11-5052-pr
Singh v. Napolitano


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the United States Court of International Trade, One Federal Plaza, in the City of New
York, on the 16th day of October, two thousand twelve.

PRESENT: REENA RAGGI,
                 PETER W. HALL,
                 SUSAN L. CARNEY,
                                 Circuit Judges.
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BILLA SINGH,
                                 Petitioner-Appellant,

                         v.                                               No. 11-5052-pr

JANET NAPOLITANO, in her official capacity, Secretary,
Department of Homeland Security, ALEJANDRO
MAYORKAS, in his official capacity, Director, United
States Citizenship and Immigration Services, EMILIA
BARDINI, in her official Capacity, Director, San Francisco
Asylum Office, United States Citizenship and Immigration
Services, SUSAN RAUFSER, in her official capacity,
Director, Newark Asylum Office, United States Citizenship
and Immigration Services, MICHAEL PHILLIPS, in his
official capacity, Field Office Director, Buffalo ICE
Detention and Removal Office, United States Department of
Homeland Security,
                                 Respondents-Appellees.
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APPEARING FOR APPELLANT:                          ROBERT D. KOLKEN (Julie Kruger, on the
                                                  brief), Kolken & Kolken, Buffalo, New York.

APPEARING FOR APPELLEES:                    SHEREASE PRATT, Trial Attorney (Stuart F.
                                            Delery, Acting Assistant Attorney General; David
                                            J. Kline, Director, District Court Section; Colin A.
                                            Kisor, Deputy Director, on the brief), U.S.
                                            Department of Justice, Civil Division, Office of
                                            Immigration Litigation, District Court Section,
                                            Washington, D.C.


       Appeal from a judgment of the United States District Court for the Western District

of New York (Michael A. Telesca, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on October 20, 2011, is VACATED and the petition

is REMANDED to the district court with instructions to DISMISS the petition.

       Petitioner Billa Singh, a native and citizen of India, who illegally entered this country

in 1993, appeals from a judgment denying his 28 U.S.C. § 2241 petition for a writ of habeas

corpus, in which he alleges that the government violated applicable regulations in rescinding

a grant of asylum that Singh procured in 1995 having failed to disclose that, under a different

name, he had already been denied asylum and ordered excluded from the United States in




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1994.1 We review de novo a district court’s denial of a petition for a writ of habeas corpus

under § 2241. See Lopez v. Terrell, 654 F.3d 176, 180 (2d Cir. 2011). We assume the

parties’ familiarity with the facts and record of prior proceedings, which we reference only

as necessary to explain our decision to vacate the judgment and remand the petition to the

district court with instructions to dismiss it for lack of jurisdiction.

       “At its historical core, the writ of habeas corpus has served as a means of reviewing

the legality of Executive detention . . . .” INS v. St. Cyr, 533 U.S. 289, 301 (2001). Thus,

to prevail on his habeas petition, Singh must demonstrate that he is subject to Executive

custody because of the Executive’s errors of law. See Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 327–28 (2d Cir. 2006) (describing historical scope of habeas review of

immigration detention as broadly encompassing “errors of law”). Singh maintains that the

fact that he is subject to a final order of removal “is sufficient, by itself, to establish the

requisite custody for purposes of 28 U.S.C. § 2241.” Habeas Pet. ¶ 2, J.A. 7 (citing

Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003)); see 8 U.S.C. § 1231(a)(2), (3)

(requiring Attorney General to detain alien subject to final order of removal or place alien

under supervision if not removed within 90 days of date removal order becomes final). He



       1
         The district court determined that it had jurisdiction to consider Singh’s complaint
only as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Because Singh does
not argue on appeal that other statutory authority provides a basis for jurisdiction over his
complaint, he has abandoned any such argument. See Jackler v. Byrne, 658 F.3d 225, 233
(2d Cir. 2011).

                                                3
asserts that his custody pursuant to a final order of removal is illegal because he was granted

asylum, a status precluding removal from the United States. See 8 U.S.C. § 1158(c)(1)(A).

He argues that immigration officials’ attempts to “rescind” his asylum were legally invalid

because the former Immigration and Naturalization Service (“INS”), the predecessor agency

to the U.S. Citizenship and Immigration Service (“USCIS”), failed to follow procedures set

forth in applicable regulations mandating that, before termination of a grant of asylum, an

asylee “be given notice of intent to terminate,” an “interview” with an asylum officer, and

the “opportunity to present evidence showing that he . . . is still eligible for asylum.” 8

C.F.R. § 208.24(c). Accordingly, Singh seeks a declaration that the rescission of his asylum

was ultra vires and violated his due process rights, and he seeks an order compelling the

USCIS to provide him with the asylum termination interview to which he is entitled under

applicable regulations.

       Singh asserts that his habeas petition does not challenge the validity or execution of

his removal order, a claim that would be subject to the jurisdictional limitations of 8 U.S.C.

§ 1252. It is apparent, however, that the true error of law identified in his petition is the

Executive’s legal conclusion that he is subject to a final order of removal. Indeed, Singh

alleges that he is subject to the final order of removal only “[b]ecause of the unlawful and

unconstitutional acts of the Respondents in ‘rescinding’ [his] asylum status without due

process of law.” Habeas Pet. ¶ 45, J.A. 18. Adjudicating Singh’s petition would require this

court to determine whether he is presently an asylee who may not be removed from the

                                              4
United States absent formal termination of such status consistent with 8 C.F.R. § 208.24(c).

Thus, Singh’s habeas petition indirectly challenges the validity of his final order of removal

and the Attorney General’s ability to execute that order, raising jurisdictional concerns. Cf.

Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (holding “that section 1252(a)(5)’s

jurisdictional bar applies equally to preclude . . . an indirect challenge” to final order of

removal, where petitioner sought writ of mandamus to compel USCIS to adjudicate I-212

application for permission to reapply for admission).

       Title 8 U.S.C. § 1252(a)(2)(D) retains jurisdiction for the federal courts to decide

questions of law presented by a final order of removal if they are raised in a petition for

review of final agency action. That jurisdiction is, however, statutorily cabined so that “a

petition for review filed with an appropriate court of appeals in accordance with this section

shall be the sole and exclusive means for judicial review of an order of removal,” exclusive

even of “habeas corpus review pursuant to section 2241 of Title 28.” 8 U.S.C. § 1252(a)(5);

see Luna v. Holder, 637 F.3d 85, 94 (2d Cir. 2011) (observing that this court has construed

§ 1252(a)(2)(D) to provide jurisdiction to review “same types of issues that courts

traditionally exercised in habeas review over Executive detentions” (internal quotation marks

omitted)). Meanwhile, 8 U.S.C. § 1252(g) makes clear that a decision by the Attorney

General to “execute” a final order of removal is not subject to judicial review. Accordingly,

because Singh acted contrary to these provisions in employing a habeas petition effectively



                                              5
to challenge the validity and execution of his removal order, the federal courts are

jurisdictionally barred from reviewing his claims.

       Even if Singh’s habeas petition were an appropriate vehicle to raise a legal challenge

to the agency’s rescission of his grant of asylum, and, therefore, its decision to remove him,

we would still lack jurisdiction to review the legality of the agency’s actions because Singh

failed to exhaust his administrative remedies. Pursuant to 8 U.S.C. § 1252(d)(1), “[a] court

may review a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right,” id., a requirement that is “jurisdictional, not

merely mandatory,” Grullon v. Mukasey, 509 F.3d 107, 112 (2d Cir. 2007). Although Singh

filed a brief in opposition to the INS field office’s sua sponte motion to reconsider and

possibly rescind his grant of asylum, see 8 C.F.R. § 103.5(a)(5)(ii) (requiring field officer to

provide affected party 30 days to submit brief), Singh failed to seek any further agency

review of the rescission decision, despite the INS field office’s instructions that he could

pursue his asylum claim in the Immigration Court. Instead, Singh filed a petition for a writ

of habeas corpus in the United States District Court for the Western District of New York,

which transferred the petition to the Ninth Circuit as a petition for review of his removal

order pursuant to the REAL ID Act. When the Ninth Circuit dismissed Singh’s petition for

review of the removal order, he filed a second habeas petition in the Western District of New

York. Thus, Singh’s failure to exhaust administrative remedies as to any claimed defects in

rescission of his grant of asylum is another reason why we lack jurisdiction over his petition.

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       Our determination that we lack jurisdiction makes it unnecessary to address Singh’s

argument that the district court erred in granting the government summary judgment because

he was not prejudiced by the INS’s failure to comply with the procedures specified in

8 C.F.R. § 208.24(c). As a general rule, “[p]arties claiming denial of due process in

immigration cases must, in order to prevail, allege some cognizable prejudice fairly

attributable to the challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d

Cir. 2008) (internal quotation marks omitted). Where procedures are promulgated to ensure

constitutional due process to persons granted asylum who face rescission of that status,

however, such a showing of prejudice with respect to the final result may not be necessary.

See Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993) (holding that petitioner need not show

prejudice from INS’s failure to adhere to regulation, and remand to agency is required if

“regulation is promulgated to protect a fundamental right derived from the Constitution or

a federal statute”). Nevertheless, Singh fails to demonstrate that the alleged § 208.24(c) error

deprived him of constitutional due process. As the Supreme Court has ruled: “The

fundamental requirement of due process is the opportunity to be heard at a meaningful time

and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal

quotation marks omitted). This standard is a flexible one. The INS gave Singh 30 days “to

provide any rebuttal argument or information in response to INS’s intention to rescind [his]

grant of asylum.” JA 57. Singh then filed a timely brief in which he argued that the INS did

not follow its procedures and requested an interview regarding the rescission. In its

                                               7
Rescission Notice dated April 23, 2001, the INS informed Singh that he “failed to overcome

the grounds for rescission stated in the motion to reconsider.” JA 67. Even if these

procedures did not afford the specific process detailed in § 208.24(c), they satisfied the

constitutional requirements of a meaningful opportunity to be heard. Morever, it seems

unlikely that compliance with § 208.24(c) procedures would yield any different result in this

case, given that § 208.24(a) provides for the termination of asylum upon “a showing of fraud

in the alien’s application.”

         In sum, because Singh raises the alleged § 208.24(c) error in a manner that effectively

challenges a final order of removal, which may not be pursued as a § 2241 petition and, in

any event, is unexhausted in the agency, the federal courts lack jurisdiction to hear Singh’s

claim.

         Accordingly, the judgment is VACATED and the petition is REMANDED to the

district court with instructions to DISMISS the petition for lack of jurisdiction.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




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