Kailash v. Secretary Homeland , 287 F. App'x 166 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-25-2008
Kailash v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2373
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2373
____________
KAILASH KAILASH,
Appellant,
v.
MICHAEL CHERTOFF, SECRETARY OF DEPARTMENT
OF HOMELAND SECURITY; ASA HUTCHINSON,
AS UNDERSECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY, DIRECTORATE OF BORDER
AND TRANSPORTATION SECURITY; MICHAEL D. GARCIA,
AS ASSISTANT SECRETARY FOR BUREAU OF
IMMIGRATION AND CUSTOMS ENFORCEMENT;
THOMAS DECKER, AS PHILADELPHIA DIRECTOR FOR
DETENTION AND REMOVAL; ATTORNEY GENERAL OF
THE UNITED STATES,
Appellees.
____________
On Appeal from United States District Court
for the Eastern District of Pennsylvania
D.C. No. 05-cv-05494
District Judge: Honorable Ronald L. Buckwalter
____________
Argued April 9, 2008
Before: SMITH, HARDIMAN and COWEN, Circuit Judges.
(Filed: July 25, 2008)
Michael S. Henry (Argued)
2336 South Broad Street
Philadelphia, PA 19145-0000
Attorney for Appellant
Richard M. Bernstein (Argued)
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106-0000
Attorney for Appellees
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Kailash Kailash appeals the District Court’s denial of his petition for a writ of
habeas corpus. We will affirm.
I.
Because we write exclusively for the parties, we recount only those facts essential
to our decision.
A native and citizen of India, Kailash lawfully entered the United States on April
2, 2001. After overstaying his visa, Kailash filed an application for asylum which was
denied by an immigration judge (IJ). The Board of Immigration Appeals (BIA) affirmed
the IJ’s decision on October 29, 2002 and gave Kailash thirty days to voluntarily depart
the United States. Because Kailash did not leave the country within the allotted time
period, he was ordered removed on November 28, 2002.
2
On May 21, 2003, Kailash married Kelly Payne, an American citizen. Payne filed
an I-130 petition for alien relative on Kailash’s behalf, which the United States
Citizenship and Immigration Services (USCIS) approved on January 31, 2005. Based on
this approval, Kailash filed an I-246 application for stay of removal, an I-212 application
for leave to reapply for admission after removal, and an I-485 application to adjust status
to permanent residency.1
Following an interview on October 6, 2005, the Director of USCIS’s Philadelphia
District Office (District Director) issued a notice of denial of Kailash’s I-485 application,
indicating that Kailash had not paid the requisite filing fee for his I-212 application.2
Moreover, the District Director found that “in the interest of justice, had an Application
1
Because Kailash was subject to an outstanding order of removal, he was
ineligible for an I-485 adjustment of status to permanent residency without first obtaining
leave to reapply for admission after removal via an I-212.
2
The notice of denial stated:
Your attorney indicates that you filed an Application for Permission to
Reapply for Admission Into the United States After Deportation or Removal
(Form I-212). However there is no Form I-212, with a fee paid, found in
the file. Your attorney was notified on October 6, 2005 that Service records
show only a courtesy copy of an I-212. Furthermore this courtesy copy in
the file did not have a letter of explanation attached. On the morning of
October 6, 2005 the attorney gave the Service a copy of the
reason/explanation requesting permission to re-enter the United States.
Your attorney was asked to fax/submit a copy of the fee receipt or any
evidence that the I-212 application was properly filed. No response has
been submitted.
(italics in original).
3
for Permission to Reapply for Admission Into the United States After Deportation or
Removal (Form I-212) [been properly filed], it would have been denied” (italics and
emphasis in original). In reaching this conclusion, the District Director rejected Kailash’s
claim that his wife would suffer extreme hardship should he be removed from the United
States, stating that “[n]o evidence was submitted indicating that Mrs. Kailash could not
receive adequate care in India for her conditions,” 3 that “[t]here is no reason that Mr.
Kailash could not be employed in his home country and provide support for his wife,” and
that “[n]o reasons were provided that his wife would be unable to move to India [to] be
with Mr. Kailash.” 4 After the notice of denial was issued, Kailash was taken into custody
by Immigration and Customs Enforcement.
Kailash timely appealed to the Administrative Appeals Unit (AAU), claiming that
the District Director erred in constructively denying his I-212 application. In particular,
Kailash argued that: (1) he had paid the I-212 filing fee; (2) even if there had been a
problem with the I-212 filing fee, he was entitled under 8 C.F.R. § 103.2(a)(7)(ii) to
notice of the problem and fourteen days within which to make payment; and (3) even if he
had submitted insufficient evidence to establish extreme hardship to his wife upon his
3
Kailash’s wife has polycystic ovarian syndrome, a medical condition which has
resulted in the removal of two ovarian cysts and will likely result in the removal of
additional cysts in the future. She also has hyperthyroidism, a medical condition which
results in an elevated heart rate and nervousness.
4
The notice of denial did not address Kailash’s I-246 application for a stay of
removal.
4
removal, the District Director was required under 8 C.F.R. § 103.2(b)(8) to request
additional evidence before denying the I-212 application. Kailash’s appeal remains
pending before the AAU.
In addition to his administrative appeal, Kailash filed a petition for writ of habeas
corpus in the District Court for the Eastern District of Pennsylvania. The petition
challenged Kailash’s custody pursuant to his outstanding order of removal on the grounds
that both the custody and the order persisted because of the District Director’s alleged
error in adjudicating Kailash’s I-212 application. The District Court dismissed the habeas
petition, concluding that it lacked jurisdiction under 8 U.S.C. § 1252(g) to hear Kailash’s
challenge to the District Director’s discretionary decisions on his applications. Kailash
has timely appealed the District Court’s order denying his petition for a writ of habeas
corpus.
II.
As an initial matter, we note that Kailash’s habeas petition does not involve the
merits of his I-212 application; that is, Kailash does not challenge the substance of the
District Director’s determination that his wife would suffer extreme hardship upon his
removal. It is clear that we would lack jurisdiction to consider such a challenge under 8
U.S.C. § 1252(a)(2)(B), which forecloses review of the discretionary denial of an I-212
application.
5
Rather, Kailash seeks review of alleged procedural errors in the adjudication of his
I-212 application. The District Court concluded that it lacked jurisdiction to hear this
claim pursuant to 8 U.S.C. § 1252(g), which provides that “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.” In doing so, the District
Court wrote that § 1252(g) prevents Kailash from challenging “respondent’s discretionary
decisions, or lack thereof, relating to the applications.”
However, Kailash is not challenging a discretionary decision with regard to his I-
212 application. Rather, he is challenging the District Director’s alleged failure to adhere
to applicable procedural regulations, a matter that is not subject to discretion. In contrast
to the District Court’s approach, the operative question in determining whether § 1252(g)
deprives us of jurisdiction is whether a claim of procedural error “aris[es] from the
decision or action by the Attorney General to . . . adjudicate cases.” The parties cite no
caselaw — nor are we aware of any — that speaks to this precise question.5
5
Though the government contends that Gomez-Chavez v. Perryman, 308 F.3d 796(7th Cir. 2002), is “directly on point,” we disagree. Gomez-Chavez involved an alien’s
attempt to obtain judicial review when the USCIS simply failed to adjudicate his I-212
application. The Seventh Circuit concluded that it lacked jurisdiction, writing that
§ 1252(g)’s “strict limitations apply not only to the Attorney General’s positive actions,
but also to his refusals to take action” and that “[a]n alien attempting to achieve judicial
review of such discretionary measures may not avoid the 1252(g) bar by the simple
expedient of recharacterizing a claim as one challenging a refusal to act.” Id. at 800. As
Kailash notes, his case involves a procedurally improper adjudication rather than a
6
Assuming without deciding that we are not barred by § 1252(g) from reviewing
Kailash’s claim, it is nevertheless clear that a habeas petition is inappropriate in the
present context. Indeed, Kailash is not challenging the validity of his outstanding order of
removal.6 Instead, he contends that there is a connection between the alleged procedural
errors and the persistence of the order of removal (and hence his custody) such that
habeas relief is appropriate. Specifically, Kailash claims that had the District Director
adjudicated his I-212 application in accordance with the regulations, it would have been
approved, resulting in the termination of the order of removal and attendant custody.
This reasoning is flawed, however. Even if we assume that the District Director
failed to adhere to the regulations in adjudicating the I-212 application, it does not
necessarily follow that Kailash would then be released from custody. Indeed, the District
Director could deem Kailash’s application properly filed, request and receive additional
evidence in accordance with 8 C.F.R. § 103.2(b)(8), and then deny the I-212 application
on the merits.7 Thus, Kailash is only challenging the procedure afforded him in an
adjudication that could terminate his custody should his I-212 eventually be approved on
the merits.
wholesale failure to adjudicate.
6
Kailash concedes that the order of removal was the legitimate result of his
failure to voluntarily depart the country following the BIA’s affirmance of the IJ’s denial
of his asylum application.
7
Moreover, as noted above, we would lack jurisdiction to review this
discretionary denial on the merits under 8 U.S.C. § 1252(a)(2)(B).
7
Given that Kailash does not challenge the substance of the removal order and
attendant custody, a habeas petition is plainly an inappropriate vehicle for the relief that
he seeks.8
For the foregoing reasons, Appellee’s motion for summary affirmance will be
denied, we will vacate the District Court’s order staying removal, and the decision of the
District Court will be affirmed.
8
Accordingly, Kailash’s Suspension Clause challenge — whereby he claims that
he could have sought habeas review of the District Director’s procedural errors before the
passage of the REAL ID Act, but cannot do so after the passage of the REAL ID Act —
must fail. Because Kailash does not challenge the propriety of his custody, habeas relief
is inappropriate regardless whether the petition was brought before or after the passage of
the REAL ID Act. Furthermore, we note the existence of numerous cases rejecting
Suspension Clause challenges to the REAL ID Act because the petition for review
mechanism is an “adequate and effective” substitute for habeas review. See, e.g.,
Kolkevich v. Attorney General, 501 F.3d 323, 332 (3d Cir. 2007) (citing Swain v.
Pressley, 430 U.S. 372, 381 (1977)).
8