Date: 03-20-2018

Case Style:

Case Number: 16-2263

Judge: Lucero

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of New Mexico (Bernalillo County)

Plaintiff's Attorney: Olsi Vrapi

Defendant's Attorney: Edward Han

Description: Abraham Gonzalez-Alarcon filed a habeas petition under 28 U.S.C. § 2241
alleging specific facts which, if proven, would demonstrate that he is a United States
citizen. He seeks release from custody from Immigration and Customs Enforcement
(“ICE”) following ICE’s reinstatement of a prior order of removal on that basis.
Dismissing Gonzalez-Alarcon’s petition, the district court concluded that he was
required to exhaust administrative remedies, jurisdiction was barred by the REAL ID
Act, and the petition for review process is an adequate substitute for habeas such that
the REAL ID Act’s jurisdiction-stripping provisions do not offend the Suspension
Clause.
We conclude that the exhaustion provision at issue, 8 U.S.C. § 1252(d), does
not govern facially valid citizenship claims. That subsection applies only to aliens.
And because district courts have jurisdiction to determine their own jurisdiction, a
court must first consider whether a petitioner is in fact an alien before requiring
exhaustion. If a petitioner is a citizen, the provision does not apply.
We further hold that the REAL ID Act’s jurisdiction-stripping provisions raise
serious Suspension Clause concerns in one limited context. With respect to a United
States citizen subject to a reinstated order of removal for whom the deadline to seek
judicial review has passed, the REAL ID Act appears to bar federal court review.
These restrictions would effectively strip citizenship from those who do not clear
various procedural hurdles. Citizenship cannot be relinquished through mere neglect.
Afroyim v. Rusk, 387 U.S. 253, 268 (1967). And “[t]he very nature of the writ
demands that it be administered with the initiative and flexibility essential to insure
3
that miscarriages of justice within its reach are surfaced and corrected.” Harris v.
Nelson, 394 U.S. 286, 291 (1969). Under the Suspension Clause, Gonzalez-Alarcon
must be granted some path to advance his facially valid claim of citizenship in
federal court.
Before permitting Gonzalez-Alarcon to proceed under the Great Writ,
however, we conclude he should first attempt to obtain review of his citizenship
claim through the REAL ID Act. In a similar case, the Ninth Circuit held that a
habeas petitioner should file a motion to reopen his immigration proceedings—even
though such a motion would be procedurally improper—and file a petition for review
of any denial challenging the “jurisdictional issue” of citizenship. Iasu v. Smith, 511
F.3d 881, 893 (9th Cir. 2007). In Gonzalez-Alarcon’s case, such a petition would be
filed in the Fifth Circuit, where his original removal proceedings occurred. See
§ 1252(b)(2). We ordered supplemental briefing as to whether Gonzalez-Alarcon
could obtain judicial review of his citizenship claim by following the procedure
suggested in Iasu. The government represents to us that Gonzalez-Alarcon “could
appeal the denial of such a motion to reopen to the Fifth Circuit in a petition for
review.” In light of this position, we conclude that the appropriate course of action is
to stay our hand until Gonzalez-Alarcon has attempted to obtain judicial review
within the confines of the REAL ID Act. Exercising jurisdiction under 28 U.S.C.
§ 1291, we vacate the district court’s decision and remand with instructions to
dismiss without prejudice.
4
I
Gonzalez-Alarcon was born in Mexico in 1993. He entered the United States
in 2005 and was ordered removed in September 2012. After Gonzalez-Alarcon
reentered the United States, his order of removal was reinstated in September 2013.
He was removed, and on being found in the United States yet again, was taken into
federal custody and charged with illegal reentry. On April 26, 2015, his order of
removal was reinstated.
At some point, Gonzalez-Alarcon learned that he could claim rights based on
United States citizenship. A child born abroad to an unwed, citizen mother is a
citizen if the mother lived in the United States for at least one year prior to the child’s
birth. 8 U.S.C. § 1409(c).1 An affidavit submitted by Gonzalez-Alarcon’s mother,
Dalia Alarcon, states that she was born in San Miguel, New Mexico, in 1973 at the
hands of a local midwife. Her parents have always told her that she was born in the
United States. However, she tells us that her parents did not get a United States birth
certificate and left the United States shortly after her birth. Her parents divorced in
1979 or 1980 and her father returned to the United States. She lived with him in
Albuquerque for approximately three years in the 1980s.
Gonzalez-Alarcon’s great aunt, Beatriz Alarcon-Garcia, also submitted an
affidavit. She states that her brother and his wife came to live with her in San
1 The Supreme Court recently struck down this statute’s differential treatment
of mothers and fathers, but its decision applies only prospectively. See Sessions v.
Morales-Santana, 137 S. Ct. 1678, 1701 (2017).
5
Miguel, New Mexico in 1972. The couple lived in a garage near Alarcon-Garcia’s
house, and joined the rest of the family for meals. Gonzalez-Alarcon’s grandmother
was pregnant at the time with Gonzalez-Alarcon’s mother, and had regular visits with
the local midwife. When she went into labor, Gonzalez-Alarcon’s grandmother went
to the midwife’s home and returned with Dalia—Gonzalez-Alarcon’s mother. She
also avers that Dalia later returned to New Mexico and attended school in
Albuquerque for several years.
After counsel submitted these affidavits, the government dismissed the
criminal charges against Gonzalez-Alarcon. He then moved for a stay of removal
based on his alleged United States citizenship. On October 9, 2015, while in ICE
custody, Gonzalez-Alarcon filed a § 2241 petition in the district court. He sought
release from custody based on citizenship. A few days after the complaint was filed,
Gonzalez-Alarcon was released from detention subject to certain conditions. He is
barred from travelling outside the ICE Oklahoma City sub-office boundaries without
prior approval, and must periodically report to immigration officers.
The government moved to dismiss the habeas petition based on mootness.
However, the district court denied the motion, concluding that the restrictions on
Gonzalez-Alarcon constituted custody for habeas purposes. But it held that the
petition was subject to dismissal for failure to exhaust administrative remedies and
for lack of jurisdiction. Gonzalez-Alarcon timely appealed.
6
II
The district court concluded that it lacked jurisdiction under the REAL ID Act
and that the same statute required Gonzalez-Alarcon to exhaust administrative
remedies. We consider that statute’s scope and structure.
In general, removal orders are entered under 8 U.S.C. § 1229a, which provides
for proceedings before an Immigration Judge. Orders issued under that section may
be appealed to the Board of Immigration Appeals (“BIA”). 8 C.F.R. § 1003.1(b).
They are subject to motions to reconsider and motions to reopen. 8 U.S.C.
§ 1229a(c)(6), (7); 8 C.F.R. § 1003.2(b), (c). Motions to reconsider are subject to a
twenty-day deadline, and motions to reopen are subject to a ninety-day deadline. 8
U.S.C. § 1229a(c)(6), (7). These deadlines are subject to equitable tolling. See
Galvez Piñeda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005). The BIA may also
reopen or reconsider a decision sua sponte. 8 C.F.R. § 1003.2(a).
There are several other types of removal orders. Certain aliens are subject to
expedited removal procedures. See 8 U.S.C. § 1225(b) (aliens determined
inadmissible when arriving in the United States); § 1228(b) (aliens convicted of an
aggravated felony). Gonzalez-Alarcon was ordered removed under § 1231(a)(5),
which allows for reinstatement of prior removal orders. In such proceedings, the
“prior order of removal is reinstated from its original date and is not subject to being
reopened or reviewed.” Id. An order of removal may be reinstated by an
immigration officer upon three findings: (1) “the alien has been subject to a prior
order of removal”; (2) “the alien is in fact an alien who was previously removed, or
7
who departed voluntarily while under an order of exclusion, deportation, or
removal”; and (3) “the alien unlawfully reentered the United States.” 8 C.F.R.
§ 241.8(a). One subject to reinstatement “has no right to a hearing before an
immigration judge.” Id.
Removal orders may be challenged only by way of a petition for review filed
in the Court of Appeals:
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 of 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).
8 U.S.C. § 1252(a)(5). The statute further states:
Except as provided in this section and 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, no court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the decision or action by
the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this chapter.
§ 1252(g).
A petition for review must be filed within thirty days of a final order of
removal. §1252(b)(1). That deadline is mandatory and jurisdictional; it is not
subject to equitable tolling. Stone v. INS, 514 U.S. 386, 405 (1995). Further, “[a]
8
court may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” § 1252(d)(1).
Although § 1231(a)(5) states that reinstated orders of removal are not subject
to being “reviewed,” the statute also states that “[n]othing . . . in any other provision
of this chapter (other than this section) which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review.” § 1252(a)(2)(D). We have thus held that
“Congress clearly provided for our review of ‘constitutional claims or questions of
law’ related to reinstatement orders.” Lorenzo v. Mukasey, 508 F.3d 1278, 1282
(10th Cir. 2007) (quoting § 1252(a)(2)(D)). However, an individual petitioning for
review of a reinstatement order cannot challenge the original order of removal,
“including constitutional claims or questions of law,” because such a challenge will
be time barred. Cordova-Soto v. Holder, 659 F.3d 1029, 1032 (10th Cir. 2011).
At the time Gonzalez-Alarcon filed his habeas petition, the deadline for filing
a petition for review of his reinstated removal order had expired. Because Gonzalez-
Alarcon reentered the country after having been removed, his “prior order of removal
is reinstated from its original date and is not subject to being reopened.”
§ 1231(a)(5). Further, the BIA will not permit individuals to reopen removal
proceedings after they have left the country. See 8 C.F.R. § 1003.2(d) (“A motion to
reopen or a motion to reconsider shall not be made by or on behalf of a person who is
the subject of exclusion, deportation, or removal proceedings subsequent to his or her
departure from the United States.”). Our court has held that the post-departure bar is
9
invalid because it is inconsistent with 8 U.S.C. § 1229a(c)(7), which states that “[a]n
alien may file one motion to reopen proceedings under this section.” Contreras-
Bocanegra v. Holder, 678 F.3d 811, 813 (10th Cir. 2012) (en banc). But the Fifth
Circuit has held that this rule extends only to motions to reopen or reconsider, not to
sua sponte reopening or reconsideration. See Garcia-Carias v. Holder, 697 F.3d 257,
265 (5th Cir. 2012) (distinguishing Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th
Cir. 2003)). We note the Fifth Circuit’s rule because Gonzalez-Alarcon’s original
removal proceedings occurred in the Fifth Circuit, and a petition for review must be
“filed with the court of appeals for the judicial circuit in which the immigration judge
completed the proceedings.” 8 U.S.C. § 1252(b)(2).
III
We review de novo a district court dismissal for failure to exhaust. Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). As noted above, § 1252(d) states
that an order of removal is reviewable only if “the alien has exhausted all
administrative remedies available to the alien as of right.” Id. The district court
concluded that Gonzalez-Alarcon had the right to file a Form N-600 application with
U.S. Citizenship and Immigration Services (“USCIS”). This form allows an
individual to apply for a “certificate of citizenship.” See 8 C.F.R. § 341.1; Children
Born Outside the United States; Applications for Certificate of Citizenship, 66 Fed.
Reg. 32,138, 32,140 (June 13, 2001).
As several of our sibling circuits have recognized, this exhaustion requirement
applies only to “aliens.” § 1252(d)(1). The Ninth Circuit has thus explained that “a
10
claim to citizenship need not be exhausted.” Minasyan v. Gonzales, 401 F.3d 1069,
1075 (9th Cir. 2005). If exhaustion of a citizenship claim were required, “it would be
possible to unintentionally relinquish U.S. citizenship. . . . The Constitution does not
permit American citizenship to be so easily shed.” Id. (quotations omitted).
Accordingly, that court has held that “the statutory administrative exhaustion
requirement of § 1252(d)(1) does not apply to a person with a non-frivolous claim to
U.S. citizenship even if he has previously been (illegally) deported by the
government.” Id. (quotation and alteration omitted); see also Theagene v. Gonzales,
411 F.3d 1107, 1116 n.4 (9th Cir. 2005) (“[T]he plain language of the statute
specifies that only an alien may be required to exhaust remedies. Moreover, a citizen
cannot transform himself into an alien merely by failing to raise the question of his
citizenship at the administrative level.”).
The Eighth Circuit has held that “the exhaustion provisions of § 1252(d)(1) do
not apply to ‘any person’ challenging a final order of removal, only to an ‘alien.’”
Moussa v. I.N.S., 302 F.3d 823, 825 (8th Cir. 2002). Accordingly, federal courts
possess jurisdiction to “determine whether [a petitioner] is an alien in order to decide
whether § 1252(d)(1) applies to him.” Id. As the Fifth Circuit stated the proposition,
courts “always have jurisdiction to determine [their] jurisdiction.” Omolo v.
Gonzales, 452 F.3d 404, 407 (5th Cir. 2006). And because “[o]nly an ‘alien’ may be
required to exhaust his administrative remedies,” a court “must determine whether [a
petitioner] is an alien in order to determine whether § 1252(d)(1) bars . . .
jurisdiction.” Id. The Second Circuit is in accord. See Poole v. Mukasey, 522 F.3d
11
259, 264 (2d Cir. 2008) (“The statutory administrative exhaustion requirement of
§ 1252(d)(1) does not apply to a person with a non-frivolous claim to U.S.
citizenship.” (quotations and alteration omitted)).
Although our court has not previously addressed the precise issue, we have
reached a similar conclusion on a related question. In Shepherd v. Holder, 678 F.3d
1171 (10th Cir. 2012), we noted that “[c]itizenship constitutes the denial of an
essential jurisdictional fact in a deportation proceeding” because only aliens are
removable. Id. at 1175 (quotation omitted). And in assessing jurisdiction under
§ 1252, we held that “we have jurisdiction to determine jurisdictional facts”
including “the issue of Ms. Shepherd’s citizenship.” Id. at 1179. That case
concerned an alien who was removable following a criminal offense; we explained
that the statute “divests courts of jurisdiction only if an alien ‘is removable by reason
of having committed a criminal offense’ 8 U.S.C. § 1252(a)(2)(C) (emphasis added).
It does not say that courts lack jurisdiction if the alien is found deportable.” Id. at
1180 (quotation and ellipses omitted). Accordingly, “Congress may limit federal
court jurisdiction through provisions such as the § 1252(a)(2)(C) bar, but courts have
authority to determine whether the factual conditions for the bar are present.” Id.2
Applying the same analysis, and joining the circuits noted above, we conclude that
§ 1252(d)(1) does not require that a claim of citizenship be exhausted.
2 We discussed exhaustion in Shepherd, but did not consider whether
§ 1252(a)(1) applies to citizens, because we concluded the petitioner was not a
citizen. Shepherd, 678 F.3d at 1176-78, 1185.
12
It appears that the sole circuit court decision requiring exhaustion of a
citizenship claim is Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011). In that
case, the court did not consider § 1252(d)(1). Instead, it held that a citizenship claim
was barred for failure to exhaust under 8 U.S.C. § 1503 because the petitioner had
failed to administratively appeal the denial of his Form N-600. Johnson, 647 F.3d at
125. Section 1503 permits the filing of a declaratory judgment action if an individual
“claims a right or privilege as a national of the United States and is denied such right
or privilege by any department or independent agency, or official thereof, upon the
ground that he is not a national of the United States.” § 1503(a). The statute
provides that such actions must be filed “within five years after the final
administrative denial of such right or privilege.” Id.
Section 1503 is not at issue in this case. That statute does not permit suits “if
the issue of such person’s status as a national of the United States . . . arose by reason
of, or in connection with any removal proceeding.” § 1503(a). Gonzalez-Alarcon’s
claim of citizenship plainly arose in connection with his removal proceeding. See
Rios-Valenzuela v. Dep’t of Homeland Sec., 506 F.3d 393, 398 (5th Cir. 2007)
(section 1503 suit cannot be maintained if “citizenship that forms the basis of [a
claim] originates, at the least, in connection with the removal proceedings”); see also
Iasu, 511 F.3d at 891 n.9 (concluding that § 1503(a) cannot supply a remedy to an
individual in removal proceedings because Ҥ 1252(b)(5) is the exclusive means of
obtaining a declaration of nationality for a person in removal proceedings (and it
must be sought in a petition for review of the final order of removal)”). Hence, even
13
if Gonzalez-Alarcon were to file a Form N-600, he would not be able to pursue a
§ 1503 action.
Regardless, in no event would the filing of a Form N-600 provide Gonzalez-
Alarcon the relief he seeks: release from ICE supervision. As we have previously
recognized, “exhaustion is not required where it would be futile or fail to provide
adequate relief.” McQueen ex rel. McQueen v. Colo. Springs Sch. Dist. No. 11, 488
F.3d 868, 874 (10th Cir. 2007) (quotation and alterations omitted). We accordingly
join the majority of our sibling circuits in holding that if a petitioner advances a
plausible claim to citizenship, the district court possesses jurisdiction to determine
whether § 1252(d)(1) applies.
IV
The district court also concluded that jurisdiction over Gonzalez-Alarcon’s
petition was barred by the REAL ID Act. We review that issue of statutory
interpretation de novo. Dalzell v. RP Steamboat Springs, LLC, 781 F.3d 1201, 1206
(10th Cir. 2015). As with the exhaustion requirement, Gonzalez-Alarcon argues that
the jurisdictional bars contained in § 1252 apply only to aliens, and that the REAL ID
Act in general is permeated with references to aliens. Although he is correct that
much of the statutory scheme applies only to aliens, we agree with the district court
that the entirety of the statute cannot be read as being so limited.
As the district court noted, some portions of § 1252 specifically apply to
individuals who claim to be United States nationals rather than aliens. Specifically,
subsection (b)(5) sets forth the procedures to be followed if “the petitioner claims to
14
be a national of the United States.” § 1252(b)(5). The term “alien” is defined as
“any person not a citizen or national of the United States.” § 1101(a)(3).
Accordingly, this subsection would be entirely superfluous if § 1252 applies only to
aliens. But “a statute should be construed so that effect is given to all its provisions,
so that no part will be inoperative or superfluous, void or insignificant.” Corley v.
United States, 556 U.S. 303, 314 (2009) (quotation and alteration omitted).
Further, although one of the provisions at issue bars habeas review of claims
filed “by or on behalf of any alien,” § 1252(g), the other does not reference aliens.
Under subsection (a)(5), “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” notwithstanding “section 2241 of Title 28, or any other habeas corpus
provision.” § 1252(a)(5). The term “judicial review” includes “habeas corpus
review pursuant to section 2241 of Title 28, or any other habeas corpus provision.”
Id. Under the plain language of that subsection, a habeas challenge to an order of
removal is barred regardless of whether the petitioner is an alien or claims
citizenship.3
3 Although Gonzalez-Alarcon does not raise the issue of constitutional
avoidance, this conclusion holds even under that canon. “The canon of constitutional
avoidance comes into play only when, after the application of ordinary textual
analysis, the statute is found to be susceptible of more than one construction.”
Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1245 (10th Cir. 2008) (quotation
omitted). Because the plain language of the statute is unambiguous, we cannot read
15
Gonzalez-Alarcon also argues that his habeas petition does not seek review of
a removal order but merely attacks his detention. He cites the legislative history of
the REAL ID Act, which states that the statute “will not preclude habeas review over
challenges to detention that are independent of challenges to removal orders. Instead,
the bill would eliminate habeas review only over challenges to removal orders.”
Joint Explanatory Statement of the Committee of Conference, H.R. Cong. Rep. No
109-72 at 175, 151 Cong. Rec. H2836, 2873 (May 3, 2005). Several courts have
acknowledged that § 1252 does not bar habeas relief as to claims that are independent
of a removal order. See Singh v. Gonzalez, 499 F.3d 969, 972-73 (9th Cir. 2007)
(courts have “distinguished between challenges to orders of removal and challenges
that arise independently”); Madu v. U.S. Att’y Gen., 470 F.3d 1362, 1366 (11th Cir.
2006) (a “petitioner who contests the very existence of an order of removal does not
seek ‘review of an order of removal’ within the meaning of the REAL ID Act”);
Kumarasamy v. Att’y Gen., 453 F.3d 169, 172 (3d Cir. 2006) (an alien challenging
the legality of removal because he allegedly never received notice of his removal
order is “not seeking review of an order of removal”).
But courts have held that the jurisdiction-stripping provisions apply to indirect
challenges to the merits of a removal order. See Verde-Rodriguez v. Att’y Gen., 734
F.3d 198, 206 (3d Cir. 2013) (no jurisdiction to review habeas petition that “does not
challenge the existence of his removal order, but alleges errors on which the validity
it as permitting citizenship claims regardless of the constitutional issue addressed
infra.
16
of the final order are contingent” (quotation and alteration omitted)); Martinez v.
Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (“When a claim by an alien, however
it is framed, challenges the procedure and substance of an agency determination that
is inextricably linked to the order of removal, it is prohibited by section 1252(a)(5).”
(quotation omitted)); Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (if
petitioner “is indirectly challenging her reinstated order of removal, . . . we hold that
section 1252(a)(5)’s jurisdictional bar applies equally to preclude such an indirect
challenge”). In an unpublished case, we held that a district court lacked jurisdiction
over a similar habeas claim because “the challenge to [petitioner’s] detention is
grounded in the removal order rather than based on some inherent problem with the
detention itself.” Essuman v. Gonzalez, 203 F. App’x 204, 211-12 (10th Cir. 2006)
(unpublished).
Although Gonzalez-Alarcon seeks release from detention, his claim is based
on the alleged invalidity of his order of removal. The only basis for ICE’s continued
supervision of Gonzalez-Alarcon is his pending removal order. See § 1231(a)(3)
(providing that an individual “pending removal, shall be subject to supervision”).4
And Gonzalez-Alarcon seeks invalidation of that order on the basis of citizenship,
4 We agree with the district court that Gonzalez-Alarcon remains in custody
for habeas purposes. See Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir.
1994) (“[A]n alien whose liberty is restricted pursuant to an order emanating from
the INS is ‘in custody’ for purposes of satisfying the prerequisites of habeas
review.”). His liberty is significantly restricted by an ICE order preventing him from
travelling outside the ICE Oklahoma City sub-office boundaries without prior
approval, and requiring him to report to immigration officers.
17
which would result in his release. Accordingly, we conclude that he is seeking
“judicial review of an order of removal” which is barred by § 1252(a)(5).
V
Having determined that the REAL ID Act bars habeas review of Gonzalez-
Alarcon’s claim, we consider whether Congress possesses the constitutional authority
to prevent such review. We hold that although barring habeas review of citizenship
claims raises a serious Suspension Clause question, Gonzalez-Alarcon has not carried
his burden of demonstrating that the petition for review process is an inadequate
substitute at the present time. See Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998)
(petitioner bears the burden of demonstrating inadequacy of habeas substitute). It is
not clear to us that Gonzalez-Alarcon would be unable to present his citizenship
claim in a petition for review following the denial of a motion to reopen—which he
would be required to present to the Fifth Circuit. See § 1252(b)(2) (petition for
review to be filed in circuit in which removal proceedings occurred).
In response to our request for supplemental briefing, Gonzalez-Alarcon
contends that reopening is not available with respect to a reinstatement order. The
government states that although an immigration judge would be prohibited “from
granting a motion to reopen removal proceedings filed by Gonzalez-Alarcon,
Gonzalez-Alarcon could appeal the denial of such a motion to reopen to the Fifth
Circuit in a petition for review.” Unless Gonzalez-Alarcon is denied review through
this process, we decline to address his habeas petition.
18
A
“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. The Supreme Court has not yet decided whether the
Suspension Clause protects the right to habeas review as it has developed through our
nation’s history, but has stated that “at the absolute minimum,” it “protects the writ
as it existed in 1789.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001) (quotation
omitted). There is little doubt that Gonzalez-Alarcon’s petition falls within the
traditional ambit of habeas review. “At its historical core, the writ of habeas corpus
has served as a means of reviewing the legality of Executive detention, and it is in
that context that its protections have been strongest.” Id. Although the writ did not
originally extend to individuals detained under state authority, see Felker v. Turpin,
518 U.S. 651, 663 (1996), Gonzalez-Alarcon is subject to supervision under federal
law, see § 1231(a)(3). And the writ at common law consistently included “challenges
to the jurisdiction of the custodian.” St. Cyr, 533 U.S. at 302; see also Yellowbear v.
Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008) (“Absence of jurisdiction in the
convicting court is indeed a basis for federal habeas corpus relief cognizable under
the due process clause.”). As Gonzalez-Alarcon notes, defendants lack authority to
detain or remove United States citizens. See Ng Fung Ho v. White, 259 U.S. 276,
284 (1922) (“Jurisdiction in the executive to order deportation exists only if the
person arrested is an alien. The claim of citizenship is thus a denial of an essential
19
jurisdictional fact.”); Shepherd, 678 F.3d at 1175 (whether an individual is an alien is
a “jurisdictional fact” (quotation omitted)).
“[J]udgments about the proper scope of the writ are normally for Congress to
make.” Felker, 518 U.S. at 664 (quotation omitted). Yet Congress’ authority is not
unbounded. In St. Cyr, the Court held that “some ‘judicial intervention in
deportation cases’ is unquestionably ‘required by the Constitution.’” Id. (quoting
Heikkila v. Barber, 345 U.S. 229, 235 (1953)). Accordingly, “a serious Suspension
Clause issue would be presented if” Congress has “withdrawn that power from
federal judges and provided no adequate substitute for its exercise.” Id. at 305; see
also Swain v. Pressley, 430 U.S. 372, 381 (1977) (the Suspension Clause does not
prohibit the “substitution of a collateral remedy which is neither inadequate nor
ineffective to test the legality of a person’s detention”).
Although Gonzalez-Alarcon’s detention fits within the framework of
traditional habeas, there appears to be little dispute that a petition for review would
provide an adequate substitute if available. Individuals detained by immigration
authorities are “entitled to a judicial determination of their claims that they are
citizens of the United States.” Ng Fung Ho, 259 U.S. at 285. Specifically, “a
resident of this country has a right to de novo judicial determination of a claim to
United States citizenship” if the claim is “supported by evidence sufficient, if
believed, to entitle him to a finding of citizenship.” Agosto v. Immigration &
Naturalization Serv., 436 U.S. 748, 753 (1978) (quotation, alteration, and italics
omitted).
20
Section 1252 provides for de novo review. A citizenship claim asserted in a
petition for review may be decided by the appropriate court of appeals if there are no
genuine issues of material fact. § 1252(b)(5)(A). If the facts are disputed, the
proceeding is transferred to a district court “for a new hearing on the nationality
claim and a decision on that claim as if an action had been brought in the district
court under section 2201 of Title 28.” § 1252(b)(5)(B). Accordingly, several circuit
courts have held that petitions for review generally provide an adequate and effective
substitute for the writ of habeas corpus. See, e.g., Ruiz-Martinez v. Mukasey, 516
F.3d 102, 105 (2d Cir. 2008); Mohammed v. Gonzales, 477 F.3d 522, 526 (8th Cir.
2007).
Other cases have considered the possibility of an as applied Suspension Clause
challenge of the sort Gonzalez-Alarcon advances. See Luna v. Holder, 637 F.3d 85,
92 (2d Cir. 2011); Iasu, 511 F.3d at 891. He notes that the jurisdictional deadline to
file a petition for review of his reinstatement order has passed. § 1252(b)(1); Stone,
514 U.S. at 405. And he is subject to a reinstated order of removal, which “is not
subject to being reopened.” § 1231(a)(5). The REAL ID Act does not contain any
explicit safety valve under which an individual could obtain review of a reinstated
order of removal that was not presented in a timely petition for review.
In the context of a citizenship claim, the lack of a failsafe provision is
troubling. Citizenship is unique; it is a person’s “basic right for it is nothing less
than the right to have rights.” Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren,
C.J., dissenting). The Supreme Court has thus held that individuals possess “a
21
constitutional right to remain a citizen in a free country unless he voluntarily
relinquishes that citizenship.” Afroyim, 387 U.S. at 268; see also 8 U.S.C. § 1481(a)
(providing that United States nationality may be lost by “voluntarily performing”
certain acts “with the intention of relinquishing United States nationality”).5 Yet the
“practical and concrete effect” of a removal order is “to deprive a United States
citizen . . . of his right to reside in this country.” Anderson v. Holder, 673 F.3d 1089,
1095 (9th Cir. 2012); see also Trop v. Dulles, 356 U.S. 86, 102 (1958) (plurality
opinion) (“[T]he expatriate has lost the right to have rights.”); Knauer v. United
States, 328 U.S. 654, 659 (1946) (“[D]enaturalization, like deportation, may result in
the loss of all that makes life worth living.” (quotation omitted)). For individuals in
Gonzalez-Alarcon’s position, the REAL ID Act poses a weighty Suspension Clause
question.
5 The Court has recognized a distinction between those who are citizens under
the Fourteenth Amendment and individuals whose claim to citizenship rests on
statute because they were not “born or naturalized in the United States.” Rogers v.
Bellei, 401 U.S. 815, 835 (1971). With respect to the latter category, which includes
Gonzalez-Alarcon, Congress may impose conditions precedent and subsequent to
citizenship, such as residency requirements. Id. at 834. But it strains credulity to
suggest that Congress intended to impose, as a condition subsequent to citizenship,
that an individual successfully resist removal after being incorrectly detained by an
executive agency lacking jurisdiction over citizens. Under 8 U.S.C. § 1409(c), an
individual born outside the United States out of wedlock acquires citizenship if his
mother was a citizen and had previously lived in this country for one year. We are
not directed to any act of Congress that would result in the elimination of Gonzalez-
Alarcon’s citizenship if his allegations prove true.
22
B
Despite this concern, we conclude that the Suspension Clause argument raised
by Gonzalez-Alarcon should not be addressed until he first attempts to obtain review
through the petition for review process. Congress has provided that “habeas corpus
may be granted” by a federal court and that the court shall “dispose of the matter as
law and justice require.” §§ 2241, 2243. “Discretion is implicit in th[is] statutory
command.” Fay v. Noia, 372 U.S. 391, 438 (1963), overruled on other grounds,
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Danforth v. Minnesota,
552 U.S. 264, 278 (2008) (noting this language is “an authorization to adjust the
scope of the writ in accordance with equitable and prudential considerations”). In
Dretke v. Haley, 541 U.S. 386 (2004), the Court declined to consider whether the
“actual innocence” exception previously extended to capital sentencing aggravators
also applied to non-capital sentencing enhancements, directing the lower court to
“first to consider alternative grounds for relief . . . that might obviate any need to
reach the actual innocence question.” Id. at 388-89. It held that courts should
consider “claims for comparable relief” before addressing an allegation of actual
innocence, and that the “availability of other remedies” is a “sufficient justification
for a general rule of avoidance.” Id. at 394, 395.
We think the same rationale applies here. Congress clearly intended to funnel
all challenges to removal through the petition for review process. See Bonhometre v.
Gonzales, 414 F.3d 442, 446 (3d Cir. 2005). Yet, as noted above, it did not explicitly
provide for judicial review of a citizenship claim raised after the petition for review
23
deadline passes. § 1252(b)(1); Stone, 514 U.S. at 405. Nevertheless, Gonzalez-
Alarcon may be able to assert his citizenship claim through the petition for review
process.
The Ninth Circuit provided the general outline for such a process in Iasu.
There, the court rejected an as applied Suspension Clause claim based on citizenship,
because the petitioner had a potential administrative path to judicial review under the
REAL ID Act. Specifically, the court indicated that he could file an untimely motion
to reopen. Iasu, 511 F.3d at 892. Although such a motion could be rejected as
untimely, the court suggested that “alienage is also a jurisdictional prerequisite at the
administrative level” and thus could be considered by the agency. Id. at 893. But
“even if an IJ denies such a motion to reopen as procedurally improper, and even if
the BIA upholds the denial, a court of appeals could still review the jurisdictional
issue on direct appeal from that denial.” Id. These administrative steps “provide[]
the necessary process to alleviate Suspension Clause concerns.” Id.
Similarly, in Luna, the court considered as applied Suspension Clause claims
brought by two individuals who alleged they were prevented from filing timely
petitions for review. 637 F.3d at 87. The court stated that such petitioners cannot be
left without a “forum in which to raise plausible claims of constitutional violations”
and thus “legitimate Suspension Clause concerns” were present. Id. But it concluded
that the statutory motion to reopen process, if “subject to de novo review of legal
issues and with equitable tolling and the removal of the departure bar” provided an
adequate alternative to habeas. Id.
24
Gonzalez-Alarcon’s case is complicated by two additional factors not present
in Iasu and Luna. First, the petitioners in those cases had not been previously
removed. The REAL ID Act provides:
If the Attorney General finds that an alien has reentered the United
States illegally after having been removed or having departed
voluntarily, under an order of removal, the prior order of removal is
reinstated from its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for any relief under
this chapter, and the alien shall be removed under the prior order at any
time after the reentry.
§ 1231(a)(5). Gonzalez-Alarcon also points out other potential regulatory obstacles
to relief. See 8 C.F.R. § 1003.23(b)(1) (setting a ninety-day deadline for motions to
reopen and prohibiting such motions from individuals who previously departed the
United States). As with the time limit on motions to reopen considered in Iasu and
Luna, see § 1229a(c)(7)(C), the agency may necessarily deny reopening as
procedurally improper. Alternatively, the statute’s references to “aliens” could be
read so that this subsection does not apply to citizenship claims on the same basis
discussed in Part III, supra. In either event, Gonzalez-Alarcon might be able to file a
petition for review and seek judicial consideration of his citizenship claim. In Mata
v. Lynch, 135 S. Ct. 2150 (2015), the Court held that courts of appeals possess
jurisdiction to review the denial of a motion to reopen regardless of “[w]hether the
BIA rejects the alien’s motion to reopen because it comes too late or because it falls
short in some other respect.” Id. at 2154-55.
This brings us to the second complication. We say that Gonzalez-Alarcon
might be able to obtain review because the question cannot be directed to our court.
25
His petition for review would have to be filed in the Fifth Circuit. § 1252(b)(2).
And, of course, we have no authority to issue an interpretation of the REAL ID Act
binding on that court. But the government has indicated in its supplemental brief that
the Fifth Circuit could adjudicate Gonzalez-Alarcon’s citizenship claim. It notes that
the Fifth Circuit has held that it has “jurisdiction to review [a petitioner’s] nationality
claim in the context of a reinstatement order.” Iracheta v. Holder, 730 F.3d 419, 422
(5th Cir. 2013). Such review is proper because whether a petitioner “is actually an
alien is a jurisdictional fact in a removal or reinstatement proceeding.” Id.
Accordingly, Gonzalez-Alarcon may be able to challenge this jurisdictional fact in
federal court regardless of whether his motion to reopen was procedurally proper.
We are thus unable to say at this juncture that Gonzalez-Alarcon has shown the
REAL ID Act provides an inadequate substitute for habeas.
VI
Given this reasoning, Gonzalez-Alarcon’s habeas petition should be dismissed
without prejudice to refiling in the event that his attempts to obtain judicial review of
his citizenship claim under the REAL ID Act prove futile. The district court did not
specify whether its dismissal was with or without prejudice. Ordinarily, such a
dismissal operates as a dismissal with prejudice. See Fitzgerald v. Corr. Corp. of
Am., 403 F.3d 1134, 1139 (10th Cir. 2005). We conclude that the dismissal should
be without prejudice, and thus VACATE the district court’s dismissal of Gonzalez-
Alarcon’s habeas petition and REMAND with instructions to dismiss without
prejudice.
16-2263, Gonzalez-Alarcon v. Macias, et al.
TYMKOVICH, C.J., concurring.
The government cannot deport United States citizens, and the majority is
right that Gonzalez-Alarcon must have an opportunity to make his case in front of
an Article III court. I agree with most of the analysis in the majority opinion. I
agree the REAL ID Act bars habeas review of Gonzalez-Alarcon’s claim. And, as
the majority notes, “there appears to be little dispute that a petition for review
would provide an adequate substitute” for habeas review “if available.” Maj. Op.
at 19. I also agree the exhaustion requirement of 8 U.S.C. § 1252(d)(1) does not
apply to claims of citizenship. Maj. Op. at 2, 9–11.
I write separately to explain my understanding of the review process.
While I agree with most of the majority’s explanation of this process, I add that,
in my view, Gonzalez-Alarcon has an additional opportunity for review through
the N-600 application for a “certificate of citizenship.” See 8 C.F.R. § 341.1.
* * *
Gonzalez-Alarcon has at least two routes for review before him. He can
file a motion to reopen and appeal denials of his motion until he is able to request
review from the Court of Appeals—which must consider his citizenship claim as a
matter of jurisdiction. And Gonzalez-Alarcon can also file an N-600 application
for a “certificate of citizenship.”
Motion to Reopen
First, Gonzalez-Alarcon can file a motion to reopen or reconsider his
removal order. If the immigration judge denies the motion, Gonzalez-Alarcon can
appeal the denial to the Board of Immigration Appeals. If the Board also denies
the motion, Gonzalez-Alarcon can seek review from the Court of Appeals. At
that stage, since the Court of Appeals can always decide the jurisdictional fact of
citizenship, Gonzalez-Alarcon could invoke 8 U.S.C. § 1252(b)(5), which requires
the Court of Appeals to decide nationality claims. I explain how this works in
more detail below.
As Judge Lucero notes, federal law allows aliens affected by a removal
order to file a motion to reopen or reconsider with an immigration judge.
8 U.S.C. § 1229a(c)(6)–(7); 8 C.F.R. § 1003.23(b). The implementing regulations
provide that “[a]n Immigration Judge may upon his or her own motion at any
time, or upon motion of the Service or the alien, reopen or reconsider any case in
which he or she has made a decision, unless jurisdiction is vested with the Board
of Immigration Appeals.” 8 C.F.R. § 1003.23(b)(1). Federal regulations also
allow affected parties to file a motion to reopen or reconsider with the Board.
Id. § 1003.2. This regulation also provides that “[t]he Board may at any time
reopen or reconsider on its own motion any case in which it has rendered a
decision.” Id. § 1003.2(a).
-2-
This is the avenue Gonzalez-Alarcon must pursue, since, as the majority
explains, the REAL ID Act bars habeas review. It appears from the record that
Gonzalez-Alarcon never appealed his initial order of removal. App. 51.
Consequently, he should file a motion to reopen under 8 C.F.R. § 1003.23 with
the Immigration Court having administrative control over the Record of
Proceeding.
Though there are two potential hurdles to review, both can be surmounted.
First, as we have explained, the motion would now be untimely: 8 U.S.C.
§ 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.23(b)(1) require that a motion to reopen
be filed within 90 days of the date of entry of the final order of removal. But, as
the Ninth Circuit pointed out in Iasu v. Smith, alienage is also a jurisdictional
prerequisite at the administrative level, because immigration judges and the Board
do not have subject-matter jurisdiction over United States citizens. 511 F.3d 881,
893 (9th Cir. 2007); see also 8 U.S.C. § 1229a(a)(1) (“An immigration judge shall
conduct proceedings for deciding the inadmissibility or deportability of an alien.”
(emphasis added)). For that reason, the immigration judge might reach Gonzalez-
Alarcon’s citizenship claim in spite of the timeliness bar.
Second, the regulatory provision allowing for the immigration judge to
reopen or reconsider a case expressly prohibits a “motion to reopen or to
reconsider . . . by or on behalf of a person who is the subject of removal,
deportation, or exclusion proceedings subsequent to his or her departure from the
-3-
United States.” 8 C.F.R. 1003.23(b)(1). This provision is often called the
“regulatory departure bar.”
But the Fifth Circuit, where Gonzalez-Alarcon must pursue review, has
held this bar is none at all. Garcia-Carias v. Holder, 697 F.3d 257, 265 (5th Cir.
2012). Because in its view the regulatory bar contradicts Congress’s express
meaning in 8 U.S.C. § 1229a(c)(7), the “statutory right to file a motion to reopen
is not trumped by the Board’s departure regulation.” Id.1
Yet even if the immigration judge denied the motion to reopen as either
untimely or subject to the departure bar, Gonzalez-Alarcon could still obtain
review. He can appeal to the Board. And if the Board upholds the denial, and
declines to compel the immigration judge to reopen the proceedings, a Court of
Appeals could still review the jurisdictional issue on direct appeal from that
denial. Id. As the Iasu court explained: “At that point, the case would be in a
procedural posture so that 8 U.S.C. § 1252(b)(5) and § 1252(a)(2)(D) could be
invoked” and the citizenship question could be considered. Id.
1 As the majority explains, the Fifth Circuit has elsewhere upheld the
Board of Immigration Appeals’ conclusion that the departure bar removes its
jurisdiction to sua sponte reopen or reconsider cases. See Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003). To the extent the Board maintains
this interpretation, that would mean Gonzalez-Alarcon cannot pursue review
under the Board’s sua sponte authority. But that does not eliminate his path to
review by filing a motion himself.
-4-
That is because “[c]itizenship constitutes the denial of an essential
jurisdictional fact in a deportation proceeding.” Shepherd v. Holder, 678 F.3d
1171, 1175 (10th Cir. 2012) (internal quotation marks omitted) (quoting
Duarte-Ceri v. Holder, 630 F.3d 83, 87 (2d Cir. 2010)). A court of appeals
always retains jurisdiction to determine jurisdictional facts, such as whether an
individual subject to deportation is a U.S. citizen. See id. at 1180–81. So, if the
immigration judge and the Board declined to grant Gonzalez-Alarcon any relief
on his claim of U.S. citizenship, nothing would stop the Fifth Circuit from
entertaining it at that stage. The Court of Appeals may then decide Gonzalez-
Alarcon’s nationality claim or, if there is a genuine issue of material fact, transfer
the proceeding to the proper district court “for a new hearing on the nationality
claim and a decision on that claim as if an action had been brought in the district
court under [28 U.S.C. § 2201].” 8 U.S.C. § 1252(b)(5).
The motion-to-reopen procedure is therefore one way Gonzalez-Alarcon
can get his Article III court review. And it would be review pursuant to the
congressional framework we are obliged to follow.
N-600 Application
Gonzalez-Alarcon has an alternative means for relief under the legal
framework governing nationality and citizenship claims. Gonzalez-Alarcon has
not yet—but may at any time—file a Form N-600, “Application for Certificate of
Citizenship,” with the U.S. Citizenship and Immigration Services (USCIS).
-5-
Approval of such an application would provide him the proof of citizenship he
seeks and shield him from any threat of removal proceedings. If the application
is denied, Gonzalez-Alarcon may file an appeal using USCIS Form I-290B. 8
C.F.R. § 103.3. And if that appeal is denied, Gonzalez-Alarcon may also choose
to file a Form I-290B motion to reopen or reconsider. 8 C.F.R. § 103.5.
The majority opinion concludes the “certificate of citizenship” would do
Gonzalez-Alarcon no good because it would not be an order compelling the
government to release him. Maj. Op. at 13. But if Gonzalez-Alarcon’s
application for certification of citizenship is approved, he will have obtained
proper certification of his U.S. citizenship. Gonzalez-Alarcon will at that point
be categorically ineligible for removal, and so will be released. And even if the
government does not release him, Gonzalez-Alarcon can file a motion to reopen
his case. Armed with the certificate, Gonzalez-Alarcon will have proof the
government has no jurisdiction to deport him, Ng Fung Ho v. White, 259 U.S.
276, 284 (1922), and the immigration judge will have to address this question
because it goes to subject matter jurisdiction. See Iasu v. Smith, 511 F.3d 881,
893 (9th Cir. 2007).
* * *
The bottom line is that Gonzalez-Alarcon must seek judicial relief through
the proper statutory means—a petition for review in the appropriate court of
appeals. “Congress’ clear intent [was] to have all challenges to removal orders
-6-
heard in a single forum (the courts of appeals).” Bonhometre v. Gonzales, 414
F.3d 442, 446 (3d Cir. 2005) (citation omitted). See also 8 U.S.C. § 1252(a)(5)
(“[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.”).
Gonzales-Alarcon has multiple paths to vindicate his claim of citizenship.
If those fail, then the federal courts can entertain whether a petition for habeas
corpus review is then an appropriate vehicle. But as the majority explains, Maj.
Op. at 3, 25, we are not yet in a position to hold the existing opportunities for
review are an inadequate substitute for the Great Writ.
-7-
16-2263, Gonzalez-Alarcon v. Macias
LUCERO, J., concurring.
I write separately to explain that the Suspension Clause issue presented by
Gonzalez-Alarcon is not resolved by the fact that he had a prior opportunity to file a
petition for review. Gonzalez-Alarcon’s claim of United States citizenship, like a
prisoner’s assertion of actual innocence, cannot be rejected as barred by procedural
impediments contained in the REAL ID Act. The Great Writ, as protected by the
Suspension Clause, necessarily includes the power to excuse procedural errors to cure a
miscarriage of justice.
I
As the Supreme Court itself had noted, there is a dearth of case law on the
adequacy of a substitute for habeas, reflecting “the care Congress has taken
throughout our Nation’s history to preserve the writ and its function.” Boumediene
v. Bush, 553 U.S. 723, 773 (2008). In Felker v. Turpin, 518 U.S. 651 (1996), the
Court held that limitations on second or successive petitions contained in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) were “well
within the compass” of the doctrine of “abuse of the writ,” a “complex and evolving
body of equitable principles informed and controlled by historical usage, statutory
developments, and judicial decisions.” Id. at 664. Other cases on habeas substitutes
provide “little guidance” because the statutes at issue in those cases “were attempts to
streamline habeas corpus relief, not to cut it back.” Boumediene, 553 U.S. at 773
2
(citing Swain v. Pressley, 430 U.S. 372 (1977), and United States v. Hayman, 342 U.S.
205 (1952)).1
However, the Court has identified several “uncontroversial” “requisites for an
adequate substitute for habeas corpus.” Boumediene, 553 U.S. at 779. First, a
prisoner must be afforded “a meaningful opportunity to demonstrate that he is being
held pursuant to the erroneous application or interpretation of relevant law.” Id.
Second, “the habeas court must have the power to order the conditional release of an
individual unlawfully detained.” Id. And “depending on the circumstances, more
may be required.” Id. Gonzalez-Alarcon’s circumstances demand more.
The scope of habeas review, the Court explained, “in part depends upon the
rigor of any earlier proceedings.” Id. at 781. If habeas “relief is sought from a
sentence that resulted from the judgment of a court of record . . . , considerable
deference is owed to the court that ordered confinement.” Id. at 782. In such cases,
“the prisoner should exhaust adequate alternative remedies before filing for the writ
in federal court.” Id. In contrast, if “a person is detained by executive order, rather
than, say, after being tried and convicted in a court, the need for collateral review is
most pressing.” Id. at 783. Executive detention orders and review procedures lack
“a tribunal disinterested in the outcome and committed to procedures designed to
ensure its own independence.” Id. Under these conditions, a “habeas court must
1 In Hayman, the Court upheld a prior version of 28 U.S.C. § 2255, which replaced
traditional habeas review for federal prisoners with a process allowing for a motion to be
filed in the sentencing court. 342 U.S. at 207 n.1, 219. In Swain, the Court upheld a
statute, patterned after § 2255, that transferred collateral review from the U.S. District
Court for the District of Columbia to the D.C. Superior Court. 430 U.S. at 374-78.
3
have sufficient authority to conduct a meaningful review of both the cause for
detention and the Executive’s power to detain.” Id. Although the Court cautioned
that an adequate substitute need not “duplicate § 2241 in all respects,” it concluded
the tribunals at issue in that case were inadequate. Id. at 792.
Like the Supreme Court, this circuit has said relatively little about the
Suspension Clause. In assessing whether AEDPA’s limitations period violates that
provision, we noted that “[t]here may be circumstances where the limitation period at
least raises serious constitutional questions and possibly renders the habeas remedy
inadequate and ineffective.” Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). But
we held that such circumstances were not present because Ҥ 2244(d) is not
jurisdictional and as a limitation may be subject to equitable tolling,” and the
petitioner did not argue “that a constitutional violation has resulted in the conviction
of one who is actually innocent.” Id.; see also Fisher v. Gibson, 262 F.3d 1135, 1145
(10th Cir. 2001) (rejecting AEDPA Suspension Clause argument because petitioner
had not “claimed due process violations have resulted in the erroneous conviction of
an innocent man”).2 Other circuits have similarly held that AEDPA’s restrictions are
2 To determine if a petitioner may rely on the “savings clause” of § 2255(e), we
ask “whether a petitioner’s argument challenging the legality of his detention could have
been tested in an initial § 2255 motion. If the answer is yes, then the petitioner may not
resort to the savings clause and § 2241.” Prost v. Anderson, 636 F.3d 578, 584 (10th Cir.
2011). Although both the savings clause and Suspension Clause analyses use the term
“adequate,” we considered savings clause and Suspension Clause arguments separately in
Abernathy v. Wandes, 713 F.3d 538, 551, 555 (10th Cir. 2013). We noted that the test
set forth in in Prost as to the savings clause was a “matter of statutory interpretation.”
Abernathy, 713 F.3d at 555. And we acknowledged that the Supreme Court applied a
somewhat different test in Boumediene, at least in the context of executive detention. Id.
4
generally constitutional while leaving open the possibility that an as applied
challenge could be successful for an individual claiming actual innocence. See
Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1217 n. 3 (11th Cir. 2000) (collecting
cases).
II
Our consideration of actual innocence in assessing Suspension Clause claims is
necessary. The Supreme Court has “consistently rejected interpretations of the habeas
corpus statute that would suffocate the writ in stifling formalisms or hobble its
effectiveness with the manacles of arcane and scholastic procedural requirements.”
Hensley v. Mun. Court, 411 U.S. 345, 350 (1973). The writ “never has been a static,
narrow, formalistic remedy.” Jones v. Cunningham, 371 U.S. 236, 243 (1963).
Instead, the writ’s “capacity to reach all manner of illegal detention” and “its ability
to cut through barriers of form and procedural mazes . . . have always been
emphasized and jealously guarded by courts and lawmakers.” Harris v. Nelson, 394
U.S. 286, 291 (1969). “The very nature of the writ demands that it be administered
with the initiative and flexibility essential to insure that miscarriages of justice within
its reach are surfaced and corrected.” Id.
Based on these principles, the Court has held that a compelling showing of
actual innocence will excuse both procedural default and untimeliness under AEDPA.
Further, jurisprudence regarding the savings clause is necessarily inapposite to the
question of whether an alternative remedy is adequate to challenge executive detention if
it lacks the fail-safe provisions of traditional habeas review. The savings clause is itself a
fail-safe provision—one of several contained in § 2255—and thus, as a logical matter,
cannot tell us whether a remedy without similar escape hatches is adequate.
5
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). This doctrine is consistent with
pre-AEDPA jurisprudence. Procedural default could be excused “in an extraordinary
case, where a constitutional violation has probably resulted in the conviction of one
who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (quotation
omitted). Similarly, the doctrine of “abuse of the writ,” under which courts could
dismiss second or successive habeas petitions raising claims that could have been
brought in an initial petition, gave way if “a constitutional violation probably has
caused the conviction of one innocent of the crime.” McCleskey v. Zant, 499 U.S.
467, 494 (1991).
These exceptions to various procedural obstacles developed in more recent
times, but only because the obstacles themselves are of relatively recent vintage. In
other words, the procedural doctrines and exceptions arose together. State prisoners
were not permitted to file federal habeas petitions prior to 1867, with some limited
exceptions, see Felker, 518 U.S. at 659-60, and thus there was no need for a state
exhaustion doctrine at the time of the founding. The seminal Supreme Court case
establishing that state prisoners may be required to exhaust state remedies before
filing suit, Ex parte Royall, 117 U.S. 241 (1886), itself held that exhaustion may “be
subordinated to any special circumstances requiring immediate action.” Id. at 253.
As to federal prisoners, the Supreme Court generally held that “habeas corpus is not
to be made use of as a writ of error” and “the ordinary procedure for the correction of
errors in criminal cases is by writ of error.” In re Lincoln, 202 U.S. 178, 182 (1906).
6
But the Court also recognized there may “be special circumstances calling for a
departure” from that general rule. Id.
Similarly, in the first Supreme Court case using the phrase “abuse of the writ”
in reference to habeas, the Court concluded that, even if a petitioner had prior
knowledge of the facts underlying his new claim, the “petitioner may be able to
present adequate reasons for not making the allegation earlier, reasons which make it
fair and just for the trial court to overlook the delay.” Price v. Johnston, 334 U.S.
266, 291 (1948). “The primary purpose of a habeas corpus proceeding is to make
certain that a man is not unjustly imprisoned,” the Court explained, “[a]nd if for some
justifiable reason he was previously unable to assert his rights or was unaware of the
significance of relevant facts, it is neither necessary nor reasonable to deny him all
opportunity of obtaining judicial relief.” Id. This flexibility derives from common
law habeas, under which “the denial by a court or judge of an application for habeas
corpus was not res judicata.” Sanders v. United States, 373 U.S. 1, 7 (1963). In
short, the habeas remedy at both common law and in its contemporary form
unfailingly provided various safety valves to avoid true miscarriages of justice. See
Harris, 394 U.S. at 291.
To say that the habeas remedy has consistently been interpreted to provide some
degree of flexibility is not to say that Congress is precluded from establishing reasonable
limitations on its use. See Felker, 518 U.S. at 664. Some circuits have refused to permit
resort to habeas for individuals who failed to raise an issue in a petition for review. See,
e.g., Muka v. Baker, 559 F.3d 480, 486 (6th Cir. 2009) (“Simply because the Mukas
7
failed to make a known argument during their prior proceedings does not mean that we
must grant them a second bite at the apple to satisfy the Suspension Clause’s
requirements.”); Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007) (rejecting
Suspension Clause challenge based on inability to advance new evidence in a petition for
review because petitioner “could have introduced the [evidence] during the removal
proceedings, on appeal to the Board (when he was represented by counsel), or through a
motion to reopen”). But those cases did not involve citizenship claims.
For an individual detained by ICE, a citizenship claim is akin to the assertion
of actual innocence which requires procedural barriers otherwise barring such claims
to give way. That is, if we analogize the finding that Gonzalez-Alarcon is removable
to a state court conviction, his plausible allegation of citizenship would show that he
is not removable in the same way that a state prisoner might show he did not commit
the crime of conviction. Notably, the actual innocence exception applies following a
judicial determination of guilt. And if “a person is detained by executive order,
rather than, say, after being tried and convicted in a court, the need for collateral
review is most pressing.” Boumediene, 553 U.S. at 783. As the Supreme Court has
said, the habeas remedy requires “the initiative and flexibility essential to insure that
miscarriages of justice” are corrected as to prisoners following conviction. Nelson,
394 U.S. at 291. It follows that the writ, by its “very nature,” demands the same for
those detained by bare executive authority. Id.
To continue the state court analogy, the REAL ID Act’s barriers to review
could be treated as a time bar (Gonzalez-Alarcon failed to file a timely petition for
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review) or a procedural bar (he failed to present his claim and related evidence in
administrative proceedings). In either event, a compelling showing of actual
innocence would provide a gateway through which to present a habeas claim. The
actual innocence or miscarriage of justice exception has been applied to overcome a
variety of procedural hurdles, including “successive petitions asserting previously
rejected claims, abusive petitions asserting in a second petition claims that could
have been raised in a first petition, failure to develop facts in state court, and failure
to observe state procedural rules, including filing deadlines.” Perkins, 133 S. Ct. at
1931-32 (quotations and citations omitted). Further, “unjustifiable delay on a habeas
petitioner’s part” is “not as an absolute barrier to relief,” but may be treated “as a
factor in determining whether actual innocence has been reliably shown.” Id. at
1928; see also Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010) (“[A]
sufficiently supported claim of actual innocence creates an exception to procedural
barriers for bringing constitutional claims[] regardless of whether the petitioner
demonstrated cause for the failure to bring these claims forward earlier.”).
The Court has not yet decided whether a prisoner may assert a “freestanding
claim of actual innocence.” Perkins, 133 S. Ct. at 1931. Instead, it has treated actual
innocence as a gateway through which prisoners may pursue otherwise barred
constitutional claims. Id. In this instance, Gonzalez-Alarcon’s allegation that he is a
citizen is itself a constitutional claim. Lack of jurisdiction to detain has always been a
basis for habeas relief. “Originally, criminal defendants whose convictions were final
were entitled to federal habeas relief only if the court that rendered the judgment under
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which they were in custody lacked jurisdiction to do so.” Danforth v. Minnesota, 552
U.S. 264, 271 (2008) (citing Ex parte Siebold, 100 U.S. 371, 376-377 (1880); Ex parte
Lange, 18 Wall. 163, 176 (1874); Ex parte Watkins, 3 Pet. 193 (1830)); see also Wandes,
713 F.3d at 554 (noting that habeas corpus as it existed at the time of the founding was
available “to inquire whether a committing court had proper jurisdiction” (quoting Swain,
430 U.S. at 385 (Burger, C.J., concurring)). And as noted in the majority opinion, ICE
clearly lacks jurisdiction to detain or remove a United States citizen. Ng Fung Ho v.
White, 259 U.S. 276, 284 (1922). Moreover, executive detention and removal of a
citizen “obviously deprives him of liberty” and thus “[a]gainst the danger of such
deprivation without the sanction afforded by judicial proceedings, the Fifth
Amendment affords protection in its guarantee of due process of law.” Id. at 285.

Outcome: Because Gonzalez-Alarcon’s allegation of United States of citizenship closely
mirrors an assertion of actual innocence, which habeas law has consistently
recognized as permitting an exception to otherwise applicable procedural
impediments, his Suspension Clause challenge must be assessed with respect to his
present ability to obtain relief under the REAL ID Act rather than any prior forfeited
opportunities.

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