                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-15-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-2037




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                                                PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 04-2037


                    FREBERT BONHOMETRE

                                             Petitioner

                                 v.

    ALBERTO GONZALES, Attorney General of the United
States;* IMMIGRATION AND NATURALIZATION SERVICE




       On Petition for Review from the United States
     Department of Justice Board of Immigration Appeals
                   BIA No. A91 436 391


                       Argued March 8, 2005

     Before: SCIRICA, Chief Judge, and ROTH and VAN
               ANTWERPEN, Circuit Judges.

                       (Filed: July 15, 2005)

James M. Tyler, Esq. (Argued)
Schubert, Bellwoar, Cahill & Quinn
Two Penn Center, Suite 1400
1500 John F. Kennedy Blvd.
Philadelphia, Pennsylvania 19102

Counsel for Petitioner


      *
          Substituted pursuant to Fed. R. App. P. 43(c).
Peter D. Keisler, Esq.
Donald E. Keener, Esq.
Alison Marie Igoe, Esq. (Argued)
United States Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

Sonya F. Lawrence, Esq.
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for the Government


                    OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

        Before us is what originally was the Government’s appeal
from an order of the United States District Court for the Eastern
District of Pennsylvania (Dalzell, J.) granting Frebert
Bonhometre’s petition for writ of habeas corpus. See
Bonhometre v. Ashcroft, 306 F. Supp. 2d 510 (E.D. Pa. 2004).
The District Court ruled that the Board of Immigration Appeals
violated Mr. Bonhometre’s Fifth Amendment right to procedural
due process by failing to advise him of his potential eligibility
for relief from removal. What is now before us is a petition for
review alleging the same procedural due process violations as
were asserted in Mr. Bonhometre’s habeas petition. After
consideration of what has become a procedurally-problematic
case, we concluded that we need not reach the merits of the
procedural due process challenge 1 alleged here because Mr.



      1
        For simplicity, we shall refer to Mr. Bonhometre’s claims
of error as “procedural due process” challenges. However, we
make no judgment as to whether or not the failure of an
Immigration Judge or the Board of Immigration Appeals to advise

                                2
Bonhometre did not exhaust the administrative remedies that
were available to him as of right at the agency level.
Consequently, we deny his Petition for Review and reverse the
District Court’s grant of habeas corpus.

                             I. FACTS

        Frebert Bonhometre is a native and citizen of Haiti who
was granted temporary legal residency status on September 15,
1989. His common-law wife and three children are all United
States citizens. On December 12, 1995, Mr. Bonhometre plead
guilty in the Commonwealth of Massachusetts to armed robbery,
assault and battery, and assault with a dangerous weapon. He
was sentenced to a prison term of not more than three years.

        Mr. Bonhometre served two years of his sentence before
he was released into the custody of the Immigration and
Naturalization Service 2 (“INS”) on July 18, 1997. The INS
initiated removal proceedings, charging him with removability
under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act of 1952 (“INA”), which requires removal of any
alien convicted of an aggravated felony at any time after
admission to the United States. 8 U.S.C. § 1227(a)(2)(A)(iii)
(1998); see also 8 U.S.C. §1101(a)(43)(F) (1997) (defining
“aggravated felony” to include “a crime of violence . . . for


an alien of the multitude of forms of relief that may be available to
him (despite the fact that none seem to have been implicated by the
facts in the administrative record) is a denial of his Fifth
Amendment procedural due process rights. We do note, however,
that “[d]ue process is not a talismanic term which guarantees
review in this [C]ourt of procedural errors correctable by the
administrative tribunal.” Marrero v. INS, 990 F.2d 772, 778 (3d
Cir. 1990) (citations and internal quotation marks omitted).
       2
         On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice, and its enforcement functions
were transferred to the Department of Homeland Security, pursuant
to sections 441 and 471 of the Homeland Security Act of 2002,
Pub. L. 107-296, 116 Stat. 2135.

                                 3
which the term of imprisonment [is] at least one year.”). At his
September 17, 1997, removal proceeding, a United States
Immigration Judge (“IJ”) ordered Mr. Bonhometre removed to
Haiti. He then appealed to the Board of Immigration Appeals
(“BIA”), raising two issues: (1) the IJ erred in determining that
he was deportable because his criminal offense occurred before
the enactment of section 440 of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”); and (2) AEDPA is
unconstitutional. The BIA dismissed his appeal.

        Despite the removal order that had been filed against him,
the INS released Mr. Bonhometre in October, 2000. It was not
until he attempted to renew a work permit in May, 2003, that the
Government again took him into custody. Mr. Bonhometre
thereafter filed a habeas corpus petition pro se. The District
Court appointed counsel for him, and directed counsel to amend
the habeas corpus petition. In this amended petition, Mr.
Bonhometre asserted that he was denied procedural due process
when the IJ failed to advise him that he could have asked for
relief under sections 212(c) and 212(h) of the INA,3 as well as
under the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”). The District Court found that he had not exhausted
the available administrative remedies before the BIA, but
concluded that his procedural due process claim was “wholly
collateral” to the relevant INA review provisions, and that the
BIA had no expertise in adjudicating such a procedural due
process claim. The District Court therefore concluded that it had
subject matter jurisdiction pursuant to the Supreme Court’s
holding in Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207-
16 (1994), despite Mr. Bonhometre’s failure to exhaust, and,
after considering the merits of his Fifth Amendment challenge,
granted his petition. The Government appealed, and argument
was heard by this Court on March 8, 2005.




       3
       Both of these provisions were repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
Pub.L. No. 104-132, 110 Stat. 1214 (“IIRIRA”).

                                4
    II. JURISDICTION AND STANDARD OF REVIEW

        During the pendency of our deliberations on this matter,
Congress amended section 1252 of Title 8 of the United States
Code via the Real ID Act of 2005, Pub. L. 109-13, 119 Stat. 231
(“Real ID Act”). 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
except those issued pursuant to 8 U.S.C. § 1225(b)(1). See 8
U.S.C. § 1252(a)(5) (1999 & Supp. 2005). Our jurisdiction was
also enlarged, as we now have the authority to consider
constitutional claims or questions of law raised in a criminal
alien’s petition for review. 8 U.S.C. § 1252(a)(2)(D) (2005);
see Papageorgiou v. Gonzales, ___ F.3d ____, 2005 WL
1490454, *2 (3d Cir. Jun. 24, 2005) (noting that, while the Real
ID Act permits judicial review of constitutional claims or
questions of law raised by criminal aliens, this Court’s
jurisdiction remains nonetheless subject to the unamended
jurisdictional limitations of 8 U.S.C. § 1252). Moreover, all
habeas corpus petitions brought by aliens 4 that were pending in
the district courts on the date the Real ID Act became effective
(May 11, 2005) are to be converted to petitions for review and
transferred to the appropriate courts of appeals. See Real ID
Act, Pub.L. 109-13, Div. B, Title I, § 106(c). These
modifications effectively limit all aliens to one bite of the apple
with regard to challenging an order of removal, in an effort to
streamline what the Congress saw as uncertain and piecemeal
review of orders of removal, divided between the district courts
(habeas corpus) and the courts of appeals (petitions for review).
See H.R. Conf. Rep. No. 109-72, at 173-75 (2005).

      In the Real ID Act, however, the Congress was silent as
to what was to be done with an appeal from a district court
habeas decision that is now pending before a court of appeals.



       4
        This provision applies only to aliens who are challenging
an order of removal via habeas corpus. An alien challenging the
legality of his detention still may petition for habeas corpus. See
H.R. Conf. Rep. No. 109-72, at 175 (2005).

                                 5
Despite this silence, it is readily apparent, given Congress’ clear
intent to have all challenges to removal orders heard in a single
forum (the courts of appeals), id. at 174, that those habeas
petitions that were pending before this Court on the effective
date of the Real ID Act are properly converted to petitions for
review and retained by this Court. We thus generally have
jurisdiction to consider such a petition pursuant to section 242(a)
of the INA. 8 U.S.C. § 1252(a) (1999 & Supp. 2005).5

       Even though this habeas appeal has turned into a petition
for review, our standard of review remains the same. We review
whether Mr. Bonhometre’s procedural due process rights were
violated de novo, Abdulrahman v. Ashcroft, 330 F.3d 587, 596-
97 (3d Cir. 2003), which is the same standard that would have
been applied to our review of the District Court’s grant of his
petition for habeas corpus, Ruggiano v. Reish, 307 F.3d 121, 126
(3d Cir. 2002).

                        III. DISCUSSION




       5
         We note further that some habeas petitions pending before
the district courts of this Circuit may not be properly before us as
converted-petitions for review. See 8. U.S.C. § 1252(b)(2) (1999)
( “The petition for review shall be filed with the court of appeals
for the judicial circuit in which the immigration judge completed
the proceedings.”); compare 28 U.S.C. § 2241(a) (1994) (“Writs of
habeas corpus may be granted by the Supreme Court, any justice
thereof, the district courts and any circuit judge within their
respective jurisdictions.”) (emphasis added). Such is the case
here, as Mr. Bonhometre’s immigration hearing was conducted
within the jurisdiction of the First Circuit, but he is detained within
the boundaries of this Circuit. However, given that this case has
been thoroughly briefed and argued before us, and given that Mr.
Bonhometre has waited a long time for the resolution of his claims,
we believe it would be a manifest injustice to now transfer this case
to another court for duplicative proceedings. Cf. Nwaokolo v. INS,
314 F.3d 303, 306 n.2 (7th Cir.2002) (holding that 8 U.S.C. §
1252(b)(2) is a venue provision and hence non-jurisdictional).

                                  6
        In view of the atypical procedural posture of this case and
the effect of the Real ID Act, we will consider the District
Court’s opinion to be non-existent, and will address the
procedural due process claims raised by Mr. Bonhomotre in his
opening brief to the District Court as if they were raised in a
petition for review before us in the first instance. In his now-
converted-Petition for Review, Mr. Bonhometre contends that
the agency violated his Fifth Amendment due process rights by
failing to advise him that he had the opportunity to request relief
from his removal order under sections 212(c) and 212(h) of the
INA, as well as under the CAT. These claims were not raised
before the BIA at any point.

                                A.

       We begin, as we always must when reviewing agency
determinations, with a determination of whether we have subject
matter jurisdiction to consider Mr. Bonhometre’s claims. As a
general rule, an alien must exhaust all administrative remedies
available to him as of right before the BIA as a prerequisite to
raising a claim before us. 8 U.S.C. § 1252(d)(1) (1999)
(emphasis added); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422
(3d Cir. 2005). To exhaust a claim before the agency, an
applicant must first raise the issue before the BIA or IJ, Alleyne
v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989), so as to give it “the
opportunity to resolve a controversy or correct its own errors
before judicial intervention.” Zara v. Ashcroft, 383 F.3d 927,
931 (9th Cir. 2004). The Supreme Court has instructed that
“[t]he doctrine of administrative exhaustion should be applied
with a regard for the particular administrative scheme at issue.”
Weinberger v. Salfi, 422 U.S. 749, 765 (1975). We thus remain
cognizant of the fact that the exhaustion terms of section
1252(d)(1) must be examined with Congress’s intent concerning
the provision’s scope in mind, especially in light of the
modifications made to the section by the Real ID Act.6



       6
         We note at the outset that “[t]here is agreement among the
circuits that have addressed the issue that exceptions do apply to §
1252(d)(1), although the contours of such exceptions remain to be

                                 7
        We have previously rejected an exception to section
1252(d)(1)’s requirement of administrative exhaustion before the
BIA based on futility. See Duvall v. Elwood, 336 F.3d 228, 234
(3d Cir. 2003) (rejecting the argument that exhaustion is excused
where further administrative proceedings would be futile
because the BIA had already definitively decided the issue); see
also Nyhuis v. Reno, 204 F.3d 65, 69 (3d Cir. 2000) (noting that
a statute with “a jurisdictional requirement . . . by definition
cannot be subject to a futility exception”). As we see it, a claim
is “available as of right” if, at the very least, (1) the alien’s claim
was within the jurisdiction of the BIA to consider and implicated
agency expertise,7 and (2) the agency was capable of granting
the remedy sought by the alien.8 It is uncontested that Mr.
Bonhometre failed to bring his procedural due process claims of
error to the BIA. Therefore, he would be excused from
exhausting his claims before the BIA if either of these
prerequisites were absent.

       Mr. Bonhometre’s claims, though argued in the language
of procedural due process, essentially claim that the IJ failed in


fully developed.” Sun v. Ashcroft, 370 F.3d 932, 943 (9th Cir.
2004).
       7
         See Marrero, 990 F.2d at 778 (noting that exhaustion
would not be required where the BIA did not have jurisdiction to
adjudicate a particular claim); Vargas v. U.S. Dept. of Immigration
and Naturalization, 831 F.2d 906, 908 (9th Cir. 1987) (holding that
certain due process claims “are exempt from [exhaustion] because
the BIA does not have jurisdiction to adjudicate constitutional
issues” and “[a]lthough due process claims are generally exempt
from the exhaustion requirement, we do not review ‘procedural
errors correctable by the administrative tribunal’”).
       8
         See Bak v. INS, 682 F.2d 441, 443 (3d Cir. 1982) (“the
Board could have reversed the immigration judge, and thus
exhaustion is necessary under section 1105a(c)”); see also Sewak
v. I.N.S., 900 F.2d 667, 670 (3d Cir. 1990) (noting that “Sewak’s
due process claim amounts to a procedural error correctable
through the administrative process”).

                                  8
its duty to completely develop this case, and requests remand to
correct this alleged error. See Vargas 831 F.2d at 908 (“The
requirement that Petitioner exhaust his claims before appealing
them to this Court applies even though Petitioner claims the
BIA’s procedural errors violated his right to due process”).
Clearly, the BIA has the ability to conduct de novo review of an
immigration proceeding and the subsequent decision of the IJ,
see, e.g., Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001),
and has sufficient expertise in this area to be eminently capable
of addressing whether the IJ properly explored all avenues of
relief that were available. See In re Cordova, 22 I. & N. Dec.
966, 970 (BIA 1999) (“An [IJ] has a duty to inform aliens of
potential forms of relief for which they are apparently eligible,
including voluntary departure”); see also In re Po Shing Yeung,
21 I. & N. Dec. 610, 624-255 (BIA 1997) (stating that
procedural errors, such as exclusion of evidence or failure to
advise that there was a right to counsel, are typically cured
simply by holding a new hearing in compliance with due process
requirements); Matter of Santos, 19 I. & N. Dec. 105, 111 (BIA
1984) (discussing whether or not a petitioner was prejudiced by
the IJ’s failure to advise him of free legal services at the start of
the hearing). Furthermore, it is beyond debate that, had the BIA
concluded that the IJ’s conduct during the immigration hearing
did not fulfill his obligation to completely develop the record
under the immigration regulations, it could have remanded for a
new trial. Mr. Bonhometre’s procedural due process claims thus
could have been argued before the BIA, and his failure to do so
is thus fatal to our jurisdiction over this petition.

                                 B.

       Even if we were to consider Mr. Bonhometre’s claims on
the merits, we still would not grant relief. To prevail on a
procedural due process challenge to a decision by the BIA, an
alien must make an initial showing of substantial prejudice. See
De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004)
(concluding that an alien had failed to establish that she was
substantially prejudiced by the procedural error she advanced)
(internal quotation marks omitted). Therefore, if Mr.
Bonhometre cannot demonstrate that he was eligible for relief

                                  9
under sections 212(c) and 212(h) of the INA, or under the CAT,
no procedural due process claim can lie.9

       Mr. Bonhometre first claims that the IJ failed to inform
him of the possibility of relief under former section 212(c) of the
INA. Prior to its repeal in 1996, this section stated:

     Aliens lawfully admitted for permanent residence who
     temporarily proceeded abroad voluntarily and not
     under an order of deportation, and who are returning to
     a lawful unrelinquished domicile of seven consecutive
     years, may be admitted in the discretion of the
     Attorney General.

8 U.S.C. § 1182(c) (1994) (repealed 1996) (emphasis added).
Because it is undisputed that Mr. Bonhometre was a lawful
temporary alien at the time of his removal hearing, he was not,
by the express language of the statute, eligible for a section
212(c) waiver.

        Mr. Bonhometre’s claim that he was eligible for section
212(h) “extreme hardship waiver” fares little better. Prior to its
repeal, section 212(h) gave the Attorney General discretion to
waive an alien’s deportation if that alien was not an aggravated
felon, and if his departure would cause extreme hardship to a
United States citizen that was his spouse, parent or child. See 8
U.S.C. § 1182(h) (1994) (repealed 1996). In 1996, Congress



       9
         At the outset, we note that the majority of the courts of
appeals, including our own, agree that there is no constitutional
right to be informed of possible eligibility for discretionary relief.
See United States v. Torres, 383 F.3d 92, 105-06 (3d Cir. 2004);
see also United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th
Cir. 2004) (en banc); United States v. Lopez-Ortiz, 313 F.3d 225,
231 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003); Smith v.
Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002); Oguejiofor v.
Attorney General, 277 F.3d 1305, 1309 (11th Cir. 2002);
Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001)
(quoting Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000)).

                                 10
made sweeping changes to the immigration law, including the
institution of a new definition of aggravated felony that
unambiguously applied retroactively to all past convictions. See
IIRIRA, section 328(a) (mandating that the amendments relating
to aggravated felonies “shall apply to actions taken on or after
the date of enactment of this Act, regardless of when the
conviction occurred”) (emphasis added); see also INS v. St. Cyr,
533 U.S. 289, 318-19 (2001) (explicitly noting that Congress
clearly stated that the amended definition of “aggravated felony”
is to apply retroactively); accord Landgraf v. USI Film Prods.,
511 U.S. 244, 268 (1994) (“[A] requirement that Congress first
make its intention clear helps ensure that Congress itself has
determined that the benefits of retroactivity outweigh the
potential for disruption or unfairness”).10 Since, under the new
definition, Mr. Bonhometre is an aggravated felon, he thus
would not have qualified for section 212(h) relief, regardless of
any hardship that may befall his wife or children as a result of
his removal.

       Finally, Mr. Bonhometre cannot argue that the IJ’s failure
to advise him of potential CAT eligibility was a procedural due
process violation, because there are no facts in the record to
support a CAT claim. An applicant is entitled to protection
under the CAT if he establishes that “it is more likely than not
that he or she would be tortured if removed to the proposed
country of removal.” Wang v. Gonazles, 405 F.3d 134, 139 (3d
Cir. 2005) (quoting 8 C.F.R. § 1208.16(c)(2) (2005)).11 There is


       10
         We also note that Congress’ decision to repeal section
212(h) waivers retroactively is rationally-related to a legitimate
government purpose. See Usery v. Turner Elkhorn Mining Co.,
428 U.S. 1, 17 (1976).
       11
          “Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on
a person for such purposes as obtaining from him or her or a third
person information or a confession, punishing him or her for an act
he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind, when such

                                11
nothing in the administrative record that was before the IJ or
BIA suggesting that Mr. Bonhometre would have qualified for
relief under the CAT, nor does he point to any evidence
demonstrating as much before us now. The fact that the INS
used a “pre-regulatory administrative process” to determine CAT
eligibility prior to promulgation of the formal regulations now
used does not mean ipso facto that a CAT claim exists. Without
supporting evidence, such a claim has no substance.

                       IV. CONCLUSION

       Despite the unusual posture under which this case arrived
before us, we conclude that we are without jurisdiction to
consider the arguments raised in Mr. Bonhometre’s Petition for
Review. We reiterate that, had these same issues arisen in the
context of a habeas corpus petition, our conclusion would be the
same. Therefore, we deny the Petition and reverse the District
Court’s grant of habeas corpus.




pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2005).

                                 12
