2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-11-2003

Duvall v. Dist Dir INS Phila

Precedential or Non-Precedential: Precedential

Docket No. 02-3829

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PRECEDENTIAL

Filed July 11, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-3829

ANDREA PATRICIA DUVALL

v.

KENNETH JOHN ELWOOD,

DISTRICT DIRECTOR, U.S.

DEPARTMENT OF JUSTICE

Kenneth Elwood, Philadelphia

District Director of the

Immigration and

Naturalization Service,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 02-CV-2081)

District Judge: Honorable Edmund V. Ludwig

Argued: Thursday, April 24, 2003

Before: SCIRICA, Chief Judge, AMBRO and

GARTH, Circuit Judges

(Opinion Filed: July 11, 2003)
Donald E. Keener

Anthony A. Yang (argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

Susan R. Becker

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, Pennsylvania 19106

Attorneys for Appellant

Derek W. Gray (argued)

Steel, Rudnick & Ruben

1608 Walnut Street, Suite 1500

Philadelphia, Pennsylvania 19103

Attorney for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge: 

The Government appeals from an order of the District

Court granting Andrea Duvall’s habeas corpus petition. The

District Court ruled that the Board of Immigration Appeals

(“BIA”) erred when it held that the doctrine of collateral

estoppel did not bar the Immigration and Naturalization

Service (“Service”) from relitigating Duvall’s alienage during

a different proceeding involving two new crimes she

committed. 

We do not reach the merits of the collateral estoppel

question decided in Duvall’s favor by the District Court.

Instead, we hold that the District Court lacked jurisdiction

to entertain Duvall’s habeas corpus petition. Accordingly,

we will vacate the District Court’s judgment1 and remand

1. The District Court’s August 9, 2002 judgment granted Duvall’s

petition for a writ of habeas corpus, barred the Service by collateral

estoppel from relitigating the issue of alienage and released Duvall from

custody by the Service. 

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with a direction that the District Court dismiss Duvall’s

habeas petition.

I.

The District Court held that it had jurisdiction over this

habeas action pursuant to 28 U.S.C. § 2241. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We have

plenary review over a district court’s grant of a habeas

corpus petition, see Yang v. Maugans, 68 F.3d 1540, 1546

(3d Cir. 1995), and a district court’s subject matter

jurisdiction. See Growth Horizons, Inc. v. Delaware Country,

Pa., 983 F.2d 1277, 1280 (3d Cir. 1993).

II.

Andrea Duvall is a native and citizen of Jamaica who, in

October 1993, became a lawful permanent resident in the

United States. Since arriving in the United States in 1987,

she has been no stranger to crime. In 1989, she pled guilty

to crimes of petit larceny and retail theft, and was convicted

of another incident of retail theft. Also in that year, she pled

guilty to three other offenses—two for retail theft and one

for third-degree felony theft by receiving stolen property.

These pleas did not account for all of the other criminal

offenses with which she was charged. Other charges were

dropped in exchange for her testimony against a coconspirator. In 1990, Duvall again pled guilty to separate

instances of shoplifting and retail theft. In the early 1990s,

she was convicted on two more unrelated charges of retail

theft and for possession of burglar’s tools. 

These convictions led to a November 1993 deportation

hearing. At that hearing, Duvall refused to answer

questions about her alienage. The Service then sought to

introduce her application for permanent residence. In that

application, Duvall admitted her alienage, but the

Immigration Judge (“IJ”) excluded the document from

evidence as the Service had failed to comply with Local

Rules, which required that the document be submitted ten

days prior to hearing. Accordingly, the IJ held that the

Service could not prove alienage and thus ended the

hearing. 

3
Undaunted, Duvall continued her criminal exploits,

acquiring two additional felony convictions by 2000.2

Following these convictions and after having been informed

of her right to remain silent, on March 12, 2001 she offered

a voluntary sworn statement with the Service admitting her

alienage. Subsequently, the Service initiated new removal

proceedings against her on March 16, 2001, charging that

she was an alien subject to removal for having been

convicted for two new crimes involving moral turpitude, 8

U.S.C. § 1227(a)(2)(A)(ii), and for being convicted of an

aggravated felony involving a theft offense for which a term

of imprisonment of at least one year was imposed, 8 U.S.C.

§ 1227(a)(2)(A)(iii). 

The IJ terminated proceedings on June 6, 2001, granting

Duvall’s motion to collaterally estop the Service from

relitigating the alienage issue. On December 6, 2001, the

BIA reversed the IJ’s collateral estoppel ruling and

remanded for proceedings to continue before the IJ. The

BIA denied Duvall’s motion for rehearing on March 20,

2002. 

Subsequently, Duvall filed a habeas petition in the

District Court for the Eastern District of Pennsylvania on

June 6, 2002. The District Court granted her petition on

August 9. Duvall v. Elwood, No. CIV.A.02-2081, 2002 WL

1870457 (E.D. Pa. Aug. 9, 2002) (unpublished). In granting

her petition, the District Court focused wholly on the

collateral estoppel issue and held that the Service was

barred from relitigating the issue of alienage. Accordingly,

the District Court entered an order which directed Duvall’s

release from the Service. In granting Duvall’s petition, the

District Court gave short shrift to the question of the

court’s jurisdiction and indeed erred in holding that Duvall

did not have to exhaust administrative remedies. 

III.

Our analysis begins with the Immigration and

Naturalization Act (“INA”) § 242(d)(1), 8 U.S.C. § 1252(d)(1),

2. In 1995, Duvall pled guilty to third-degree felony retail theft. In July

2000, she pled guilty to another third-degree felony retail theft. 

4
which provides, in pertinent part, that “[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.

. . .” (emphasis supplied). 

Notwithstanding this provision, the District Court

concluded, without analysis, that it had habeas jurisdiction

under 28 U.S.C. § 2241 to entertain Duvall’s claim. In so

doing, the District Court stated that “[e]xhaustion of

administrative remedies is not required here and defendant

has not raised it as a defense. McCarthy v. Madigan, 503

U.S. 140, 144 (1992) (exhaustion is a matter of judicial

discretion unless mandated by statute).” Duvall, 2002 WL

1870457, at *1 n.1.3

It is settled that where Congress has “clearly required

exhaustion,” McCarthy, 503 U.S. at 144, or where

congressional intent is at least “fairly discernible,” Massieu

v. Reno, 91 F.3d 416, 420 (3d Cir. 1996) (citation omitted),

exhaustion will be deemed statutorily mandated. 

The predecessor to 8 U.S.C. § 1252(d)(1), which is the

relevant statute here, was 8 U.S.C. § 1105a(c).4 Section

1105a(c) was repealed in 1996 and replaced by the current

§ 1252(d). The predecessor statute, just as the current

statute, denied review of orders of deportation or removal

where an alien had not exhausted administrative remedies.

Section 1252(d)(1) reads, in relevant part: “A court may

review a final order of removal only if—(1) the alien has

exhausted all administrative remedies available to the alien

as of right. . . .” 8 U.S.C. § 1252(d)(1) (emphasis supplied).

3. The District Court noted further that the Government did not raise

exhaustion as a defense, implying that it had waived recourse to such an

argument. However, subject matter jurisdiction can never be waived. See,

e.g., Okereke v. United States, 307 F.3d 117, 120 n.1 (3d Cir. 2002). 

4. The prior codification of § 1252(d) was INA § 106(c), 8 U.S.C.

§ 1105a(c) (1994), which was repealed by the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208,

Div. C. Title III, § 306(b), 110 Stat. 3009-612. Similar to § 1252(d),

§ 1105a(c) provided, in pertinent part, that “an order of deportation or of

exclusion shall not be reviewed by any court if the alien has not

exhausted the administrative remedies available to him as of right under

the immigration laws and regulations.” INA § 106(c), 8 U.S.C. § 1105a(c).

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Section 1105a(c) states the same requirements in

essentially the same language: 

(c) Exhaustion of administrative remedies . . . . 

An order of deportation or of exclusion shall not be

reviewed by any court if the alien has not exhausted

the administrative remedies available to him as of right

. . . . Every petition for review or for habeas corpus

shall state whether the validity of the order has been

upheld . . . . 

8 U.S.C. § 1105a(c) (repealed 1996) (emphasis supplied).5

5. We are aware that the current § 1252(d)(1) does not mention habeas

corpus whereas its predecessor, § 1105a(c), does. The question as to

whether there is a distinction as to “review” (a direct appeal from the

BIA) versus a habeas corpus petition, was addressed in INS v. St. Cyr,

533 U.S. 289 (2001). In St. Cyr, the issue before the Supreme Court was

whether certain jurisdiction-stripping provisions of the INA (8 U.S.C.

§§ 1252(a)(1), 1252(a)(2)(C), and 1252(b)(9) (1994 ed., Supp. V)) removed

entirely from federal courts the jurisdiction to hear habeas cases

involving certain types of immigration orders, where direct appeals to the

federal courts had been removed. St. Cyr, 533 U.S. at 310-11. The

Supreme Court held that these provisions did not bar habeas review

because such a construction would “invoke[ ] the outer limits of

Congress’ power,” and thus “would raise serious constitutional

problems,” id. at 299-300, and thereby should not be adopted without “a

clear statement of congressional intent to repeal habeas jurisdiction.” Id.

at 298. As a basis for this conclusion, the Supreme Court reasoned that

references in the statutory provisions at issue to “judicial review” or

“review” should not be read to foreclose habeas corpus review because

“[i]n the immigration context, ‘judicial review’ and ‘habeas corpus’ have

historically distinct meanings.” Id. at 311-12 (citation omitted). 

Since St. Cyr, the question as to whether there is a distinction between

“review” (direct appeal from the BIA) as distinct from a habeas corpus

petition, in the context of § 1252(d)(1) in particular, has been addressed

in Sundar v. INS, 328 F.3d 1320, 1324-25 (11th Cir. 2003) (no

distinction) and Beharry v. Ashcroft, 329 F.3d 51, 59-63 (2d Cir. 2003)

(not decided). The Eleventh Circuit distinguished St. Cyr, which Sundar

raised in support of his argument. Relying on St. Cyr, Sundar argued

that “review” in § 1252(d)—“A court may review a final order of removal

only if ”—applies only to direct review proceedings in the courts of

appeals and not to habeas proceedings. Sundar, 328 F.3d at 1324

(emphasis supplied). The Eleventh Circuit distinguished St. Cyr’s parsing

6
Because both statutes in their “review” clauses are

virtually identical and because 8 U.S.C. § 1105a(c) was the

subject of our Massieu opinion, we find Massieu’s analysis

and discussion instructive and controlling here. We held in

Massieu that the exhaustion requirement of § 1105a(c) was

statutory and thus jurisdictional, thereby barring a petition

for habeas corpus in the district court where there was no

final order and no exhaustion of administrative remedies.

We also held that Massieu’s claim—that the provision of the

INA under which he was deportable was unconstitutional—

did not provide an exception to the jurisdictional

requirements of §1105a(c) because such a claim was not

collateral to his deportability and because he could receive

meaningful review of his claims in this court after final

administrative action. Massieu, 91 F.3d at 426. 

In Massieu, we acknowledged that the immigration courts

are not authorized to consider the constitutionality of their

own governing statute, but we were persuaded by the fact

that exhaustion could well resolve any controverted matter

without the need for involvement by the federal courts. We

also relied on the fact that we could consider any

constitutional challenge upon completion of the

administrative proceedings. We allowed that there was one

of the meaning of “review” as being limited to the context of the

jurisdiction-stripping provisions of the IIRIRA amendments. Id. at 1324-

25. The Eleventh Circuit pointed out the obvious contrast of the

jurisdiction-stripping provisions at issue in St. Cyr with § 1252(d), which

does not completely preclude jurisdiction, but rather limits habeas

jurisdiction to aliens who have exhausted their administrative remedies,

and thus, not implicating a constitutional question. Id. at 1324 (“The

difference is that between a reasonable condition precedent and an

unconditional preclusion.”). 

We need not discuss in more detail that issue in this case as Duvall

has not raised it nor relied upon it. It suffices for us to say that the

requisites of § 1252(d)(1) do indeed apply to petitions for habeas corpus,

notwithstanding the fact that the statute does not specifically reference

habeas corpus. To read the statute otherwise would defeat the statute’s

purpose in seeking to streamline the administrative process and in

preventing delay by premature and unnecessary recourse to a federal

court. See Massieu, 91 F.3d at 421-22. 

7
exception to our jurisdictional holding. That exception

involved an issue “entirely collateral” to the merits, id. at

422-24, an exception that has no relevance to Duvall’s

petition. 

Based on our detailed analysis in Massieu, including

consideration of Congress’s stated purpose, the statute’s

legislative history and the overall structure of the

administrative process (with due consideration given to a

petitioner’s securing meaningful review of his claims after

exhaustion), see id. at 420, we held that the District Court

lacked jurisdiction to entertain Massieu’s petition in that

Massieu had failed to obtain a final order of removal and

had failed to exhaust administrative remedies. Id. at 426.

While Massieu, as we have recited, was concerned with

§ 1105a(c), whereas here we are concerned with its

successor, § 1252(d)(1), the identity of the two statutes

compels us to conclude that § 1252(d)(1) also requires

exhaustion as a prerequisite for federal jurisdiction.6 In this

connection, although Massieu did not dwell on the “final

order” element of the statute, we also conclude that a final

order of removal is a requisite for jurisdiction.

Parenthetically, we note that neither in Massieu, nor in the

present case involving the petitioner Duvall, was there a

final order of removal. Indeed, Duvall acknowledges in her

brief to this court that “. . . no final order of removal has

ever been issued in Ms. Duvall’s case.” 

As we have recognized, our reading of the two statutes,

§ 1252(d)(1) and § 1105a(c), satisfies us that they are so

6. Indeed, the legislative history of Section 306 of IIRIRA, which gave rise

to 8 U.S.C. § 1252(d)(1), although scant, says as much. The legislative

history that does exist strongly suggests that the purpose of the two

provisions is one and the same. Indeed, the House’s conference report

states that the recodification was a “restate[ment of] the current

provisions in the first . . . sentence[ ] of subsection (c) of current section

106 requiring that a petitioner have exhausted administrative remedies.”

H.R. Conf. Rep. No. 104-828, at 220 (1996); see also id. at 219 (“This

section [306] amends INA section 242 to revise and restate the

provisions in current section 106, which is repealed.”). 

8
similar that Massieu’s analysis and holding govern the

result we reach here.7

Our conclusion that § 1252(d)(1) jurisdictionally bars

Duvall’s petition finds support in the Eleventh Circuit’s

Sundar opinion. See Sundar v. INS, 328 F.3d 1320 (11th

Cir. 2003). In Sundar, the petitioner, whose removal had

been ordered, claimed that administrative exhaustion does

not apply in habeas proceedings—an argument rejected by

the Eleventh Circuit. Sundar, 328 F.3d at 1324-25; see also

supra note 5. The interpretation of § 1252(d)(1) and the

Eleventh Circuit’s analysis of Sundar’s unexhausted claims

bolster our holding that jurisdiction is lacking over Duvall’s

petition. As Sundar and Massieu recognize, “[E]xhaustion

serves the twin purposes of protecting administrative

agency authority and promoting judicial efficiency . . . .”

Sundar, 328 F.3d at 1323 (citation omitted). 

In the present case, when the BIA rejected Duvall’s claim

of collateral estoppel and remanded for a hearing before the

IJ, Duvall, in order to exhaust administrative remedies, was

obliged to return to the IJ. At that point, the IJ could have

dealt with her two most recent convictions in 1995 and

2000, as well as with the issue of her alienage, which she

admitted in March 2001. Duvall could have then appealed

the IJ’s order (if adverse to her) to the BIA. Once the BIA

had issued a final order of removal, if it did, Duvall could

have sought to challenge such a final order of removal in

district court. 

7. In a F.R.A.P. 28(j) letter sent subsequent to oral argument, Duvall

contends that Massieu is distinguishable. She points out that Massieu

sought to bypass completely the statutorily prescribed procedures for

administrative and judicial review by commencing an action in district

court, without even engaging in hearings by an IJ, nor did Massieu

appeal a decision by the IJ to the BIA. 

Duvall claims that she, on the other hand, has exhausted the

administrative proceedings before the IJ and BIA with respect to the

determinative issue of collateral estoppel. We do not agree. An order

respecting the collateral estoppel issue did issue from the BIA but as we

have recognized and as Duvall herself recognizes, no “final order of

removal” has ever issued and as we discuss in text, Duvall has failed to

exhaust administrative remedies. 

9
Her failure to follow this procedure was fatal to the

District Court’s jurisdiction over her habeas petition. 

First, Duvall claims that she is not seeking a review of a

“final order of removal.” It is obvious that she cannot

because, as she admits and as we have noted, no such final

order has ever been issued. Duvall claims further that she

is only seeking to review her detention by the Service—a

detention from which she has been released. Yet, this

deliberate phrasing of her claim, when she is really

challenging the collateral estoppel ruling, cannot escape the

jurisdictional requirements of § 1252(d)(1). 

A “final order,” as the Government points out, has long

been understood “ ‘to include[ ] all matters on which the

validity of the final order is contingent.’ ” INS v. Chadha,

462 U.S. 919, 938 (1983) (citation omitted) (interpreting

§ 1105a). Thus, as this court explained in Massieu, “even

when an alien is attempting to prevent . . . deportation

proceeding[s] from taking place in the first instance and is

thus not, strictly speaking, attacking a final order of

deportation . . . , it is well settled that ‘judicial review is

precluded if the alien has failed to avail himself of all

administrative remedies,’ one of which is the deportation

. . . hearing itself.” Massieu, 91 F.3d at 421 (citations

omitted). It is significant to us as well that Duvall does not

even focus on “detention” as the central point of her appeal.

Rather, her brief, her argument and her analysis deal solely

with the issue of collateral estoppel. 

Duvall also asserts that the Government waived any

exhaustion requirement because it failed to argue that

issue before the District Court. Earlier in this opinion, see

supra note 3, we have adverted to the District Court’s

opinion, which implied that this defense was waived. Just

as we have held that the District Court erred, so do we

reject Duvall’s argument of waiver. Subject matter

jurisdiction is always available at all judicial stages of

review for our examination. 

Lastly, Duvall claims that it would be futile to exhaust

her administrative remedies, referring to the doctrine that

where exhaustion is not clearly mandated by statute, a

futility exception exists. In particular, she urges that

10
further administrative proceedings would be futile where

the BIA has already definitively decided that collateral

estoppel does not bar relitigation of whether she is an

“alien” and there is no change in the facts or case law to

suggest that the BIA would change its conclusion. 

We cannot agree. It is clear that we have rejected such an

exception where the statute involved, such as § 1252(d)(1),

requires exhaustion as a matter of jurisdiction. See Nyhuis

v. Reno, 204 F.3d 65, 69 (3d Cir. 2000) (a statute with “a

jurisdictional requirement, . . . by definition cannot be

subject to a futility exception.”); see also Massieu, 91 F.3d

at 424-25. 

IV.

We have held that the District Court had no jurisdiction

to entertain Duvall’s petition. Duvall, as we have taken

pains to point out, and as she has admitted, was not issued

a final order of removal and has not exhausted

administrative remedies which Congress, through its

enactment of § 1252(d)(1), required before a district court

can acquire jurisdiction. 

Hence, the District Court should have dismissed Duvall’s

petition without reaching the merits, i.e., the collateral

estoppel issue advanced by Duvall. See Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 94 (1998) (“Without

jurisdiction the court cannot proceed at all in any cause.

Jurisdiction is power to declare the law, and when it ceases

to exist, the only function remaining to the court is that of

announcing the fact and dismissing the cause.”) (internal

quotations and citation omitted); Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 379 (1981) (“A court lacks

discretion to consider the merits of a case over which it is

without jurisdiction . . . .”). Just as the District Court

should not have considered the merits because it had no

jurisdiction to do so, no more will we. 

We will vacate the judgment of the District Court and

remand to that court with a direction to dismiss Duvall’s

petition for want of jurisdiction.

11
A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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