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 31 st 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
. - - - - - - - - - - - - - - - - - - - -xRespondent 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 Clerk1 Stated differently, this sec ond question asks whether, in the light of 8 U.S.C. §

1252(d)(1) and the relevant reg ulations 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, limit ed, exceptions. CALABRESI , Circuit Judge , conc urrin g in th e deni al of r eheari ng en banc : In his strong d issent, the Chief Judg e touche s on two se parate issues. B oth are i

mportant and dese rve ser ious discu ssion. The

first is pr imarily of intere st to this co

urt and c ircuit. I

t 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), ig

nored ou r rules making previous c ircuit pr eceden t binding . The sec ond is of more general inte rest. I t question s whether the Zhong

majority was cor rect in it s readin

g of the releva nt statute and Supre

me Court decisions when it held that exhaustion of issues — as against categorie s of claims — is a mandator y r ather than a juri sdictiona

l require ment. 1
I In Zhong , the governmen t did not poi

nt out that t

he petitioner had f

ailed to exhaust certain issues before the Board of Immigration Appeals (“BIA”), a nd instead, fully briefe d and argued the meritsof 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”). I

t is true that the Foster

opinion contains lan

guag e which mi ght be ta

ken 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 ter m,” but cautioning that “unrefined dispositions . . . should be accorded no precede ntial 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 bee n somewhat casual when discussing the judicially -created exhaustion

require ments unde

r section 502(a)( 1)(B) [o f ERI SA]” and a cknowle dging

that this court has “occasionally

use[d] ‘jurisdictional’ language when discussing the e xhaustion requirements,” but holding “that a failure to exhaust ERI SA administrative remedies is not jurisdict ional, but is an aff irmative 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 ref

erred 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 pane l was a vis iting jud ge and as such has had no oc casion to express his views on the matter.

4 See Abim bola , 378 F.3d at 180 (suggesting that the jur isdictional effect of lack of exhaustion where the government fails to object was an ope n 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 suc

h was not b inding on

later pa nels. 2 Significantly, both members of our court who served on the Foster

panel an d wrote that decis ion have c onsistentl y r ejecte d the Chief

Judge’s reading of Foster

as bin ding. 3 They

have au thorized me

to say that they view the j urisdicti onal language in Foster

as dicta, and that they

believe they indica

ted as much in Abimbola v . Ashcroft , 378 F.3d 1 73, 180 (2 d Cir. 2004 ), which they heard on the same day as Foster

. 4 Given tha t Foster was not controlling, and that no other binding prece dent on point was, or has be en, cite d to us it was proper for the Zhong panel to treat as an open question the precise
nature o f this cou

rt’s issue exhaustion

require ment. In vie w of the Su

preme Cou

rt’s ser ies of re cent and

increa singly

powerf ul opinionscautioning lower federal cour ts 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. 4 43, 45 5-56 ( 2004) , and b ecause there w as no b indi ng 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 trea ted as jurisdictional. See Ebe

rhart , 126 S. Ct. at 405 (“Clarity would be fac ilitated . . . if courts and litigant s used the

label ‘ju risdictional’ not f

or claim- process ing rule s, but only for pre scription s delinea ting the classes of case s (subject-matter

jurisdict ion) and t he persons (pers onal jurisdiction) falling within a court’s adjudicatory authority.” (c itation and internal quotation marks omitted)). The Zhong

panel believed that some of the same arg uments it found compelling with
respect to issue exhaustion c ould be ma de about claim exhaustion and whet her that require ment is jurisdictional. But because there were long standing holdings of our court that, in the immigration context, claim exhaustion is a jurisdictional requirement, see Beh arry v. A shcroft, 329 F.3d 5 1, 59 (2d Ci

r. 2003); see also Karaj v. Gonzales , 462 F.3d 113, 119 (2d Cir. 2006), the majority in Zhong

properly de emed itself bound. The majority in Zhong concluded that it could, and so should, reach the correct result with respe ct to the question that remained open — i.e. , the nature of issue exhaustion — even as it honored longstanding pre cedent 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 precede nts have often distinguished between issues and5 See Second Circuit Interim L ocal 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). Moreove r, there is a prof oundly practic al reas on for dr

awing t his line be

tween iss ue and c laim 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 adequate ly exhausted below would be s

ubject to being a ttacked collater ally by i ntereste d third pa

rties, be cause 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 F ed. Rule Civ. Proc. 12(b)(1), may be raised by a party , or by a cour

t on its own initiative, at any stage in the litigation, even after trial and the entry of judg

ment.”). And that, together with the fact that subject-ma tter jurisdiction cannot be waived, would impose on courts of appeals “an independent oblig ation to determine whether subject-matter jurisdiction exists, even in the absence of a challeng e from either party .” Arbaugh , 126 S. Ct. a

t 1237. Thi s, in the c ontext of iss ue exhaust

ion in immig

ration c ases in th

is circuit, would impose an unbearable burden. Whereas the judges of this court have little difficulty examining the administrative record and determining whether particular c ategories of relief — i.e. , claims — have bee n raised , it would be virtually impossible, as a prac tical matter, for us thoroughly to search through the record in every c

ase— especially in cases being decided through our Non-Argument Calendar 5 or in summary fashion — in orde r to discern whether all relevant issues were adequately

raised before the agency . If issue exhaustion is mandatory but not jurisdictional, by comparison, we ar e 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 me ticulously searching

the record6 These c ircuits, i n finding , based on their ow n prior pr eceden ts, that the

y w ere boun

d to treat issue exhaustion as jurisdictional, also suggested that exceptions to the issue exhaustion requirement might nevertheless be permitted. See Sous a , 226 F.3d at 32 (“Even where statutes impose an exhaustion requirement the Supreme Court has, despite the rhetoric of jurisdiction, carved out except

ions.”); 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 bee n 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 late r, colla teral at tacks. Obviously, these prac

tical 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 cour t of any power

to hear the case, when closer inspectio n would re

veal the rule to be

mandator

y bu t not jurisd

ictional. Interestingly

— although not surprisingly , given the absence of an issue exhaustion requirement in the language of § 1252(d)(1), and the practical difficulties that dee ming issue exhaustion

“jurisdic tional” would pres ent — some of the ci rcuits wh ich the Chi ef Judge

cites as coming o ut the oppo site way

from Zhong

on issue exhaustion a

nd jurisdic

tion have indicate d that they thought t his was a t

errible idea. B ut they

were bo und by earlier preced ents in the ir circu

its 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 languag e of § 1252(d)(1) could be read to requir e only exhaustion of remedie s availa

ble as of right,” but findin

g itself bound by prior Eig hth Circui

t prece dent); Sousa v. INS , 226 F.3d 28, 31 (1s t Cir. 2000)

(stating that “[i]f w e were

writing on a clea n slate, it would be very te

mpting to treat” the failure to exhaust issues “as something less than a ju ri sd ic ti on al ob

je ct io n, ” b ut co nc lu di ng th at , “ [w ]h at ev er ou r o wn vi ew s, we ar e b ou nd by precedent to apply

the INA exhaustion requirement in a more dr aconian fashion”). 6 As theWe, of cou rse, have similar

ly a llowed for such “e

xceptions”

in the con

text of cla

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

order to prevent “manife st injustic e”); see also Marrero Pichardo v. Ashcroft, 374 F.3d 46, 54 (2d Cir. 2004) (holding that, “notwithstanding a . . . petitioner’s fa ilure to exhaust h

is claims b efore t

he BI A,” such failure may be excuse d where

necessa ry to avoid “manifest injustice”). The Chief Judge, consistently with the position he takes in this case, dissente d from Gill , and, in that dissent, also criticized the reasoning of Marrero Pichardo

. See Gill , 420 F.3d at 95-97 (Jacobs, J. , dissentin g). Bu t Gill and Marrero Pichardo nonethel ess remai n the l aw of t he circ uit, which is th e only thi ng Zhong said abou

t those ca ses. opinion in Zhong

clearly sta

tes, see 480 F.3d at 107, 120 n.20, it was because we were not bound by prece dent that the majority in Zhong could re ach wha

t I wil l argue

in Part I I wa s the cor

rect result as to issue exhaustion. I do not doubt that the Chief Judge and his fellow dissenters re ad 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 judge s, to say what is holding and w hat is not; that is ultimately up to the majority of the court, a

nd 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 sec ond questi on, thoug h perhap s less fra

ught with emotion, is

the more important one: Did the majority in Zhong , in holding that issue exhaustion , though

mandator

y, i s not jurisdictional, correctly

interpret what the statute and relevant case la w require? A Section 1252(d)(1), the judicial review provision analy zed in Zhong , s ta te s t ha t w e m ay review a final ord er of re moval only

after “ the alien has exhausted all ad

ministrati ve reme dies available to the alien as of right.” That lang uage ty pically means that cour

ts do not have jurisdiction to hear a petitioner who has not first brought his case bef ore the available7 It is useful to compare the lang uage of § 1252(d)(1), which make s no mention of issue exhaustion, with the language that Congress has used in other statutes. See W

oelke & Romero Framing, Inc. v. NLRB , 456 U.S. 645 (1982) (holding that the court of appeals lacke d jurisdiction to revie w objecti ons not ra

ised bef ore the N ational Labor Rela tions Boa rd beca use a sta tute expressly provided for a jur isdictiona l issue exha

ustion re quireme

nt); 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

consider ed by the cour t” (emphasis adde d)); 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 urge d before the Commission . . .” imposed a statutory issue exhaustion requirement (emphasis adde d)). administrative agency

. See Zhong , 480 F.3d at 118 n.1 8, 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 cou rts of the State,” a nd interpreting

it to mean t

hat “[a] ha

beas pet itioner w ho has defaulted his federal claims in state court meets the tec hnical requirements for exhaustion; there
are no state remedies any long er ‘available’ to him” (emphasis added)). I t does not, however, in itself proscribe judicial review of issues not raised in the course of exhausting those administr ative re medies. 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 (2 000); see also Zhong , 480 F.3d at 121 (explaining

how, “as the Supre

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

require ments into statutes”

when it wi shed to ma

ke issue e xhaustion ju

risdictional (emphasis in original)). Of course, even in cases in which no statutory issue exha

ustion re quireme

nt exists, we llsettled 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 “manda tory” but not “jurisdictional,” see Handberry v. Thompson , 436 F.3d 52, 59 (2006), in which we interpreted as mandatory, but not jurisdictional, the lang uage of the Prison Litig ation 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 othe r Federal law, by

a prisoner . . . until such administrative remedies as are available ar e exhausted.” Although we had previously held that exhaustion under the PLRA is “mandatory,” Handberr yheld 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, whil e “[t]here

is no quest

ion that exhaustion is mandator y un der the PL

RA,” the “ failure

to exhaust is an affirmative defense”). Compare the PL RA’s exhaustion requirement to § 1252(d)(1), which also does not expressly provide for an issue exhaustion require ment at al l, much less say that any such req uiremen t would be

jurisdict ional. jurisdictional — issue exhaustion requirement. And this is most likely to happen when an
agenc y’ s own reg

ulations r equire i ssue exhau stion in ad ministrati ve appe als, for

then “co urts

re vi ew in g a ge nc y ac ti on [w il l] re gu la rl y en su re ag ai ns t t he byp as si ng of th at re qu ir em en t b y refusing to consider unexhausted issues.” Sims , 530 U.S. a t 108. Acc ordingl

y, s ince the

BIA ’s regulations do require issue exhaustion, see 8 C.F.R. § 1 003.3(b) , our cou rt has lon g held that issue exhaustion is mandatory. See Zhong , 4 80 F. 3d at 11 9 ( “[ O] ur co ur t h as co ns is te nt ly applied an issue exhaustion requirement to petitions for review from the BI A.”). 8 Bu t t he Ch ie f J ud ge ’s di ss en t m ov es we ll pa st th es e u nc on tr ov er si al pr op os it io ns , b y seeking to transf orm our ju

dicially -imposed issue exha

ustion rule

into a juri sdictiona

l 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 effe ct, that because “our court has consistently applied an issue exhaustion requirement,” dissenting op. at 1, such requirement must necessarily be jurisdictional rather than mandatory. Alter

natively, the Chief Judge c ontends that § 1252(d)(1) should be read to include ajurisdictional issue exha

ustion re quireme

nt — even t

hough the text of the

statute do es not include one — because the age ncy’s re gulation 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 manda tory , but not jur

isdictiona l. In South Carolina , the Fou rth Circu it held tha t, becau se the sta

te had fa iled to exha

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

ted that, in conside

ring whether the party

had exhau sted issue s, what wa s at stake was whether the party

had “waived reliance on them.” 676 F.2d a t 397-98. Moreover, the Ninth Circuit in Searsexplained that “a r eviewing court wil l refuse

to conside

r conten tions not presented before the administrative procee ding at the appropriate time,” except in “ except ional circumstances .” Id. at 398 (emphasis added). And, the fact that the Ninth Circuit treated “ exceptional circu

mstance s” as re levant a

t all is, of course, inconsiste

nt with a tr

uly jurisdict ional requirement. We can readily conclude that the Searsand South Carolina courts did not think that what was at play

in those cases was jurisdiction. Significantly, the Sims Court cited Searsand South Carolina with appr oval as examples of cases in which courts properly imposed issue exhaustion requirements even in the absence of9 The PLRA’s exhaustion requirement is a non-jurisdictional affirma tive defense, see Jones , 127 S. Ct. at 921. Jones and Wood ford, theref

ore, do not addre ss the abi lity an age ncy to expand or d

iminish a c ourt’s jurisdiction

. express statutory langua

ge. Since those cases, like the majority in Zhong , treated issue exhaustion as mandatory but not jurisdictional, we have e very re ason to believe that the Supreme Court end orsed tha t treatme nt 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 age

ncy, throug

h its regulations, say s 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 B IA’s reg ulations as if they wer

e themselve s the statu

te. And, e qually

important

ly, he wants

us to rea d the ag ency

regula tions

re qu ir in g i ss ue ex ha us ti on as if th ey m ad e s uc h e xh au st io n j ur is di ct io na l r at he r t ha n m an da to ry. One may doubt whe

ther an a dministra tive ag ency

can either conf

er jurisd iction on c ourts or deprive courts of it. Cf. Kontrick , 540 U.S. at 452 (“Only Cong ress may dete

rmine a lower fe de ra l c ou rt ’s su bj ec t- ma tt er ju ri sd ic ti on .” ). On e m ay c er ta in ly d ou bt it in th e a bs en ce of an y express authorization to that effect by Cong ress. But one need not reach those questions to ag ree 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 languag e that can readily be read to make issue exhaustion mandatory, which is e

xactly how Zhong

reads it. See Zhong , 480 F.3d at 121-22. Jones and Wood

ford do not aff

ect this r esult. 9 In Wood

ford, the Supre

me Court he ld that “proper exhaustion

” under t he PLR A’s non- jurisdict ional exha

ustion re quireme

nt “dema ndscompliance with an agency ’s deadlines and other critical procedura l rules because no adjudicative system ca

n function effectively

without imposing some orderly structure.” Wood ford, 126 S. Ct. at 2386. Fair enough, but this does not make such deadlines jurisdictional. And when Congress has intended to make proce dural rules jurisdictional it has, itself, spoken to that effect. See supra

note 7. The fact that it did not do so in § 12 52(d)(1 ), then, i ndicate s that no such jur

isdictiona l require ment was i

ntended. And it is Con

gress’ s expresse d intent, a nd not the agency ’s procedures, that must govern the statutory meaning of § 1252(d)(1), and g uide courts in making t heir own jurisdict ional det erminati ons. B The Chief Judge, in his dissent, expresses the fear that, as a result of Zhong , all sorts of issues may

be consid

ered on a ppeal wh ich, unde r the stat ute and the BI

A regu lations, o ught not to be reviewed. I c an sympathize with his worry , but it would only become a valid conc ern if Zhong were to be misapplied. And on a question like that, the proof of the pudding is alwa ys in the eat ing. 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. 200 7); Steevenez v. Gonzales , 476 F.3d 114 (

2d Cir. 200 7); Karaj v. Gonzales , 462 F.3d 113, 119 n. 2 (2d Cir. 2 006); 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, 200 6); Wilson v. Gonzales , 471 F.3d 1 11, 123 (2 d Cir. 2006 ); see also Jin Feng Gao v. Bureau of Citizenship and Immigrat ion 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, 20 07 W L1180417 (2d Cir. Apr . 20, 2007) (summary

order) ; Juan Lin v. Bureau of Citizenship and Immigrat ion Srvs. , 2007 WL

11099272 (

Apr. 13, 2 007) (sum

mary order) ; Bah v. Gonzales , 2007

WL 1113 091 (Apr . 5, 2007)(summary order) ; Guo Zhi Lin v. U.S. Att’y Gen. , 2007 WL 1113011 (Apr. 5, 2007) (su

mmary order) ; Xiu Zhen Pan v. U.S. Att’y Gen. , 2007 WL 926710 (2d Cir. Mar. 23, 2 007) (sum

mary order) ; Yee Ying Li v. U.S. Dep’t of Justice , 2007 WL 869232 (2d Cir. Mar. 21, 2 007) (sum

mary order) ; Gjuraj v. Gonzales , 2007 WL 869223 (2d Cir. Mar. 21, 2007) (summary order) ; Purwanto v. Gonzales , 2 00 7 W L 78 63 49 (2 d C ir . M ar . 1 6, 20 07 ) ( su mm ar y order) ; Lhamo v. Bd. of Immi gration App eals , 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 , 2 00 6 W L 37 70 88 1 ( 2d Ci r. De c. 13 , 2 00 6) (s um ma ry 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 ) (summar y or der); YaLing v. Gonzales , 198 Fed . Appx. 120, 122 (2d Cir . Sept. 29, 2006) (su mmary order) ; Fang Yi He v. Gonzales , 198 Fed . Appx. 88, 8 9 (2d Cir. S ept. 20, 2 006) (sum mary order) ; Qiu Feng Chen v. Gonzales , 2006 WL

2620348 (2d Cir. Sept. 12, 2006 ) (summar y or der); 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 consider ation where the issue was not br

ought be fore the

BIA — and to do

so becau se raisin

g such is sues was10 The only exception we have found since Zhong

is You Jiang v. Gonzales , 2007WL 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 lang uage. See supra note 6.

11 Especially in view of the “exceptions” to jurisdictional bars that courts using jurisdictional language have cr eated. See supra

note 6. mandator y, e ven thoug h not jurisd

ictional. 10 In other word s, far f rom the sk

y f alling in , it is still there, a nd is shinin

g brig ht. * * * * In the end the question in Zhong is a quite s imple one . (1) Give n the Supre

me Court’ s powerful statements that courts should be reluctant to make issues jurisdictional rather than mandatory unless statutory language require s it, see Day , 126 S. Ct. a t 1681-82; Arbaugh , 126 S. Ct. at 1245 ; Eberhart

, 126 S. Ct. a

t 405; Kontrick , 540 U.S. a t 455-56; see also Sims , 530 U.S. a t 107-08; (2) given the fact that our prec edents do not compel us to make issue exhaustion in immigration cases jurisdictional; (3) given the enormous burde n that calling issue exhaustion jurisdict ional wou ld in practice impos e on cour ts like ours which a

re deluged with tho se case s; and fi nally, (4 ) given the ve ry small — if any — di fferen ces in resul ts th at flo w from calli ng issue exha

ustion mandatory

but not jur

isdictiona l, 11 is it permissible and appropriate to read the
agenc y r egulat ions under

§ 1252(d) (1) as ma

king issu e exhausti on mandat

ory but not jurisdictional. The majority in Zhong said that i

t was. The

overwhe lming maj ority

of our co urt has opted not to review that decision en banc . W it h gr eat res pec t fo r th e di ss ent in g vi ews , I believe that dec ision was e

xactly 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 in1 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 cour ts of appealsDep’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--an d they all rea ched 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 ofexhausting “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 Co urt has spoken plainly as to how the inferior court s should under stand statutor y exhaustion

requirements. When Congress says (as it d id 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 exhau stion requirem ent, the Court ’s analysis of ag ency processes should inform our determina tion of the scope o f a statutory exhaustion req uirement such as § 1252(d)(1). I agree with Ju dge Kearse tha t Foster reached the right answ er in making t his determinat ion

. See Zhong , 

### 1252(d)(1)) th at a petitione r must have “e xhausted all administrative remedies avai lable as of ri ght,” the petitioner mus t do so in acc ordance with t hat agency’s procedures. See Jones v. Bock , 127 S. Ct. 9 10, 923 (2007) (“[I]t is the prison’s requi rements . . . that define th e boundaries of proper exhaust ion.”). The S upreme Court h as thus emphasize d that the exi stence of an i ssue exhaustio n requirement do es not hinge s olely on statu tory wording: “Proper exhaus tion demands c ompliance with an agency’s deadlines and other critical procedural ru les because no adjudicative s ystem can func tion effective ly without imposing some orderly struct ure on the cou rse of its proceedings.” Woodford v. Ng o , 126 S. Ct. 2 378, 2386 (2006). Thus in Sims v. Apfel , the Court as certained the need for issue exha ustion by exam ining the agen cy’s regulatio ns and its intern al appellate p rocess. 530 U.S. 103, 106-12 (2000). 3 Sims ruled that appeals to the Social Security480 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 20C.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 an4 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 agovernment 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 at6 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 majo rity’s footnot e discussing “ manifest injustice” is pure dicta bec ause no injust ice (manifest or not) has been identified in this case. In any event, Ishare 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 its elf was improvised by a panel of thi s court in Marrero Pichar do v. Ashcroft , an appeal fr om the denial of habeas reli ef sought by a felon who failed altoge ther to appeal his order of deportation to the BIA. 374 F.3d 46, 5 2-54 (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 i ssue of “excep tional importa nce,” one which no o ne can dispute is “necessary to secure or maintain unifo rmity” 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 the7 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.