Gicharu v. Carr

          United States Court of Appeals
                        For the First Circuit


No. 19-1864

                       SAMUEL KINUTHIA GICHARU,

                        Plaintiff, Appellant,

                                  v.

    DONNA CARR, in her capacity as Chief Clerk of the Board of
 Immigration Appeals; JAMES MCHENRY, in his capacity as Director
    of the Executive Office for Immigration Review; MICHAEL E.
  HOROWITZ, in his capacity as Inspector General, Civil Rights &
      Civil Liberties Complaints, U.S. Department of Justice,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Indira Talwani, U.S. District Judge]


                                Before

                        Thompson and Kayatta,
                           Circuit Judges.


     Joanna M. Golding, with whom Barker, Epstein & Loscocco was
on brief, for appellant.
     Kevin C. Hirst, Trial Attorney, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, with whom Joseph
H. Hunt, Assistant Attorney General, Civil Division, William C.

     
       Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 

(d).
Peachey, Director, Office of Immigration Litigation, Yamileth G.
Davila, Assistant Director, and Michael A. Celone, Senior
Litigation Counsel, were on brief, for appellees.



                       December 16, 2020
           KAYATTA,    Circuit    Judge.       In    2013,    the    Board   of

Immigration Appeals affirmed an order authorizing the removal of

Samuel Kinuthia Gicharu to Kenya, his country of origin.              Over two

years later, Gicharu filed with the BIA a motion to reopen his

removal proceedings.       The BIA rejected the motion.                Gicharu

appealed   to   this   court,    which    affirmed   the     BIA's   decision.

Undeterred, Gicharu commenced an action in United States District

Court against various officials of the Department of Justice.

Claiming a right of action under the Administrative Procedure Act

(APA) and under any statutes providing for habeas corpus relief,

he sought an order compelling the BIA to rescind and reissue the

order of removal it affirmed in 2013 and later refused to reopen.

The district court dismissed his complaint on the merits for

failure to state a claim.         Without reaching the merits, we now

dismiss Gicharu's appeal, finding that the district court lacked

subject matter jurisdiction.       Our reasoning follows.

                                     I.

           To assess whether the district court had subject matter

jurisdiction, we consider Gicharu's pleadings as well as the record

of the proceedings leading up to this appeal.          See Aguilar v. U.S.

Immigr. & Customs Enf't, 

 (1st Cir. 2007).                Gicharu

arrived in the United States on a visitor's visa in 2003.                After

entering the United States, he filed applications for asylum,

withholding of removal, and relief under the Convention Against

                                   - 3 -
Torture. In May 2011, an immigration judge denied his applications

for relief and ordered him removed.          Gicharu, who was represented

by counsel, appealed to the BIA.           While the appeal was pending,

both Gicharu and his counsel changed their mailing addresses.               In

so doing, neither complied with the applicable BIA regulation

requiring them to update their addresses of record, see 

(e),    even    after   Gicharu's     counsel     was    specifically

advised of the regulation.

            In March 2013, the BIA affirmed the decision of the

immigration    judge    and   issued   a   final   order   of    removal.   In

accordance with BIA regulations, copies of the decision were mailed

to Gicharu and his counsel at their addresses of record.                    The

copies were returned as undeliverable, presumably because the

addresses provided were outdated by the time the BIA issued its

decision.     Gicharu alleges that, as a result, he did not receive

actual notice of the final order of removal until late April or

early May 2013 -- after the thirty-day period for filing a petition

for review in this court had lapsed, but well before the ninety-

day deadline for filing a motion to reopen.

            Over two years later, Gicharu moved the BIA to reopen

his removal proceedings.         Although he had long ago missed the

ninety-day deadline for filing a motion to reopen, he argued that

his motion should be allowed under the doctrine of equitable

tolling because he had received ineffective assistance of counsel.

                                   - 4 -
Gicharu asserted, among other things, that his counsel had failed

to properly maintain a current address of record with the BIA

during the pendency of his appeal, which deprived him of timely

notice   of    the    BIA's   March    2013    decision.        The    BIA    was   not

persuaded.      It rejected Gicharu's ineffective assistance claim,

along with other claims not relevant here, and denied the motion

to reopen. Gicharu sought review in this court. In February 2018,

we   rejected    his    petition      for   review   and   affirmed       the   BIA's

decision.      Gicharu v. Sessions, Nos. 16-2520, 17-1455 (1st Cir.

Feb. 23, 2018).

              In this subsequent action commenced in the district

court, Gicharu alleged that service of the BIA's March 2013 final

order of removal was defective. Citing the APA, 

(1),

he sought to compel the BIA to reissue the order so as to give him

another opportunity to file a timely petition for review and/or a

timely motion to reopen.         He also sought leave to file a proposed

amended complaint, which added allegations regarding ineffective

assistance of counsel and a request for habeas relief.                              The

government moved to dismiss the complaint for lack of jurisdiction

under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and

for failure to state a claim under Rule 12(b)(6).                     The government

also   opposed       Gicharu's   motion     for   leave    to   file     an   amended

complaint, arguing that the proposed amendment would be futile for

the same reasons.

                                       - 5 -
           Over the government's objections, the district court

concluded that it had jurisdiction over both the APA claim asserted

in the operative complaint and the habeas claim asserted in the

proposed amended complaint.       Nevertheless, the district court

granted the government's motion to dismiss the complaint for

failure to state a claim and similarly denied Gicharu's motion for

leave to file an amended complaint on futility grounds.

                                  II.

           We begin (and ultimately end) with the question of

subject matter jurisdiction.      See Steel Co. v. Citizens for a

Better Env't, 

, 88–89 (1998).         In so doing, we review

the district court's assessment of subject matter jurisdiction de

novo.   See Amoche v. Guarantee Tr. Life Ins. Co., 

(1st Cir. 2009).

                                  A.

           The jurisdiction-channeling provision of the Immigration

and Nationality Act (INA), 

(a)(5), states that "the

sole and exclusive means for judicial review of an order of

removal" is "a petition for review filed with an appropriate court

of appeals."   Adding belt to suspenders, section 1252(b)(9) strips

federal   courts   of   jurisdiction    to   decide   legal   and   factual




                                 - 6 -
questions arising from an alien's removal in any other context,

including on a petition for a writ of habeas corpus:

             Judicial review of all questions of law and
             fact,     including     interpretation     and
             application of constitutional and statutory
             provisions, arising from any action taken or
             proceeding brought to remove an alien from the
             United States under this subchapter shall be
             available only in judicial review of a final
             order under this section. Except as otherwise
             provided in this section, no court shall have
             jurisdiction,    by   habeas   corpus    under
             section 2241 of Title 28, or any other habeas
             corpus provision . . . or by any other
             provision of law (statutory or nonstatutory),
             to review such an order or such questions of
             law or fact.

(b)(9).     "As     its   text   makes   manifest,"

section 1252(b)(9) does not preclude judicial review of orders of

removal; rather, it is "designed to consolidate and channel review

of all legal and factual questions that arise from the removal of

an alien into the administrative process, with judicial review of

those decisions vested exclusively in the courts of appeals."

Aguilar, 

 (emphasis omitted).

             Of course, "[t]he words 'arising from' do not lend

themselves to precise application."       

.    But neither are

they "infinitely elastic."     

   We have previously explained that

interpreting section 1252(b)(9) to eliminate all judicial review

of certain removal-related claims would be contrary to Congress's

intent of channeling, rather than barring, review of claims arising

from the removal process.      See 

; see also Jennings v.

                                 - 7 -
Rodriguez,    

    (2018)   (plurality   opinion)

(rejecting an interpretation of "arising from" that would make

certain claims "effectively unreviewable").               Thus, we have found

that claims which cannot be raised in removal proceedings and

eventually brought to the court of appeals on a petition for review

are "independent of, or wholly collateral to, the removal process,"

not "arising from" it.       Aguilar, 

.

             This   narrow   exception     for   claims    not   arising   from

removal proceedings provides no succor for Gicharu.              His claims of

insufficient service and ineffective assistance of counsel plainly

"arise from" the removal process.                The regulations governing

removal proceedings set forth the method of service of a removal

order, imposing on the BIA "an affirmative obligation to mail a

copy of its final decision to the alien" or his representative.

Tobeth-Tangang v. Gonzales, 

 (1st Cir. 2006)

(citing 

(a), 1003.1(f)); cf. 

(providing that in immigration court, "[s]ervice" generally means

"physically presenting or mailing a document to the appropriate

party or parties"). Among other things, the date of mailing starts

the clock on the thirty-day period for filing with the BIA a motion

for reconsideration, see 

(b)(2), and the thirty-

day period for filing a petition for review in this court, see

Tobeth-Tangang, 

 (citing Radkov v. Aschroft, 

 (1st Cir. 2004)).           These regulations make clear that

                                       - 8 -
the service of a removal order is "inextricably intertwined with[]

the   administrative     process   that     Congress     so     painstakingly

fashioned."    Aguilar, 

.      Similarly, as we recognized

in Aguilar, "the alien's right to counsel is part and parcel of

the removal proceeding itself."        

 (citing 

).        A

claim challenging counsel's effectiveness therefore "possesses a

direct link to, and is inextricably intertwined with," the removal

process.     

             Further, Gicharu's claims could have been pursued before

the   BIA,    which   "refutes   any    notion"   that    his    claims    are

"independent of, or collateral to, the removal process."             

   To

start, Gicharu could have pursued before the BIA his claim for

insufficient service of the March 2013 removal order, which he now

asserts under the APA.      Such claims are regularly raised through

the BIA's administrative process and brought before this court

through petitions for review.          See, e.g., Aponte v. Holder, 

 (1st Cir. 2010) (directing the BIA to allow a renewed

motion to reopen based on a defect in service); Tobeth-Tangang,

440 F.3d at 538–40 (reviewing the BIA's denial of a motion to

reopen and concluding that service was not defective); Hossain v.

Ashcroft, 

 (1st Cir. 2004) (directing the BIA to

allow a renewed motion for reconsideration based on insufficient

service); Gomes v. Smith, 

 (D. Mass. 2019)

(stating that an immigration judge had reissued the plaintiff's

                                   - 9 -
order of removal on a motion to reopen where the plaintiff had

previously been unaware of the removal order).

                 The   BIA    also     provides      a    process    for     adjudicating

ineffective assistance of counsel claims through a motion to

reopen.          See Avelar Gonzalez v. Whitaker, 

 (1st

Cir. 2018) (citing Bernal-Vallejo v. INS, 

 (1st

Cir. 1999)). Aliens who timely file a motion to reopen and satisfy

the governing standards prevail in obtaining reopening. See Matter

of Lozada, 

 (BIA 1988), aff'd sub nom.

Lozada v. INS, 

 (1st Cir. 1988) (setting forth the

governing standards); accord In re Zmijewska, 

,

94–95 (BIA 2007) (granting a motion to reopen where an alien

adequately         complied     with    Matter       of   Lozada).         The    BIA    also

entertains claims for equitable tolling of the filing deadline for

motions to reopen where it is alleged that ineffective assistance

of counsel caused the motion to be untimely.                     See, e.g., Pineda v.

Whitaker, 

, 840–41 (1st Cir. 2018) (describing the

BIA's decision on one such claim).1                        Though the standard for

establishing equitable tolling is daunting, see 

, it

does       not    render     review    by   the   BIA     or   the   court       of   appeals


       1The legitimacy of the BIA's current practice of applying
equitable tolling principles to untimely motions to reopen remains
"an open question" in the First Circuit. Pineda, 908 F.3d at 841.
For purposes of this case, we assume, without deciding, that
equitable tolling may be available in an appropriate case. See
id.
                                            - 10 -
unavailable.     Indeed, the courts of appeals regularly review

decisions by the BIA on ineffective assistance of counsel claims

asserted through both timely and untimely motions to reopen.            See,

e.g., Wang v. Ashcroft, 

, 27–29 (1st Cir. 2004) (noting

"the sheer volume of ineffective assistance of counsel claims

asserted by deportable aliens" and reviewing the BIA's decision on

one such claim asserted through a timely motion to reopen); Romer

v. Holder, 

 (1st Cir. 2011) (remanding to the BIA

with instructions to consider the petitioner's equitable tolling

argument on an untimely motion to reopen).

             In sum, Gicharu's request that we compel the BIA to

"rescind" the final order of removal necessarily rests on a

contention that something occurred in connection with the issuance

of that order that renders it inequitable to leave in place.            That

contention    "aris[es]   from"   the    removal   proceedings,   and    our

acceptance of it would require our review of precisely the same

issues   regarding    sufficiency       of   service   and   adequacy     of

representation that Gicharu could have raised in his challenge to

the BIA's decision not to reopen.2           Put differently, exercising

jurisdiction over Gicharu's claims would encourage just the sort

of "scattershot and piecemeal" litigation that Congress sought to




     2  That Gicharu actually did pursue his claim of ineffective
assistance of counsel in a motion to reopen before the BIA and on
a petition for review in this court well illustrates this point.
                                  - 11 -
prevent when it enacted section 1252(b)(9).                  Aguilar, 

 (citing H.R. Rep. No. 109–72, at 174 (2005) (Conf. Rep.), as

reprinted in 2005 U.S.C.C.A.N. 240, 299).

                                            B.

               Gicharu nevertheless contends that his claims cannot be

found     to     "aris[e]        from"     his     removal     proceedings       under

section 1252(b)(9) because that provision "applies only '[w]ith

respect    to    review     of    an     order   of   removal     under   [

(a)(1)].'"        INS v. St. Cyr., 

 (2001) (first

alteration in original) (quoting 

(b)), superseded

on other grounds by statute, REAL ID Act of 2005, Pub. L. No. 109–

13, § 106, 

, 310–311, as recognized in Nasrallah v.

Barr, 

 (2020). He relies on Singh v. Gonzales,

,    978–79      (9th     Cir.     2007),    which     held     that

section 1252(b)(9) does not apply where, as here, the plaintiff

merely seeks the reissuance of the removal order.                   He also points

to cases in which other circuits have held, under circumstances

not presented here, that section 1252(b)(9) has no effect on

jurisdiction where the plaintiff does not challenge the merits of

the underlying removal order.              See, e.g., Madu v. U.S. Att'y Gen.,

        (11th     Cir.   2006)     (holding       that

section 1252(b)(9) did not apply to bar a claim contesting "the

very existence of an order of removal"); Kumarasamy v. Att'y Gen.,

, 172 (3d Cir. 2006) (determining that the petitioner's

                                          - 12 -
challenge to the existence of a removal order was properly reviewed

as an appeal from the district court's habeas judgment, not as a

petition for review).

           Even assuming that the scope of section 1252(b)(9) is so

limited by section 1252(b) -- a position endorsed by only three

Justices in Jennings, 

 (Breyer, J., dissenting)

-- Gicharu's claims still fall within it. Gicharu argues on appeal

that the BIA's decision denying his 2015 motion to reopen was "in

error" and that the district court "effective[ly] affirm[ed]" that

decision "in error" by dismissing the instant action.          In other

words, Gicharu effectively seeks judicial review of the BIA's

decision   not   to   reopen   his   removal   proceedings,   which   for

jurisdictional purposes is indistinguishable from seeking "review

of a final order of removal" under section 1252(a)(1).         See Mata

v. Lynch, 

 (2015) (citing Kucana v. Holder, 

 (2010)); accord Thompson v. Barr, 

,

479–80 (1st Cir. 2020) (citing 

(a)(1), (a)(5)).

           Moreover, contrary to the Ninth Circuit's reasoning in

Singh, Gicharu's ineffective assistance claim requires at least a

preliminary review of the merits of the underlying removal decision

because relief cannot be granted on that claim absent a showing

that Gicharu is reasonably likely to succeed in overturning the

order of removal if he is permitted to file a timely petition for

review. See Franco-Ardon v. Barr, 

 (1st Cir. 2019);

                                 - 13 -
see also Zeru v. Gonzales, 

 (1st Cir. 2007) ("To

succeed on an ineffective assistance of counsel claim, petitioners

must show 'a reasonable probability of prejudice' resulting from

their former representation." (quoting Saakian v. INS, 

 (1st Cir. 2001))). We therefore decline to follow the Ninth

Circuit's decision in Singh and hold instead that Gicharu's claims

"aris[e] from" his removal proceedings within the meaning of

section 1252(b)(9).

                                     C.

             Gicharu also objects on constitutional grounds to our

conclusion     that   his   claims        fall   within   the   scope   of

section 1252(b)(9) and outside the district court's jurisdiction.

First, he contends that this result deprives him of the opportunity

to file a timely petition for review of the March 2013 order of

removal, effectively foreclosing all meaningful judicial review of

the merits of the BIA's removal decision in violation of the Due

Process Clause of the Fifth Amendment.3          But, as we have already

explained, the relief that Gicharu's complaint seeks -- reissuance

of the BIA's March 2013 order of removal -- was available, had it

been warranted, through the administrative process, with judicial

review available in the court of appeals under section 1252(a)(1)




    3  The Due Process Clause provides that "[n]o person shall
be . . . deprived of life, liberty, or property, without due
process of law." U.S. Const. amend. V.
                                - 14 -
and (a)(5).         This satisfies due process.          See Aguilar, 510 F.3d at

15–16,      18.       The   fact    that    Gicharu    failed    to     establish   his

entitlement to such relief through his 2015 motion to reopen does

not transform the INA's jurisdiction-channeling provisions into a

due process violation.             Cf. Lozada, 

 (stating that,

"as a result of the Board's serious consideration of petitioner's

motion to reopen proceedings, he received nearly all the attention

to his case that ever potentially was available" and concluding

that "[h]is due process claim is, therefore, unavailing").

                  Second, Gicharu contends that, if our interpretation of

section 1252(b)(9) is correct, it violates the Suspension Clause4

because it deprives him of his only opportunity to be heard on

constitutional         claims      arising    from    his     removal    proceedings,

including a claim that his counsel provided ineffective assistance

during his removal hearing, before the final order of removal was

issued.       But the Suspension Clause is not implicated where, as

here,       the    relief   sought     by    the     habeas    petitioner    is     "the

opportunity to remain lawfully in the United States" rather than

the more traditional remedy of "simple release" from "unlawful

executive detention."              Dep't of Homeland Sec. v. Thuraissigiam,

, 1970–71 (2020).



        The Suspension Clause provides that "[t]he Privilege of
        4

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.
                                           - 15 -
                                  III.

             Having concluded that Gicharu's APA claim and habeas

claim both arise from his removal proceedings, we hold that the

district   court   lacked   subject   matter   jurisdiction   over   those

claims under section 1252(b)(9).      We therefore vacate the district

court's ruling on the merits but affirm the dismissal of Gicharu's

complaint.




                                 - 16 -