Ice, Ice, Baby!: A Split About Federal Jurisdiction in Expedited Removal Procedures

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Under the Immigration and Nationality Act, “any alien who is convicted of an aggravated felony at any time after admission is deportable.”

Non-citizens with legal status who are convicted of an aggravated felony are afforded a hearing before an Immigration Judge. They are allowed to plead their case and have their day in court.

For non-citizens without legal status, they undergo an expedited process of removal without a hearing. This expedited process is known as administrative removal.

Administrative Removal

In administrative removal, an Immigration and Customs Enforcement (ICE) Officer examines the evidence and determines whether or not the felony occurred. If the officer believes the evidence is lacking, then the non-citizen proceeds with regular removal proceedings in front of an Immigration Judge. If the officer believes the non-citizen committed the felony, the person is served a removal notice.

The non-citizen can challenge their aggravated felony determination through the agency or through the courts. However, this removal is not reviewable by an Immigration Judge. Instead, circuit courts have the jurisdiction to review administrative removal determinations.

Recently, however, there has been confusion within the courts about whether or not a circuit court has jurisdiction to hear a challenge when the non-citizen has not exhausted all the agency remedies.

Typically, a court may review a final order of removal against a non-citizen only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). When a non-citizen has an opportunity to raise a claim in administrative proceedings but does not do so, he fails to exhaust his administrative remedies as to that claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Circuit Split

In 2015, the Fourth Circuit set out to answer the question of whether a court has jurisdiction to hear a challenge when the non-citizen has not exhausted all agency remedies. Etienne v. Lynch.

In Etienne, the Fourth Circuit had to decide whether they had jurisdiction to hear a challenge from Etienne, a non-citizen from Haiti convicted of an aggravated felony, regarding his expedited removal procedure, when he had failed to challenge the legal basis of his removal before the agency.

According to the Fourth Circuit, the answer was: yes.

The Fourth Circuit held that the appellate courts do have the authority to consider an alien’s petition for review, even if they have not exhausted administrative avenues. The court reasoned that under the current immigration regulations, non-citizens can only challenge their aggravated felony convictions on factual findings. There is no avenue for a non-citizen to challenge their conviction on legal conclusions aside from the circuit courts. Therefore, the Fourth Circuit held that it was appropriate for the circuit courts to review administrative removal determinations. The Fourth Circuit supported their decision by citing the Fifth Circuit’s decision in Valdiviez-Hernandez v. Holder, where the Fifth Circuit also held that the circuit court had jurisdiction to review an expedited removal.

However, the Fourth Circuit’s decision in Etienne, and the Fifth Circuit’s decision in Valdiviez, directly contrasts with the Eleventh Circuit’s 2014 decision in Malu v. U.S. Attorney General.

In Malu, the Eleventh Circuit held that the court lacked jurisdiction because the non-citizen failed to exhaust the administrative avenues available within the agency. The Eleventh Circuit believed that the administrative proceedings did provide an opportunity for aliens to challenge factual allegations and legal conclusions. Therefore, it held that the circuit courts do not have jurisdiction to review until the alien has exhausted all available agency remedies.

Looking Forward

As stated prior, equality and predictability are essential to the law, particularly in the immigration context, where slight differences in law may be the difference between deportation and legal residency. Thus, as long as the courts remain divided about this question of federal jurisdiction, there will be inefficiency and injustice in the immigration system. While it seems unlikely that the Supreme Court will provide clarity on this issue any time soon, a resolution is necessary in order for the immigration system to not only run more effectively, but fairly and predictably—for all parties, in all locales.

Enough with the Ovoid Metaphors: Equitable Mootness and a Split about Unscrambling Eggs

Equitable mootness prevents an appellate court from reaching the merits of an appeal. Duff v. Cent. Sleep Diagnostics, LLC (7th Cir. 2015). It is a judicially created, prudential doctrine unique to bankruptcy appeals. Specifically, the doctrine applies to appeals from orders confirming chapter 11 reorganization plans (but the circuits are even split on that point). In re Cont’l Airlines (3d Cir. 1996).

Equitable mootness is not Constitutional (Article-III) or statutory mootness. In re UNR Indus., Inc. (7th Cir. 1994). Rather, as Judge Easterbrook recognized in In re UNR Indus., Inc., equitable mootness is an “unwillingness [to] alter the outcome.” (1994). In certain circumstances, the driving force is simply pragmatism. For example, the debtor’s reorganization plan may be near the end, and was so complex that to reverse the plan at such a late date would be impractical and inequitable. In re Manges (5th Cir. 1994). Doing so would cause harm to innocent third parties that relied on the finality of a chapter 11 confirmation order. In re Club Assocs. (11th Cir. 1992). To use the ovoid metaphors of which appellate courts are fond, appellate courts are not Humpty Dumpty repairmen and they cannot unscramble the egg. In re Tribune Media Co. (3d Cir. 2015); In re Cont’l Airlines (3d Cir. 1996).

Equitable Mootness in the Circuits

This doctrine has created controversy for four main reasons. First, the circuits do not apply a uniform test when determining whether an appeal is equitably moot. The Fourth, Fifth, and Sixth Circuits apply a four factor test; the Third and Tenth apply a five factor test; and the Second, Seventh, and Eleventh each have their own specific analyses. Second, the circuits cannot agree on a name for the doctrine, leading Judge Easterbrook to banish the term in the Seventh Circuit:

[T]he doctrine goes under the banner “equitable mootness,” but the name is misleading. There is a big difference between inability to alter the outcome (real mootness) and unwillingness to alter the outcome (“equitable mootness”). Using one word for two different concepts breeds confusion. Accordingly, we banish “equitable mootness” from the (local) lexicon. We ask not whether this case is moot, “equitably” or otherwise, but whether it is prudent to upset the plan of reorganization at this late date.

In re UNR Indus., Inc. (1994).

Third, despite the doctrine’s express limitation to complex reorganizations with intricate transactions, litigants have pressed, and appellate courts have applied, equitable mootness in appeals from relatively simple reorganizations, In re One2One Commc’ns, LLC (3d Cir. 2015) (Krause, J., concurring); liquidation plans, In re BGI, Inc. (2d Cir. 2014); and, as recently as October 3, chapter 9. In re City of Detroit, (6th Cir. 2016).

Fourth, and most importantly, equitable mootness is essentially a “super-finality” rule that binds an appellate court from exercising its jurisdiction—“[A] self-imposed straight jacket [that] contradicts [Article III courts’] virtually unflagging obligation to exercise the jurisdiction we have been given.” In re City of Detroit, (6th Cir. 2016) (Moore, J., dissenting).

This controversy came to a head in the later summer of 2015 when the Third Circuit’s Judge Cheryl Krause issued a call to arms against the doctrine. In re One2One Commc’ns, LLC (3d Cir. 2015) (Krause, J., concurring). In a separate concurrence that was double the length of the actual opinion she pronounced:

We must consider whether to end or endure the mischief of equitable mootness . . . [T]he doctrine has gone virtually unchallenged. This may be because litigants—and bankruptcy attorneys—wield the weapon of equitable mootness just as often as they suffer its blows. But it is time for the challenge, and I am not alone in urging it.

(3d Cir. 2015). Less than a month later, Judge Thomas Ambro wrote a concurrence in In re Tribune Media Co., that was essentially a reply brief to Judge Krause. (3d Cir. 2015) (Ambro, J., concurring). Judge Ambro, relying on the principle that bankruptcy courts are courts of equity, recognized that the equities of a situation sometimes take precedence over a meritous, even legally justifiable, appeal:

The doctrine of equitable mootness recognizes those few situations where the practical harm caused by granting relief would greatly outweigh the benefit. Discretion is no less appropriate in the plan confirmation context than in ordering other equitable remedies; hence we believe that the One2One concurrence’s formal challenge that equitable mootness lacks a basis in law misses the point that it is in the equitable toolbox of judges for that scarce case where the relief sought on appeal from an implemented plan, if granted, would leave the plan in tatters and/or bankruptcy battlefield strewn with too many injured bodies . . .  In a very few cases, shutting an appellant out of the courthouse does substantially less harm than locking a debtor inside.

Looking Forward

To date, the Supreme Court has declined to address equitable mootness three times. See Tribune (2016); BGI (2015); GWI, (2001). Yet given the implications the doctrine has and the lack of uniformity across the circuits, the Court must address this doctrine and provide guidance.