Petitioner Points Flashcards
5 Points
Jazzy Sentence
No. 1. The exhaustion requirement was satisfied, because the statutory requirement said to exhaust remedies – and he did! He could not have taken any other actions; no further remedies were available.
No. 2. Exhaustion doesn’t apply, because the NTA was defective and thus, at a minimum, he should receive another hearing.
No. 3. Exhaustion doesn’t apply, because the statutory requirement is really about exhaustion of remedies and not issues.
No. 4. Exhaustion doesn’t apply, because the INA’s exhaustion requirement should be read as a claim-processing rule and not a jurisdictional rule.
No. 5. Exhaustion doesn’t apply, because a pure constitutional claim should be considered collateral to the removal claim and not subject to strict exhaustion requirements.
Jazz. This Court should safeguard the power of judicial review for constitutional questions.
( No. 1 )
The exhaustion requirement was satisfied, because the statutory requirement said to exhaust remedies – and he did! He could not have taken any other actions; no further remedies were available.
A. This was a hearing intended to elicit fact-based responses, and the form was designed also to elicit fact-based arguments and nothing about this process was designed for legal arguments.
B. Additionally, the ICE officer couldn’t even make a law-based determination. See the CFR section 238.1.
- In Valdiviez-Hernandez, the 5th Circuit specifically referenced this provision as the reason for that the petitioner was not afforded meaningful review (and then held that the exhaustion requirement did not bar review):
C. “This is not to say that there are no administrative remedies available to a petitioner challenging a Notice of Intent; rather, under the circumstances of this case, the legal question presented was not subject to the available methods of administrative review set forth in 8 C.F.R. § 238.1(c)(1), (d)(2)(i), (ii).” Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 n.1 (5th Cir. 2013).
( No. 2 )
Exhaustion doesn’t apply, because the NTA was defective and thus, at a minimum, he should receive another hearing.
A. The NTA was statutorily required by 8 USC §1229(b)(2) to provide a list of lawyers available to him and it did not. R. at 7!!
B. This Court has recently held that when an NTA is defective, immigration consequences should not attach. Pereira v. Sessions.
- So they shouldn’t attach here,. (Give the man a new hearing, and he will FOR SURE bring up this argument. Yay jurisdiction!)
C. Also, this defect means he was LESS LIKELY to bring up legal arguments, once again providing a bar to his ability to exhaust.
( No. 3 )
Exhaustion doesn’t apply, because the statutory requirement is really about exhaustion of remedies and not issues.
Yes, some circuits have said that this was the same thing BUT that was before expedited removal where legal issues just weren’t argued.
( No. 4 )
Exhaustion doesn’t apply, because the INA’s exhaustion requirement should be read as a claim-processing rule and not a jurisdictional rule.
A. This Court in Fort Bend County v. Davis identified the distinction between jurisdictional rules and claim-processing rules in statutory language.
B. Classifying the exhaustion requirement as a jurisdictional rule is too rigid and leads to injustice. Reading it as a jurisdictional rule leads to bad policy. Jurisdictional defects are the worst – they can be raised at any time, they can’t be waived or cured, and they prevent merit-based decisions.
C. It doesn’t even conform to the reasoning behind the exhaustion requirement – agency record-creating and correcting its own decisions. Here no record on the law could have been created and the agency was powerless to deal with the unconstitutionality of the law.
D. Reading the statute this way preserves the carve-out that Congress made for questions of law and constitutional questions. Without this reading, serious constitutional questions arise as to how much Congress can restrict review of constitutional issues.
- Webster v. Doe
E. If it’s not jurisdictional and just a claim-processing rule, even a mandatory one can be subject to equitable exceptions. This applies here …
( No. 5 )
Exhaustion doesn’t apply, because a pure constitutional claim should be considered collateral to the removal claim and not subject to strict exhaustion requirements.
A. This Court said in Mathews v. Eldridge that it could waive exhaustion because the constitutional claim was collateral to the benefits claim and the claimant would suffer irreparable harm if he could not obtain immediate relief. The same is true in this case.
B. At least two circuits have determined that some constitutional claims are collateral to removal and would not be subjected to the statutory exhaustion requirements under the INA.
- JEFM v. Lynch (9th Cir. 2016) and Aguilar v. ICE (1st Cir. 2007) finding that ineffective assistance of counsel was not collateral, but the exception still existed.
C. Here, the First Amendment claim is collateral to the removal claim because the ICE officer could do nothing to remedy the unconstitutionality. It did not “arise from” the removal itself.
- 1252(b)(9) – the real zipper clause according to this Court.
D. Rebuttal: This does not present an unworkable standard, because not all constitutional claims are inherently collateral—just those like ours that exist independently of removal proceedings.
Jazzzzzz handzzzz!
This Court should safeguard the power of judicial review for constitutional questions.
( affirm on jurisdiction )
