Stefan Lang v. Janet Napolitano ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1285
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Stefan Lang, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Janet Napolitano, et al., *
*
Respondents - Appellees. *
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Submitted: December 16, 2009
Filed: March 1, 2010
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Before LOKEN, Chief Judge, ARNOLD and BENTON, Circuit Judges.
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LOKEN, Chief Judge.
Stefan Lang, a German citizen, entered the United States in 1998 as a visitor
under the Visa Waiver Program (“VWP”). Enacted to stimulate tourism and reduce
visa processing, the VWP allows persons from designated countries to visit the United
States for up to ninety days without obtaining a visa. See 8 U.S.C. § 1187. Lang’s
authorized ninety-day visit ended September 17, 1998. On September 16, he married
Melva Dorsey, an American citizen. On September 22, after the ninety days expired,
Lang’s attorney filed a Form I-130 alien relative petition on behalf of Dorsey and a
Form I-485 adjustment of status application on behalf of Lang.
Dorsey’s Form I-130 petition was approved in February 2000. However, in
February 2002, the Immigration and Naturalization Service, whose functions were
later transferred to the Department of Homeland Security, U.S. Immigration and
Customs Enforcement (“ICE”), revoked the I-130 approval and denied Lang’s I-485
application for adjustment of status after belatedly processing a letter from Dorsey
withdrawing her Form I-130 petition on account of marital difficulties. Lang and
Dorsey divorced in early 2004. Their daughter and Dorsey’s child by a previous
marriage continued to live with Lang.
In August 2008, ICE advised Lang that he was deportable under 8 U.S.C.
§ 1227(a)(1)(B) because he had stayed beyond the ninety days authorized by the
VWP. The letter declared: “Acordingly, you are hereby ordered removed from the
United States to Germany pursuant to Title 8, Code of Federal Regulations 217.4(b).”
Rather than appeal this order, Lang commenced this action in November 2008 against
Department of Homeland Security officials seeking an order enjoining defendants
from removing Lang and a writ of mandamus ordering defendants “to issue a Notice
to Appear before an immigration judge.” Following an evidentiary preliminary
injunction hearing, the district court dismissed the complaint. Lang appeals. We
affirm the dismissal because the district court lacked jurisdiction to grant relief.
To be eligible for entry under the VWP program, an alien must waive his right
“to contest, other than on the basis of an application for asylum, any action for
removal.” 8 U.S.C. § 1187(b)(2). As the court said in Handa v. Clark, 401 F.3d 1129,
1135 (9th Cir. 2005), “the linchpin of the program is the waiver, which assures that
a person who comes here with a VWP visa will leave on time and will not raise a host
of legal and factual claims to impede his removal if he overstays.” Though the VWP
waiver forecloses many avenues of relief, the adjustment of status statute contains a
limited exception, providing that discretionary adjustment of status relief is available
to an alien admitted under the VWP program on one ground, as “an immediate
relative.” 8 U.S.C. § 1255(c)(4).
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Lang signed a VWP waiver when he entered the United States in 1998. He later
filed an application for adjustment of status as an immediate relative of Dorsey. His
theory in this lawsuit is that, although adjustment of status was ultimately denied,
filing the application freed him from the VWP waiver limitations of § 1187(b)(2).
Therefore, he is entitled to an unrestricted formal removal proceeding at which he may
seek withholding of removal based on “extremely unusual hardship” to his U.S.
citizen child. See 8 U.S.C. § 1229b(b)(1).
Lang bases this implausible argument on an expansive reading of Freeman v.
Gonzales, 444 F.3d 1031 (9th Cir. 2006). The district court rejected the argument on
the merits, distinguishing Freeman on the ground that Lang, unlike the petitioner in
Freeman, did not file his application for adjustment of status before his authorized
ninety-day VWP visit expired. That distinction has been adopted by at least four other
circuits, including another panel of the Ninth Circuit. See Ferry v. Gonzales, 457 F.3d
1117, 1126-28 & n.15 (10th Cir. 2006), followed in McCarthy v. Mukasey, 555 F.3d
459, 460-62 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1096-97 (9th Cir.
2008); and Lacey v. Gonzales, 499 F.3d 514, 519 & n.6 (6th Cir. 2007), and cited
favorably by this court in Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008).
We are inclined to agree with the district court’s application of these prior
circuit court decisions. But we detect a serious jurisdictional flaw in this case.
Congress has provided 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” (with one exception not applicable here). 8 U.S.C. § 1252(a)(5).1 If a final
order of removal is upheld on review, or if review is not timely sought, “no court shall
1
Similarly, Congress has barred judicial review of the denial of adjustment of
status, even if “made in removal proceedings,” except for review “of constitutional
claims or questions of law raised upon a petition for review filed with an appropriate
court of appeals.” 8 U.S.C. §§ 1252(a)(2)(B)(i) and (D).
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have jurisdiction to hear any cause or claim by or on behalf of any alien arising from
the decision or action . . . to . . . execute removal orders against any alien under this
chapter.” § 1252(g); see generally Reno v. American-Arab Anti-Discrim. Comm., 525
U.S. 471, 482 (1999). Here, Lang did not seek judicial review of the August 2008
letter ordering him removed. Instead, he now seeks injunctive and mandamus relief
that would prohibit the agency from “executing” that removal order.
Seeking to avoid this obvious lack of district court jurisdiction, Lang argues that
§ 1252(a)(5) does not apply because there is no final order of removal entered after
a formal proceeding conducted by an immigration judge under § 240 of the
Immigration and Nationality Act (8 U.S.C. § 1229a). But § 1252(a)(5) vests courts
of appeals with exclusive jurisdiction to review “an order of removal entered or issued
under any provision of this chapter” (emphasis added). The regulations implementing
the VWP program provide that an alien admitted under the program who becomes
removable under 8 U.S.C. § 1227 -
(b)(1) . . . shall be removed from the United States to his or her
country of nationality . . . . Such removal shall be determined by the
district director . . . and shall be effected without referral of the alien to
an immigration judge for a determination of [removability, unless the
alien applies for asylum].
(2) Removal by the district director under paragraph (b)(1) of this
section is equivalent in all respects and has the same consequences as
removal after proceedings conducted under section 240 of the Act.
8 C.F.R. § 217.4(b), cited by ICE in the August 2008 ordering Lang removed. By the
plain language of these statutes and regulations, (i) the August 2008 letter was a final
administrative order of removal reviewable only in a court of appeals, and (ii), at least
in the absence of a legal or constitutional defect that could not be remedied by a direct
petition for review, the order is final, and no court has jurisdiction over a claim to
prevent execution of that order, either by collateral attack or by the imposition of
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further procedures. Thus, the district court should have dismissed the case for lack of
subject matter jurisdiction without reaching the merits of Lang’s attempt to avoid the
legal effects of his VWP waiver.
We note that the circuit court decisions on which the district court relied are
consistent with this jurisdictional ruling. Petitioners sought direct court of appeals
review of the ICE removal orders in Ferry, 457 F.3d at 1132-33, in Lacey, 499 F.3d
at 516, and in McCarthy, 555 F.3d at 460.2 In Momeni, 521 F.3d at 1095-96, the alien
commenced the action in district court; the Ninth Circuit agreed that court lacked
jurisdiction under 8 U.S.C. § 1252(a)(5), as amended by the REAL ID Act, but
considered the VWP waiver issue on the merits because the suit began in district court
before the statute was amended. Similarly, the alien in Freeman filed a habeas corpus
petition in the district court, rather than a petition for review of the ICE removal order;
when the REAL ID Act amendment took effect with the appeal pending, the Ninth
Circuit treated the appeal as a timely petition for review and addressed the VWP
waiver issue on the merits. 444 F.3d at 1033 n.4. For another decision addressing the
merits of a VWP waiver issue when the alien properly petitioned the court of appeals
for direct review of an ICE removal order, see Bayo v. Chertoff, 535 F.3d 749, 750-52
(7th Cir. 2008).
Here, because Lang did not timely petition this court for review of the final ICE
order of removal, the district court lacked jurisdiction “to hear any claim” for relief
that would frustrate or interfere with the agency’s action to “execute” that order. 8
U.S.C. § 1252(g). Accordingly, the judgment of the district court is affirmed.
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2
In Zine, 517 F.3d at 537, 543, a VWP waiver issue properly reached our court
by a different path -- the alien petitioned for review of BIA removal orders denying
him relief after an asylum-only proceeding, including adjustment of status relief.
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