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


6-20-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3804




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                                            NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                  No. 05-3804


          CLYNT CROSBY TAYLOR,

                        Petitioner


                       v.

       ATTORNEY GENERAL OF THE
            UNITED STATES,

                       Respondent

       On Petition for Review of an Order
           of the Immigration Judge
           Agency No. A75 842 980
              on October 22, 2002




                  No. 06-2112


              CLYNT CROSBY,

                        Appellant

                       v.

DEPARTMENT OF HOMELAND SECURITY (DHS);
    BICE; OSCAR AVILES, Warden/Director


                       1
                     On Appeal From the United States District Court
                             For the District of New Jersey
                              (D.C. Civ. No. 05-cv-04650)
                        District Judge: Honorable Joel A. Pisano


                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 14, 2007

             Before: RENDELL, HARDIMAN and COWEN, Circuit Judges.

                                   (Filed: June 20, 2007)



                                         OPINION


PER CURIAM

       Before us are two consolidated matters involving Clynt Crosby, a native of

Trinidad and Tobago. Both matters began as habeas petitions in the United States District

Court for the District of New Jersey. One, originally docketed in the District Court at 03-

CV-00791, was transferred here pursuant to the REAL ID Act of 2005, § 106(c), Pub. L.

No. 109-13, Div. B, 119 Stat. 231 (May 11, 2005) to be treated as a petition for review.

The other, docketed in the District Court at 05-CV-04650, comes to us as an appeal of an

order denying Crosby’s habeas petition challenging his immigration detention. For the

reasons explained below, we will deny the petition for review for failure to exhaust

administrative remedies, and we will affirm the District Court’s denial of Crosby’s petition

for a writ of habeas corpus.

                               I. Facts and Procedural History

                                             2
        Crosby appeared before an Immigration Judge (“IJ”) on October 22, 2002, and

through counsel conceded removability as an alien present in the United States without

being admitted or paroled. The IJ found Crosby removable and granted voluntary

departure. Crosby’s attorney waived the right to appeal. After failing to voluntarily depart

on time, Crosby was taken into INS custody on February 5, 2003.

        Shortly thereafter, on February 21, 2003, Crosby filed with the IJ a pro se motion to

reopen proceedings, asserting derivative U.S. citizenship and ineffective assistance by the

attorney who represented him before the IJ and who waived his right to appeal. The IJ

denied Crosby’s motion to reopen. The BIA affirmed the IJ’s decision on July 28, 2003

and informed Crosby that it would entertain a motion to reopen if Crosby obtained

documents to support his claim of citizenship. This court denied Crosby’s petition for

review of the BIA’s order affirming the IJ’s denial of his motion to reopen. Crosby v.

Attorney General, No. 03-3458 (3d Cir. Dec. 12, 2004).

        Also in February 2003, Crosby filed a habeas corpus petition in the District Court.

In that petition, he again asserted U.S. citizenship and raised the ineffective assistance of

counsel at the hearing before the IJ. The District Court stayed Crosby’s removal, and after

the enactment of the REAL ID Act of 2005, transferred the habeas petition to this Court to

be treated as a petition for review (C.A. No. 05-3804).1



    1
    The stay of removal entered by the District Court remains in effect pursuant to a
Special Notice with respect to cases subject to transfer under the REAL ID Act, issued on
June 16, 2005 by the Chief Judge of this Court.

                                               3
       Crosby filed a second habeas corpus petition in the District Court in September

2005, this time challenging the legality of his continued detention without periodic review.

The District Court determined that Crosby had received appropriate periodic reviews and

that his continued detention while awaiting removal is lawful. Crosby filed a notice of

appeal from the order denying habeas relief (C.A. No. 06-2112). The appeal was

consolidated with the pending petition for review in this Court.

                                       II. Discussion

       A.     Petition for Review

       We construe Crosby’s petition as seeking review of the Immigration Judge’s

removal order, including his decision to deny a continuance. Crosby also claims that he

was denied the effective assistance of counsel because his attorney conceded he was

removable and waived his appeal, that he was improperly denied an extension of time to

voluntarily depart, and that his motion to reopen was improperly denied.

       Pursuant to 8 U.S.C. § 1252(d)(1), this Court may only review a final order of

removal if “the alien has exhausted all administrative remedies available to the alien as of

right.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). As noted above,

Crosby did not appeal the IJ’s decision in this case, as he had waived the right to appeal to

the BIA. However, he could have (and eventually did) file a motion to reopen to raise his

claim of attorney ineffectiveness, his claim that the IJ improperly denied a continuance,

and his claim that he is a citizen. Although reopening is not a remedy available as of right,



                                              4
we will require exhaustion here as a prudential matter.2 Here, at the time Crosby filed his

first habeas petition, the agency had not had an opportunity to consider the claims Crosby

now wishes to raise. See also, 8 U.S.C. § 1252(b)(4)(A) (court may only decide the

petition on the administrative record on which the order of removal is based). Although

motions to reopen are generally discouraged, where, as here, there is allegedly new

information that goes to the heart of the removal order, requiring a motion to reopen will

allow the agency to review the matter in the first instance. Cf. Marrero v. INS, 900 F.2d

772 (3d Cir. 1993) (requiring alien to file motion to reopen with immigration court before

he could challenge in absentia removal order). We therefore decline to reach the merits of

Crosby’s arguments, because he had failed to exhaust administrative remedies at the time

he filed his petition.

        Further, we have already ruled on the majority of Crosby’s claims. In appeal

number 03-3458, we held that the BIA’s affirmance of an IJ’s order denying his motion to

reopen was not an abuse of discretion, as “Crosby had failed to submit evidence either of a

blood relationship with [his alleged U.S. citizen father] or that he was legitimated under

the laws of Trinidad and Tobago.” We also noted that Crosby had failed to comply with



    2
     Factors to consider in deciding whether to require exhaustion as a prudential matter
include whether “(1) agency expertise makes agency consideration necessary to generate
a proper record and reach a proper decision; (2) relaxation of the requirement would
encourage the deliberate bypass of the administrative scheme; and (3) administrative
review is likely to allow the agency to correct its own mistakes and to preclude the need
for judicial review.” Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004) (citations
omitted).

                                              5
the requirements of Matter of Lozada, 19 I & N. Dec. 637 (BIA 1988) in conjunction with

his ineffective assistance claim, and that we lacked jurisdiction to review or extend an

order of voluntary departure.3

        Assuming without deciding that we could consider anew Crosby’s citizenship claim

despite a failure to exhaust administrative remedies; see Theagene v. Gonzales, 411 F.3d

1107, 1110 (9th Cir. 2005); we note that Crosby has not provided, nor alleged that he has,

evidence to show a blood relationship with his alleged father and evidence that he was

legitimated under the laws of Trinidad and Tobago. See 8 U.S.C. § 1409(a). As we noted

in our previous opinion, Crosby could file a motion to reopen with the BIA if he obtains

such evidence.4

        B.     Continued Detention

        Crosby, who is subject to a final order of removal, is detained pursuant to 8 U.S.C.

§ 1231(a). That statute provides that the Attorney General shall remove an alien within a

removal period of 90 days. In Crosby’s case, the removal period has not yet begun. The


    3
     Assuming we could reach the merits of Crosby’s remaining claim; that the IJ abused
his discretion in denying his request for a continuance, we would find that the IJ did not
abuse his discretion. The transcript of the hearing before the IJ shows that Crosby’s
attorney did have some chance to speak with him and with friends he had brought to the
hearing, and that the IJ gave Crosby a chance to ask questions. At no point did Crosby
raise the claim that he was a U.S. citizen, nor did he protest the waiver of his appeal
rights. As the IJ was not made aware of any reason why a continuance might be helpful,
it was not an abuse of discretion to refuse the request.
    4
    We recognize that any motion to reopen filed now would be untimely. See 8 C.F.R.
§ 1003.2(c)(2) (motion to reopen must be filed within 90 days). However, the BIA may
exercise its sua sponte discretion to reopen at any time. See 8 C.F.R. § 1003.2(a).

                                              6
removal period begins on the latest of (1) the date the order of removal becomes

administratively final; (2) if the removal order is judicially reviewed and if a court orders a

stay of the alien’s removal, the date of the court’s final order; and (3) if the alien is

confined (except under an immigration process), the date the alien is released from

confinement. 8 U.S.C. § 1231(a)(1)(B). Section two applies here, as Crosby’s removal

order is in the process of being judicially reviewed, and the District Court ordered a stay of

his removal which remains in effect. Crosby’s removal period will begin when this Court

decides his petition for review and the stay is lifted. Thus, any challenge to his post-

removal order detention is premature.

         We recognize that Crosby’s detention has been prolonged. However, the length of

his detention is attributable to the stay of removal during judicial review. The stay of

removal is hereby lifted. We note that there does not appear to be any obstacle to

Crosby’s removal in the reasonably foreseeable future.5

         For the foregoing reasons, the petition for review will be dismissed and the District

Court’s order denying the petition for a writ of habeas corpus will be affirmed.6




    5
     Crosby can of course file a new habeas petition if for some reason his removal does
not appear to be reasonably foreseeable.
    6
        All outstanding motions are denied as moot.

                                                7
