                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                        UNITED STATES COURT OF APPEALS                 November 30, 2010
                                                                       Elisabeth A. Shumaker
                                     TENTH CIRCUIT                         Clerk of Court




 NAMGYAL TSERING,

          Petitioner - Appellant,

 v.
                                                            No. 08-1299
 UNITED STATES IMMIGRATION &                                 (D. Colo.)
 CUSTOMS ENFORCEMENT, (“ICE”);                     (D.C. No. 1:08-CV-1172-EWN)
 CARL ZABAT, Detention and Removal
 Supervisor, ICE, Aurora, Colorado; JOHN
 LONGSHORE, Director of the Detention
 and Removal Field Office, ICE, Denver,
 Colorado; MICHAEL CHERTOFF,
 Secretary of Department of Homeland
 Security (“DHS”); MICHAEL B.
 MUKASEY, Attorney General,

          Respondents - Appellees.


                                ORDER AND JUDGMENT*


Before MURPHY and HOLMES, Circuit Judges, and ARMIJO,** District Judge.




      *
               This order and judgment is not binding precedent, except under the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.
      **
              The Honorable M. Christina Armijo, United States District Judge for the
District of New Mexico, sitting by designation.
I.     Introduction

       Namgyal Tsering, a Tibetan national who was removed from the United States to

Nepal on June 4, 2008, appeals from the district court’s Order dismissing his case on the

ground of mootness, as well as its Order denying reconsideration. Having determined

that 8 U.S.C. § 1252(g) precludes judicial review of Mr. Tsering’s claims, we dismiss for

lack of jurisdiction.

II.    Factual Background

       Namgyal Tsering is a Tibetan national who entered the United States in 1998 on a

visitor’s visa and with a Nepalese passport showing a name, nationality, country of birth

and date of birth that were not his own. Mr. Tsering thereafter unsuccessfully applied for

asylum. In 2008, in an Oral Decision of the Immigration Judge After Remand, Mr.

Tsering was ordered removed. In his decision, which became administratively final on

January 17, 2008, the Immigration Judge specifically found that Mr. Tsering is Tibetan.

       In March of 2008, Mr. Tsering reported to the Denver office of the Department of

Homeland Security and was placed in the custody of United States Immigration and

Customs Enforcement (ICE). On June 4, 2008, Mr. Tsering was removed to Nepal.

       As is relevant here, on May 12, 2008, Mr. Tsering’s attorney learned that ICE had

obtained travel documents from the Nepal embassy on the basis of documents and

information misrepresenting Mr. Tsering to be a Nepali citizen. Accordingly, the

attorney sent a letter to John Longshore, director of ICE’s Denver Detention and Removal

                                            -2-
Office, explaining that “the travel documents ICE had obtained from Nepal were obtained

based on false information submitted by ICE to the Nepalese Embassy.” [Aplt’s Opening

Brief at 9].




       On June 3, 2008, Mr. Tsering filed an Emergency Petition for Writ of Habeas

Corpus and Complaint for Declaratory and Injunctive Relief. The petition was entered

on the docket on June 4, 2008. Also on June 4, 2008, Mr. Tsering filed an Emergency

Motion for Temporary Restraining Order and Preliminary Injunction, having been

removed earlier that same day. The district court dismissed the case, finding that the

emergency motion was moot in light of Mr. Tsering’s removal. [Aplt’s Opening Brief;

Att. 1; see also Dkt. 1in 08cv1172EWN]. On July 22, 2008, the district court denied Mr.

Tsering’s motion for reconsideration on the ground that the court “continue[d] to be of the

view that the case is moot and that any further relief must be sought from the court of

appeals.” [Aplt’s Opening Brief; Att. 2]. On August 21, 2008, Mr. Tsering filed his

notice of appeal.

III.   Discussion

       “Federal courts are not courts of general jurisdiction; they have only the power that

is authorized by Article III of the Constitution and the statutes enacted by Congress

pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct.

1326, 89 L.Ed.2d 501 (1986). “For that reason, every federal appellate court has a special

                                            -3-
obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts

in a cause under review, even though the parties are prepared to concede it.” Id.

(quotations omitted). Generally speaking, then, “we must address questions pertaining to

our or a lower court’s jurisdiction before proceeding to the merits.” United States v.

Green, 405 F.3d 1180, 1184 (10th Cir. 2005) (citing Tenet v. Doe, 544 U.S. 1, 6 n. 4, 125

S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82 (2005)). Moreover, a challenge to a court’s

jurisdiction may be raised at any time, even for the first time on appeal. United States v.

Bustillos, 31 F.3d 931, 933 (10th Cir. 1994).

       Between 1961 and 1996, the Immigration and Nationality Act (8 U.S.C. § 1158)

made the courts of appeals the sole and exclusive fora for judicial review of orders of

deportation. Singh v. Gonzales, 499 F.3d 969, 975 (9th Cir. 2007). While “[h]abeas

review remained available to a limited class of aliens,” id. at 976, “the fundamental

purpose behind [this jurisdictional provision] was to abbreviate the process of judicial

review of deportation orders in order to frustrate certain practices which had come to the

attention of Congress, whereby persons subject to deportation were forestalling departure

by dilatory tactics in the courts.” Foti v. I.N.S., 375 U.S. 217, 224, 84 S.Ct. 306, 311

(1963). In 1996, Congress sought to streamline immigration proceedings further by

enacting the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.

No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3546 (1996).




                                              -4-
Through both of these Acts, Congress repealed the provision allowing habeas review for

certain aliens. Singh, 499 F.3d at 976.

       The REAL ID Act of 2005 again curtailed habeas review. As we have explained,

“[t]he REAL ID Act, inter alia, shifted certain immigration disputes formerly raised

through habeas corpus in the district courts to the courts of appeals and converted them

into petitions for review.” Hem v. Maurer, 458 F.3d 1185, 1188 n.3 (10th Cir. 2006)

(citing Pub.L. No. 109-13, 119 Stat. 231 (2005)). In Maurer, we went on to say that, in

enacting the REAL ID Act,

              Congress added a new provision codified at 8 U.S.C. §
              1252(a)(5). Subsection (a)(5), entitled “Exclusive Means of
              Review,” provides:

                     Notwithstanding any other provision of law
                     (statutory or nonstatutory), including section
                     2241 of title 28, United States Code, or any
                     other habeas corpus provision, and sections
                     1361 and 1651 of such title, 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 entered or issued under
                     any provision of this chapter, except as provided
                     in subsection (e) of this section.

              Thus, this section makes a petition for review to an appellate
              court the sole means of review of an order of removal issued
              under the INA, and specifically excludes review under the
              habeas statutes.

Maurer, 458 F.3d at 1188 n.3 (emphasis added).




                                            -5-
       Subsection (g) of § 1252 similarly sets forth an “exclusive jurisdiction” provision.

In Reno v. American-Arab Anti-Discrimination Comm., the United States Supreme Court

considered the reach of § 1252(g), which provides:

              Except as provided in this section and notwithstanding any
              other provision of law, no court shall have jurisdiction to hear
              any cause or claim by or on behalf of any alien arising from
              the decision or action by the Attorney General to commence
              proceedings, adjudicate cases, or execute removal orders
              against any alien under this Act.

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 477-478, 119 S.Ct.

936941 (1999) (“AADC”) (quoting 8 U.S.C. § 1252(g)). The Court concluded that

§ 1252(g) demands a narrow reading, and “applies only to three discrete actions that the

Attorney General may take: [the] ‘decision or action’ to ‘commence proceedings,

adjudicate cases, or execute removal orders.’” AADC, 525 U.S. at 482, 119 S.Ct. at 943

(emphasis in original).

       Although the Supreme Court in AADC considered discretionary actions to which

§ 1252(g) applies, “it did not explicitly state that the provision applies only to review of

discretionary decisions by the Attorney General in these areas and not to review of

non-discretionary decisions.” Foster v. Townsley, 243 F.3d 210, 214 (5th Cir. 2001). To

the contrary, explained the Fifth Circuit, the plain language of § 1252(g) speaks of “‘any

cause or claim’ that ‘aris[es] from the decision or action by the Attorney General’ in the

three areas.” Id. (quoting 8 U.S.C. § 1252(g)). For this reason, just as it was necessary

for the Fifth Circuit in Foster, we must determine whether Mr. Tsering’s claims “arise


                                             -6-
from” actions over which § 1252(g) precludes judicial review. We conclude that they do.

       Mr. Tsering claims that he was denied both substantive and procedural due process

as a result of ICE’s removal of him “based on a false identity that represented him to be a

Nepali citizen[]” when, in fact, he is Tibetan. [Aplt’s Opening Brief at 16]. He contends

that § 1252(g) “does not preclude claims . . . that the Attorney General/ICE is exceeding

its authority in requesting travel documents from a foreign country and removing an alien

based on wrongfully obtained travel documents.” [Aplt’s Reply Brief at 15].

       We agree with the Fifth Circuit that “claims that clearly are included within the

definition of ‘arising from’ . . . [are] those claims connected directly and immediately

with a ‘decision or action by the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders.’” Humphries v. Various Federal USINS Employees,

164 F.3d 936, 943 (5th Cir. 1999) (emphasis added). Mr. Tsering’s claim that “ICE

submitted a request for travel documents for Mr. Tsering to the Nepal Embassy and

included in its request a false Nepali passport that portrayed Mr. Tsering as a Nepali

citizen[,]” [Aplt’s Opening Brief at 10], is directly and immediately connected to the

execution of his removal order, because these travel documents allowed for Mr. Tsering’s

removal to Nepal. Because Mr. Tsering’s claims arise from actions over which § 1252(g)

precludes judicial review, we conclude that we are without jurisdiction to consider or

review them further.

       Even if this were not the case, however, we would be hard-pressed to view this

matter as one for which federal habeas relief would be available. We emphasize that at

                                            -7-
the time Mr. Tsering filed his Emergency Petition for Writ of Habeas Corpus and

Complaint for Declaratory and Injunctive Relief he was in custody. However, because he

has since been released (removed), he would need to demonstrate that “‘[has] suffered, or

[is] threatened with, an actual injury traceable to [ICE] and likely to be redressed by a

favorable judicial decision.’” Tapia-Garcia v. I.N.S., 237 F.3d 1216, 1217-18 (10th Cir.

2001) (quoting Lewis v. Cont’l. Bank Corp., 494 U.S. 472, 478, 110 S.Ct. 1249, 108

L.Ed.2d 400 (1990)). He would also need to show “collateral consequences” to his

deportation. See Tapia-Garcia, 237 F.3d at 1218 (“Because [petitioner] is no longer

subject to deportation and is not being detained by the INS, his situation is analogous to a

prisoner whose sentence has expired. As such, his deportation must have ‘collateral

consequences’ in order to present a case or controversy cognizable on appeal.”).

       Mr. Tsering argues that the collateral consequence he faces as a result of his

deportation is the fact that his removal from the United States renders him inadmissible

for a period of 10 years, thus preventing him from residing legally in this country with his

son. [Aplt’s Opening Brief at 15]. Importantly, however, he does not challenge his

removability in general; he challenges his removal to specifically Nepal. Thus, a major

flaw in his argument is that he would be facing the same consequence—inadmissibility—

had he been removed properly. In this regard, Mr. Tsering’s situation is far different from

the one that arose in Tapia-Garcia, which Mr. Tsering submits is controlling, and in

which we held that an appeal was not moot because a favorable judicial decision would

“undoubtedly” have redressed the claimed injury inasmuch as the petitioner’s status as a

                                             -8-
legal permanent resident would have been restored and he would have been allowed to

return to the United States. Tapia-Garcia, 237 F.3d at 1218. The petitioner in Tapia-

Garcia, however, had appealed from the Board of Immigration Appeals’ decision

affirming the Immigration Judge’s ruling that he was removable; Mr. Tsering has not

challenged his removability.

       We note that at oral argument, counsel for Mr. Tsering posited that this case

“began as a habeas case and it remains a habeas case.” However, when questioned as to

what would provide us with a basis to give relief if this were not a habeas case, counsel

conceded that, were that the situation, “ICE’s actions would wholly evade review. ICE

would be free to act with impunity. . . .”   We determine that this case is not properly

brought as a habeas case but that, even if it had been, we can provide Mr. Tsering no

relief where (1) he no longer is in ICE custody, and (2) he has not demonstrated, among

other things, collateral consequences resulting from his deportation.

IV.    Conclusion

       For the reasons set forth above and, having determined that 8 U.S.C. § 1252(g)

precludes judicial review of Mr. Tsering’s claims, we dismiss this case for lack of

jurisdiction.

                                                    ENTERED FOR THE COURT,



                                                    M. Christina Armijo
                                                    District Judge Sitting by Designation


                                              -9-
