Thoung v. United States , 913 F.3d 999 ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
January 22, 2019
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
LINA THOUNG,
Petitioner - Appellant,
v. No. 17-3220
UNITED STATES OF AMERICA,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 5:17-CV-03032-EFM)
Matthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park, Kansas, for
Petitioner-Appellant.
Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United
States Attorney, District of Kansas, and James A. Brown, Assistant United States
Attorney, Chief, Appellant Division, with him on the briefs), Office of the United
States Attorney, Topeka, Kansas, for Respondent-Appellee.
Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.
TYMKOVICH, Chief Judge.
Lina Thoung illegally entered the United States in 2002. After the
government learned of her illegal status, she jointly stipulated to a removal order
after pleading guilty in district court to document fraud. But deportation
proceedings never occurred. Five years later, she filed a writ of habeas corpus
with the district court alleging the court had lacked subject-matter jurisdiction to
enter its order of removal. The district court reaffirmed its jurisdiction to order
removal and rejected Thoung’s habeas petition.
We hold that, because of the REAL ID Act’s limitations on judicial review,
the district court lacked jurisdiction to entertain Thoung’s habeas petition
challenging the prior removal order.
I. Background
Thoung emigrated from Cambodia to the United States in 2002 using a
fraudulently obtained visa in the name and birthdate of another person. In 2007,
she obtained U.S. citizenship and affirmed she had never provided false
information to any government official while applying for any immigration
benefit.
Her fraud was discovered in 2012. She subsequently pleaded guilty to
misusing a visa, permit, and other documents to obtain citizenship, in violation of
18 U.S.C. § 1546(a). As part of her plea agreement, she jointly stipulated to
denaturalization under 8 U.S.C. § 1451(e) and removal from the United States.
Relying on 8 U.S.C. § 1228(c)(5), the district court entered an order of removal.
Immigration authorities, unable to deport Thoung back to Cambodia, eventually
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released her subject to an Order of Supervision. Under this order, Thoung could
be arrested and deported at any time.
In 2017, Thoung filed a writ of habeas corpus—apparently under 28 U.S.C.
§ 2241—alleging the district court had lacked subject-matter jurisdiction to enter
the judicial removal order requested under the plea agreement. Neither the
government nor the district court considered the potential applicability of the
REAL ID Act, 8 U.S.C. § 1252, and the substantial limitations it imposes on
judicial review. On the merits, the district court reaffirmed its jurisdiction to
enter Thoung’s removal order. Thoung appealed the district court’s assertion of
subject-matter jurisdiction to enter the 2013 removal order.
II. Analysis
We first consider whether the district court had subject-matter jurisdiction
to hear Thoung’s habeas petition, a question of statutory interpretation.
Gonzales-Alarcon v. Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We conclude
the REAL ID Act prevents the district court from exercising habeas jurisdiction to
hear Thoung’s petition.
A. The REAL ID Act’s Limitations on Judicial Review
Generally, “[w]rits of habeas corpus may be granted by . . . the district
courts and any circuit judge within their respective jurisdictions.” 28 U.S.C.
§ 2241(a). A person must be “in custody” to seek the habeas writ, id.-3-
§ 2241(c)(1), and a person subject to removal is “in custody” for habeas purposes.
See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).
Nevertheless, the REAL ID Act imposes substantial limitations on judicial
review, including habeas review, of final orders of removal. Removal orders may
be challenged only by way of a petition for review filed in the court of appeals.
According to § 1252(a)(5), “petitions for review” filed with the courts of appeal
are the “sole and exclusive means for judicial review from an order of removal.”
And the statute specifically excludes “habeas corpus review pursuant to sections
1241 . . . or any other habeas corpus provision.” Id. 1 That “sole and exclusive
means for judicial review from an order of removal” is outlined in § 1252(b),
which requires that a petition for review must be filed within thirty days of a final
order of removal. Id. § 1252(b)(1). “That deadline is mandatory and
jurisdictional; it is not subject to equitable tolling.” Gonzales-Alarcon, 884 F.3d
1In full, section 1252(a)(5) provides:
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 from 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).
-4-
at 1271. Thus, although the REAL ID Act permits “review of constitutional
claims or questions of law raised upon a petition for review,” 8 U.S.C.
§ 1252(a)(2)(D), an individual petitioning for review cannot challenge a removal
order once judicial review is time-barred, see Gonzales-Alarcon, 884 F.3d at
1271. By the time Thoung filed her habeas petition with the district court, the
deadline for properly filing a petition for review in accordance with the REAL ID
Act had long expired.
In Gonzales-Alarcon, we emphasized that “Congress clearly intended to
funnel all challenges to removal through the petition for review process.” Id. at
1278. We held that “[u]nder the plain language of [§ 1252(a)(5)], a habeas
challenge to an order of removal is barred regardless of whether the petitioner is
an alien or claims citizenship.” Id. at 1274.
Our circuit is consistent with others in recognizing the REAL ID Act’s
limitations on habeas review. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th
Cir. 2006) (“The REAL ID Act divests the district courts of jurisdiction over the
habeas petitions of aliens; instead, REAL ID Act § 106 states that ‘a petition for
review shall be the sole and exclusive means for judicial review of an order of
removal entered or issued under any provision of [the Immigration and
Nationality Act].’”); Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005)
(REAL ID Act “unequivocally eliminates habeas corpus review of orders of
removal.”).
-5-
Because Thoung’s habeas petition ultimately seeks to invalidate the district
court’s removal order, we conclude she is seeking “judicial review of an order of
removal” in a manner prohibited by § 1252(a)(5).
B. The REAL ID Act Eliminates Jurisdiction to Entertain Thoung’s
Habeas Petition
Nevertheless, Thoung raises three arguments to support her claim that the
district court had proper jurisdiction to entertain her habeas petition.
All three ultimately fail.
1. Orders Arising from Criminal Proceedings
First, Thoung contends Congress did not intend to bar habeas review of
judicial removal orders because she claims the Act omits orders arising from
criminal proceedings that result in removability. The criminal offenses which are
grounds for removability are set forth in 8 U.S.C. § 1227(a)(2). She relies on INS
v. St. Cyr, 533 U.S. 289 (2001), which held that AEDPA’s limitations on habeas
review did “not bar jurisdiction over removal orders not subject to judicial review
under § 1252(a)(1)—including orders against aliens who are removable by reason
of having committed one or more criminal offenses.” Id. at 313.
But Thoung’s interpretation misreads the REAL ID Act, which was adopted
in 2005 to render the removal-challenge process consistent with St. Cyr. See 2
Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
Procedure § 41.1, at 2208–15 (6th ed. 2011). The REAL ID Act expressly divests
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district courts of jurisdiction over habeas challenges to removal orders, including
those arising from criminal offenses, and funnels all such challenges to the
“appropriate court of appeals” as the “sole and exclusive means for judicial
review of an order of removal entered or issued under any provision of this
chapter [including § 1228(c)(5)].” See 8 U.S.C. § 1252(a)(5). 2
If every judicial order of removal were subject to appeal for lack of
subject-matter jurisdiction, the statutory framework Congress established in
§ 1252(b) could be entirely thwarted and a multiplicity of claims (including
habeas claims) would thrive outside the petition-for-review process and long after
its timeliness requirements have expired.
Because the district court’s judicial order of removal was entered under
§ 1228(c)(5), the judicial process established by the REAL ID Act is Thoung’s
sole means of challenging her judicial removal order—a means that is now time-
barred. To comply with § 1252(a)(5), Thoung would have had to petition the
court of appeals within thirty days of the district court’s entry of the final removal
order in 2013. Despite having the opportunity to do so, she did not.
2. Suspension Clause
2
Even if, arguendo, a judicial order of removal must, as a procedural
prerequisite, first be based on a criminal ground of removability described in
8 U.S.C. § 1227(a)(2), the REAL ID Act explicitly bars habeas review of such
orders in § 1252(a)(2)(C).
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Second, Thoung argues that even if Congress did intend to bar habeas
review of judicial orders of removal, it has left no meaningful alternative form of
review and therefore has unconstitutionally suspended the writ of habeas corpus.
The Suspension Clause states, “The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety
may require it.” U.S. Const. art. I, § 9, cl. 2. Thoung relies on St. Cyr’s warning
that “a serious Suspension Clause issue would be presented if [a statute has]
withdrawn that power from federal judges and provided no adequate substitute for
its exercise.” 533 U.S. at 304–05.
But St. Cyr goes on to observe “that Congress could, without raising any
constitutional questions, provide an adequate substitute through the court of
appeals.” Id. at 314 n.38. “‘The substitution of a collateral remedy which is
neither inadequate nor ineffective to test the legality of a person’s detention’ does
not violate the Suspension Clause.” Id. (quoting Swain v. Pressley, 430 U.S. 372,
381 (1977) (alteration omitted)). This is, of course, precisely the sort of process
that the REAL ID Act established in 8 U.S.C. § 1252(a)(5) and § 1252(b). 3
3
Although the text of the Act is clear, the House-Senate Conference
Report on the REAL ID Act further explained:
Significantly, this section [§ 1252] does not eliminate judicial review, but
simply restores such review to its former settled forum prior to 1996.
Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review
of criminal aliens’ removal orders, [this section] would give every alien one
(continued...)
-8-
Thoung bears the burden of demonstrating the inadequacy of the REAL ID
Act’s substitute for statutory habeas jurisdiction. See Miller v. Marr, 141 F.3d
976, 977 (10th Cir. 1998). Thoung has not met her burden of demonstrating, in
the context of judicial orders of removal, that the REAL ID Act’s petition for
review process is an inadequate or ineffective substitute. It is not clear that, had
Thoung followed the § 1252(b) review process, she would have been prevented
from doing so for jurisdictional reasons. 4
Thus, in the absence of persuasive argument to the contrary, we assume the
REAL ID Act’s petition for review process does not offend the Suspension Clause
with respect to Thoung’s judicial removal order. See Gonzales-Alarcon, 884 F.3d
3(...continued)
day in the court of appeals, satisfying constitutional concerns.
151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St.
Cyr, 533 U.S. at 314 n.38).
4
Thoung points to our unpublished disposition in Musau v. Carlson, 499
F. App’x 837 (10th Cir. 2012), for support, but that decision does not undermine
our conclusion that Gonzalez-Alarcon controls. In Musau, a panel of this court
simply determined that the district court’s dismissal of Musau’s habeas petition
was “premature” and remanded the question for further consideration. Id. at 841.
The dissent in the instant case suggests this court would have lacked
jurisdiction to reach the merits of Thoung’s appeal had she followed the REAL ID
Act’s petition-for-review process. But it does not necessarily follow that such a
result would implicate the Suspension Clause. The authority on which the dissent
relies suggests this court still could have vacated an ultra vires removal order and
remanded for further proceedings. See Mejia Galindo v. Sessions, 897 F.3d 894,
898–99 (7th Cir. 2018); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir.
2007). Thus, a presumably adequate forum would have existed to test the legality
of Thoung’s detention.
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at 1268 (assuming “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”).
3. Conflict with Federal Rules
Finally, Thoung asserts that our interpretation of the REAL ID Act results
in unintended consequences. Because the Act’s review process requires a petition
to be filed with the court of appeals within thirty days of an order of removal,
Thoung argues that it conflicts with the federal rules of procedure concerning
criminal appeals. Compare Fed. R. App. P. 4(b)(1) (requiring a defendant’s
notice of appeal from a criminal case to be filed in the district court within
fourteen days) with 8 U.S.C. § 1252(a)(5) (requiring the petition to be filed in the
court of appeals) and id. § 1252(b)(1) (stipulating the petition must be filed
within thirty days after a final order of removal). Assuming that Rule 4(b)(1) of
the Federal Rules of Appellate Procedure is the correct one to apply in Thoung’s
situation, the incongruity should not be surprising. REAL ID’s petition for
review process is a substitute for the statutory writ of habeas corpus, which is
also subject to timeliness limitations that sometimes depart from and supersede
the otherwise-applicable federal rules. See, e.g., 28 U.S.C. § 2255(f). Moreover,
unlike Rule 4(b)(1), which does “not have statutory grounding” and is non-
jurisdictional, United States v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007),
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the REAL ID Act’s timeliness requirement is both “mandatory and jurisdictional,”
Gonzales-Alarcon, 884 F.3d at 1271.
Thoung also asserts that barring habeas review would strip district courts of
the power to reconsider their own orders, while immigration judges possess that
authority. See 8 C.F.R. § 1003.23 (2018) (immigration judge authority to reopen
and reconsider); id. § 1003.2 (Board of Immigration Appeals authority to reopen
and reconsider); id. § 1005 (DHS authority to reopen and reconsider). But the
only case Thoung cites for the proposition that district courts possess inherent
authority to reconsider their own removal orders refers to the power to reconsider
interlocutory orders and not final orders. See Been v. O.K. Indus., Inc., 495 F.3d
1217, 1225 (10th Cir. 2007). Even if the district court possessed inherent
authority to reopen and reconsider its final order of removal under the
circumstances presented here, it certainly could not do so “by habeas corpus
under section 2241 of Title 28, or any other habeas corpus provision,” 8 U.S.C.
§ 1252(a)(5). This is precisely what the REAL ID Act prohibits. Thoung’s
suggestion that we read “judicial review” under § 1252(a) as referring only to
appellate review, see St. Cyr, 522 U.S. 311 (noting the “historically distinct”
meanings of “judicial review” and “habeas corpus”), is foreclosed by the text of
the Act itself. See 8 U.S.C. § 1252(a)(5) (“For purposes of this chapter, in every
provision that limits or eliminates judicial review or jurisdiction to review, the
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terms ‘judicial review’ or ‘jurisdiction to review’ include habeas corpus
review.”). 5
Because none of Thoung’s arguments ultimately persuade us that our
interpretation of the REAL ID Act is incorrect, we hold that the statute’s
jurisdictional limitation on judicial review of removal orders prevents Thoung
from petitioning the district court for the writ of habeas corpus.
III. Conclusion
Because the district court lacked subject-matter jurisdiction and thus lacked
power to enter its October 2017 Memorandum and Order, that judgment must be
vacated. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1128 (10th Cir. 2010).
We therefore REMAND to the district court with directions to VACATE its
October 2017 order and to dismiss Thoung’s petition without prejudice for lack of
5
Similarly, we do not find persuasive Thoung’s argument that the venue
section of § 1252(b)(2) is limited to orders entered by immigration judges. That
provision may encompass district court judges, as evidenced by
§ 1228(c)(3)(A)(i)–(ii), which clarifies that a “judicial order of removal . . . may
be appealed . . . to the court of appeals for the circuit in which the district court is
located” and that “such appeal shall be considered consistent with the
requirements described in section 1252 of this title.”
Furthermore, more specific language in related immigration statutes may
trump the general language of § 1252(b)(2) regarding immigration judges when
such language operates notwithstanding any other provision. See Osuna-
Guiterrez v. Johnson, 838 F.3d 1030, 1034–35 (10th Cir. 2016). Such
“notwithstanding any other provision” language is present in § 1228(c)(1).
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jurisdiction. We express no view as to the merits and leave the district court’s
2013 removal order undisturbed.
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Thoung v. United States, No. 17-3220
PHILLIPS, J., dissenting.
In September 2002, Lina Thoung entered the United States on a visitor visa
belonging to another Cambodian woman, Sokheang Leng. The next year, Thoung
succeeded in adjusting her immigration status to lawful permanent resident, which
allowed her to stay in the United States indefinitely. Then, in March 2007, she applied for
citizenship. In the form she submitted to the Department of Homeland Security, she
affirmed that she had never provided false information to the government in any
application for a government benefit. And six months later, in September, she became a
naturalized U.S. citizen. That day, she also submitted a name-change request so that her
certificate of naturalization would be issued in a new name: Lina Sokheang Lanham.
In 2012, Thoung obtained a passport, but her new identity began to unravel. The
State Department opened a passport investigation, and agents discovered her years-long
immigration fraud. In July 2012, when the agents detained Thoung, she was carrying a
Kansas driver’s license and a Social Security card, both built on her fraudulent visa
identity. The Kansas U.S. Attorney charged her with eight counts related to her
fraudulently obtaining government documents. By December 2012, the parties had
reached a plea agreement. Thoung pleaded guilty to one count of document fraud, for
violating 18 U.S.C. § 1546(a), and the government dismissed the remaining counts. In the
plea agreement, Thoung admitted (1) that she had used a fraudulent visa to enter the
country; (2) that while here, she had parlayed the fraudulent visa (and the false
information it contained) into a naturalization certificate and other government-issued
documents; and (3) that she had knowingly committed these frauds. She also stipulated
that the government could revoke her U.S. citizenship under 8 U.S.C. § 1451(e), and she
agreed “to enter into a Joint Stipulation for Judicial Removal” under 8 U.S.C. §
1228(c)(5).
On January 23, 2017, the district court issued the requested judicial removal order,
under 8 U.S.C. § 1228(c)(5). Appellant’s App. at 47. The court ordered Thoung removed
to Cambodia. Immigration and Customs Enforcement immediately took Thoung into
custody. After six months passed without Thoung’s being deported to Cambodia,
immigration authorities released her subject to an Order of Supervision. Under this order,
Thoung has remained in the United States, subject to arrest and deportation.1
In February 2017, now represented by an immigration attorney, Thoung petitioned
for a writ of habeas corpus before the same district court that had handled her criminal
proceedings. This time, she argued that the sentencing court had lacked jurisdiction to
enter the order of removal under § 1228(c)(5) because she was not removable under
§ 1227(a)(2)(A).2 The district court denied Thoung’s habeas petition, rejecting Thoung’s
argument that it had lacked jurisdiction to enter the 2013 removal order. Thoung v.
1
Thoung has since married a U.S. citizen. Absent the removal order, she would be
eligible to adjust her immigration status on that basis.
2
In its Order of Removal filed on May 13, 2013, the district court ordered Thoung
removed from this country for her § 1546(a) conviction, which, the district court ruled, fit
under § 1227(a)(1)(A) and § 1227(a)(3)(B).
2
United States, Case No. 17-3032-EFM, 2017 WL 4536421 (D. Kan. Oct. 11, 2017).
Thoung appealed.
Before oral argument, we asked for supplemental briefing on whether the district
court had jurisdiction to consider Thoung’s petition, directing the parties’ attention to 8
U.S.C. § 1252(a)(5).3 Relying on that statute, the majority now concludes that the district
court lacked subject-matter jurisdiction to consider Thoung’s habeas petition. Maj. op. at
5–7. In doing so, it relies on these words from § 1252(a)(5): “[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 . . . .” Maj. op. at 4 (quoting
8 U.S.C. § 1252(a)(5)). In turn, the majority notes that § 1252(b)(1) requires that such a
petition be filed not later than 30 days after the date of the final order of removal. See id.
at 5. Because Thoung never filed a petition for review, the majority holds that she has
waived her right to appellate review. Id.
In my view, the majority’s statutory interpretation is incomplete. More fully read,
§ 1252(a)(5) provides 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 entered or issued under any provision of this chapter . . . .”
(emphasis added). With the italicized language restored, § 1252(a)(5) takes on a different
meaning. Now it requires more than a district-court document entitled “Order of
3
Congress restricted the scope of judicial review in immigration proceedings in
the REAL ID Act. Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302–23; 8 U.S.C. § 1252.
3
Removal.” Instead, it requires a hard look at the statutory legitimacy of an Order of
Removal. And that takes me to a question the majority’s opinion doesn’t reach: Did
§ 1228(c)(5) authorize the district court to enter Thoung’s Order of Removal?
To answer that question, it helps to step back to Thoung’s document-fraud
prosecution. Though Thoung could stipulate to an order of removal, she could not
stipulate to expand the district court’s subject-matter jurisdiction. Section 1228(c)(5)’s
limits confined the parties and the district court.
This takes us to the language of § 1228(c)(5)—the statutory section the district
court relied on to do just that. This subsection reads as follows:
(5) Stipulated judicial order of removal
The United States Attorney, with the concurrence of the Commissioner [of
Immigration and Naturalization], may, pursuant to Federal Rule of Criminal
Procedure 11, enter into a plea agreement which calls for the alien, who is
deportable under this chapter, to waive the right to notice and a hearing under
this section, and stipulate to the entry of a judicial order of removal from the
United States as a condition of the plea agreement or as a condition of
probation or supervised release, or both. The United States district court, in
both felony and misdemeanor cases, and a United States magistrate judge in
misdemeanor cases, may accept such a stipulation and shall have jurisdiction
to enter a judicial order of removal pursuant to the terms of such stipulation.
§ 1228(c)(5).
To understand this subsection, I think a good starting place is to ask what
jurisdictional requirements it puts on judicial removal orders. For me, it helps to isolate
what’s required. First, the government and Thoung must enter a plea agreement under
Fed. R. Crim. P. 11 (satisfied). Second, Thoung must be deportable under this chapter
[Chapter 12, Immigration and Nationality] (satisfied). Third, the plea agreement must call
4
for Thoung to “waive the right to notice and a hearing under this section” [§ 1228
“Expedited removal of aliens convicted of committing aggravated felonies”]
(unsatisfied). Thoung’s plea agreement says nothing about her waiving notice and
hearing rights under § 1228. And for good reason. Only noncitizens convicted of crimes
more serious than Thoung’s (those falling under § 1227(a)(2)(A)) even can stipulate to
judicial removal. This is evident when we apply “under this section,” just as § 1228(c)(5)
tells us to do.
Who can waive rights to notice and hearing “under this section [§ 1228]”? Let’s
run through the whole section, starting with § 1228(a). That subsection ties “the
availability of special removal proceedings” at certain correctional facilities to “aliens
convicted of any criminal offense covered in section 1227(a)(2)(A)(iii), (B), (C), or (D)
of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which
both predicate offenses are, without regard to the date of their commission, otherwise
covered by section 1227(a)(2)(A)(i) of this title.” Next, let’s turn to § 1228(b). That
subsection speaks to “the deportability of such alien under section 1227(a)(2)(A)(iii) of
this title (relating to conviction of an aggravated felony).” Finally, and most importantly
since the operative § 1228(c)(5) is nestled within it, let’s turn to § 1228(c). Here, we see
that 1228(c)(1)–(3) speaks to defendant noncitizens with criminal convictions covered by
§ 1227(a)(2)(A).
Now let’s remember how the district court correctly classified Thoung’s
conviction—under § 1227(a)(1)(A) and § 1227(a)(3)(B). From this, I believe that Thoung
never had a right to notice or hearing “under this section [§ 1228],” so she obviously
5
never could have waived it. Had Thoung tried to waive section 1228 rights to notice and
hearing, the waiver would be meaningless. Simply put, Congress has not authorized
stipulated judicial removal orders for noncitizens convicted of her crime.
The parenthetical “deportable under this chapter” does not change this. That
language merely sets a threshold condition, but it does not authorize stipulated removal
orders against all deportable persons. After all, not all deportable persons are even
convicted criminals,4 yet § 1228(c)(5) authorizes removal orders only when stipulated
between the parties in plea agreements of noncitizens convicted of § 1227(a)(2)(A)
crimes.
The government contends that Thoung is attempting to “graft[] the requirements
of § 1228(c)(2)(B) onto § 1228(c)(5).” Appellee’s Br. at 14. But the government’s
position has wavered. The Department of Justice’s Criminal Resource Manual5 states that
“stipulated judicial deportation should be sought only if the offense to which the alien
defendant will plead guilty causes him to be deportable under 8 U.S.C.
§ 1251(a)(2)(A).”6 Thoung’s App. at 63. I agree that resource manuals are not law and
4
Many noncitizens become deportable without a criminal conviction—for
instance, the noncitizen who overstays his work visa. See § 1227(a)(1)(C)(i).
5
U.S. Dep’t of Justice, U.S. Attorneys’ Manual, tit. 9, Criminal Resource Manual
§ 1929, available at https://www.justice.gov/jm/criminal-resource-manual-1929-
stipulated-judicial-deportation.
6
8 U.S.C. § 1251(a)(2)(A) has since been moved, with some minor changes, to
§ 1227(a)(2)(A). Compare 8 U.S.C. § 1252(a)(2)(A) (1994) (listing “general crimes”),
with 8 U.S.C. § 1227(a)(2)(A) (listing “general crimes”).
6
that § 1228(c)(5) was enacted after this manual was written. But the same basic scheme
was in place when the government interpreted as it did in its manual. The government has
not chosen to revise the manual since the enactment of § 1228(c)(5).7
Even an ambiguity in § 1228(c)(5) on these points likely would not change the
result. After all, we resolve statutory ambiguities in the noncitizen’s favor “because
deportation is a drastic measure and at times the equivalent of banishment o[r] exile.”
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); see also United States v.
Phommachanh, 91 F.3d 1383, 1385 (10th Cir. 1996) (“In construing § 3583(d), a
deportation statute, we are mindful of ‘the longstanding principle of construing any
lingering ambiguities in deportation statutes in favor of the alien.’”) (quoting INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987)).
Even if the government could surmount these problems, another serious problem
would await it—the canon of constitutional avoidance. See INS v. St. Cyr, 533 U.S. 289,
299–300 (2001) (stating that “if an otherwise acceptable construction of a statute would
raise serious constitutional problems, and where an alternative interpretation of the statute
is ‘fairly possible,’ . . . we are obligated to construe the statute to avoid such problems.”).
By interpreting § 1252(a)(5) as it does, the majority risks a Suspension Clause violation.
7
The government notes that this section is currently labeled “Outdated-pending
revision.” Government’s Resp. Br. at 17. It appears that the government added this label
at some point between March and May of 2017, well after Thoung filed her habeas
petition. Compare
https://web.archive.org/web/20170328183729/https://www.justice.gov/usam/criminal-
resource-manual-1929-stipulated-judicial-deportation with
https://web.archive.org/web/20170501014453/https://www.justice.gov/usam/criminal-
resource-manual-1929-stipulated-judicial-deportation.
7
Barring Thoung from pursuing habeas relief, the majority leaves her with a bare right to
file a petition for review within thirty days of the issuance of her removal order. Maj. op.
at 7.
But if the district court did exceed its jurisdiction under § 1228(c)(5) by entering
the removal order, then that would cast serious doubt on whether the order is a “final
order of removal” under § 1252(a). If the removal order were ultra vires, we would have
lacked jurisdiction to consider a timely petition for review from Thoung.8 Cf. Mejia
Galindo v. Sessions, 897 F.3d 894, 898–99 (7th Cir. 2018) (reasoning that because the
Board of Immigration Appeals lacked authority to enter a final removal order, the order
was ultra vires and the court had no jurisdiction to address the petition’s merits); Rhodes-
Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir. 2007) (same).
If that is so, the right to petition for review could not adequately substitute for a
habeas application. Hence my Suspension Clause concerns. See U.S. Const. art I, § 9,
cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.”); Anderson v. Holder,
673 F.3d 1089, 1095 (9th Cir. 2012) (“Because the REAL ID Act of 2005 eliminated
habeas review of removal orders, leaving petitions for review as the exclusive means to
8
Nor could § 1252(a)(2)(D) have acted as a safety valve for Thoung’s claim. That
provision states that nothing in § 1252 “which limits or eliminates judicial review, shall
be construed as precluding review of constitutional claims or questions of law raised
upon a petition of review filed with an appropriate court of appeals in accordance with
this section.” Id. (emphasis added). But to be “in accordance with this section,” a petition
for review must challenge a “final order of removal.” 8 U.S.C. § 1252(a)(1), and an ultra
vires order is “not a final order of removal.” Mejia Galindo, 897 F.3d at 898.
8
challenge such orders, the absence of any § 1252 jurisdiction over ultra vires removal
orders threatens to create a serious constitutional problem.”). At the very least, it is not
“clear that the question of law could [have been] answered in another judicial forum,”
which “strongly counsels against adopting a construction that would raise serious
constitutional questions.” See St. Cyr, 533 U.S. at 314.
Here, a caveat. Thoung challenges the district court’s jurisdiction to issue the
stipulated removal order. What she does not do is admit jurisdiction but then contest how
the district court exercised its jurisdiction. See Latu v. Ashcroft, 375 F.3d 1012, 1020
(10th Cir. 2004) (“An official act does not become ultra vires if the officer was statutorily
empowered to act but may have acted erroneously.”). She contends that the removal
order was void from its inception. See Kumarasamy v. Attorney Gen. of U.S., 453 F.3d
169, 172 (3d Cir. 2006) (upholding the district court’s jurisdiction to review a habeas
petition, because instead of arguing that the removal order didn’t “lawfully authorize his
removal,” the petitioner argued that no valid removal order existed at all—that he was not
“seeking review of a removal order”).
In contrast, the petitioner in Gonzalez-Alarcon v. Macias challenged the district
court’s underlying decision that he was not a U.S. citizen. There, we held that
§ 1252(a)(5) barred a detainee in ICE custody from seeking to invalidate his pending
removal order based on his citizenship.9 884 F.3d 1266, 1275 (10th Cir. 2018). Unlike the
9
Our decision in Gonzalez-Alarcon runs counter to the Ninth Circuit’s decision in
Anderson, which recognized that “the plain language of § 1252(b)(5) not only permits but
requires [circuit courts] to evaluate a claim to United States nationality upon a petition
for review, even where our jurisdiction would otherwise be limited.” 673 F.3d at 1096.
9
district court in Thoung’s case, the immigration judge in Gonzalez-Alarcon had statutory
authority to rule on the petitioner’s citizenship claim, and even to rule incorrectly. See
Latu, 375 F.3d at 1020. The same logic applies when a noncitizen challenges an
immigration judge’s legal conclusion that his criminal conviction qualifies as a statutory
basis for removability, a conclusion that the immigration judge is authorized to make.
See, e.g., Hamilton v. Holder, 584 F.3d 1284, 1288 (10th Cir. 2009) (holding that
immigration judges are authorized to examine PSRs to determine whether a crime
qualifies as an “aggravated felony”) (citing Nijhawan v. Holder, 557 U.S. 29, 32 (2009)).
Although district courts can find facts and reach legal conclusions, they cannot assume
jurisdiction over removal proceedings absent clear statutory authority.
For these reasons, I would reverse the district court, remand with instructions that
the district court vacate the removal order, and require that Thoung’s immigration issues
be decided in the proper forum. I respectfully dissent.
But Gonzalez-Alarcon acknowledged that the petitioner could file a motion asking the
immigration judge to reopen the removal proceedings, alleviating any Suspension Clause
concerns, at least “at the present time.” See 884 F.3d at 1275. And as one panelist noted,
the petitioner had “an alternative means for relief”—he could have, at any time, “file[d] a
Form N–600,” which, if granted, would have made him “categorically ineligible for
removal.” Id. at 1281–82 (Tymkovich, C.J., concurring).
10