02-4882-ag Zhong v. U.S. Dep’t of Justice, Attorney General Gonzales

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2006

____________________

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 31 st day of May, two thousand seven,

Present:

Hon. Dennis Jacobs, Chief Judge, Hon. Guido Calabresi, Hon. José A. Cabranes, Hon. Chester J. Straub, Hon. Rosemary S. Pooler, Hon. Robert D. Sack, Hon. Sonia Sotomayor, Hon. Robert A. Katzmann, Hon. B.D. Parker, Hon. Reena Raggi, Hon. Richard C. Wesley, Hon. Peter W. Hall, Circuit Judges.

- - - - - - - - - - - - - - - - - - - -x LIN ZHONG,

Petitioner,

- v.- 02-4882-ag

UNITED STATES DEPARTMENT OF JUSTICE, & ATTORNEY GENERAL GONZALES,

Respondent. - - - - - - - - - - - - - - - - - - - -x Respondent filed a petition for rehearing in banc from the opinion filed on August 8, 2006. A poll on whether to rehear this case in banc was conducted among the active judges of the court upon the request of an active judge of the court. Because a majority of the court’s active judges voted to deny rehearing in banc, rehearing in banc is hereby DENIED. Amended opinions were issued by the panel on January 17, 2007.

Judge Calabresi concurs in the order denying rehearing in banc and files an opinion. Chief Judge Jacobs dissents from the order denying rehearing in banc and files an opinion in which Judges Cabranes and Raggi join.

FOR THE COURT: Thomas W. Asreen, Acting Clerk

By: Richard Alcantara, Deputy Clerk CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc:

In his strong dissent, the Chief Judge touches on two separate issues. Both are important

and deserve serious discussion. The first is primarily of interest to this court and circuit. It asks

whether the majority in Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007), amending

and superseding Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2006), ignored our rules

making previous circuit precedent binding. The second is of more general interest. It questions

whether the Zhong majority was correct in its reading of the relevant statute and Supreme Court

decisions when it held that exhaustion of issues — as against categories of claims — is a

mandatory rather than a jurisdictional requirement.1

I

In Zhong, the government did not point out that the petitioner had failed to exhaust

certain issues before the Board of Immigration Appeals (“BIA”), and instead, fully briefed and

argued the merits of those unexhausted issues to us. As a result, the Zhong panel was faced with

the question of whether the requirement of issue exhaustion was jurisdictional and had to be

raised by the panel sua sponte.

The Chief Judge contends that the Zhong panel should have treated our court’s decision

in Foster v. INS,

(2d Cir. 2004) (per curiam), as controlling on this point. See

dissenting op. at 3 (criticizing the Zhong majority for “[d]eparting from this well-settled

precedent”). It is true that the Foster opinion contains language which might be taken to suggest

that

(d)(1) imposes a jurisdictional issue exhaustion requirement. But because,

1 Stated differently, this second question asks whether, in the light of

(d)(1) and the relevant regulations and case law, issue exhaustion is a matter of statutory jurisdiction, or, instead, is a mandatory non-jurisdictional requirement that may be subject to a few, limited, exceptions. in Foster, the government pointed out the petitioner’s failure to exhaust issues, see Foster,

, any “jurisdictional” language used by that panel was not necessary to the decision,

and as such was not binding on later panels.2 Significantly, both members of our court who

served on the Foster panel and wrote that decision have consistently rejected the Chief Judge’s

reading of Foster as binding. 3 They have authorized me to say that they view the jurisdictional

language in Foster as dicta, and that they believe they indicated as much in Abimbola v. Ashcroft,

(2d Cir. 2004), which they heard on the same day as Foster.4

Given that Foster was not controlling, and that no other binding precedent on point was,

or has been, cited to us it was proper for the Zhong panel to treat as an open question the precise

nature of this court’s issue exhaustion requirement.

In view of the Supreme Court’s series of recent and increasingly powerful opinions

2 See Arbaugh v. Y & H Corp.,

,

(2006) (noting that “[j]urisdiction . . . is a word of many, too many, meanings” and that the Supreme Court, “no less than other courts, has sometimes been profligate in its use of the term,” but cautioning that “unrefined dispositions . . . should be accorded no precedential effect on the question whether the federal court had authority to adjudicate the claim in suit” (citations and internal quotation marks omitted)); cf. Paese v. Hartford Life Accident Ins. Co.,

(2d Cir. 2006) (noting that “our case law has been somewhat casual when discussing the judicially-created exhaustion requirements under section 502(a)(1)(B) [of ERISA]” and acknowledging that this court has “occasionally use[d] ‘jurisdictional’ language when discussing the exhaustion requirements,” but holding “that a failure to exhaust ERISA administrative remedies is not jurisdictional, but is an affirmative defense”); United States v. Canova,

(2d Cir. 2005) (acknowledging that the Supreme Court, our court, and each of our sister circuits, had previously referred to the filing limit of Fed. R. Crim. P. 33 as “jurisdictional,” but recognizing that “[i]n light of [the Supreme Court’s] discussion of the ambiguity in the word ‘jurisdictional,’ it might be appropriate for us to explore the meaning of our past characterization of Rule 33’s filing limitations as ‘jurisdictional’”). 3 The third judge on the panel was a visiting judge and as such has had no occasion to express his views on the matter. 4 See Abimbola,

(suggesting that the jurisdictional effect of lack of exhaustion where the government fails to object was an open issue). cautioning lower federal courts against conflating mandatory with jurisdictional prerequisites,

see, e.g., Day v. McDonough,

,

(2006); Arbaugh,

; Eberhart v. United States,

,

(2005) (per

curiam); Kontrick v. Ryan,

(2004), and because there was no binding

precedent on the question of issue exhaustion, the Zhong majority properly undertook the task of

carefully determining whether our court’s issue exhaustion requirement should truly be treated as

jurisdictional. See Eberhart,

(“Clarity would be facilitated . . . if courts and

litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions

delineating the classes of cases (subject-matter jurisdiction) and the persons (personal

jurisdiction) falling within a court’s adjudicatory authority.” (citation and internal quotation

marks omitted)).

The Zhong panel believed that some of the same arguments it found compelling with

respect to issue exhaustion could be made about claim exhaustion and whether that requirement

is jurisdictional. But because there were longstanding holdings of our court that, in the

immigration context, claim exhaustion is a jurisdictional requirement, see Beharry v. Ashcroft,

(2d Cir. 2003); see also Karaj v. Gonzales,

(2d Cir. 2006), the

majority in Zhong properly deemed itself bound. The majority in Zhong concluded that it could,

and so should, reach the correct result with respect to the question that remained open — i.e., the

nature of issue exhaustion — even as it honored longstanding precedent on claim exhaustion.

Although it noted some conceptual difficulties with drawing such a distinction, it concluded the

distinction was a permissible one.

This was because our circuit precedents have often distinguished between issues and categories of relief in exhaustion doctrine. Zhong,

n.18 (citing cases).

Moreover, there is a profoundly practical reason for drawing this line between issue and claim

exhaustion. If an exhaustion requirement is treated as implicating subject-matter jurisdiction,

then a decision on an issue or claim that turns out not to have been adequately exhausted below

would be subject to being attacked collaterally by interested third parties, because the court

would have had no authority to act at all. See Arbaugh,

(“The objection that a

federal court lacks subject-matter jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised

by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the

entry of judgment.”). And that, together with the fact that subject-matter jurisdiction cannot be

waived, would impose on courts of appeals “an independent obligation to determine whether

subject-matter jurisdiction exists, even in the absence of a challenge from either party.”

Arbaugh,

. This, in the context of issue exhaustion in immigration cases in this

circuit, would impose an unbearable burden.

Whereas the judges of this court have little difficulty examining the administrative record

and determining whether particular categories of relief — i.e., claims — have been raised, it

would be virtually impossible, as a practical matter, for us thoroughly to search through the

record in every case — especially in cases being decided through our Non-Argument Calendar5

or in summary fashion — in order to discern whether all relevant issues were adequately raised

before the agency. If issue exhaustion is mandatory but not jurisdictional, by comparison, we are

able — indeed generally bound — to refuse to consider issues that we discover were not raised

below, but we do not have to undertake the unmeetable task of meticulously searching the record

5 See Second Circuit Interim Local Rule 0.29 (establishing procedures for the Non- Argument Calendar). in the thousands of immigration cases we review, in order to avoid what could be disastrous,

much later, collateral attacks.

Obviously, these practical considerations would not allow us to assume jurisdiction where

it does not exist. But given what is at stake, it is important to avoid carelessly treating an

exhaustion rule as depriving the reviewing court of any power to hear the case, when closer

inspection would reveal the rule to be mandatory but not jurisdictional.

Interestingly — although not surprisingly, given the absence of an issue exhaustion

requirement in the language of § 1252(d)(1), and the practical difficulties that deeming issue

exhaustion “jurisdictional” would present — some of the circuits which the Chief Judge cites as

coming out the opposite way from Zhong on issue exhaustion and jurisdiction have indicated that

they thought this was a terrible idea. But they were bound by earlier precedents in their circuits

and could do nothing else. See, e.g., Etchu-Njang v. Gonzales,

(8th Cir.

2005) (noting that “the plain language of § 1252(d)(1) could be read to require only exhaustion of

remedies available as of right,” but finding itself bound by prior Eighth Circuit precedent); Sousa

v. INS,

(1st Cir. 2000) (stating that “[i]f we were writing on a clean slate, it

would be very tempting to treat” the failure to exhaust issues “as something less than a

jurisdictional objection,” but concluding that, “[w]hatever our own views, we are bound by

precedent to apply the INA exhaustion requirement in a more draconian fashion”).6 As the

6 These circuits, in finding, based on their own prior precedents, that they were bound to treat issue exhaustion as jurisdictional, also suggested that exceptions to the issue exhaustion requirement might nevertheless be permitted. See Sousa,

(“Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out exceptions.”); see also Etchu-Njang,

(“[A]ssum[ing] for the sake of argument that there may be exceptions to the issue exhaustion requirement.”). By allowing such “exceptions,” these circuits have, in effect, not been treating the issue exhaustion requirement as truly jurisdictional (despite the words they were bound by precedent to use). opinion in Zhong clearly states, see

, 120 n.20, it was because we were not bound

by precedent that the majority in Zhong could reach what I will argue in Part II was the correct

result as to issue exhaustion.

I do not doubt that the Chief Judge and his fellow dissenters read Foster as being a

holding on this point. That is without question their right. But, in the end, it is not up to one

judge, or even three judges, to say what is holding and what is not; that is ultimately up to the

majority of the court, and the whole court — perhaps guided by the Foster panel — has voted

overwhelmingly that review en banc of Zhong on this ground is not warranted.

II

The second question, though perhaps less fraught with emotion, is the more important

one: Did the majority in Zhong, in holding that issue exhaustion, though mandatory, is not

jurisdictional, correctly interpret what the statute and relevant case law require?

A

Section 1252(d)(1), the judicial review provision analyzed in Zhong, states that we may

review a final order of removal only after “the alien has exhausted all administrative remedies

available to the alien as of right.” That language typically means that courts do not have

jurisdiction to hear a petitioner who has not first brought his case before the available

We, of course, have similarly allowed for such “exceptions” in the context of claim exhaustion. See Gill v. INS,

(2d Cir. 2005) (stating willingness to hear unexhausted claims in order to prevent “manifest injustice”); see also Marrero Pichardo v. Ashcroft,

(2d Cir. 2004) (holding that, “notwithstanding a . . . petitioner’s failure to exhaust his claims before the BIA,” such failure may be excused where necessary to avoid “manifest injustice”). The Chief Judge, consistently with the position he takes in this case, dissented from Gill, and, in that dissent, also criticized the reasoning of Marrero Pichardo. See Gill,

(Jacobs, J., dissenting). But Gill and Marrero Pichardo nonetheless remain the law of the circuit, which is the only thing Zhong said about those cases. administrative agency. See Zhong,

n.18, 119, 120-21; see also Coleman v.

Thompson,

(1991) (discussing the requirement, found in

(b)(1) (1990), amended by Antiterrorism and Effective Death Penalty Act of 1996,

(2)(3),

, that a habeas petitioner “exhaust[] the remedies available

in the courts of the State,” and interpreting it to mean that “[a] habeas petitioner who has

defaulted his federal claims in state court meets the technical requirements for exhaustion; there

are no state remedies any longer ‘available’ to him” (emphasis added)). It does not, however, in

itself proscribe judicial review of issues not raised in the course of exhausting those

administrative remedies.7 And as the Supreme Court has observed, “requirements of

administrative issue exhaustion are largely creatures of statute.” Sims v. Apfel,

(2000); see also Zhong,

(explaining how, “as the Supreme Court

observed in [Sims,

], Congress has, in other contexts, expressly written issue

exhaustion requirements into statutes” when it wished to make issue exhaustion jurisdictional

(emphasis in original)).

Of course, even in cases in which no statutory issue exhaustion requirement exists, well-

settled principles of administrative law may lead a court to impose a mandatory — though non-

7 It is useful to compare the language of § 1252(d)(1), which makes no mention of issue exhaustion, with the language that Congress has used in other statutes. See Woelke & Romero Framing, Inc. v. NLRB,

(1982) (holding that the court of appeals lacked jurisdiction to review objections not raised before the National Labor Relations Board because a statute expressly provided for a jurisdictional issue exhaustion requirement); see

at 665 (quoting

(e) (1982 ed.), which provided that “no objection that has not been urged before the Board . . . shall be considered by the court” (emphasis added)); see also Federal Power Comm’n v. Colorado Interstate Gas Co.,

(1955) (holding that section 19(b) of the Natural Gas Act, which provided that “[n]o objection to the order of the Commission shall be considered by the court [of appeals] unless such objection shall have been urged before the Commission . . .” imposed a statutory issue exhaustion requirement (emphasis added)). jurisdictional — issue exhaustion requirement. And this is most likely to happen when an

agency’s own regulations require issue exhaustion in administrative appeals, for then “courts

reviewing agency action [will] regularly ensure against the bypassing of that requirement by

refusing to consider unexhausted issues.” Sims,

. Accordingly, since the BIA’s

regulations do require issue exhaustion, see

(b), our court has long held that

issue exhaustion is mandatory. See Zhong,

(“[O]ur court has consistently

applied an issue exhaustion requirement to petitions for review from the BIA.”).8

But the Chief Judge’s dissent moves well past these uncontroversial propositions, by

seeking to transform our judicially-imposed issue exhaustion rule into a jurisdictional

requirement. In so doing, it conflates two separate questions: (1) whether § 1252(d)(1) itself

imposes a statutory jurisdictional issue exhaustion requirement; and (2) whether, in the absence

of any statutory requirement, we have, nonetheless, ourselves imposed one. The Chief Judge

appears to argue, in effect, that because “our court has consistently applied an issue exhaustion

requirement,” dissenting op. at 1, such requirement must necessarily be jurisdictional rather than

mandatory. Alternatively, the Chief Judge contends that § 1252(d)(1) should be read to include a

8 For an example of our treatment of exhaustion requirements as “mandatory” but not “jurisdictional,” see Handberry v. Thompson,

(2006), in which we interpreted as mandatory, but not jurisdictional, the language of the Prison Litigation Reform Act of 1995 (“PLRA”), which provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.” Although we had previously held that exhaustion under the PLRA is “mandatory,” Handberry held such exhaustion to be non- jurisdictional in light of the fact that the PLRA did not expressly describe the exhaustion requirement as jurisdictional. See also Jones v. Bock,

(2007) (holding that, while “[t]here is no question that exhaustion is mandatory under the PLRA,” the “failure to exhaust is an affirmative defense”). Compare the PLRA’s exhaustion requirement to § 1252(d)(1), which also does not expressly provide for an issue exhaustion requirement at all, much less say that any such requirement would be jurisdictional. jurisdictional issue exhaustion requirement — even though the text of the statute does not

include one — because the agency’s regulation requires issue exhaustion during administrative

appeals. Both lines of argument are unpersuasive.

In Sims, the Supreme Court noted that courts often impose mandatory issue exhaustion

rules when the agency’s own regulations require the exhaustion of issues in administrative

appeals.

. The Court then cited approvingly, as examples of such issue

exhaustion rules at work, the Fourth Circuit’s decision in South Carolina v. U.S. Dep’t of Labor,

(4th Cir. 1986), and the Ninth Circuit’s opinion in Sears, Roebuck and Co. v.

FTC,

, 398 n.26 (9th Cir. 1982). Significantly, both of those opinions treated issue

exhaustion as mandatory, but not jurisdictional.

In South Carolina, the Fourth Circuit held that, because the state had failed to exhaust

certain issues, the state had waived those issues.

. Similarly, in Sears, the Ninth

Circuit stated that, in considering whether the party had exhausted issues, what was at stake was

whether the party had “waived reliance on them.”

. Moreover, the Ninth

Circuit in Sears explained that “a reviewing court will refuse to consider contentions not

presented before the administrative proceeding at the appropriate time,” except in “exceptional

circumstances.”

(emphasis added). And, the fact that the Ninth Circuit treated “

exceptional circumstances” as relevant at all is, of course, inconsistent with a truly jurisdictional

requirement. We can readily conclude that the Sears and South Carolina courts did not think

that what was at play in those cases was jurisdiction.

Significantly, the Sims Court cited Sears and South Carolina with approval as examples

of cases in which courts properly imposed issue exhaustion requirements even in the absence of express statutory language. Since those cases, like the majority in Zhong, treated issue

exhaustion as mandatory but not jurisdictional, we have every reason to believe that the Supreme

Court endorsed that treatment as well.

The Chief Judge’s dissent relies on Jones v. Bock,

(2007), and Woodford v.

Ngo,

(2006), for the proposition that “exhaustion of administrative remedies”

means whatever an agency, through its regulations, says it means. See dissenting op. at 4-7. In

other words, despite the fact that § 1252(d)(1) contains no jurisdictional issue exhaustion

requirement, the Chief Judge would have us treat the BIA’s regulations as if they were

themselves the statute. And, equally importantly, he wants us to read the agency regulations

requiring issue exhaustion as if they made such exhaustion jurisdictional rather than mandatory.

One may doubt whether an administrative agency can either confer jurisdiction on courts

or deprive courts of it. Cf. Kontrick,

(“Only Congress may determine a lower

federal court’s subject-matter jurisdiction.”). One may certainly doubt it in the absence of any

express authorization to that effect by Congress. But one need not reach those questions to agree

with the holding in Zhong. For the agency regulations dealing with issue exhaustion in the

immigration context do not themselves speak in clearly jurisdictional terms. Rather, the

administrative regulations use language that can readily be read to make issue exhaustion

mandatory, which is exactly how Zhong reads it. See Zhong,

.

Jones and Woodford do not affect this result.9 In Woodford, the Supreme Court held that

“proper exhaustion” under the PLRA’s non-jurisdictional exhaustion requirement “demands

9 The PLRA’s exhaustion requirement is a non-jurisdictional affirmative defense, see Jones,

. Jones and Woodford, therefore, do not address the ability an agency to expand or diminish a court’s jurisdiction. compliance with an agency’s deadlines and other critical procedural rules because no

adjudicative system can function effectively without imposing some orderly structure.”

Woodford,

. Fair enough, but this does not make such deadlines jurisdictional.

And when Congress has intended to make procedural rules jurisdictional it has, itself, spoken to

that effect. See supra note 7. The fact that it did not do so in § 1252(d)(1), then, indicates that

no such jurisdictional requirement was intended. And it is Congress’s expressed intent, and not

the agency’s procedures, that must govern the statutory meaning of § 1252(d)(1), and guide

courts in making their own jurisdictional determinations.

B

The Chief Judge, in his dissent, expresses the fear that, as a result of Zhong, all sorts of

issues may be considered on appeal which, under the statute and the BIA regulations, ought not

to be reviewed. I can sympathize with his worry, but it would only become a valid concern if

Zhong were to be misapplied. And on a question like that, the proof of the pudding is always in

the eating.

Since the opinion in Zhong came down, Zhong has been applied and cited in any number

of cases. See Lewis v. Gonzales,

(2d Cir. 2007); Steevenez v. Gonzales,

(2d Cir. 2007); Karaj v. Gonzales,

, 119 n.2 (2d Cir. 2006); Xiao Ji Chen

v. U.S. Dep’t of Justice,

, 320 n.1 (2d Cir. Dec. 7, 2006), amending and superseding

Xiao Ji Chen v. U.S. Dep’t of Justice,

(2d Cir. Jan. 6, 2006); Wilson v. Gonzales,

(2d Cir. 2006); see also Jin Feng Gao v. Bureau of Citizenship and

Immigration Srvs.,

(2d Cir. Apr. 26, 2007) (summary order); Chai Li v.

Gonzales,

(2d Cir. Apr. 25, 2007) (summary order); Ahmed v. INS,

(2d Cir. Apr. 20, 2007) (summary order); Juan Lin v. Bureau of Citizenship and

Immigration Srvs.,

(Apr. 13, 2007) (summary order); Bah v. Gonzales,

(Apr. 5, 2007) (summary order); Guo Zhi Lin v. U.S. Att’y Gen.,

(Apr. 5, 2007) (summary order); Xiu Zhen Pan v. U.S. Att’y Gen.,

(2d Cir.

Mar. 23, 2007) (summary order); Yee Ying Li v. U.S. Dep’t of Justice,

(2d Cir.

Mar. 21, 2007) (summary order); Gjuraj v. Gonzales,

(2d Cir. Mar. 21, 2007)

(summary order); Purwanto v. Gonzales,

(2d Cir. Mar. 16, 2007) (summary

order); Lhamo v. Bd. of Immigration Appeals,

(2d Cir. Jan. 25, 2007)

(summary order); Rong Zheng v. U.S. Att’y Gen.,

(2d Cir. Jan. 22, 2007)

(summary order); Kapllaj v. Gonzales,

(2d Cir. Dec. 13, 2006) (summary

order); Hayat v. Gonzales,

(2d Cir. Nov. 14, 2006) (summary order); Sun Hai

Jiang v. U.S. Dep’t of Justice,

(2d Cir. Nov. 15, 2006) (summary order);

Kuang Ju Zheng v. Gonzales,

(2d Cir. Oct. 23, 2006) (summary order); Ya-

Ling v. Gonzales,

(2d Cir. Sept. 29, 2006) (summary order); Fang Yi

He v. Gonzales,

(2d Cir. Sept. 20, 2006) (summary order); Qiu Feng Chen

v. Gonzales,

(2d Cir. Sept. 12, 2006) (summary order); Xiao Lian Jiang v.

Gonzales,

(2d Cir. Sept. 6, 2006) (summary order); Makeka v. Gonzales,

(2d Cir. Aug. 29, 2006) (summary order).

In every one of these cases, Zhong has been correctly applied to deny consideration where

the issue was not brought before the BIA — and to do so because raising such issues was mandatory, even though not jurisdictional.10 In other words, far from the sky falling in, it is still

there, and is shining bright.

****

In the end the question in Zhong is a quite simple one. (1) Given the Supreme Court’s

powerful statements that courts should be reluctant to make issues jurisdictional rather than

mandatory unless statutory language requires it, see Day,

; Arbaugh,

; Eberhart,

; Kontrick,

; see also Sims,

; (2) given the fact that our precedents do not compel us to make issue exhaustion in

immigration cases jurisdictional; (3) given the enormous burden that calling issue exhaustion

jurisdictional would in practice impose on courts like ours which are deluged with those cases;

and finally, (4) given the very small — if any — differences in results that flow from calling

issue exhaustion mandatory but not jurisdictional,11 is it permissible and appropriate to read the

agency regulations under § 1252(d)(1) as making issue exhaustion mandatory but not

jurisdictional. The majority in Zhong said that it was. The overwhelming majority of our court

has opted not to review that decision en banc. With great respect for the dissenting views, I

believe that decision was exactly right.

10 The only exception we have found since Zhong is You Jiang v. Gonzales,

(2d Cir. Apr. 3, 2007) (summary order) (reviewing unexhausted issue in light of government’s waiver), and I do not know whether the facts in You Jiang might have permitted review under the exceptions that some courts have read into jurisdictional language. See supra note 6. 11 Especially in view of the “exceptions” to jurisdictional bars that courts using jurisdictional language have created. See supra note 6. DENNIS JACOBS, Chief Judge, with whom JOSÉ A. CABRANES and

REENA RAGGI, Circuit Judges, concur, dissenting from the

denial of rehearing in banc.

“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 . . . .”

(d)(1). Thus Congress foreclosed our review of

challenges that an alien failed to present at the agency’s

factfinding and appellate levels. The majority of a divided

panel says that we can reach unexhausted issues

nevertheless--subject only to our discretion and to the

spongy test of “manifest injustice.” The panel majority

seems to think that Congress has shut the door with the

intention that we should climb in the window.

Our law on this subject has been well settled to the

contrary. As the panel majority concedes, “our court has

consistently applied an issue exhaustion requirement to

petitions for review from the BIA.” Zhong v. U.S. Dep’t of

Justice,

(2d Cir. 2007). Judge Kearse’s

dissent persuasively attacks the deviation of the panel

majority and the analysis they use to get where they go. I

cannot improve upon her dissent, and there is no point in my

repeating it. This dissent is taken from the denial of in banc review because I do not know what makes the panel

majority believe that our precedent is insufficient to

decide this case, or that our precedent could be set aside

by one panel.

I

Our 2004 opinion in Foster v. INS held that §

1252(d)(1) precludes our review of claims and of issues that

were not exhausted at the BIA: “[C]ourts are not free to

dispense with” the requirement that a petitioner “raise

issues to the BIA in order to preserve them for judicial

review.”

(2d Cir. 2004) (emphasis in

original) (internal quotation marks omitted). “We held in .

. . Foster that a petitioner must have raised an issue below

to present it on appeal.” Gill v. INS,

(2d

Cir. 2005) (emphasis in original). Since Foster came down,

every active judge of this Court has applied its holding--

usually by summary order in recognition of the settled

nature of the proposition. 1 Ten other courts of appeals

1 See, e.g., Damko v. INS,

(2d Cir. 2006) ; Qin Di Chen v. BCIS,

(2d Cir. 2006); Islamovic v. Gonzales,

(2d Cir. 2006); Meiying Lin v. U.S. Dep’t of Justice,

(2d Cir. 2006); Xian Xian Huang v. Gonzales,

(2d Cir. 2006); Yong Gui Liu v. Gonzales, No. 04-4475,

(2d Cir. June 9, 2006); Yun Yu Zheng v. Gonzales,

(2d Cir. 2006); Xharo v. Gonzales,

(2d Cir. 2006); Yan Fang Wang v. U.S. have addressed the issue--and they all reached the same

conclusion we did.2 Judge Calabresi notes that two of the

circuits reached this conclusion only because “they were

bound by earlier precedents in their circuits and could do

nothing else.” Concurring Op. at [5]. I do not think that

adherence to precedent is a value so easily dismissed; in

any event, those panels could have done something else: seek

review in banc.

Choosing instead to depart from our well-settled

precedent, the panel majority now says that we do have the

discretion to review an issue presented to us on appeal that

was not presented to the BIA, and moreover that we must

review such an issue if necessary to prevent a “manifest

injustice”--thus reserving a power to be arbitrary and

captious.

Although the statute does not speak in so many words of

Dep’t of Justice,

(2d Cir. 2005). 2 See Makhoul v. Ashcroft,

(1st Cir. 2004); Xin Jie Xie v. Ashcroft,

, 245 n.8 (3d Cir. 2004); Asika v. Ashcroft,

, 267 n.3 (4th Cir. 2004); Kuang- Te Wang v. Ashcroft,

(5th Cir. 2001); Ramani v. Ashcroft,

(6th Cir. 2004); Pjetri v. Gonzales,

(7th Cir. 2006); Alyas v. Gonzales,

(8th Cir. 2005); Morales-Alegria v. Gonzales,

(9th Cir. 2006); Rivera-Zurita v. INS,

, 120 & n.2 (10th Cir. 1991); Fernandez- Bernal v. Attorney General,

, 1317 n.13 (11th Cir. 2001). exhausting “issues,” Foster held that it makes no sense to

read the statute any other way: “Accepting the blanket

statement that removal is improper as sufficient to exhaust

all claims would eviscerate th[e] [exhaustion] rule since

any alien could claim (as nearly all do) he was not

removable and then apply for judicial review on the theory

he had exhausted his remedies.”

. This

holding has been consistently applied in our opinions. See,

e.g., Iouri v. Ashcroft,

(2d Cir. 2006)

(“[T]his particular argument was not raised before the BIA

and Petitioners therefore failed to exhaust their

administrative remedies.” (emphasis added)).

II

Panels of this Court are bound by our precedents unless

and until those precedents are overruled by the Supreme

Court or by this Court sitting in banc. See Nicholas v.

Goord,

(2d Cir. 2005). Nothing the

Supreme Court has said could have justified the departure

from Circuit precedent that the panel majority has made.

The Supreme Court has spoken plainly as to how the

inferior courts should understand statutory exhaustion

requirements. When Congress says (as it did in § 1252(d)(1)) that a petitioner must have “exhausted all

administrative remedies available as of right,” the

petitioner must do so in accordance with that agency’s

procedures. See Jones v. Bock,

(2007)

(“[I]t is the prison’s requirements . . . that define the

boundaries of proper exhaustion.”). The Supreme Court has

thus emphasized that the existence of an issue exhaustion

requirement does not hinge solely on statutory wording:

“Proper exhaustion demands compliance with an agency’s

deadlines and other critical procedural rules because no

adjudicative system can function effectively without

imposing some orderly structure on the course of its

proceedings.” Woodford v. Ngo,

(2006).

Thus in Sims v. Apfel, the Court ascertained the need

for issue exhaustion by examining the agency’s regulations

and its internal appellate process.

(2000). 3 Sims ruled that appeals to the Social Security

3 The Sims Court consulted the regulations to determine the propriety of an exhaustion rule because the statute at issue in that case made no reference to exhausting administrative remedies, see

(g) (requiring only a “final decision”). While Sims is concerned with judicial imposition of an issue exhaustion requirement, the Court’s analysis of agency processes should inform our determination of the scope of a statutory exhaustion requirement such as § 1252(d)(1). I agree with Judge Kearse that Foster reached the right answer in making this determination. See Zhong, Appeals Council need not specify grounds for reversal; but

the analysis used in Sims compels the opposite conclusion in

the immigration context. The Court concluded that social

security regulations did not require issue exhaustion, but

observed that “it is common for an agency’s regulations to

require issue exhaustion in administrative appeals,” id. at

108, and the example it cited of a regulation that does

require as much--and therefore would necessitate issue

exhaustion--closely tracks the words of its immigration

analog. Compare

(a) (petitions for

review by the Benefits Review Board must “list the specific

issues to be considered on appeal”), with

(b) (“The party taking the appeal must identify the

reasons for the appeal . . . [including] the findings of

fact, the conclusions of law, or both, that are being

challenged.”).

In considering the agency’s appellate process, the Sims

Court examined the agency’s directions to those seeking to

file an appeal within the agency, and inferred that the

“Council does not depend much, if at all, on claimants to

identify issues for review.”

-12 (citing 20

(Kearse, J., dissenting) (“Given the present context, to wit, issues presented in a petition for review, I regard the phrase ‘issues not raised in the course of exhausting all administrative remedies’ (emphases added) as an oxymoron.”). C.F.R. § 422.205(a) and Form HA-520). By contrast, the

Executive Office for Immigration Review expressly instructs

aliens to “give specific details why you disagree with the

Immigration Judge’s decision” and to “specify the finding(s)

of fact, the conclusion(s) of law, or both, that you are

challenging.” Form EOIR-26, available at

http://www.usdoj.gov/eoir/; see also

.

III

Having decided to bypass our precedent, the panel

majority makes a pretense of laying down criteria for the

circumstances (purportedly limited) in which we might excuse

or ignore a petitioner’s failure to exhaust issues before

the BIA.

First, the panel majority would consider whether the

government objected on appeal to the petitioner’s failure to

exhaust. Zhong,

n.1, 125. (This is raised

as a purported ground of distinction between the present

case and Foster). Even were this a legitimate

consideration, no waiver should be inferred from the lack of

objection by the government where, as here, the government

had no reason to assume that we would deviate from our well-

settled precedent. If waiver can be inferred here, it can

be inferred anywhere. And future panels may simply deem an objection ‘insufficiently specific’ to render the waiver

issue--which the panel majority regards as essential to

considering the unexhausted issues in the present case--

meaningless.

In any event, § 1252(d)(1) tells us what the “court may

review,” not what the parties must do; so its mandate should

not be reduced to the status of an affirmative defense. 4

The statutory context demonstrates why Congress chose to

express § 1252(d)(1) as a limitation on our power. Courts

of appeals are empowered only to review final orders of

removal, not to re-adjudicate the underlying application for

relief. 5 Because we cannot review something that the BIA

had no occasion or duty to decide, we should not be freed

from the constraint of § 1252(d)(1) by the absence of a

4 Cf. Eberhart v. United States,

(2005) (holding that a violation of Federal Rule of Criminal Procedure 33’s deadline for the filing of a motion for a new trial, which is prefaced with “Any motion . . . must be filed,” must be timely objected to); Johnson v. Testman,

(2d Cir. 2004) (holding that the exhaustion requirement of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), which is prefaced with “No action shall be brought,” is waivable). 5 Compare

(a) (limiting our jurisdiction over final orders of removal to “determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency”), and

(a)(1) (incorporating by reference the jurisdictional limitations of the Administrative Orders Review Act, §§ 2341-2353), with

(g) (permitting a federal court to issue “a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security . . . without remanding the cause for a rehearing”). government objection or by the government’s undertaking

instead to demonstrate that an unpreserved issue is

meritless.

The panel majority would next consider whether the BIA

affirmed summarily, and draws the senseless inference that a

summary affirmance adopts all of the IJ’s grounds for

denying relief even if the petitioner challenged fewer than

all of them. Zhong,

. But why presume that

the BIA considers and decides issues that were not argued to

it? And why assume that the BIA conducts a broader review

before issuing a summary disposition than it does when it

issues an opinion? See United States v. Gonzalez-Roque,

(2d Cir. 2002) (“Although the BIA has access to

the entire record, it is not obligated to search it for

possibly meritorious appellate issues.”). One suspects that

this consideration is raised by the panel majority chiefly

as a way to embarrass the BIA for adopting streamlined

practices. “[I]t is not the role of the federal courts to

dictate the internal operating rules of the BIA.” Kambolli

v. Gonzales,

(2d Cir. 2006). As it

happens, our Court follows a similar rule. See 2d Cir. R. §

0.23.

Last, the panel majority would consider whether

“additional factfinding is necessary,” Zhong,

n.1, 125. This is just another way of saying that a

panel may consider on appeal any issue it sees in the record

without regard to whether it was raised to the BIA. In any

event, under

(a)(1), “the court may not order

the taking of additional evidence.”

The considerations proffered by the panel majority

amount to no effective limitation on the willingness of a

panel to disregard issue exhaustion at will. 6 And so, in an

effort to create the illusion of restraint, the panel

majority holds that the only cases in which a panel must

ignore § 1252(d)(1) are those in which doing so would

“prevent manifest injustice.” Zhong,

n.1.

The panel majority’s footnote discussing “manifest

injustice” is pure dicta because no injustice (manifest or

not) has been identified in this case. In any event, I

6 Judge Calabresi offers comfort in the form of 26 cases decided after Zhong came down in which panels did not grasp the opportunity to decide a question never presented to the BIA. Concurring Op. at [11-12]. This score is offered as a response to a floodgate argument I do not make. The institutional danger is not that many panels will take the opportunity to decide many such issues; it is that a single panel will be able to designate itself to decide a particular issue, and reach it at will after dispensing with the essentially meaningless criteria the Zhong majority formulated as a supposed restraint on the abuse of power and discretion. In any event, the score cited reflects only what has happened thus far--while this in banc initiative has been pending. Panels may be less inclined to exercise judicial restraint in the future. Stay tuned. share Judge Kearse’s skepticism concerning “whether this

Court actually has the power to remedy even a manifest

injustice when we lack jurisdiction.” Zhong,

(Kearse, J., dissenting). The idea itself was

improvised by a panel of this court in Marrero Pichardo v.

Ashcroft, an appeal from the denial of habeas relief sought

by a felon who failed altogether to appeal his order of

deportation to the BIA.

, 52-54 (2d Cir. 2004).

Recent rulings had called into question whether Marrero

Pichardo could be deemed an aggravated felon on the basis of

his DUI convictions--of which there were eleven (hence the

manifest injustice). As I have observed elsewhere, Marrero

Pichardo can tenably stand only for two propositions already

laid down by the Supreme Court: [i] “courts may not be bound

by congressional limitations on jurisdiction that raise

constitutional problems”; and [ii] exhaustion requirements

“do not apply if there is no possibility of relief from the

administrative agency, in which event the administrative

officers would presumably have no authority to act on the

subject of the complaint, leaving the [complainant] with

nothing to exhaust.” Gill,

(Jacobs, J.,

dissenting) (internal citations omitted). Marrero Pichardo

stands for nothing more, and certainly does not authorize us (if any panel opinion could) to reach unexhausted issues on

an appeal from the BIA, or to assume that injustices that

are truly “manifest” will have been overlooked by the

petitioners themselves.

IV

The panel majority opinion makes its case for why §

1252(d)(1) leaves issue exhaustion to discretion; it makes

no case for why any member of this Court is bound to follow

it.

When an issue is settled (as this one has been), panels

that follow precedent have no occasion to revisit it--they

simply apply the rule by summary order. So judges with a

mind to undo a precedent need only await such a case with

patience and select themselves to decide the issue as if it

had not already been settled. Such deviation from precedent

is something that a disciplined court should consider in

banc in order to preserve the coherence and consistency of

its jurisprudence. By rejecting in banc review, we decline

to consider together an issue of “exceptional importance,”

one which no one can dispute is “necessary to secure or

maintain uniformity” in our Circuit. Fed. R. App. P. 35(a).

Sometimes, in banc proceedings can be obviated by the

circulation of a draft opinion to the active members of the Court; litigants and the public are then advised by footnote

that no objection was interposed. That was not done in this

case. 7 This circumvention can be effective only because our

in banc practice is so rusty and cumbersome that its

desuetude will allow a single panel to skate past full court

review.

By the same token, however, any other panel may--with

equal authority and equal occasion and equal legitimacy--

overrule the panel majority’s holding. This prospect is

institutionally dangerous, and risks debasing the currency

of our rulings and opinions.

7 Judge Calabresi advises that two of the three judges who signed the per curiam in Foster are willing to concede that the most significant ruling in it may be dicta. Concurring Op. at [2]. I do not think that the informal approbation of two possible authors is a substitute for in banc review of a case whose principle has been consistently cited as authority by this Court, relied upon by litigants, and adopted by ten other courts of appeals.