                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2003

Duvall v. Dist Dir INS Phila
Precedential or Non-Precedential: Precedential

Docket No. 02-3829




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                       PRECEDENTIAL

                                Filed July 11, 2003

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 02-3829


         ANDREA PATRICIA DUVALL
                      v.
          KENNETH JOHN ELWOOD,
          DISTRICT DIRECTOR, U.S.
          DEPARTMENT OF JUSTICE
                      Kenneth Elwood, Philadelphia
                      District Director of the
                      Immigration and
                      Naturalization Service,
                                    Appellant

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
           (D.C. Civ. No. 02-CV-2081)
 District Judge: Honorable Edmund V. Ludwig

       Argued: Thursday, April 24, 2003
  Before: SCIRICA, Chief Judge, AMBRO and
            GARTH, Circuit Judges

        (Opinion Filed: July 11, 2003)
                                   2


                          Donald E. Keener
                          Anthony A. Yang (argued)
                          United States Department of Justice
                          Office of Immigration Litigation
                          P.O. Box 878
                          Ben Franklin Station
                          Washington, D.C. 20044
                          Susan R. Becker
                          Office of United States Attorney
                          615 Chestnut Street, Suite 1250
                          Philadelphia, Pennsylvania 19106
                          Attorneys for Appellant
                          Derek W. Gray (argued)
                          Steel, Rudnick & Ruben
                          1608 Walnut Street, Suite 1500
                          Philadelphia, Pennsylvania 19103
                          Attorney for Appellee


                    OPINION OF THE COURT

GARTH, Circuit Judge:
   The Government appeals from an order of the District
Court granting Andrea Duvall’s habeas corpus petition. The
District Court ruled that the Board of Immigration Appeals
(“BIA”) erred when it held that the doctrine of collateral
estoppel did not bar the Immigration and Naturalization
Service (“Service”) from relitigating Duvall’s alienage during
a different proceeding involving two new crimes she
committed.
  We do not reach the merits of the collateral estoppel
question decided in Duvall’s favor by the District Court.
Instead, we hold that the District Court lacked jurisdiction
to entertain Duvall’s habeas corpus petition. Accordingly,
we will vacate the District Court’s judgment1 and remand

1. The District Court’s August 9, 2002 judgment granted Duvall’s
petition for a writ of habeas corpus, barred the Service by collateral
estoppel from relitigating the issue of alienage and released Duvall from
custody by the Service.
                               3


with a direction that the District Court dismiss Duvall’s
habeas petition.

                               I.
  The District Court held that it had jurisdiction over this
habeas action pursuant to 28 U.S.C. § 2241. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We have
plenary review over a district court’s grant of a habeas
corpus petition, see Yang v. Maugans, 68 F.3d 1540, 1546
(3d Cir. 1995), and a district court’s subject matter
jurisdiction. See Growth Horizons, Inc. v. Delaware Country,
Pa., 983 F.2d 1277, 1280 (3d Cir. 1993).

                              II.
   Andrea Duvall is a native and citizen of Jamaica who, in
October 1993, became a lawful permanent resident in the
United States. Since arriving in the United States in 1987,
she has been no stranger to crime. In 1989, she pled guilty
to crimes of petit larceny and retail theft, and was convicted
of another incident of retail theft. Also in that year, she pled
guilty to three other offenses—two for retail theft and one
for third-degree felony theft by receiving stolen property.
These pleas did not account for all of the other criminal
offenses with which she was charged. Other charges were
dropped in exchange for her testimony against a co-
conspirator. In 1990, Duvall again pled guilty to separate
instances of shoplifting and retail theft. In the early 1990s,
she was convicted on two more unrelated charges of retail
theft and for possession of burglar’s tools.
  These convictions led to a November 1993 deportation
hearing. At that hearing, Duvall refused to answer
questions about her alienage. The Service then sought to
introduce her application for permanent residence. In that
application, Duvall admitted her alienage, but the
Immigration Judge (“IJ”) excluded the document from
evidence as the Service had failed to comply with Local
Rules, which required that the document be submitted ten
days prior to hearing. Accordingly, the IJ held that the
Service could not prove alienage and thus ended the
hearing.
                                    4


   Undaunted, Duvall continued her criminal exploits,
acquiring two additional felony convictions by 2000.2
Following these convictions and after having been informed
of her right to remain silent, on March 12, 2001 she offered
a voluntary sworn statement with the Service admitting her
alienage. Subsequently, the Service initiated new removal
proceedings against her on March 16, 2001, charging that
she was an alien subject to removal for having been
convicted for two new crimes involving moral turpitude, 8
U.S.C. § 1227(a)(2)(A)(ii), and for being convicted of an
aggravated felony involving a theft offense for which a term
of imprisonment of at least one year was imposed, 8 U.S.C.
§ 1227(a)(2)(A)(iii).
  The IJ terminated proceedings on June 6, 2001, granting
Duvall’s motion to collaterally estop the Service from
relitigating the alienage issue. On December 6, 2001, the
BIA reversed the IJ’s collateral estoppel ruling and
remanded for proceedings to continue before the IJ. The
BIA denied Duvall’s motion for rehearing on March 20,
2002.
  Subsequently, Duvall filed a habeas petition in the
District Court for the Eastern District of Pennsylvania on
June 6, 2002. The District Court granted her petition on
August 9. Duvall v. Elwood, No. CIV.A.02-2081, 2002 WL
1870457 (E.D. Pa. Aug. 9, 2002) (unpublished). In granting
her petition, the District Court focused wholly on the
collateral estoppel issue and held that the Service was
barred from relitigating the issue of alienage. Accordingly,
the District Court entered an order which directed Duvall’s
release from the Service. In granting Duvall’s petition, the
District Court gave short shrift to the question of the
court’s jurisdiction and indeed erred in holding that Duvall
did not have to exhaust administrative remedies.

                                   III.
  Our analysis begins with the Immigration and
Naturalization Act (“INA”) § 242(d)(1), 8 U.S.C. § 1252(d)(1),

2. In 1995, Duvall pled guilty to third-degree felony retail theft. In July
2000, she pled guilty to another third-degree felony retail theft.
                                    5


which provides, in pertinent part, that “[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.
. . .” (emphasis supplied).
  Notwithstanding this provision, the District Court
concluded, without analysis, that it had habeas jurisdiction
under 28 U.S.C. § 2241 to entertain Duvall’s claim. In so
doing, the District Court stated that “[e]xhaustion of
administrative remedies is not required here and defendant
has not raised it as a defense. McCarthy v. Madigan, 503
U.S. 140, 144 (1992) (exhaustion is a matter of judicial
discretion unless mandated by statute).” Duvall, 2002 WL
1870457, at *1 n.1.3
   It is settled that where Congress has “clearly required
exhaustion,” McCarthy, 503 U.S. at 144, or where
congressional intent is at least “fairly discernible,” Massieu
v. Reno, 91 F.3d 416, 420 (3d Cir. 1996) (citation omitted),
exhaustion will be deemed statutorily mandated.
   The predecessor to 8 U.S.C. § 1252(d)(1), which is the
relevant statute here, was 8 U.S.C. § 1105a(c).4 Section
1105a(c) was repealed in 1996 and replaced by the current
§ 1252(d). The predecessor statute, just as the current
statute, denied review of orders of deportation or removal
where an alien had not exhausted administrative remedies.
  Section 1252(d)(1) reads, in relevant part: “A court may
review a final order of removal only if—(1) the alien has
exhausted all administrative remedies available to the alien
as of right. . . .” 8 U.S.C. § 1252(d)(1) (emphasis supplied).

3. The District Court noted further that the Government did not raise
exhaustion as a defense, implying that it had waived recourse to such an
argument. However, subject matter jurisdiction can never be waived. See,
e.g., Okereke v. United States, 307 F.3d 117, 120 n.1 (3d Cir. 2002).
4. The prior codification of § 1252(d) was INA § 106(c), 8 U.S.C.
§ 1105a(c) (1994), which was repealed by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208,
Div. C. Title III, § 306(b), 110 Stat. 3009-612. Similar to § 1252(d),
§ 1105a(c) provided, in pertinent part, that “an order of deportation or of
exclusion shall not be reviewed by any court if the alien has not
exhausted the administrative remedies available to him as of right under
the immigration laws and regulations.” INA § 106(c), 8 U.S.C. § 1105a(c).
                                    6


  Section 1105a(c) states the               same     requirements       in
essentially the same language:
     (c) Exhaustion of administrative remedies . . . .
     An order of deportation or of exclusion shall not be
     reviewed by any court if the alien has not exhausted
     the administrative remedies available to him as of right
     . . . . Every petition for review or for habeas corpus
     shall state whether the validity of the order has been
     upheld . . . .
8 U.S.C. § 1105a(c) (repealed 1996) (emphasis supplied).5

5. We are aware that the current § 1252(d)(1) does not mention habeas
corpus whereas its predecessor, § 1105a(c), does. The question as to
whether there is a distinction as to “review” (a direct appeal from the
BIA) versus a habeas corpus petition, was addressed in INS v. St. Cyr,
533 U.S. 289 (2001). In St. Cyr, the issue before the Supreme Court was
whether certain jurisdiction-stripping provisions of the INA (8 U.S.C.
§§ 1252(a)(1), 1252(a)(2)(C), and 1252(b)(9) (1994 ed., Supp. V)) removed
entirely from federal courts the jurisdiction to hear habeas cases
involving certain types of immigration orders, where direct appeals to the
federal courts had been removed. St. Cyr, 533 U.S. at 310-11. The
Supreme Court held that these provisions did not bar habeas review
because such a construction would “invoke[ ] the outer limits of
Congress’ power,” and thus “would raise serious constitutional
problems,” id. at 299-300, and thereby should not be adopted without “a
clear statement of congressional intent to repeal habeas jurisdiction.” Id.
at 298. As a basis for this conclusion, the Supreme Court reasoned that
references in the statutory provisions at issue to “judicial review” or
“review” should not be read to foreclose habeas corpus review because
“[i]n the immigration context, ‘judicial review’ and ‘habeas corpus’ have
historically distinct meanings.” Id. at 311-12 (citation omitted).
  Since St. Cyr, the question as to whether there is a distinction between
“review” (direct appeal from the BIA) as distinct from a habeas corpus
petition, in the context of § 1252(d)(1) in particular, has been addressed
in Sundar v. INS, 328 F.3d 1320, 1324-25 (11th Cir. 2003) (no
distinction) and Beharry v. Ashcroft, 329 F.3d 51, 59-63 (2d Cir. 2003)
(not decided). The Eleventh Circuit distinguished St. Cyr, which Sundar
raised in support of his argument. Relying on St. Cyr, Sundar argued
that “review” in § 1252(d)—“A court may review a final order of removal
only if ”—applies only to direct review proceedings in the courts of
appeals and not to habeas proceedings. Sundar, 328 F.3d at 1324
(emphasis supplied). The Eleventh Circuit distinguished St. Cyr’s parsing
                                    7


   Because both statutes in their “review” clauses are
virtually identical and because 8 U.S.C. § 1105a(c) was the
subject of our Massieu opinion, we find Massieu’s analysis
and discussion instructive and controlling here. We held in
Massieu that the exhaustion requirement of § 1105a(c) was
statutory and thus jurisdictional, thereby barring a petition
for habeas corpus in the district court where there was no
final order and no exhaustion of administrative remedies.
We also held that Massieu’s claim—that the provision of the
INA under which he was deportable was unconstitutional—
did not provide an exception to the jurisdictional
requirements of §1105a(c) because such a claim was not
collateral to his deportability and because he could receive
meaningful review of his claims in this court after final
administrative action. Massieu, 91 F.3d at 426.
  In Massieu, we acknowledged that the immigration courts
are not authorized to consider the constitutionality of their
own governing statute, but we were persuaded by the fact
that exhaustion could well resolve any controverted matter
without the need for involvement by the federal courts. We
also relied on the fact that we could consider any
constitutional   challenge   upon    completion     of    the
administrative proceedings. We allowed that there was one

of the meaning of “review” as being limited to the context of the
jurisdiction-stripping provisions of the IIRIRA amendments. Id. at 1324-
25. The Eleventh Circuit pointed out the obvious contrast of the
jurisdiction-stripping provisions at issue in St. Cyr with § 1252(d), which
does not completely preclude jurisdiction, but rather limits habeas
jurisdiction to aliens who have exhausted their administrative remedies,
and thus, not implicating a constitutional question. Id. at 1324 (“The
difference is that between a reasonable condition precedent and an
unconditional preclusion.”).
  We need not discuss in more detail that issue in this case as Duvall
has not raised it nor relied upon it. It suffices for us to say that the
requisites of § 1252(d)(1) do indeed apply to petitions for habeas corpus,
notwithstanding the fact that the statute does not specifically reference
habeas corpus. To read the statute otherwise would defeat the statute’s
purpose in seeking to streamline the administrative process and in
preventing delay by premature and unnecessary recourse to a federal
court. See Massieu, 91 F.3d at 421-22.
                                      8


exception to our jurisdictional holding. That exception
involved an issue “entirely collateral” to the merits, id. at
422-24, an exception that has no relevance to Duvall’s
petition.
   Based on our detailed analysis in Massieu, including
consideration of Congress’s stated purpose, the statute’s
legislative history and the overall structure of the
administrative process (with due consideration given to a
petitioner’s securing meaningful review of his claims after
exhaustion), see id. at 420, we held that the District Court
lacked jurisdiction to entertain Massieu’s petition in that
Massieu had failed to obtain a final order of removal and
had failed to exhaust administrative remedies. Id. at 426.
While Massieu, as we have recited, was concerned with
§ 1105a(c), whereas here we are concerned with its
successor, § 1252(d)(1), the identity of the two statutes
compels us to conclude that § 1252(d)(1) also requires
exhaustion as a prerequisite for federal jurisdiction.6 In this
connection, although Massieu did not dwell on the “final
order” element of the statute, we also conclude that a final
order of removal is a requisite for jurisdiction.
Parenthetically, we note that neither in Massieu, nor in the
present case involving the petitioner Duvall, was there a
final order of removal. Indeed, Duvall acknowledges in her
brief to this court that “. . . no final order of removal has
ever been issued in Ms. Duvall’s case.”
   As we have recognized, our reading of the two statutes,
§ 1252(d)(1) and § 1105a(c), satisfies us that they are so

6. Indeed, the legislative history of Section 306 of IIRIRA, which gave rise
to 8 U.S.C. § 1252(d)(1), although scant, says as much. The legislative
history that does exist strongly suggests that the purpose of the two
provisions is one and the same. Indeed, the House’s conference report
states that the recodification was a “restate[ment of] the current
provisions in the first . . . sentence[ ] of subsection (c) of current section
106 requiring that a petitioner have exhausted administrative remedies.”
H.R. Conf. Rep. No. 104-828, at 220 (1996); see also id. at 219 (“This
section [306] amends INA section 242 to revise and restate the
provisions in current section 106, which is repealed.”).
                                   9


similar that Massieu’s analysis and holding govern the
result we reach here.7
  Our conclusion that § 1252(d)(1) jurisdictionally bars
Duvall’s petition finds support in the Eleventh Circuit’s
Sundar opinion. See Sundar v. INS, 328 F.3d 1320 (11th
Cir. 2003). In Sundar, the petitioner, whose removal had
been ordered, claimed that administrative exhaustion does
not apply in habeas proceedings—an argument rejected by
the Eleventh Circuit. Sundar, 328 F.3d at 1324-25; see also
supra note 5. The interpretation of § 1252(d)(1) and the
Eleventh Circuit’s analysis of Sundar’s unexhausted claims
bolster our holding that jurisdiction is lacking over Duvall’s
petition. As Sundar and Massieu recognize, “[E]xhaustion
serves the twin purposes of protecting administrative
agency authority and promoting judicial efficiency . . . .”
Sundar, 328 F.3d at 1323 (citation omitted).
   In the present case, when the BIA rejected Duvall’s claim
of collateral estoppel and remanded for a hearing before the
IJ, Duvall, in order to exhaust administrative remedies, was
obliged to return to the IJ. At that point, the IJ could have
dealt with her two most recent convictions in 1995 and
2000, as well as with the issue of her alienage, which she
admitted in March 2001. Duvall could have then appealed
the IJ’s order (if adverse to her) to the BIA. Once the BIA
had issued a final order of removal, if it did, Duvall could
have sought to challenge such a final order of removal in
district court.

7. In a F.R.A.P. 28(j) letter sent subsequent to oral argument, Duvall
contends that Massieu is distinguishable. She points out that Massieu
sought to bypass completely the statutorily prescribed procedures for
administrative and judicial review by commencing an action in district
court, without even engaging in hearings by an IJ, nor did Massieu
appeal a decision by the IJ to the BIA.
  Duvall claims that she, on the other hand, has exhausted the
administrative proceedings before the IJ and BIA with respect to the
determinative issue of collateral estoppel. We do not agree. An order
respecting the collateral estoppel issue did issue from the BIA but as we
have recognized and as Duvall herself recognizes, no “final order of
removal” has ever issued and as we discuss in text, Duvall has failed to
exhaust administrative remedies.
                              10


  Her failure to follow this procedure was fatal to the
District Court’s jurisdiction over her habeas petition.
   First, Duvall claims that she is not seeking a review of a
“final order of removal.” It is obvious that she cannot
because, as she admits and as we have noted, no such final
order has ever been issued. Duvall claims further that she
is only seeking to review her detention by the Service—a
detention from which she has been released. Yet, this
deliberate phrasing of her claim, when she is really
challenging the collateral estoppel ruling, cannot escape the
jurisdictional requirements of § 1252(d)(1).
   A “final order,” as the Government points out, has long
been understood “ ‘to include[ ] all matters on which the
validity of the final order is contingent.’ ” INS v. Chadha,
462 U.S. 919, 938 (1983) (citation omitted) (interpreting
§ 1105a). Thus, as this court explained in Massieu, “even
when an alien is attempting to prevent . . . deportation
proceeding[s] from taking place in the first instance and is
thus not, strictly speaking, attacking a final order of
deportation . . . , it is well settled that ‘judicial review is
precluded if the alien has failed to avail himself of all
administrative remedies,’ one of which is the deportation
. . . hearing itself.” Massieu, 91 F.3d at 421 (citations
omitted). It is significant to us as well that Duvall does not
even focus on “detention” as the central point of her appeal.
Rather, her brief, her argument and her analysis deal solely
with the issue of collateral estoppel.
   Duvall also asserts that the Government waived any
exhaustion requirement because it failed to argue that
issue before the District Court. Earlier in this opinion, see
supra note 3, we have adverted to the District Court’s
opinion, which implied that this defense was waived. Just
as we have held that the District Court erred, so do we
reject Duvall’s argument of waiver. Subject matter
jurisdiction is always available at all judicial stages of
review for our examination.
  Lastly, Duvall claims that it would be futile to exhaust
her administrative remedies, referring to the doctrine that
where exhaustion is not clearly mandated by statute, a
futility exception exists. In particular, she urges that
                             11


further administrative proceedings would be futile where
the BIA has already definitively decided that collateral
estoppel does not bar relitigation of whether she is an
“alien” and there is no change in the facts or case law to
suggest that the BIA would change its conclusion.
   We cannot agree. It is clear that we have rejected such an
exception where the statute involved, such as § 1252(d)(1),
requires exhaustion as a matter of jurisdiction. See Nyhuis
v. Reno, 204 F.3d 65, 69 (3d Cir. 2000) (a statute with “a
jurisdictional requirement, . . . by definition cannot be
subject to a futility exception.”); see also Massieu, 91 F.3d
at 424-25.

                             IV.
  We have held that the District Court had no jurisdiction
to entertain Duvall’s petition. Duvall, as we have taken
pains to point out, and as she has admitted, was not issued
a final order of removal and has not exhausted
administrative remedies which Congress, through its
enactment of § 1252(d)(1), required before a district court
can acquire jurisdiction.
   Hence, the District Court should have dismissed Duvall’s
petition without reaching the merits, i.e., the collateral
estoppel issue advanced by Duvall. See Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83, 94 (1998) (“Without
jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases
to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.”) (internal
quotations and citation omitted); Firestone Tire & Rubber
Co. v. Risjord, 449 U.S. 368, 379 (1981) (“A court lacks
discretion to consider the merits of a case over which it is
without jurisdiction . . . .”). Just as the District Court
should not have considered the merits because it had no
jurisdiction to do so, no more will we.
  We will vacate the judgment of the District Court and
remand to that court with a direction to dismiss Duvall’s
petition for want of jurisdiction.
                            12


A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
