIA does not have jurisdiction to adjudicate

constitutional issues,’” such as the one raised by the Pribecs, Sewak v. INS, 900 F.2d 667,

670 (3d Cir. 1990) (quoting Vargas v. U.S. Dep’t of Immigration & Naturalization, 831

F.2d 906, 908 (9th Cir. 1987)), we nevertheless have applied an administrative exhaustion

requirement to claims that are “correctable through the administrative process,” id.; see

also Khan, 448 F.3d at 236 n.8 (3d Cir. 2006) (noting that an exhaustion requirement

applied because “[Khan’s] claim, stripped of its ‘due process’ label, is a claim of

procedural error that could have been addressed by the BIA on appeal”); Bonhometre,

414 F.3d at 448 (noting that petitioner’s claims, “though argued in the language of

procedural due process, essentially claim that the IJ failed in its duty to completely

develop this case,” were subject to an administrative exhaustion requirement).

       It is prudent, therefore, for us to require that constitutional claims that could be

adequately addressed at the administrative level be presented to and exhausted at the BIA

before we will review them. Montague-Griffith v. Holmes, No. 05-3313-AG, 2006 WL

                                               3
3218646, at *2 (2d Cir. Nov. 6, 2006). This is so that the BIA can have “the opportunity

to apply its specialized knowledge and experience to the matter,” Padilla v. Gonzales,

470 F.3d 1209, 1213 (7th Cir. 2006), and “‘to resolve a controversy or correct its own

errors before judicial intervention,’” Bonhometre, 414 F.3d at 447 (quoting Zara v.

Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004)). We have held this requirement to be

applicable to claims of bias on the part of an immigration judge. See Abdulrahman v.

Ashcroft, 330 F.3d 587, 595 n.5 (3d Cir. 2003) (“[A] claim of IJ bias remains subject to

administrative exhaustion requirements mandating that the issue be raised before the

[BIA].”). This is also consistent with other courts of appeals’ treatment of similar claims.

See Sanchez v. Gonzales, No. 05-72405, 195 Fed. Appx. 599, 2006 WL 2136057 (9th Cir.

July 31, 2006); Coku v. INS, No. 04-0866-AG, 170 Fed. Appx. 203, 2006 WL 616272 (2d

Cir. Mar. 13, 2006); Ghumanshyan v. Gonzales, No. A95-179-644, 163 Fed. Appx. 486,

2006 WL 92917 (9th Cir. Jan. 12, 2006); Amaya-Artunduaga v. Att’y Gen., 463 F.3d

1247 (11th Cir. 2006); Camara v. INS, No. 04-0128-AG NAC, 163 Fed. Appx. 8, 2005

WL 3527956, at *2 (2d Cir. Dec. 22, 2005).

       Thus, because the Pribecs have not raised their claim of bias before the BIA, we do

not yet have jurisdiction over it. We do not ignore that the Pribecs may not have been

able to raise the issue during any of the proceedings to this point that have reviewed the

Immigration Judge’s decision on the merits. The Pribecs might not have been aware of

the Immigration Judge’s conduct that forms the basis of their claim. The proper course,

however, is for the Pribecs to move to reopen their case at the BIA. See 8 C.F.R.

                                             4
§ 1003.2. That decision can then be reviewed in this Court. INS v. Doherty, 502 U.S.

314, 323 (1992). For the foregoing reasons, the petitioners’ petition for review is

dismissed.




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