Thoung v. United States
Dissenting Opinion
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 *1006provided 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
On January 23, 2017, the district court issued the requested judicial removal order, under
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).
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
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 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 for Thoung to "waive the right to notice and a hearing under this section" [ § 1228"Expedited removal of aliens convicted of committing aggravated felonies"] (un satisfied). 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 *1008with § 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 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,
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 Manual
*1009Even 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 ,
Even if the government could surmount these problems, another serious problem would await it-the canon of constitutional avoidance. See INS v. St. Cyr ,
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.
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 ,
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 ,
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.
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.
Thoung has since married a U.S. citizen. Absent the removal order, she would be eligible to adjust her immigration status on that basis.
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).
Congress restricted the scope of judicial review in immigration proceedings in the REAL ID Act. Pub. L. No. 109-13, Div. B,
Many noncitizens become deportable without a criminal conviction-for instance, the noncitizen who overstays his work visa. See § 1227(a)(1)(C)(i).
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-1929stipulated-judicial-deportation.
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/criminalresource-manual-1929-stipulated-judicial-deportation.
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. "
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."
Opinion of the Court
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 *1001occurred. 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
In 2017, Thoung filed a writ of habeas corpus-apparently under
II. Analysis
We first consider whether the district court had subject-matter jurisdiction to hear Thoung's habeas petition, a question of statutory interpretation. Gonzalez-Alarcon v. Macias ,
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."
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 ...
*1002or any other habeas corpus provision."
In Gonzalez-Alarcon , we emphasized that "Congress clearly intended to funnel all challenges to removal through the petition for review process."
Our circuit is consistent with others in recognizing the REAL ID Act's limitations on habeas review. See Andrade v. Gonzales ,
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
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 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
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
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."
But St. Cyr goes on to observe "that Congress could, without raising any constitutional questions, provide an adequate substitute through the court of appeals."
*1004Thoung bears the burden of demonstrating the inadequacy of the REAL ID Act's substitute for statutory habeas jurisdiction. See Miller v. Marr ,
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 Gonzalez-Alarcon ,
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
Thoung also asserts that barring habeas review would strip district courts of the *1005power to reconsider their own orders, while immigration judges possess that authority. See
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 ,
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 jurisdiction. We express no view as to the merits and leave the district court's 2013 removal order undisturbed.
In 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).
Even if, arguendo , a judicial order of removal must, as a procedural prerequisite, first be based on a criminal ground of removability described in
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 day in the court of appeals, satisfying constitutional concerns.
151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St. Cyr ,
Thoung points to our unpublished disposition in Musau v. Carlson ,
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 ,
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-Gutierrez v. Johnson ,
Reference
- Full Case Name
- Lina THOUNG, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee.
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- 12 cases
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- Published