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Gonzalez-Alarcon v. Macias

United States Court of Appeals, Tenth Circuit

March 19, 2018

ABRAHAM ALEJANDRO GONZALEZ-ALARCON, Petitioner - Appellant,
v.
ADRIAN P. MACIAS, El Paso Field Office Director, Immigration and Customs Enforcement; RONALD WARREN, Assistant Field Officer Director, Immigration and Customs Enforcement, Respondents - Appellees.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CV-00910-MV-LF)

          Olsi Vrapi, Noble & Vrapi, P.A., Albuquerque, New Mexico, for Petitioner-Appellant.

          Edward 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.

          Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.

          LUCERO, Circuit Judge.

         Abraham 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.

         We 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.

         We 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.

         Before 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.

          I

         Gonzalez-Alarcon 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.

         At some 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).[1] 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.

         Gonzalez-Alarcon's 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.

         After 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.

         The 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.

          II

         The 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.

         In 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).

         There 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.

         Removal 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 chapter.

§ 1252(g).

         A 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." § 1252(d)(1).

         Although § 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).

         At the 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).

         III

         We 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).

         As 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.").

         The 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)).

         Although 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.[2]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 exhausted.

         It 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 ...


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