from the United States District Court for the District of New
Mexico (D.C. No. 1:15-CV-00910-MV-LF)
Vrapi, Noble & Vrapi, P.A., Albuquerque, New Mexico, for
Han, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney, and Marisa A. Ong, Assistant
United States Attorney, Las Cruces, New Mexico, with him on
the briefs), Office of the United States Attorney,
Albuquerque, New Mexico, for Respondents-Appellees.
TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
Gonzalez-Alarcon filed a habeas petition under 28 U.S.C.
§ 2241 alleging specific facts which, if proven, would
demonstrate that he is a United States citizen. He seeks
release from custody from Immigration and Customs Enforcement
("ICE") following ICE's reinstatement of a
prior order of removal on that basis. Dismissing
Gonzalez-Alarcon's petition, the district court concluded
that he was required to exhaust administrative remedies,
jurisdiction was barred by the REAL ID Act, and the petition
for review process is an adequate substitute for habeas such
that the REAL ID Act's jurisdiction-stripping provisions
do not offend the Suspension Clause.
conclude that the exhaustion provision at issue, 8 U.S.C.
§ 1252(d), does not govern facially valid citizenship
claims. That subsection applies only to aliens. And because
district courts have jurisdiction to determine their own
jurisdiction, a court must first consider whether a
petitioner is in fact an alien before requiring exhaustion.
If a petitioner is a citizen, the provision does not apply.
further hold that the REAL ID Act's
jurisdiction-stripping provisions raise serious Suspension
Clause concerns in one limited context. With respect to a
United States citizen subject to a reinstated order of
removal for whom the deadline to seek judicial review has
passed, the REAL ID Act appears to bar federal court review.
These restrictions would effectively strip citizenship from
those who do not clear various procedural hurdles.
Citizenship cannot be relinquished through mere neglect.
Afroyim v. Rusk, 387 U.S. 253, 268 (1967). And
"[t]he very nature of the writ demands that it be
administered with the initiative and flexibility essential to
insure that miscarriages of justice within its reach are
surfaced and corrected." Harris v. Nelson, 394
U.S. 286, 291 (1969). Under the Suspension Clause,
Gonzalez-Alarcon must be granted some path to advance his
facially valid claim of citizenship in federal court.
permitting Gonzalez-Alarcon to proceed under the Great Writ,
however, we conclude he should first attempt to obtain review
of his citizenship claim through the REAL ID Act. In a
similar case, the Ninth Circuit held that a habeas petitioner
should file a motion to reopen his immigration
proceedings-even though such a motion would be procedurally
improper-and file a petition for review of any denial
challenging the "jurisdictional issue" of
citizenship. Iasu v. Smith, 511 F.3d 881, 893 (9th
Cir. 2007). In Gonzalez-Alarcon's case, such a petition
would be filed in the Fifth Circuit, where his original
removal proceedings occurred. See § 1252(b)(2).
We ordered supplemental briefing as to whether
Gonzalez-Alarcon could obtain judicial review of his
citizenship claim by following the procedure suggested in
Iasu. The government represents to us that
Gonzalez-Alarcon "could appeal the denial of such a
motion to reopen to the Fifth Circuit in a petition for
review." In light of this position, we conclude that the
appropriate course of action is to stay our hand until
Gonzalez-Alarcon has attempted to obtain judicial review
within the confines of the REAL ID Act. Exercising
jurisdiction under 28 U.S.C. § 1291, we vacate the
district court's decision and remand with instructions to
dismiss without prejudice.
was born in Mexico in 1993. He entered the United States in
2005 and was ordered removed in September 2012. After
Gonzalez-Alarcon reentered the United States, his order of
removal was reinstated in September 2013. He was removed, and
on being found in the United States yet again, was taken into
federal custody and charged with illegal reentry. On April
26, 2015, his order of removal was reinstated.
point, Gonzalez-Alarcon learned that he could claim rights
based on United States citizenship. A child born abroad to an
unwed, citizen mother is a citizen if the mother lived in the
United States for at least one year prior to the child's
birth. 8 U.S.C. § 1409(c). An affidavit submitted by
Gonzalez-Alarcon's mother, Dalia Alarcon, states that she
was born in San Miguel, New Mexico, in 1973 at the hands of a
local midwife. Her parents have always told her that she was
born in the United States. However, she tells us that her
parents did not get a United States birth certificate and
left the United States shortly after her birth. Her parents
divorced in 1979 or 1980 and her father returned to the
United States. She lived with him in Albuquerque for
approximately three years in the 1980s.
great aunt, Beatriz Alarcon-Garcia, also submitted an
affidavit. She states that her brother and his wife came to
live with her in San Miguel, New Mexico in 1972. The couple
lived in a garage near Alarcon-Garcia's house, and joined
the rest of the family for meals. Gonzalez-Alarcon's
grandmother was pregnant at the time with
Gonzalez-Alarcon's mother, and had regular visits with
the local midwife. When she went into labor,
Gonzalez-Alarcon's grandmother went to the midwife's
home and returned with Dalia-Gonzalez-Alarcon's mother.
She also avers that Dalia later returned to New Mexico and
attended school in Albuquerque for several years.
counsel submitted these affidavits, the government dismissed
the criminal charges against Gonzalez-Alarcon. He then moved
for a stay of removal based on his alleged United States
citizenship. On October 9, 2015, while in ICE custody,
Gonzalez-Alarcon filed a § 2241 petition in the district
court. He sought release from custody based on citizenship. A
few days after the complaint was filed, Gonzalez-Alarcon was
released from detention subject to certain conditions. He is
barred from travelling outside the ICE Oklahoma City
sub-office boundaries without prior approval, and must
periodically report to immigration officers.
government moved to dismiss the habeas petition based on
mootness. However, the district court denied the motion,
concluding that the restrictions on Gonzalez-Alarcon
constituted custody for habeas purposes. But it held that the
petition was subject to dismissal for failure to exhaust
administrative remedies and for lack of jurisdiction.
Gonzalez-Alarcon timely appealed.
district court concluded that it lacked jurisdiction under
the REAL ID Act and that the same statute required
Gonzalez-Alarcon to exhaust administrative remedies. We
consider that statute's scope and structure.
general, removal orders are entered under 8 U.S.C. §
1229a, which provides for proceedings before an Immigration
Judge. Orders issued under that section may be appealed to
the Board of Immigration Appeals ("BIA"). 8 C.F.R.
§ 1003.1(b). They are subject to motions to reconsider
and motions to reopen. 8 U.S.C. § 1229a(c)(6), (7); 8
C.F.R. § 1003.2(b), (c). Motions to reconsider are
subject to a twenty-day deadline, and motions to reopen are
subject to a ninety-day deadline. 8 U.S.C. §
1229a(c)(6), (7). These deadlines are subject to equitable
tolling. See Galvez Piñeda v. Gonzales, 427
F.3d 833, 838 (10th Cir. 2005). The BIA may also reopen or
reconsider a decision sua sponte. 8 C.F.R. § 1003.2(a).
are several other types of removal orders. Certain aliens are
subject to expedited removal procedures. See 8
U.S.C. § 1225(b) (aliens determined inadmissible when
arriving in the United States); § 1228(b) (aliens
convicted of an aggravated felony). Gonzalez-Alarcon was
ordered removed under § 1231(a)(5), which allows for
reinstatement of prior removal orders. In such proceedings,
the "prior order of removal is reinstated from its
original date and is not subject to being reopened or
reviewed." Id. An order of removal may be
reinstated by an immigration officer upon three findings: (1)
"the alien has been subject to a prior order of
removal"; (2) "the alien is in fact an alien who
was previously removed, or who departed voluntarily while
under an order of exclusion, deportation, or removal";
and (3) "the alien unlawfully reentered the United
States." 8 C.F.R. § 241.8(a). One subject to
reinstatement "has no right to a hearing before an
immigration judge." Id.
orders may be challenged only by way of a petition for review
filed in the Court of Appeals:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, 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). For purposes
of this chapter, in every provision that limits or eliminates
judicial review or jurisdiction to review, the terms
"judicial review" and "jurisdiction to
review" include habeas corpus review pursuant to section
2241 of Title 28, or any other habeas corpus provision,
sections 1361 and 1651 of such title, and review pursuant to
any other provision of law (statutory or nonstatutory).
8 U.S.C. § 1252(a)(5). The statute further states:
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, 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
petition for review must be filed within thirty days of a
final order of removal. §1252(b)(1). That deadline is
mandatory and jurisdictional; it is not subject to equitable
tolling. Stone v. INS, 514 U.S. 386, 405 (1995).
Further, "[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." §
§ 1231(a)(5) states that reinstated orders of removal
are not subject to being "reviewed, " the statute
also states that "[n]othing . . . in any other provision
of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review." § 1252(a)(2)(D). We
have thus held that "Congress clearly provided for our
review of 'constitutional claims or questions of law'
related to reinstatement orders." Lorenzo v.
Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007) (quoting
§ 1252(a)(2)(D)). However, an individual petitioning for
review of a reinstatement order cannot challenge the original
order of removal, "including constitutional claims or
questions of law, " because such a challenge will be
time barred. Cordova-Soto v. Holder, 659 F.3d 1029,
1032 (10th Cir. 2011).
time Gonzalez-Alarcon filed his habeas petition, the deadline
for filing a petition for review of his reinstated removal
order had expired. Because Gonzalez-Alarcon reentered the
country after having been removed, his "prior order of
removal is reinstated from its original date and is not
subject to being reopened." § 1231(a)(5). Further,
the BIA will not permit individuals to reopen removal
proceedings after they have left the country. See 8
C.F.R. § 1003.2(d) ("A motion to reopen or a motion
to reconsider shall not be made by or on behalf of a person
who is the subject of exclusion, deportation, or removal
proceedings subsequent to his or her departure from the
United States."). Our court has held that the
post-departure bar is invalid because it is inconsistent with
8 U.S.C. § 1229a(c)(7), which states that "[a]n
alien may file one motion to reopen proceedings under this
section." Contreras-Bocanegra v. Holder, 678
F.3d 811, 813 (10th Cir. 2012) (en banc). But the Fifth
Circuit has held that this rule extends only to motions to
reopen or reconsider, not to sua sponte reopening or
reconsideration. See Garcia-Carias v. Holder, 697
F.3d 257, 265 (5th Cir. 2012) (distinguishing
Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir.
2003)). We note the Fifth Circuit's rule because
Gonzalez-Alarcon's original removal proceedings occurred
in the Fifth Circuit, and a petition for review must be
"filed with the court of appeals for the judicial
circuit in which the immigration judge completed the
proceedings." 8 U.S.C. § 1252(b)(2).
review de novo a district court dismissal for failure to
exhaust. Jernigan v. Stuchell, 304 F.3d 1030, 1032
(10th Cir. 2002). As noted above, § 1252(d) states that
an order of removal is reviewable only if "the alien has
exhausted all administrative remedies available to the alien
as of right." Id. The district court concluded
that Gonzalez-Alarcon had the right to file a Form N-600
application with U.S. Citizenship and Immigration Services
("USCIS"). This form allows an individual to apply
for a "certificate of citizenship." See 8
C.F.R. § 341.1; Children Born Outside the United States;
Applications for Certificate of Citizenship, 66 Fed. Reg. 32,
138, 32, 140 (June 13, 2001).
several of our sibling circuits have recognized, this
exhaustion requirement applies only to "aliens."
§ 1252(d)(1). The Ninth Circuit has thus explained that
"a claim to citizenship need not be exhausted."
Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir.
2005). If exhaustion of a citizenship claim were required,
"it would be possible to unintentionally relinquish U.S.
citizenship. . . . The Constitution does not permit American
citizenship to be so easily shed." Id.
(quotations omitted). Accordingly, that court has held that
"the statutory administrative exhaustion requirement of
§ 1252(d)(1) does not apply to a person with a
non-frivolous claim to U.S. citizenship even if he has
previously been (illegally) deported by the government."
Id. (quotation and alteration omitted); see also
Theagene v. Gonzales, 411 F.3d 1107, 1116 n.4 (9th Cir.
2005) ("[T]he plain language of the statute specifies
that only an alien may be required to exhaust remedies.
Moreover, a citizen cannot transform himself into an alien
merely by failing to raise the question of his citizenship at
the administrative level.").
Eighth Circuit has held that "the exhaustion provisions
of § 1252(d)(1) do not apply to 'any person'
challenging a final order of removal, only to an
'alien.'" Moussa v. I.N.S., 302 F.3d
823, 825 (8th Cir. 2002). Accordingly, federal courts possess
jurisdiction to "determine whether [a petitioner] is an
alien in order to decide whether § 1252(d)(1) applies to
him." Id. As the Fifth Circuit stated the
proposition, courts "always have jurisdiction to
determine [their] jurisdiction." Omolo v.
Gonzales, 452 F.3d 404, 407 (5th Cir. 2006). And because
"[o]nly an 'alien' may be required to exhaust
his administrative remedies, " a court "must
determine whether [a petitioner] is an alien in order to
determine whether § 1252(d)(1) bars . . .
jurisdiction." Id. The Second Circuit is in
accord. See Poole v. Mukasey, 522 F.3d 259, 264 (2d
Cir. 2008) ("The statutory administrative exhaustion
requirement of § 1252(d)(1) does not apply to a person
with a non-frivolous claim to U.S. citizenship."
(quotations and alteration omitted)).
our court has not previously addressed the precise issue, we
have reached a similar conclusion on a related question. In
Shepherd v. Holder, 678 F.3d 1171 (10th Cir. 2012),
we noted that "[c]itizenship constitutes the denial of
an essential jurisdictional fact in a deportation
proceeding" because only aliens are removable.
Id. at 1175 (quotation omitted). And in assessing
jurisdiction under § 1252, we held that "we have
jurisdiction to determine jurisdictional facts"
including "the issue of Ms. Shepherd's
citizenship." Id. at 1179. That case concerned
an alien who was removable following a criminal offense; we
explained that the statute "divests courts of
jurisdiction only if an alien 'is removable by
reason of having committed a criminal offense' 8 U.S.C.
§ 1252(a)(2)(C) (emphasis added). It does not say that
courts lack jurisdiction if the alien is found
deportable." Id. at 1180 (quotation and
ellipses omitted). Accordingly, "Congress may limit
federal court jurisdiction through provisions such as the
§ 1252(a)(2)(C) bar, but courts have authority to
determine whether the factual conditions for the bar are
present." Id.Applying the same analysis, and
joining the circuits noted above, we conclude that §
1252(d)(1) does not require that a claim of citizenship be
appears that the sole circuit court decision requiring
exhaustion of a citizenship claim is Johnson v.
Whitehead, 647 F.3d 120 (4th Cir. 2011). In that case,
the court did not consider § 1252(d)(1). Instead, it
held that a citizenship claim was barred for failure to
exhaust under 8 U.S.C. § 1503 because the petitioner had
failed to administratively appeal the denial of his Form
N-600. Johnson, 647 F.3d at 125. Section 1503
permits the filing of a declaratory judgment action if an
individual "claims a right or privilege as a national of
the United States and is denied such right or privilege by
any department or independent agency, or official thereof,
upon the ground that he is not a national of the ...