02-4882-ag 

Zhong v. U.S. Dep’t of Justice, Attorney General Gonzales

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2006

 ____________________

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 31st day of May, two thousand seven,

Present:

Hon. Dennis Jacobs, 

Chief Judge,

Hon. Guido Calabresi,

Hon. José A. Cabranes,

Hon. Chester J. Straub,

Hon. Rosemary S. Pooler,

Hon. Robert D. Sack,

Hon. Sonia Sotomayor,

Hon. Robert A. Katzmann,

Hon. B.D. Parker,

Hon. Reena Raggi,

Hon. Richard C. Wesley,

Hon. Peter W. Hall,

Circuit Judges.

- - - - - - - - - - - - - - - - - - - -x

LIN ZHONG,

Petitioner,

- v.- 02-4882-ag

UNITED STATES DEPARTMENT OF JUSTICE, 

& ATTORNEY GENERAL GONZALES,

Respondent.

- - - - - - - - - - - - - - - - - - - -x
Respondent filed a petition for rehearing in banc from

the opinion filed on August 8, 2006. A poll on whether to

rehear this case in banc was conducted among the active

judges of the court upon the request of an active judge of

the court. Because a majority of the court’s active judges

voted to deny rehearing in banc, rehearing in banc is hereby

DENIED. Amended opinions were issued by the panel on

January 17, 2007.

Judge Calabresi concurs in the order denying rehearing

in banc and files an opinion. Chief Judge Jacobs dissents

from the order denying rehearing in banc and files an

opinion in which Judges Cabranes and Raggi join.

FOR THE COURT:

Thomas W. Asreen, Acting Clerk

By: Richard Alcantara, Deputy Clerk
1

 Stated differently, this second question asks whether, in the light of 8 U.S.C. §

1252(d)(1) and the relevant regulations and case law, issue exhaustion is a matter of statutory

jurisdiction, or, instead, is a mandatory non-jurisdictional requirement that may be subject to a

few, limited, exceptions.

CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc:

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

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

whether the majority in Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir. 2007), amending 

and superseding Zhong v. U.S. Dep’t of Justice, 461 F.3d 101 (2d Cir. 2006), ignored our rules 

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

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

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

mandatory rather than a jurisdictional requirement.1

I

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

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

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

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

raised by the panel sua sponte.

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

in Foster v. INS, 376 F.3d 75 (2d Cir. 2004) (per curiam), as controlling on this point. See 

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

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

that 8 U.S.C. § 1252(d)(1) imposes a jurisdictional issue exhaustion requirement. But because, 
2

See Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235, 1242-43 (2006) (noting

that “[j]urisdiction . . . is a word of many, too many, meanings” and that the Supreme Court, “no

less than other courts, has sometimes been profligate in its use of the term,” but cautioning that

“unrefined dispositions . . . should be accorded no precedential effect on the question whether the

federal court had authority to adjudicate the claim in suit” (citations and internal quotation marks

omitted)); cf. Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 443, 446 (2d Cir. 2006)

(noting that “our case law has been somewhat casual when discussing the judicially-created

exhaustion requirements under section 502(a)(1)(B) [of ERISA]” and acknowledging that this

court has “occasionally use[d] ‘jurisdictional’ language when discussing the exhaustion

requirements,” but holding “that a failure to exhaust ERISA administrative remedies is not

jurisdictional, but is an affirmative defense”); United States v. Canova, 412 F.3d 331, 347-48 (2d

Cir. 2005) (acknowledging that the Supreme Court, our court, and each of our sister circuits, had

previously referred to the filing limit of Fed. R. Crim. P. 33 as “jurisdictional,” but recognizing

that “[i]n light of [the Supreme Court’s] discussion of the ambiguity in the word ‘jurisdictional,’

it might be appropriate for us to explore the meaning of our past characterization of Rule 33’s

filing limitations as ‘jurisdictional’”).

3

 The third judge on the panel was a visiting judge and as such has had no occasion to

express his views on the matter.

4

 See Abimbola, 378 F.3d at 180 (suggesting that the jurisdictional effect of lack of

exhaustion where the government fails to object was an open issue).

in Foster, the government pointed out the petitioner’s failure to exhaust issues, see Foster, 376 

F.3d at 77, any “jurisdictional” language used by that panel was not necessary to the decision, 

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

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

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

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

378 F.3d 173, 180 (2d Cir. 2004), which they heard on the same day as Foster.

4

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

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

nature of this court’s issue exhaustion requirement.

In view of the Supreme Court’s series of recent and increasingly powerful opinions
cautioning lower federal courts against conflating mandatory with jurisdictional prerequisites, 

see, e.g., Day v. McDonough, 547 U.S. 198, 126 S. Ct. 1675, 1681-82 (2006); Arbaugh, 126 S. 

Ct. at 1238, 1245; Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 405 (2005) (per 

curiam); Kontrick v. Ryan, 540 U.S. 443, 455-56 (2004), and because there was no binding 

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

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

jurisdictional. See Eberhart, 126 S. Ct. at 405 (“Clarity would be facilitated . . . if courts and 

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

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

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

marks omitted)).

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

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

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

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

329 F.3d 51, 59 (2d Cir. 2003); see also Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006), the 

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

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

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

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

distinction was a permissible one.

This was because our circuit precedents have often distinguished between issues and 
5

See Second Circuit Interim Local Rule 0.29 (establishing procedures for the NonArgument Calendar).

categories of relief in exhaustion doctrine. Zhong, 480 F.3d at 119 n.18 (citing cases). 

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

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

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

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

would have had no authority to act at all. See Arbaugh, 126 S. Ct. at 1240 (“The objection that a 

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

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

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

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

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

Arbaugh, 126 S. Ct. at 1237. This, in the context of issue exhaustion in immigration cases in this 

circuit, would impose an unbearable burden.

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

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

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

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

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

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

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

below, but we do not have to undertake the unmeetable task of meticulously searching the record 
6

 These circuits, in finding, based on their own prior precedents, that they were bound to

treat issue exhaustion as jurisdictional, also suggested that exceptions to the issue exhaustion

requirement might nevertheless be permitted. See Sousa, 226 F.3d at 32 (“Even where statutes

impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction,

carved out exceptions.”); see also Etchu-Njang, 403 F.3d at 581-85 (“[A]ssum[ing] for the sake

of argument that there may be exceptions to the issue exhaustion requirement.”). By allowing

such “exceptions,” these circuits have, in effect, not been treating the issue exhaustion

requirement as truly jurisdictional (despite the words they were bound by precedent to use).

in the thousands of immigration cases we review, in order to avoid what could be disastrous, 

much later, collateral attacks.

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

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

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

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

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

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

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

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

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

and could do nothing else. See, e.g., Etchu-Njang v. Gonzales, 403 F.3d 577, 581-82 (8th Cir. 

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

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

v. INS, 226 F.3d 28, 31 (1st Cir. 2000) (stating that “[i]f we were writing on a clean slate, it

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

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

precedent to apply the INA exhaustion requirement in a more draconian fashion”).6 As the 
We, of course, have similarly allowed for such “exceptions” in the context of claim

exhaustion. See Gill v. INS, 420 F.3d 82, 87-88 (2d Cir. 2005) (stating willingness to hear

unexhausted claims in order to prevent “manifest injustice”); see also Marrero Pichardo v.

Ashcroft, 374 F.3d 46, 54 (2d Cir. 2004) (holding that, “notwithstanding a . . . petitioner’s failure

to exhaust his claims before the BIA,” such failure may be excused where necessary to avoid

“manifest injustice”). The Chief Judge, consistently with the position he takes in this case,

dissented from Gill, and, in that dissent, also criticized the reasoning of Marrero Pichardo. See

Gill, 420 F.3d at 95-97 (Jacobs, J., dissenting). But Gill and Marrero Pichardo nonetheless

remain the law of the circuit, which is the only thing Zhong said about those cases.

opinion in Zhong clearly states, see 480 F.3d at 107, 120 n.20, it was because we were not bound 

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

result as to issue exhaustion.

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

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

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

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

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

II

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

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

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

A

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

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

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

jurisdiction to hear a petitioner who has not first brought his case before the available 
7

 It is useful to compare the language of § 1252(d)(1), which makes no mention of issue

exhaustion, with the language that Congress has used in other statutes. See Woelke & Romero

Framing, Inc. v. NLRB, 456 U.S. 645 (1982) (holding that the court of appeals lacked jurisdiction

to review objections not raised before the National Labor Relations Board because a statute

expressly provided for a jurisdictional issue exhaustion requirement); see id. at 665 (quoting 29

U.S.C. § 160(e) (1982 ed.), which provided that “no objection that has not been urged before the

Board . . . shall be considered by the court” (emphasis added)); see also Federal Power Comm’n

v. Colorado Interstate Gas Co., 348 U.S. 492, 497 (1955) (holding that section 19(b) of the

Natural Gas Act, which provided that “[n]o objection to the order of the Commission shall be

considered by the court [of appeals] unless such objection shall have been urged before the

Commission . . .” imposed a statutory issue exhaustion requirement (emphasis added)).

administrative agency. See Zhong, 480 F.3d at 118 n.18, 119, 120-21; see also Coleman v. 

Thompson, 501 U.S. 722, 732 (1991) (discussing the requirement, found in 28 U.S.C. § 

2254(b)(1) (1990), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 

104-132, § 104(2)(3), 110 Stat. 1214, that a habeas petitioner “exhaust[] the remedies available 

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

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

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

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

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

administrative issue exhaustion are largely creatures of statute.” Sims v. Apfel, 530 U.S. 103, 

107-08 (2000); see also Zhong, 480 F.3d at 121 (explaining how, “as the Supreme Court 

observed in [Sims, 530 U.S. at 107-08], Congress has, in other contexts, expressly written issue

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

(emphasis in original)).

Of course, even in cases in which no statutory issue exhaustion requirement exists, wellsettled principles of administrative law may lead a court to impose a mandatory — though non-
8

 For an example of our treatment of exhaustion requirements as “mandatory” but not

“jurisdictional,” see Handberry v. Thompson, 436 F.3d 52, 59 (2006), in which we interpreted as

mandatory, but not jurisdictional, the language of the Prison Litigation Reform Act of 1995

(“PLRA”), which provides that “[n]o action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a prisoner . . . until such

administrative remedies as are available are exhausted.” Although we had previously held that

exhaustion under the PLRA is “mandatory,” Handberry held such exhaustion to be nonjurisdictional in light of the fact that the PLRA did not expressly describe the exhaustion

requirement as jurisdictional. See also Jones v. Bock, 127 S. Ct. 910, 918, 921 (2007) (holding

that, while “[t]here is no question that exhaustion is mandatory under the PLRA,” the “failure to

exhaust is an affirmative defense”). Compare the PLRA’s exhaustion requirement to §

1252(d)(1), which also does not expressly provide for an issue exhaustion requirement at all,

much less say that any such requirement would be jurisdictional.

jurisdictional — issue exhaustion requirement. And this is most likely to happen when an 

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

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

refusing to consider unexhausted issues.” Sims, 530 U.S. at 108. Accordingly, since the BIA’s 

regulations do require issue exhaustion, see 8 C.F.R. § 1003.3(b), our court has long held that 

issue exhaustion is mandatory. See Zhong, 480 F.3d at 119 (“[O]ur court has consistently 

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

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

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

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

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

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

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

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

mandatory. Alternatively, the Chief Judge contends that § 1252(d)(1) should be read to include a
jurisdictional issue exhaustion requirement — even though the text of the statute does not 

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

appeals. Both lines of argument are unpersuasive.

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

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

appeals. 530 U.S. at 108. The Court then cited approvingly, as examples of such issue 

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

795 F.2d 375, 378 (4th Cir. 1986), and the Ninth Circuit’s opinion in Sears, Roebuck and Co. v. 

FTC, 676 F.2d 385, 398 n.26 (9th Cir. 1982). Significantly, both of those opinions treated issue 

exhaustion as mandatory, but not jurisdictional.

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

certain issues, the state had waived those issues. 795 F.2d at 378. Similarly, in Sears, the Ninth 

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

whether the party had “waived reliance on them.” 676 F.2d at 397-98. Moreover, the Ninth 

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

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

circumstances.” Id. at 398 (emphasis added). And, the fact that the Ninth Circuit treated “

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

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

that what was at play in those cases was jurisdiction.

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

of cases in which courts properly imposed issue exhaustion requirements even in the absence of 
9

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

Jones, 127 S. Ct. at 921. Jones and Woodford, therefore, do not address the ability an agency to

expand or diminish a court’s jurisdiction.

express statutory language. Since those cases, like the majority in Zhong, treated issue 

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

Court endorsed that treatment as well.

The Chief Judge’s dissent relies on Jones v. Bock, 127 S. Ct. 910 (2007), and Woodford v. 

Ngo, 126 S. Ct. 2378 (2006), for the proposition that “exhaustion of administrative remedies” 

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

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

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

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

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

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

or deprive courts of it. Cf. Kontrick, 540 U.S. at 452 (“Only Congress may determine a lower 

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

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

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

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

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

mandatory, which is exactly how Zhong reads it. See Zhong, 480 F.3d at 121-22.

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

“proper exhaustion” under the PLRA’s non-jurisdictional exhaustion requirement “demands 
compliance with an agency’s deadlines and other critical procedural rules because no 

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

Woodford, 126 S. Ct. at 2386. Fair enough, but this does not make such deadlines jurisdictional. 

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

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

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

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

courts in making their own jurisdictional determinations.

B

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

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

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

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

the eating.

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

of cases. See Lewis v. Gonzales, 481 F.3d 125, 132 (2d Cir. 2007); Steevenez v. Gonzales, 476 

F.3d 114 (2d Cir. 2007); Karaj v. Gonzales, 462 F.3d 113, 119 n.2 (2d Cir. 2006); Xiao Ji Chen 

v. U.S. Dep’t of Justice, 471 F.3d 315, 320 n.1 (2d Cir. Dec. 7, 2006), amending and superseding 

Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144 (2d Cir. Jan. 6, 2006); Wilson v. Gonzales, 

471 F.3d 111, 123 (2d Cir. 2006); see also Jin Feng Gao v. Bureau of Citizenship and 

Immigration Srvs., 2007 WL 1233598 (2d Cir. Apr. 26, 2007) (summary order); Chai Li v. 

Gonzales, 2007 WL 1206943 (2d Cir. Apr. 25, 2007) (summary order); Ahmed v. INS, 2007 WL 
1180417 (2d Cir. Apr. 20, 2007) (summary order); Juan Lin v. Bureau of Citizenship and 

Immigration Srvs., 2007 WL 11099272 (Apr. 13, 2007) (summary order); Bah v. Gonzales, 2007 

WL 1113091 (Apr. 5, 2007) (summary order); Guo Zhi Lin v. U.S. Att’y Gen., 2007 WL 1113011 

(Apr. 5, 2007) (summary order); Xiu Zhen Pan v. U.S. Att’y Gen., 2007 WL 926710 (2d Cir. 

Mar. 23, 2007) (summary order); Yee Ying Li v. U.S. Dep’t of Justice, 2007 WL 869232 (2d Cir. 

Mar. 21, 2007) (summary order); Gjuraj v. Gonzales, 2007 WL 869223 (2d Cir. Mar. 21, 2007) 

(summary order); Purwanto v. Gonzales, 2007 WL 786349 (2d Cir. Mar. 16, 2007) (summary 

order); Lhamo v. Bd. of Immigration Appeals, 2007 WL 247718 (2d Cir. Jan. 25, 2007) 

(summary order); Rong Zheng v. U.S. Att’y Gen., 2007 WL 186667 (2d Cir. Jan. 22, 2007) 

(summary order); Kapllaj v. Gonzales, 2006 WL 3770881 (2d Cir. Dec. 13, 2006) (summary 

order); Hayat v. Gonzales, 2006 WL 3326772 (2d Cir. Nov. 14, 2006) (summary order); Sun Hai 

Jiang v. U.S. Dep’t of Justice, 2006 WL 3326756 (2d Cir. Nov. 15, 2006) (summary order); 

Kuang Ju Zheng v. Gonzales, 2006 WL 3018146 (2d Cir. Oct. 23, 2006) (summary order); YaLing v. Gonzales, 198 Fed. Appx. 120, 122 (2d Cir. Sept. 29, 2006) (summary order); Fang Yi 

He v. Gonzales, 198 Fed. Appx. 88, 89 (2d Cir. Sept. 20, 2006) (summary order); Qiu Feng Chen 

v. Gonzales, 2006 WL 2620348 (2d Cir. Sept. 12, 2006) (summary order); Xiao Lian Jiang v. 

Gonzales, 2006 WL 2567699 (2d Cir. Sept. 6, 2006) (summary order); Makeka v. Gonzales, 

2006 WL 2494351 (2d Cir. Aug. 29, 2006) (summary order).

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

the issue was not brought before the BIA — and to do so because raising such issues was
10 The only exception we have found since Zhong is You Jiang v. Gonzales, 2007 WL

1113527 (2d Cir. Apr. 3, 2007) (summary order) (reviewing unexhausted issue in light of

government’s waiver), and I do not know whether the facts in You Jiang might have permitted

review under the exceptions that some courts have read into jurisdictional language. See supra

note 6.

11 Especially in view of the “exceptions” to jurisdictional bars that courts using

jurisdictional language have created. See supra note 6.

mandatory, even though not jurisdictional.10 In other words, far from the sky falling in, it is still 

there, and is shining bright.

* * * *

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

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

mandatory unless statutory language requires it, see Day, 126 S. Ct. at 1681-82; Arbaugh, 126 S. 

Ct. at 1245; Eberhart, 126 S. Ct. at 405; Kontrick, 540 U.S. at 455-56; see also Sims, 530 U.S. at 

107-08; (2) given the fact that our precedents do not compel us to make issue exhaustion in 

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

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

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

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

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

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

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

believe that decision was exactly right.
DENNIS JACOBS, Chief Judge, with whom JOSÉ A. CABRANES and 

REENA RAGGI, Circuit Judges, concur, dissenting from the 

denial of rehearing in banc.

“A court may review a final order of removal only if . 

. . the alien has exhausted all administrative remedies 

available to the alien as of right . . . .” 8 U.S.C. § 

1252(d)(1). Thus Congress foreclosed our review of 

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

factfinding and appellate levels. The majority of a divided 

panel says that we can reach unexhausted issues 

nevertheless--subject only to our discretion and to the 

spongy test of “manifest injustice.” The panel majority 

seems to think that Congress has shut the door with the 

intention that we should climb in the window. 

Our law on this subject has been well settled to the 

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

consistently applied an issue exhaustion requirement to 

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

Justice, 480 F.3d 104, 119 (2d Cir. 2007). Judge Kearse’s 

dissent persuasively attacks the deviation of the panel 

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

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

repeating it. This dissent is taken from the denial of in 
1 See, e.g., Damko v. INS, 178 F. App’x 85 (2d Cir.

2006); Qin Di Chen v. BCIS, 190 F. App’x 101 (2d Cir. 2006);

Islamovic v. Gonzales, 192 F. App’x 47 (2d Cir. 2006);

Meiying Lin v. U.S. Dep’t of Justice, 188 F. App’x 28 (2d

Cir. 2006); Xian Xian Huang v. Gonzales, 187 F. App’x 107

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

U.S. App. LEXIS 14665 (2d Cir. June 9, 2006); Yun Yu Zheng

v. Gonzales, 179 F. App’x 752 (2d Cir. 2006); Xharo v.

Gonzales, 195 F. App’x 28 (2d Cir. 2006); Yan Fang Wang v. U.S.

banc review because I do not know what makes the panel 

majority believe that our precedent is insufficient to 

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

by one panel.

I

Our 2004 opinion in Foster v. INS held that § 

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

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

dispense with” the requirement that a petitioner “raise 

issues to the BIA in order to preserve them for judicial 

review.” 376 F.3d 75, 77-78 (2d Cir. 2004) (emphasis in 

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

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

to present it on appeal.” Gill v. INS, 420 F.3d 82, 86 (2d 

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

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

usually by summary order in recognition of the settled 

nature of the proposition.1 Ten other courts of appeals 
Dep’t of Justice, 161 F. App’x 130 (2d Cir. 2005).

2 See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004);

Xin Jie Xie v. Ashcroft, 359 F.3d 239, 245 n.8 (3d Cir. 2004);

Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004); KuangTe Wang v. Ashcroft, 260 F.3d 448, 452-453 (5th Cir. 2001);

Ramani v. Ashcroft, 378 F.3d 554, 558-60 (6th Cir. 2004); Pjetri

v. Gonzales, 468 F.3d 478, 481 (7th Cir. 2006); Alyas v.

Gonzales, 419 F.3d 756, 762 (8th Cir. 2005); Morales-Alegria v.

Gonzales, 449 F.3d 1051, 1058-59 (9th Cir. 2006); Rivera-Zurita

v. INS, 946 F.2d 118, 120 & n.2 (10th Cir. 1991); FernandezBernal v. Attorney General, 257 F.3d 1304, 1317 n.13 (11th Cir.

2001).

have addressed the issue--and they all reached the same 

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

circuits reached this conclusion only because “they were 

bound by earlier precedents in their circuits and could do 

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

adherence to precedent is a value so easily dismissed; in 

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

review in banc.

Choosing instead to depart from our well-settled 

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

discretion to review an issue presented to us on appeal that 

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

review such an issue if necessary to prevent a “manifest 

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

captious.

Although the statute does not speak in so many words of 
exhausting “issues,” Foster held that it makes no sense to 

read the statute any other way: “Accepting the blanket 

statement that removal is improper as sufficient to exhaust 

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

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

removable and then apply for judicial review on the theory 

he had exhausted his remedies.” 376 F.3d at 78. This 

holding has been consistently applied in our opinions. See, 

e.g., Iouri v. Ashcroft, 464 F.3d 172, 177 (2d Cir. 2006) 

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

and Petitioners therefore failed to exhaust their 

administrative remedies.” (emphasis added)).

II

Panels of this Court are bound by our precedents unless 

and until those precedents are overruled by the Supreme 

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

Goord, 430 F.3d 652, 659 (2d Cir. 2005). Nothing the 

Supreme Court has said could have justified the departure 

from Circuit precedent that the panel majority has made.

The Supreme Court has spoken plainly as to how the 

inferior courts should understand statutory exhaustion 

requirements. When Congress says (as it did in § 
3 The Sims Court consulted the regulations to determine the

propriety of an exhaustion rule because the statute at issue in

that case made no reference to exhausting administrative

remedies, see 42 U.S.C. § 405(g) (requiring only a “final

decision”). While Sims is concerned with judicial

imposition of an issue exhaustion requirement, the Court’s

analysis of agency processes should inform our determination

of the scope of a statutory exhaustion requirement such as §

1252(d)(1). I agree with Judge Kearse that Foster reached

the right answer in making this determination. See Zhong,

1252(d)(1)) that a petitioner must have “exhausted all 

administrative remedies available as of right,” the 

petitioner must do so in accordance with that agency’s 

procedures. See Jones v. Bock, 127 S. Ct. 910, 923 (2007)

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

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

thus emphasized that the existence of an issue exhaustion 

requirement does not hinge solely on statutory wording: 

“Proper exhaustion demands compliance with an agency’s 

deadlines and other critical procedural rules because no

adjudicative system can function effectively without 

imposing some orderly structure on the course of its 

proceedings.” Woodford v. Ngo, 126 S. Ct. 2378, 2386 

(2006). 

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

for issue exhaustion by examining the agency’s regulations 

and its internal appellate process. 530 U.S. 103, 106-12 

(2000).3 Sims ruled that appeals to the Social Security 
480 F.3d at 137 (Kearse, J., dissenting) (“Given the present

context, to wit, issues presented in a petition for review, I

regard the phrase ‘issues not raised in the course of exhausting

all administrative remedies’ (emphases added) as an oxymoron.”).

Appeals Council need not specify grounds for reversal; but 

the analysis used in Sims compels the opposite conclusion in 

the immigration context. The Court concluded that social 

security regulations did not require issue exhaustion, but 

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

require issue exhaustion in administrative appeals,” id. at 

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

require as much--and therefore would necessitate issue 

exhaustion--closely tracks the words of its immigration 

analog. Compare 20 C.F.R. § 802.211(a) (petitions for 

review by the Benefits Review Board must “list the specific 

issues to be considered on appeal”), with 8 C.F.R. § 

1003.3(b) (“The party taking the appeal must identify the 

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

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

challenged.”).

In considering the agency’s appellate process, the Sims

Court examined the agency’s directions to those seeking to 

file an appeal within the agency, and inferred that the 

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

identify issues for review.” 530 U.S. at 111-12 (citing 20 
C.F.R. § 422.205(a) and Form HA-520). By contrast, the 

Executive Office for Immigration Review expressly instructs 

aliens to “give specific details why you disagree with the 

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

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

challenging.” Form EOIR-26, available at

http://www.usdoj.gov/eoir/; see also 8 C.F.R. § 1003.38.

III

Having decided to bypass our precedent, the panel 

majority makes a pretense of laying down criteria for the 

circumstances (purportedly limited) in which we might excuse 

or ignore a petitioner’s failure to exhaust issues before 

the BIA.

First, the panel majority would consider whether the 

government objected on appeal to the petitioner’s failure to 

exhaust. Zhong, 480 F.3d at 107 n.1, 125. (This is raised 

as a purported ground of distinction between the present 

case and Foster). Even were this a legitimate 

consideration, no waiver should be inferred from the lack of 

objection by the government where, as here, the government 

had no reason to assume that we would deviate from our wellsettled precedent. If waiver can be inferred here, it can 

be inferred anywhere. And future panels may simply deem an 
4 Cf. Eberhart v. United States, 546 U.S. 12, 15-16 (2005)

(holding that a violation of Federal Rule of Criminal Procedure

33’s deadline for the filing of a motion for a new trial, which

is prefaced with “Any motion . . . must be filed,” must be timely

objected to); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.

2004) (holding that the exhaustion requirement of the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(a), which is prefaced

with “No action shall be brought,” is waivable).

5 Compare 28 U.S.C. § 2349(a) (limiting our jurisdiction over

final orders of removal to “determining the validity of, and

enjoining, setting aside, or suspending, in whole or in part, the

order of the agency”), and 8 U.S.C. § 1252(a)(1) (incorporating

by reference the jurisdictional limitations of the Administrative

Orders Review Act, §§ 2341-2353), with 42 U.S.C. § 405(g)

(permitting a federal court to issue “a judgment affirming,

modifying, or reversing the decision of the Commissioner of

Social Security . . . without remanding the cause for a

rehearing”).

objection ‘insufficiently specific’ to render the waiver 

issue--which the panel majority regards as essential to 

considering the unexhausted issues in the present case--

meaningless.

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

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

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

The statutory context demonstrates why Congress chose to 

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

of appeals are empowered only to review final orders of 

removal, not to re-adjudicate the underlying application for 

relief.5 Because we cannot review something that the BIA 

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

from the constraint of § 1252(d)(1) by the absence of a 
government objection or by the government’s undertaking 

instead to demonstrate that an unpreserved issue is 

meritless.

The panel majority would next consider whether the BIA 

affirmed summarily, and draws the senseless inference that a 

summary affirmance adopts all of the IJ’s grounds for 

denying relief even if the petitioner challenged fewer than 

all of them. Zhong, 480 F.3d at 125. But why presume that 

the BIA considers and decides issues that were not argued to 

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

before issuing a summary disposition than it does when it 

issues an opinion? See United States v. Gonzalez-Roque, 301 

F.3d 39, 47 (2d Cir. 2002) (“Although the BIA has access to 

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

possibly meritorious appellate issues.”). One suspects that 

this consideration is raised by the panel majority chiefly 

as a way to embarrass the BIA for adopting streamlined 

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

dictate the internal operating rules of the BIA.” Kambolli 

v. Gonzales, 449 F.3d 454, 465 (2d Cir. 2006). As it 

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

0.23.

Last, the panel majority would consider whether 

“additional factfinding is necessary,” Zhong, 480 F.3d at 
6 Judge Calabresi offers comfort in the form of 26 cases

decided after Zhong came down in which panels did not grasp

the opportunity to decide a question never presented to the

BIA. Concurring Op. at [11-12]. This score is offered as a

response to a floodgate argument I do not make. The

institutional danger is not that many panels will take the

opportunity to decide many such issues; it is that a single

panel will be able to designate itself to decide a

particular issue, and reach it at will after dispensing with

the essentially meaningless criteria the Zhong majority

formulated as a supposed restraint on the abuse of power and

discretion. In any event, the score cited reflects only

what has happened thus far--while this in banc initiative

has been pending. Panels may be less inclined to exercise

judicial restraint in the future. Stay tuned.

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

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

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

event, under 8 U.S.C. § 1252(a)(1), “the court may not order 

the taking of additional evidence.”

The considerations proffered by the panel majority 

amount to no effective limitation on the willingness of a 

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

effort to create the illusion of restraint, the panel 

majority holds that the only cases in which a panel must

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

“prevent manifest injustice.” Zhong, 480 F.3d at 107 n.1.

The panel majority’s footnote discussing “manifest 

injustice” is pure dicta because no injustice (manifest or 

not) has been identified in this case. In any event, I 
share Judge Kearse’s skepticism concerning “whether this 

Court actually has the power to remedy even a manifest 

injustice when we lack jurisdiction.” Zhong, 480 F.3d at 

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

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

Ashcroft, an appeal from the denial of habeas relief sought 

by a felon who failed altogether to appeal his order of 

deportation to the BIA. 374 F.3d 46, 52-54 (2d Cir. 2004). 

Recent rulings had called into question whether Marrero 

Pichardo could be deemed an aggravated felon on the basis of 

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

manifest injustice). As I have observed elsewhere, Marrero 

Pichardo can tenably stand only for two propositions already 

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

by congressional limitations on jurisdiction that raise 

constitutional problems”; and [ii] exhaustion requirements 

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

administrative agency, in which event the administrative 

officers would presumably have no authority to act on the 

subject of the complaint, leaving the [complainant] with 

nothing to exhaust.” Gill, 420 F.3d at 95-97 (Jacobs, J., 

dissenting) (internal citations omitted). Marrero Pichardo

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

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

are truly “manifest” will have been overlooked by the 

petitioners themselves.

IV

The panel majority opinion makes its case for why § 

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

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

it.

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

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

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

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

patience and select themselves to decide the issue as if it 

had not already been settled. Such deviation from precedent 

is something that a disciplined court should consider in 

banc in order to preserve the coherence and consistency of 

its jurisprudence. By rejecting in banc review, we decline 

to consider together an issue of “exceptional importance,” 

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

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

Sometimes, in banc proceedings can be obviated by the 

circulation of a draft opinion to the active members of the 
7 Judge Calabresi advises that two of the three judges who

signed the per curiam in Foster are willing to concede that the

most significant ruling in it may be dicta. Concurring Op. at

[2]. I do not think that the informal approbation of two

possible authors is a substitute for in banc review of a case

whose principle has been consistently cited as authority by this

Court, relied upon by litigants, and adopted by ten other courts

of appeals.

Court; litigants and the public are then advised by footnote 

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

case.7 This circumvention can be effective only because our

in banc practice is so rusty and cumbersome that its 

desuetude will allow a single panel to skate past full court 

review.

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

equal authority and equal occasion and equal legitimacy--

overrule the panel majority’s holding. This prospect is 

institutionally dangerous, and risks debasing the currency 

of our rulings and opinions.