* Pursuant to Federal Rule of Appellate Procedure

43(c)(2), Attorney General Michael B. Mukasey is

automatically substituted for former Attorney General John

Ashcroft as respondent in this case.

05-4622-ag 

Valenzuela Grullon v. Mukasey

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2007

6

7 (Argued: August 30, 2007 Decided: November 27, 2007

8 Amended: January 7, 2008)

9

10 Docket No. 05-4622-ag

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 JULIO CESAR VALENZUELA GRULLON,

15

16 Petitioner,

17

18 - v.-

19

20 MICHAEL B. MUKASEY, ATTORNEY

GENERAL,* 21 MICHAEL J. GARCIA,

22 EDWARD J. MCELROY, BUREAU OF

23 IMMIGRATION AND CUSTOMS

24 ENFORCEMENT,

25

26 Respondents.

27

28 - - - - - - - - - - - - - - - - - - - -x

29

30 Before: JACOBS, Chief Judge, B.D. PARKER and

31 HALL, Circuit Judges.

32

33 Petition for review of a final order of Immigration

34 Judge John Opaciuch denying cancellation of removal. 
2

1 Petitioner failed to appeal the IJ’s order to the BIA,

2 petitioning instead for a writ of habeas corpus. Habeas

3 corpus petition was docketed as a petition for review by

4 operation of law under the REAL ID Act of 2005.

5 DISMISSED.

6 BOZENA ZIEDALSKI, New York, NY,

7 for Petitioner.

8

9 M. JOCELYN LOPEZ WRIGHT,

10 Assistant Director, Office of

11 Immigration Litigation, Civil

12 Division, United States

13 Department of Justice (Peter D.

14 Keisler, Assistant Attorney

15 General and Carol Federighi,

16 Senior Litigation Counsel, on

17 the brief), Washington, D.C.,

18 for Respondents.

19

20 DENNIS JACOBS, Chief Judge:

21 Julio Cesar Valenzuela Grullon (“Valenzuela”) petitions

22 for review of an order of Immigration Judge (“IJ”) John

23 Opaciuch denying his application for cancellation of

24 removal. Valenzuela, who failed to appeal the order of

25 removal to the Board of Immigration Appeals (“BIA”),

26 concedes that his administrative remedies are therefore

27 unexhausted, but asks that the failure to exhaust be excused

28 (and that we reach the merits of his petition). We hold

29 that the exhaustion requirement applicable to Valenzuela’s
 1 The government also alleged initially that Valenzuela

had committed an aggravated felony, see 8 U.S.C. §

1227(a)(2)(A)(iii), but later withdrew that basis for

removal.

3

1 petition, 8 U.S.C. § 1252(d)(1), is statutory and

2 jurisdictional. Further, we conclude that the

3 jurisdictional defect cannot be excused on a ground of

4 manifest injustice. Contra Marrero Pichardo v. Ashcroft,

5 374 F.3d 46, 53 (2d Cir. 2004).

6

7 I

8 On December 5, 1994, Valenzuela was admitted as a

9 lawful permanent resident from his native Dominican

10 Republic. In December 2001, he was indicted in New York on

11 a series of drug offenses, and pled to a single count in

12 February 2002. He was sentenced to a term of three years to

13 life in prison.

14 One month before his October 2002 release on parole,

15 the INS charged Valenzuela with violating a law related to a

controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i).1 16

17 Upon his parole, Valenzuela was detained by the INS. In

18 December 2002, he filed a petition for habeas corpus in the

19 Southern District of New York, arguing that detention

20 without bond prior to his removal proceedings was
 2 Both parties note that the rationale for the district

court’s habeas ruling was in any event subsequently rejected

by the Supreme Court in Demore v. Hyung Joon Kim, 538 U.S.

510 (2003).

4

1 unconstitutional. The district court (Griesa, J.) granted

2 the petition on December 20, 2002, and Valenzuela was

3 released. The government’s appeal of that ruling became

4 moot when Valenzuela’s removal proceedings were completed;

we therefore vacated the district court’s order.2 5

6 Throughout his removal proceedings, conducted in the

7 spring of 2003, Valenzuela conceded removability but sought

8 cancellation of removal. In order to establish that he has

9 continuously resided in the U.S. for seven years--a

10 prerequisite to cancellation of removal, see 8 U.S.C. §

11 1229b(a)(2)--Valenzuela would have had to overcome the

12 “stop-time” rule, which provides that “any period of

13 continuous residence . . . shall be deemed to end . . . when

14 the alien has committed an offense . . . that renders the

15 alien inadmissible to the United States.” 8 U.S.C. §

16 1229b(d)(1)(B). Valenzuela argued that the stop-time rule

17 does not terminate a period of continuous residence until

18 the alien is convicted of the removable offense--a

19 consequential distinction for Valenzuela because he pled

20 guilty a few months after the December 2001 expiration of
 3 Valenzuela’s brief professes uncertainty as to the

precise date he committed the offense to which he pled

guilty. He concedes, however, that the date of his arrest--

November 29, 2001--fell within the seven-year period

following his admission to the United States.

 4 We do not know the actual grounds for the order of

removal because the oral decision is not included in the

record on this appeal (a consequence of Valenzuela’s failure

to appeal to the BIA, discussed below); in all likelihood,

however, one ground was Perez.

5

1 the seven-year period, whereas the indictment alleged that

the offense was committed on or about August 29, 2001.3 2 

3 The BIA had already rejected Valenzuela’s proposed

4 reading at the time of his hearing before the IJ, see In re

5 Perez, 22 I. & N. Dec. 689 (BIA 1999) (11-4 decision in

6 banc), but Valenzuela urged the IJ to follow the reasoning

7 of the Perez dissent.

The IJ denied relief in August 2003.4 8 Rather than

9 appeal to the BIA, Valenzuela filed a second habeas petition

10 in October 2003 to challenge the order of removal. This

11 habeas petition was pending in the Southern District of New

12 York when the REAL ID Act of 2005, Pub. L. No. 109-13, 119

13 Stat. 231, 311 (2005), took effect on May 11, 2005. 

14 Pursuant to Section 106(c) of that Act, the district court

15 ordered the habeas corpus petition transferred to this

16 Court, where it was docketed as a petition for review.
6

1 Valenzuela concedes his failure to exhaust

2 administrative remedies before petitioning this Court for

3 review, but he contends that any failure to exhaust should

4 be excused because (1) appeal to the BIA would have been

5 futile, (2) his appeal raises constitutional claims, and (3)

6 dismissing his petition would cause a “manifest injustice.” 

7 On the merits, Valenzuela argues that the stop-time rule is

8 ambiguous as to whether continuous residence is terminated

9 by commission of an offense or by conviction, and that the

10 Perez dissent correctly concluded that the trigger is

11 conviction.

12 The government urges us to dismiss the petition for

13 review on exhaustion grounds because Valenzuela never

14 appealed to the BIA. On the merits, the government defends

15 the BIA’s interpretation of the stop-time rule in Perez as

16 consistent with the plain language of the statute and argues

17 that Valenzuela is therefore barred from applying for

18 cancellation of removal.

19

20 II

21 When the REAL ID Act of 2005, Pub. L. No. 109-13, 119

22 Stat. 231, 311 (2005), became effective, Valenzuela’s second
7

1 habeas petition (challenging his order of removal), then

2 pending in the Southern District of New York, was

3 transferred to this Court and converted into a petition for

4 review:

5 If an alien’s case, brought under section

6 2241 of title 28, United States Code, and

7 challenging a final administrative order

8 of removal . . . is pending in a district

9 court on the date of the enactment of

10 this division, then the district court

11 shall transfer the case . . . to the

12 court of appeals for the circuit in which

13 a petition for review could have been

14 properly filed . . . .

15

16 § 106(c), 119 Stat. at 311; see also Marquez-Almanzar v.

17 INS, 418 F.3d 210, 215 (2d Cir. 2005). The REAL ID Act

18 speaks generally to the manner in which converted petitions

19 are to be treated upon transfer here:

20 The court of appeals shall treat the

21 transferred case as if it had been filed

22 pursuant to a petition for review under

23 such section 242, except that subsection

24 (b)(1) of such section shall not apply.

25

26 § 106(c), 119 Stat. at 311. In other words, converted

27 petitions are to be treated as ordinary petitions for review

28 in all respects except as to the filing deadline (8 U.S.C. §

29 1252(b)(1)). 

30 The question, then, is whether Valenzuela’s converted

31 petition is governed by 8 U.S.C. § 1252(d)(1) (“A court may
8

1 review a final order of removal only if . . . the alien has

2 exhausted all administrative remedies available to the alien

3 as of right”), or whether the sole exhaustion rule

4 Valenzuela violated is a “judicial (common-law) [rule],

5 [which is] discretionary and includes a number of

6 exceptions[,]” Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir.

7 2003). 

8 We have not had occasion to decide whether § 1252(d)

9 requires that aliens appeal to the BIA before petitioning

10 this Court for review. But our jurisprudence makes that

11 supposition. For example, we dismissed a habeas appeal in a

12 case that had never been before the BIA, holding that the

13 “limitations imposed by § 1252(d) on a court’s ability to

14 ‘review’ final orders of deportation extend[ed] to habeas

15 corpus review.” Theodoropoulos v. INS, 358 F.3d 162, 170

16 (2d Cir. 2004); see also Lin Zhong v. U.S. Dep’t of Justice,

17 480 F.3d 104, 118 (2d Cir. 2006) (“[W]e have jurisdiction to

18 review the ‘final order of removal’ entered against Lin, so

19 long as a decision has been rendered on his application by

20 an IJ and appealed to the BIA--the two administrative

21 remedies available to him as of right.”); cf. Marrero

22 Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004) (“We
 5 We need not deal here with the third category of

exhaustion requirements--those that are judge-made,

prudential rules of administrative law--because we hold that

the exhaustion requirement that governs Valenzuela’s

petition is statutory. See Part II, supra.

9

1 therefore hold that, notwithstanding a habeas petitioner’s

2 failure to exhaust his claims before the BIA, as required by

3 section 1252(d), we nonetheless have jurisdiction to

4 consider the petitioner’s claim if it is necessary to avoid

5 manifest injustice.” (emphasis added)).

6 Squarely presented with the issue for the first time in

7 this appeal, we hold that the exhaustion provision of §

8 1252(d)(1) requires aliens, inter alia, to appeal to the BIA

9 before petitioning for review in this Court.

10

11 III

12 The next question is whether the statutory exhaustion

13 requirement of § 1252(d)(1)--that a court may review a final

14 order of removal only if the alien has exhausted all

15 administrative remedies available to him as of right--is

jurisdictional or merely “mandatory.”5 16 See Lin Zhong, 480

17 F.3d at 119. Mandatory requirements (we have said) are

18 subject to waiver, id., and are therefore less absolute than

19 jurisdictional requirements. 
10

1 In Lin Zhong, 480 F.3d at 119-20, we distinguished

2 between jurisdictional and mandatory rules, partly by resort

3 to the Supreme Court’s caveat that

4 [c]larity would be facilitated . . . if

5 courts and litigants used the label

6 “jurisdictional” not for claim-processing

7 rules, but only for prescriptions

8 delineating the classes of cases

9 (subject-matter jurisdiction) and the

10 persons (personal jurisdiction) falling

11 within a court’s adjudicatory authority.

12

13 Eberhart v. United States, 546 U.S. 12, 16 (2005) (internal

14 quotation marks and citation omitted). Subsequent to Lin

15 Zhong, the Supreme Court sharpened the analysis. In Bowles

16 v. Russell, 127 S. Ct. 2360 (2007), the Court held that a

17 limit on extensions of time to appeal, see 28 U.S.C. §

18 2107(c), was jurisdictional largely because “of the fact

19 that [the] time limitation is set forth in a statute.” 

20 Bowles, 127 S. Ct. at 2364. The Court explained:

21 Because Congress decides whether federal

22 courts can hear cases at all, it can also

23 determine when, and under what

24 conditions, federal courts can hear them. 

25 Put another way, the notion of

26 “subject-matter” jurisdiction obviously

27 extends to “classes of cases . . .

28 falling within a court’s adjudicatory

29 authority,” but it is no less

30 “jurisdictional” when Congress forbids

31 federal courts from adjudicating an

32 otherwise legitimate “class of cases”

33 after a certain period has elapsed from
11

1 final judgment.

2

3 Id. at 2365-66 (citations omitted). Bowles emphasized

4 repeatedly that its reasoning was based on the statutory

5 origin of the limitation, and thus made clear that limits

6 expressed in statutes--as to time or “classes of cases”--

7 limit subject-matter jurisdiction. See, e.g., id. at 2366

8 (“As we have long held, when an appeal has not been

9 prosecuted in the manner directed, within the time limited

10 by the acts of Congress, it must be dismissed for want of

11 jurisdiction.” (internal quotation marks omitted) (emphasis

12 added)); id. at 2365 (observing that the Supreme Court’s

13 treatment of its certiorari jurisdiction “also demonstrates

14 the jurisdictional distinction between court-promulgated

15 rules and limits enacted by Congress”). 

16 Congress cast § 1252(d)(1) in terms of the courts’

17 authority to review a “class of cases” (petitions for review

18 of a final order of removal) and permitted review “only if

19 the alien has exhausted all administrative remedies

20 available as of right.” One of the administrative remedies

21 available to aliens as of right is an appeal to the BIA. In

22 this way, Congress has instructed the courts that they may

23 not review a final order of removal unless the alien has
12

1 appealed to the BIA. When an exhaustion requirement is

2 statutory and evinces an intent to constrict the ability of

3 courts to adjudicate a class of cases, the limitation is

4 jurisdictional, rather than mandatory only. The requirement

5 might be described as a “claim-processing rule”; but because

6 it is a statutory limit on the Court’s power, it is

7 jurisdictional, not merely mandatory. Accord Magtanong v.

8 Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (citing Bowles

9 and holding that the 30-day time period for filing a

10 petition for review is “mandatory and jurisdictional because

11 it is imposed by statute” (internal citation omitted)).

12 We therefore hold that, as regards the requirement that

13 petitioners appeal to the BIA, § 1252(d)(1) is

14 jurisdictional. We have said as much in dicta. See Lin

15 Zhong, 480 F.3d at 107 (referring to “the clearly

16 jurisdictional requirement of 8 U.S.C. § 1252(d)(1) that

17 cases of this sort be brought to the Executive Office for

18 Immigration Review (i.e., an IJ and the BIA) before they can

19 be considered by courts of appeal”); accord Lin Zhong v.

20 U.S. Dep’t of Justice, 489 F.3d 126, 130 (2d Cir. 2007)

21 (Calabresi, J., concurring in the denial of in banc review)

22 (observing that § 1252(d)(1) uses “language [that] typically
13

1 means that courts do not have jurisdiction to hear a

2 petitioner who has not first brought his case before the

3 available administrative agency”). 

4 Given that we are directed by statute to treat

5 converted petitions, such as Valenzuela’s, as ordinary

6 petitions for review, it follows that such converted

7 petitions are likewise subject to § 1252(d)’s jurisdictional

8 bar.

9

10 IV

11 We are left to decide what exceptions, if any, would

12 allow us to hurdle the jurisdictional bar that prevents us

13 from reviewing the merits of Valenzuela’s petition.

14

15 A. Futility

16 Valenzuela argues that appealing to the BIA would have

17 been futile in light of the agency’s precedential decision,

18 In re Perez, 22 I. & N. Dec. 689 (BIA 1999). As the Supreme

19 Court explained in Booth v. Churner, “we will not read

20 futility or other exceptions into statutory exhaustion

21 requirements where Congress has provided otherwise.” 532

22 U.S. 731, 741 n.6 (2001). At the same time,
 6 Valenzuela cites dicta in Gill v. INS, 420 F.3d 82

(2d Cir. 2005), for the proposition that Booth’s rule

against futility exceptions does not operate in the

immigration context because Booth was “based on the

legislative history of the [Prison Litigation Reform Act],

and in particular Congress’s decision to eliminate

previously-available statutory exceptions for futility.” 

Gill, 420 F.3d at 87 n.9. Of course, Gill’s dicta runs

counter to the reading of Booth set out in Beharry. 

Moreover, our own reading of Booth suggests that it is not

limited to those circumstances in which the statutory

history indicates that Congress took away a previously

existing futility exception. See Booth, 532 U.S. at 739

(referring to statutory history as one of two considerations

leading to the Court’s holding). Such statutory history may

counsel strict adherence to the congressional command, but

we are bound to implement congressional limits on our

jurisdiction without reference to particular features of

statutory history.

14

1 Booth does allow that exhaustion may

2 not be required “where the relevant

3 administrative procedure lacks

4 authority to provide any relief or

5 to take any action whatsoever in

6 response to a complaint,” because

7 “[w]ithout the possibility of some

8 relief, the administrative officers

9 would presumably have no authority

10 to act on the subject of the

11 complaint, leaving the inmate with

12 nothing to exhaust.” This may

13 technically be less an “exception”

14 to a statutory exhaustion

15 requirement than it is a statement

16 regarding the parameters of that

17 requirement.

18

19 Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003)

20 (internal citations omitted). Booth applies in the

immigration context.6 21
15

1 Valenzuela’s futility argument fails because he cannot

2 demonstrate that the BIA was unable to provide the relief

3 that he sought. The BIA could have reconsidered the Perez

4 holding in banc, or it could have certified the question to

5 the Attorney General. See 8 C.F.R. § 1003.1(g); see also

6 Theodoropoulos v. INS, 358 F.3d 162, 173 (2d Cir. 2004)

7 (observing that even though the Attorney General had issued

8 a precedential opinion on the question, the BIA could have

9 sent it back up to him). Valenzuela confuses the likelihood

10 of adherence to precedent with the factual impossibility of

11 relief: “it cannot be said that the IJ and the BIA do not

12 ‘have authority to act on the subject of the [petition],

13 leaving [Valenzuela] with nothing to exhaust.’” Beharry,

14 329 F.3d at 59 (citing Booth, 532 U.S. at 736 n.4); accord

15 Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir. 2003) (even

16 though the BIA had already “definitively decided” the

17 question in a precedential decision, “§ 1252(d)(1)[]

18 requires exhaustion as a matter of jurisdiction”). “That

19 [Valenzuela]’s argument would likely have failed is not

20 tantamount to stating that it would have been futile to

21 raise it.” Beharry, 329 F.3d at 62.

22 Taking a different tack, Valenzuela argues that
 7 “Affirmance without opinion. (i) The Board member to

whom a case is assigned shall affirm the decision of the

Service or the immigration judge, without opinion, if the

Board member determines that the result reached in the

decision under review was correct; that any errors in the

decision under review were harmless or nonmaterial; and that

(A) The issues on appeal are squarely controlled by

existing Board or federal court precedent and do not

involve the application of precedent to a novel factual

situation; or

(B) The factual and legal issues raised on appeal are

not so substantial that the case warrants the issuance

of a written opinion in the case.”

8 CFR § 1003.1(e)(4).

16

1 regulations requiring any BIA member assigned his case to

2 “streamline” the appeal would have prevented that Board

3 member from referring the appeal to a three-member panel or

4 to an in banc panel of the BIA. But the regulation (set out

in the margin7 5 ), specifically provided that a single board

6 member could have affirmed without opinion only if he or she

7 “determine[d] that the result reached in the decision under

8 review was correct.” 8 C.F.R. § 1003.1(e)(4)(i). Moreover,

9 as Valenzuela concedes, the regulations specify that one

10 circumstance in which appeals may be assigned to a panel is

11 when there is a “need to reverse the decision of an

12 immigration judge or the Service.” 8 C.F.R. §

13 1003.1(e)(6)(vi).

14 Last, Valenzuela observes that § 1252(d)(1) requires
17

1 only the exhaustion of “administrative remedies available as

2 of right,” whereas the exhaustion statute in Booth spoke

3 only of “such administrative remedies as are available.” 

4 The Ninth Circuit has parsed these phrases to mean that a

5 remedy is available “as of right” within the meaning of §

6 1252(d)(1) only if the remedy is not “constrained by past

7 adverse administrative decisions.” Sun v. Ashcroft, 370

8 F.3d 932, 941-42 (9th Cir. 2004). We reject the Ninth

9 Circuit’s interpretation. The term “as of right” in §

10 1252(d)(1) excuses pursuit only of such remedies as are

11 wholly discretionary. See Arango-Aradondo v. INS, 13 F.3d

12 610, 614 (2d Cir. 1994) (“[T]he failure to move to reopen

13 does not preclude jurisdiction because . . . [it] is a

14 discretionary remedy.”). As the Supreme Court has

15 explained, a statutory requirement for exhausting “remedies”

16 necessarily entails exhausting “processes.” See Booth, 532

17 U.S. at 739 (“[O]ne ‘exhausts’ processes, not forms of

18 relief . . . .”).

19 Valenzuela had a right to appeal the IJ’s order of

20 removal to the BIA. And he was statutorily required to

21 exercise that right before appealing to this Court,

22 notwithstanding his small chance of success. See Lin Zhong
18

1 v. U.S. Dep’t of Justice, 480 F.3d 104, 118 (2d Cir. 2006)

2 (“[I]n the context of [the alien’s] . . . claims, we have

3 jurisdiction . . . so long as a decision has been rendered

4 on his application by an IJ and appealed to the BIA--the two

5 administrative remedies available to him as of right.”

6 (emphasis added)).

7

8 B. Constitutional Claim

9 Valenzuela argues that his petition is not subject to

10 statutory exhaustion requirements because it presents

11 constitutional claims. The supposed constitutional argument

12 is that the IJ violated Valenzuela’s Due Process rights by

13 misconstruing the stop-time rule to end his period of

14 continuous residence when he committed the crime, as opposed

15 to when he was convicted.

16 Even if the IJ’s interpretation of the stop-time rule

17 were incorrect, such an error would not be a constitutional

18 violation. Accordingly, this is not a constitutional claim. 

19 Valenzuela is simply arguing that the IJ erroneously

20 interpreted a statute in such a way that made him legally

21 ineligible for discretionary cancellation of removal. We

22 therefore do not reach the issue of whether there exists a
19

1 constitutional claim exception to § 1252(d).

2

3 C. “Manifest Injustice”

4 Last, Valenzuela argues that we should excuse his

5 failure to exhaust under the “manifest injustice” exception

6 to the exhaustion requirement. See Marrero Pichardo v.

7 Ashcroft, 374 F.3d 46 (2d Cir. 2004). Our circuit law has

8 made this exception available “even when exhaustion is a

9 jurisdictional matter.” Lin Zhong, 480 F.3d at 107 n.1.

10 In Marrero Pichardo, it was deemed manifest injustice

11 to remove a petitioner because: (1) he had resided in the

12 U.S. for 26 years, (2) he had a wife and daughter in the

13 U.S., (3) he claimed to have no ties to his native Dominican

14 Republic, (4) he had appeared pro se before the IJ, and (5)

15 the law had recently changed in the petitioner’s favor (such

16 that none of his eleven drunk driving convictions would be

17 considered crimes of violence). 374 F.3d at 54. Valenzuela

18 can cite comparable equities. He has resided in the U.S.

19 for 13 years with his sister and mother, from whom he would

20 be separated if deported; he was engaged to an American

21 citizen who was carrying his child, at least as of 2003; he

22 came here as a teenager and says he has “adopted” the United
 8 Valenzuela unsuccessfully petitioned a New York state

court in 2003 to vacate his conviction on this ground.

 9 Specifically, before the IJ ordered Valenzuela

removed in August 2003, the Supreme Court upheld as

constitutional pre-removal detention of criminal aliens. 

See Demore v. Hyung Joon Kim, 538 U.S. 510, 531 (2003). 

Valenzuela notes that ICE then issued a memorandum stating

that all persons within Demore’s scope would be called in

for interviews, and presumably for detention. His argument

is thus that an appeal to the BIA would have somehow

increased the likelihood that he would be re-detained. Even

assuming (as we do not) that such an anxiety could excuse a

failure to appeal, it is unclear why Valenzuela did not fear

re-detention when he appeared before the IJ at his master

calendar hearings in May and August of 2003--both of which

20

1 States as his home country; and his behavior--after his

2 parole--was “exemplary.” Although Valenzuela had counsel

3 before the IJ, he claims that his counsel failed to inform

him of the immigration consequences of pleading guilty.8 4

5 We noted that the intervening change in law in Marrero

6 Pichardo’s favor was not “collateral,” but rather went to

7 “the very basis of his deportation.” Id. at 54. As to

8 Valenzuela, there was no intervening change in law

9 pertaining to his removability: Valenzuela challenges the

10 correctness of the BIA’s decision in Perez, which goes “to

11 the very basis of his deportation,” but Perez has not been

12 overruled by the BIA or by this Court. Valenzuela instead

13 cites an intervening change in the law affecting the

government’s ability to detain him pending removal.9 14
took place after the Supreme Court issued its Demore opinion

in April of that year--or when he filed his second habeas

petition.

 10 At the direction of the Court, the parties submitted

additional briefing on whether Bowles, which was filed after

the parties submitted briefs, had any impact on this case.

 11 In House v. Bell, 126 S. Ct. 2064, 2068 (2006), the

Supreme Court recently reaffirmed that “[i]n certain

exceptional cases involving a compelling claim of actual

innocence,” “the state procedural default rule is not a bar

to a federal habeas corpus petition.” The “actual

innocence” exception is unaffected by Bowles because “actual

21

1 Valenzuela’s argument based on a change of law thus does not

2 neatly mirror the facts of Marrero Pichardo, although

3 Valenzuela can claim the higher ground of having committed

4 one offense instead of eleven. But, given that we have been

5 willing to accept even an opinion from another circuit as a

6 sufficient intervening change in law to assert “manifest

7 injustice,” see Gill v. INS, 420 F.3d 82, 88 (2d Cir. 2005),

8 Valenzuela would have a plausible claim to dispensation for

9 “manifest injustice” if we were to uphold that exception to

10 § 1252(d)’s exhaustion requirement.

11 In light of the Supreme Court’s recent opinion in

12 Bowles v. Russell, 127 S. Ct. 2360 (2007), we hold that

13 there is no “manifest injustice” exception to § 1252(d)’s

exhaustion requirement.10 14 Insofar as our earlier opinions

have held to the contrary, those opinions are overruled.11 15
innocence” is an exception to a judge-made rule, while

Bowles overrules exceptions to any jurisdictional rule made

by Congress, such as is at issue here.

22

1 In Bowles, the Supreme Court considered the

2 applicability of the “unique circumstances” exception to the

3 jurisdictional deadline for filing a notice of appeal. See

4 Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371

5 U.S. 215 (1962); Thompson v. INS, 375 U.S. 384 (1964). The

6 Bowles Court laid the exception to rest: “Because this Court

7 has no authority to create equitable exceptions to

8 jurisdictional requirements, use of the ‘unique

9 circumstances’ doctrine is illegitimate.” 127 S. Ct. at

10 2366. 

11 Just as this analysis invalidates the “unique

12 circumstances” exception to the jurisdictional bar created

13 by the filing deadline at issue in Bowles, it likewise

14 invalidates the “manifest injustice” exception to the

15 jurisdictional bar created by 8 U.S.C. § 1252(d)’s

16 exhaustion requirement. Bowles broadly disclaims the

17 “authority” of the federal courts “to create equitable

18 exceptions to jurisdictional requirements.” Id.

19

20 CONCLUSION
23

1 We have considered the parties’ remaining arguments and

2 find each of them to be without merit. For the foregoing

3 reasons, Valenzuela’s petition is dismissed for lack of

4 jurisdiction.