* 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

**UNITED STATES COURT OF APPEALS** 1 2 **FOR THE SECOND CIRCUIT** 3 4 August Term, 2007 5 6 (Argued: August 30, 2007 Decided: November 27, 2007 7 Amended: January 7, 2008) 8 9 Docket No. 05-4622-ag 10 11 - - - - - - - - - - - - - - - - - - - -x 12 13 JULIO CESAR VALENZUELA GRULLON, 14 15 Petitioner , 16 17 - v.- 18 19 MICHAEL B. MUKASEY, ATTORNEY 20 GENERAL, * MICHAEL J. GARCIA, 21 EDWARD J. MCELROY, BUREAU OF 22 IMMIGRATION AND CUSTOMS 23 ENFORCEMENT, 24 25 Respondents

. 26 27 - - - - - - - - - - - - - - - - - - - -x 28 29 Before: JACOBS, Chief Judge , B.D. PARKER and 30 HALL, Circuit Judges

. 31 32 Petition for review of a final order of Immigration 33 Judge John Opaciuch denying cancellation of removal. 342 Petitioner failed to appeal the IJ’s order to the BIA, 1 petitioning instead for a writ of habeas corpus. Habeas 2 corpus petition was docketed as a petition for review by 3 operation of law under the REAL ID Act of 2005. 4
DISMISSED. 5 BOZENA ZIEDALSKI, New York, NY, 6 for Petitioner

. 7 8 M. JOCELYN LOPEZ WRIGHT, 9 Assistant Director, Office of 10 Immigration Litigation, Civil 11 Division, United States 12 Department of Justice (Peter D. 13 Keisler, Assistant Attorney 14 General and Carol Federighi, 15 Senior Litigation Counsel, on 16 the brief ), Washington, D.C., 17 for Respondents

. 18 19 DENNIS JACOBS, Chief Judge : 20 Julio Cesar Valenzuela Grullon (“Valenzuela”) petitions 21 for review of an order of Immigration Judge (“IJ”) John 22 Opaciuch denying his application for cancellation of 23 removal. Valenzuela, who failed to appeal the order of 24 removal to the Board of Immigration Appeals (“BIA”), 25 concedes that his administrative remedies are therefore 26 unexhausted, but asks that the failure to exhaust be excused 27 (and that we reach the merits of his petition). We hold 28 that the exhaustion requirement applicable to Valenzuela’s 291The government also alleged initially that Valenzuela had committed an aggravated felony, see8 U.S.C. § 1227(a)(2)(A)(iii), but later withdrew that basis for removal.
3 petition, 8 U.S.C. § 1252(d)(1), is statutory and 1 jurisdictional. Further, we conclude that the 2 jurisdictional defect cannot be excused on a ground of 3 manifest injustice. ContraMarrero Pichardo v. Ashcroft , 4 374 F.3d 46, 53 (2d Cir. 2004). 5
6

**I** 7 On December 5, 1994, Valenzuela was admitted as a 8 lawful permanent resident from his native Dominican 9 Republic. In December 2001, he was indicted in New York on 10 a series of drug offenses, and pled to a single count in 11 February 2002 . He was sentenced to a term of three years to 12 life in prison. 13 One month before his October 2002 release on parole, 14 the INS charged Valenzuela with violating a law related to a 15 controlled substance. See8 U.S.C. § 1227(a)(2)(B)(i). 1 16 Upon his parole, Valenzuela was detained by the INS. In 17 December 2002, he filed a petition for habeas corpus in the 18 Southern District of New York, arguing that detention 19 without bond prior to his removal proceedings was 202Both 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 unconstitutional. The district court (Griesa, J. ) granted 1 the petition on December 20, 2002, and Valenzuela was 2 released. The government’s appeal of that ruling became 3 moot when Valenzuela’s removal proceedings were completed; 4 we therefore vacated the district court’s order. 2 5 Throughout his removal proceedings, conducted in the 6 spring of 2003, Valenzuela conceded removability but sought 7 cancellation of removal. In order to establish that he has 8 continuously resided in the U.S. for seven years--a 9 prerequisite to cancellation of removal, see8 U.S.C. § 10 1229b(a)(2)--Valenzuela would have had to overcome the 11 “stop-time” rule, which provides that “any period of 12 continuous residence . . . shall be deemed to end . . . when 13 the alien has committed an offense . . . that renders the 14 alien inadmissible to the United States.” 8 U.S.C. § 15 1229b(d)(1)(B). Valenzuela argued that the stop-time rule 16 does not terminate a period of continuous residence until 17 the alien is convictedof the removable offense--a 18 consequential distinction for Valenzuela because he pled 19 guilty a few months after the December 2001 expiration of 203Valenzuela’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 the seven-year period, whereas the indictment alleged that 1 the offense was committed on or about August 29, 2001. 3 2 The BIA had already rejected Valenzuela’s proposed 3 reading at the time of his hearing before the IJ, see In re 4
Perez , 22 I. & N. Dec. 689 (BIA 1999) (11-4 decision in 5 banc ), but Valenzuela urged the IJ to follow the reasoning 6 of the Perez dissent. 7 The IJ denied relief in August 2003. 4Rather than 8 appeal to the BIA, Valenzuela filed a second habeas petition 9 in October 2003 to challenge the order of removal. This 10 habeas petition was pending in the Southern District of New 11 York when the REAL ID Act of 2005, Pub. L. No. 109-13, 119 12 Stat. 231, 311 (2005) , took effect on May 11, 2005. 13 Pursuant to Section 106(c) of that Act, the district court 14 ordered the habeas corpus petition transferred to this 15 Court, where it was docketed as a petition for review. 166 Valenzuela concedes his failure to exhaust 1 administrative remedies before petitioning this Court for 2 review, but he contends that any failure to exhaust should 3 be excused because (1) appeal to the BIA would have been 4 futile, (2) his appeal raises constitutional claims, and (3) 5 dismissing his petition would cause a “manifest injustice.” 6 On the merits, Valenzuela argues that the stop-time rule is 7 ambiguous as to whether continuous residence is terminated 8 by commission of an offenseor by conviction , and that the 9
Perez dissent correctly concluded that the trigger is 10 conviction. 11 The government urges us to dismiss the petition for 12 review on exhaustion grounds because Valenzuela never 13 appealed to the BIA. On the merits, the government defends 14 the BIA’s interpretation of the stop-time rule in Perez as 15 consistent with the plain language of the statute and argues 16 that Valenzuela is therefore barred from applying for 17 cancellation of removal. 18
19

**II** 20 When the REAL ID Act of 2005, Pub. L. No. 109-13, 119 21 Stat. 231, 311 (2005), became effective, Valenzuela’s second 227 habeas petition (challenging his order of removal), then 1 pending in the Southern District of New York, was 2 transferred to this Court and converted into a petition for 3 review: 4 If an alien’s case, brought under section 5 2241 of title 28, United States Code, and 6 challenging a final administrative order 7 of removal . . . is pending in a district 8 court on the date of the enactment of 9 this division, then the district court 10 shall transfer the case . . . to the 11 court of appeals for the circuit in which 12 a petition for review could have been 13 properly filed . . . . 14 15 § 106(c), 119 Stat. at 311; see alsoMarquez-Almanzar v. 16
INS , 418 F.3d 210, 215 (2d Cir. 2005). The REAL ID Act 17 speaks generally to the manner in which converted petitions 18 are to be treated upon transfer here: 19 The court of appeals shall treat the 20 transferred case as if it had been filed 21 pursuant to a petition for review under 22 such section 242, except that subsection 23 (b)(1) of such section shall not apply. 24 25 § 106(c), 119 Stat. at 311. In other words, converted 26 petitions are to be treated as ordinary petitions for review 27 in all respects except as to the filing deadline (8 U.S.C. § 28 1252(b)(1)). 29 The question, then, is whether Valenzuela’s converted 30 petition is governed by 8 U.S.C. § 1252(d)(1) (“A court may 318 review a final order of removal only if . . . the alien has 1 exhausted all administrative remedies available to the alien 2 as of right”), or whether the sole exhaustion rule 3 Valenzuela violated is a “judicial (common-law) [rule], 4 [which is] discretionary and includes a number of 5 exceptions[,]” Beharry v. Ashcroft , 329 F.3d 51, 56 (2d Cir. 6 2003). 7 We have not had occasion to decide whether § 1252(d) 8 requires that aliens appeal to the BIA before petitioning 9 this Court for review. But our jurisprudence makes that 10 supposition. For example, we dismissed a habeas appeal in a 11 case that had never been before the BIA, holding that the 12 “limitations imposed by § 1252(d) on a court’s ability to 13 ‘review’ final orders of deportation extend[ed] to habeas 14 corpus review.” Theodoropoulos v. INS , 358 F.3d 162, 170 15 (2d Cir. 2004); see alsoLin Zhong v. U.S. Dep’t of Justice , 16 480 F.3d 104, 118 (2d Cir. 2006) (“[W]e have jurisdiction to 17 review the ‘final order of removal’ entered against Lin, so 18 long as a decision has been rendered on his application by 19 an IJ and appealed to the BIA--the two administrative 20 remedies available to him as of right.”); cf. Marrero 21 Pichardo v. Ashcroft , 374 F.3d 46, 53 (2d Cir. 2004) (“We 225We 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. SeePart II, supra
. 9 therefore hold that, notwithstanding a habeas petitioner’s 1 failure to exhaust his claims before the BIA, as required by 2 section 1252(d), we nonetheless have jurisdictionto 3 consider the petitioner’s claim if it is necessary to avoid 4 manifest injustice .” (emphasis added)). 5 Squarely presented with the issue for the first time in 6 this appeal, we hold that the exhaustion provision of § 7 1252(d)(1) requires aliens, inter alia , to appeal to the BIA 8 before petitioning for review in this Court. 9
10

**III** 11 The next question is whetherthe statutory exhaustion 12 requirement of § 1252(d)(1)--that a court may review a final 13 order of removal only if the alien has exhausted all 14 administrative remedies available to him as of right --is 15 jurisdictional or merely “mandatory.” 5SeeLin Zhong , 480 16 F.3d at 119. Mandatory requirements (we have said) are 17 subject to waiver, id. , and are therefore less absolute than 18 jurisdictional requirements. 1910 In Lin Zhong , 480 F.3d at 119-20, we distinguished 1 between jurisdictional and mandatory rules, partly by resort 2 to the Supreme Court’s caveat that 3 [c]larity would be facilitated . . . if 4 courts and litigants used the label 5 “jurisdictional” not for claim-processing 6 rules, but only for prescriptions 7 delineating the classes of cases 8 (subject-matter jurisdiction) and the 9 persons (personal jurisdiction) falling 10 within a court’s adjudicatory authority. 11 12 Eberhart v. United States , 546 U.S. 12, 16 (2005) (internal 13 quotation marks and citation omitted). Subsequent to Lin 14 Zhong , the Supreme Court sharpened the analysis. In Bowles 15 v. Russell , 127 S. Ct. 2360 (2007), the Court held that a 16 limit on extensions of time to appeal, see28 U.S.C. § 17 2107(c), was jurisdictional largely because “of the fact 18 that [the] time limitation is set forth in a statute.” 19 Bowles , 127 S. Ct. at 2364. The Court explained: 20 Because Congress decides whether federal 21 courts can hear cases at all, it can also 22 determine when, and under what 23 conditions, federal courts can hear them. 24 Put another way, the notion of 25 “subject-matter” jurisdiction obviously 26 extends to “classes of cases . . . 27 falling within a court’s adjudicatory 28 authority,” but it is no less 29 “jurisdictional” when Congress forbids 30 federal courts from adjudicating an 31 otherwise legitimate “class of cases” 32 after a certain period has elapsed from 3311 final judgment. 1 2 Id. at 2365-66 (citations omitted). Bowles emphasized 3 repeatedly that its reasoning was based on the statutory 4 origin of the limitation, and thus made clear that limits 5 expressed in statutes--as to time or “classes of cases”-- 6 limit subject-matter jurisdiction. See, e.g. , id. at 2366 7 (“As we have long held, when an appeal has not been 8 prosecuted in the manner directed , within the time limited 9 by the acts of Congress , it must be dismissed for want of 10 jurisdiction.” (internal quotation marks omitted) (emphasis 11 added)); id. at 2365 (observing that the Supreme Court’s 12 treatment of its certiorari jurisdiction “also demonstrates 13 the jurisdictional distinction between court-promulgated 14 rules and limits enacted by Congress”). 15 Congress cast § 1252(d)(1) in terms of the courts’ 16 authority to review a “class of cases” (petitions for review 17 of a final order of removal) and permitted review “only if 18 the alien has exhausted all administrative remedies 19 available as of right.” One of the administrative remedies 20 available to aliens as of right is an appeal to the BIA. In 21 this way, Congress has instructed the courts that they may 22 not review a final order of removal unless the alien has 2312 appealed to the BIA. When an exhaustion requirement is 1 statutory and evinces an intent to constrict the ability of 2 courts to adjudicate a class of cases, the limitation is 3 jurisdictional, rather than mandatory only. The requirement 4 might be described as a “claim-processing rule”; but because 5 it is a statutorylimit on the Court’s power, it is 6 jurisdictional, not merely mandatory. AccordMagtanong v. 7 Gonzales , 494 F.3d 1190, 1191 (9th Cir. 2007) (citing Bowles 8 and holding that the 30-day time period for filing a 9 petition for review is “mandatory and jurisdictional because 10 it is imposed by statute” (internal citation omitted)). 11 We therefore hold that, as regards the requirement that 12 petitioners appeal to the BIA, § 1252(d)(1) is 13 jurisdictional. We have said as much in dicta. SeeLin 14 Zhong , 480 F.3d at 107 (referring to “the clearly 15 jurisdictional requirement of 8 U.S.C. § 1252(d)(1) that 16 cases of this sort be brought to the Executive Office for 17 Immigration Review (i.e., an IJ and the BIA) before they can 18 be considered by courts of appeal”); accordLin Zhong v. 19 U.S. Dep’t of Justice , 489 F.3d 126, 130 (2d Cir. 2007) 20 (Calabresi, J. , concurring in the denial of in banc review) 21 (observing that § 1252(d)(1) uses “language [that] typically 2213 means that courts do not have jurisdiction to hear a 1 petitioner who has not first brought his case before the 2 available administrative agency”). 3 Given that we are directed by statute to treat 4 converted petitions, such as Valenzuela’s, as ordinary 5 petitions for review, it follows that such converted 6 petitions are likewise subject to § 1252(d)’s jurisdictional 7 bar. 8
9

**IV** 10 We are left to decide what exceptions, if any, would 11 allow us to hurdle the jurisdictional bar that prevents us 12 from reviewing the merits of Valenzuela’s petition. 13
14 **A. Futility** 15 Valenzuela argues that appealing to the BIA would have 16 been futile in light of the agency’s precedential decision, 17
In re Perez , 22 I. & N. Dec. 689 (BIA 1999). As the Supreme 18 Court explained in Booth v. Churner , “we will not read 19 futility or other exceptions into statutory exhaustion 20 requirements where Congress has provided otherwise.” 532 21 U.S. 731, 741 n.6 (2001). At the same time, 226Valenzuela 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 Boothwas “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 Boothset out in Beharry

. Moreover, our own reading of Boothsuggests that it is not limited to those circumstances in which the statutory history indicates that Congress took away a previously existing futility exception. SeeBooth , 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 Boothdoes allow that exhaustion may 1 not be required “where the relevant 2 administrative procedure lacks 3 authority to provide any relief or 4 to take any action whatsoever in 5 response to a complaint,” because 6 “[w]ithout the possibility of some 7 relief, the administrative officers 8 would presumably have no authority 9 to act on the subject of the 10 complaint, leaving the inmate with 11 nothing to exhaust.” This may 12 technically be less an “exception” 13 to a statutory exhaustion 14 requirement than it is a statement 15 regarding the parameters of that 16 requirement. 17 18 Beharry v. Ashcroft , 329 F.3d 51, 58 (2d Cir. 2003) 19 (internal citations omitted). Boothapplies in the 20 immigration context. 6 2115 Valenzuela’s futility argument fails because he cannot 1 demonstrate that the BIA was unable to provide the relief 2 that he sought. The BIA could have reconsidered the Perez 3 holding in banc , or it could have certified the question to 4 the Attorney General. See8 C.F.R. § 1003.1(g); see also 5 Theodoropoulos v. INS , 358 F.3d 162, 173 (2d Cir. 2004) 6 (observing that even though the Attorney General had issued 7 a precedential opinion on the question, the BIA could have 8 sent it back up to him). Valenzuela confuses the likelihood 9 of adherence to precedent with the factual impossibility of 10 relief: “it cannot be said that the IJ and the BIA do not 11 ‘have authority to act on the subject of the [petition], 12 leaving [Valenzuela] with nothing to exhaust.’” Beharry , 13 329 F.3d at 59 (citing Booth , 532 U.S. at 736 n.4); accord 14 Duvall v. Elwood , 336 F.3d 228, 234 (3d Cir. 2003) (even 15 though the BIA had already “definitively decided” the 16 question in a precedential decision, “§ 1252(d)(1)[] 17 requires exhaustion as a matter of jurisdiction”). “That 18 [Valenzuela]’s argument would likely have failed is not 19 tantamount to stating that it would have been futile to 20 raise it.” Beharry , 329 F.3d at 62. 21 Taking a different tack, Valenzuela argues that 227“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 regulations requiring any BIA member assigned his case to 1 “streamline” the appeal would have prevented that Board 2 member from referring the appeal to a three-member panel or 3 to an in banc panel of the BIA. But the regulation (set out 4 in the margin 7 ), specifically provided that a single board 5 member could have affirmed without opinion only if he or she 6 “determine[d] that the result reached in the decision under 7 review was correct.” 8 C.F.R. § 1003.1(e)(4)(i). Moreover, 8 as Valenzuela concedes, the regulations specify that one 9 circumstance in which appeals may be assigned to a panel is 10 when there is a “need to reverse the decision of an 11 immigration judge or the Service.” 8 C.F.R. § 12 1003.1(e)(6)(vi). 13 Last, Valenzuela observes that § 1252(d)(1) requires 1417 only the exhaustion of “administrative remedies available as 1 of right ,” whereas the exhaustion statute in Boothspoke 2 only of “such administrative remedies as are available .” 3 The Ninth Circuit has parsed these phrases to mean that a 4 remedy is available “as of right” within the meaning of § 5 1252(d)(1) only if the remedy is not “constrained by past 6 adverse administrative decisions.” Sun v. Ashcroft , 370 7 F.3d 932, 941-42 (9th Cir. 2004). We reject the Ninth 8 Circuit’s interpretation. The term “as of right” in § 9 1252(d)(1) excuses pursuit onlyof such remedies as are 10 wholly discretionary. SeeArango-Aradondo v. INS , 13 F.3d 11 610, 614 (2d Cir. 1994) (“[T]he failure to move to reopen 12 does not preclude jurisdiction because . . . [it] is a 13 discretionary remedy.”). As the Supreme Court has 14 explained, a statutory requirement for exhausting “remedies” 15 necessarily entails exhausting “processes.” SeeBooth , 532 16 U.S. at 739 (“[O]ne ‘exhausts’ processes, not forms of 17 relief . . . .”). 18 Valenzuela had a right to appeal the IJ’s order of 19 removal to the BIA. And he was statutorily required to 20 exercise that right before appealing to this Court, 21 notwithstanding his small chance of success. SeeLin Zhong 2218 v. U.S. Dep’t of Justice , 480 F.3d 104, 118 (2d Cir. 2006) 1 (“[I]n the context of [the alien’s] . . . claims, we have 2 jurisdiction . . . so long as a decision has been rendered 3 on his application by an IJ and appealed to the BIA--the two 4 administrative remedies available to him as of right .” 5 (emphasis added) ). 6

7 **B. Constitutional Claim** 8 Valenzuela argues that his petition is not subject to 9 statutory exhaustion requirements because it presents 10 constitutional claims. The supposed constitutional argument 11 is that the IJ violated Valenzuela’s Due Process rights by 12 misconstruing the stop-time rule to end his period of 13 continuous residence when he committedthe crime, as opposed 14 to when he was convicted

. 15 Even if the IJ’s interpretation of the stop-time rule 16 were incorrect, such an error would not be a constitutional 17 violation. Accordingly, this is not a constitutional claim. 18 Valenzuela is simply arguing that the IJ erroneously 19 interpreted a statute in such a way that made him legally 20 ineligible for discretionary cancellation of removal. We 21 therefore do not reach the issue of whether there exists a 2219 constitutional claim exception to § 1252(d). 1
2 **C. “Manifest Injustice** ” 3 Last, Valenzuela argues that we should excuse his 4 failure to exhaust under the “manifest injustice” exception 5 to the exhaustion requirement. SeeMarrero Pichardo v. 6 Ashcroft , 374 F.3d 46 (2d Cir. 2004). Our circuit law has 7 made this exception available “even when exhaustion is a 8 jurisdictional matter.” Lin Zhong , 480 F.3d at 107 n.1. 9 In Marrero Pichardo , it was deemed manifest injustice 10 to remove a petitioner because: (1) he had resided in the 11 U.S. for 26 years, (2) he had a wife and daughter in the 12 U.S., (3) he claimed to have no ties to his native Dominican 13 Republic, (4) he had appeared pro sebefore the IJ, and (5) 14 the law had recently changed in the petitioner’s favor (such 15 that none of his eleven drunk driving convictions would be 16 considered crimes of violence) . 374 F.3d at 54. Valenzuela 17 can cite comparable equities. He has resided in the U.S. 18 for 13 years with his sister and mother, from whom he would 19 be separated if deported; he was engaged to an American 20 citizen who was carrying his child, at least as of 2003; he 21 came here as a teenager and says he has “adopted” the United 228Valenzuela 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. SeeDemore 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, i t 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 States as his home country; and his behavior--after his 1 parole--was “exemplary.” Although Valenzuela had counsel 2 before the IJ, he claims that his counsel failed to inform 3 him of the immigration consequences of pleading guilty. 8 4 We noted that the intervening change in law in Marrero 5 Pichardo’s favor was not “collateral,” but rather went to 6 “the very basis of his deportation.” Id. at 54. As to 7 Valenzuela, t here was no intervening change in law 8 pertaining to his removability: Valenzuela challenges the 9 correctness of the BIA’s decision in Perez , which goes “to 10 the very basis of his deportation,” but Perez has not been 11 overruled by the BIA or by this Court. Valenzuela instead 12 cites an intervening change in the law affecting the 13 government’s ability to detain him pending removal. 9 14took place after the Supreme Court issued its Demoreopinion in April of that year--or when he filed his second habeas petition.

10At 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 Valenzuela’s argument based on a change of law thus does not 1 neatly mirror the facts of Marrero Pichardo , although 2 Valenzuela can claim the higher ground of having committed 3 one offense instead of eleven. But, given that we have been 4 willing to accept even an opinion from another circuit as a 5 sufficient intervening change in law to assert “manifest 6 injustice,” seeGill v. INS , 420 F.3d 82, 88 (2d Cir. 2005), 7 Valenzuela would have a plausible claim to dispensation for 8 “manifest injustice” if we were to uphold that exception to 9 § 1252(d)’s exhaustion requirement. 10 In light of the Supreme Court’s recent opinion in 11 Bowles v. Russell , 127 S. Ct. 2360 (2007), we hold that 12 there is no “manifest injustice” exception to § 1252(d)’s 13 exhaustion requirement. 10Insofar as our earlier opinions 14 have held to the contrary, those opinions are overruled. 11 15innocence” 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 In Bowles , the Supreme Court considered the 1 applicability of the “unique circumstances” exception to the 2 jurisdictional deadline for filing a notice of appeal. See 3 Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc. , 371 4 U.S. 215 (1962); Thompson v. INS , 375 U.S. 384 (1964). The 5 Bowles Court laid the exception to rest: “Because this Court 6 has no authority to create equitable exceptions to 7 jurisdictional requirements, use of the ‘unique 8 circumstances’ doctrine is illegitimate.” 127 S. Ct. at 9 2366. 10 Just as this analysis invalidates the “unique 11 circumstances” exception to the jurisdictional bar created 12 by the filing deadline at issue in Bowles , it likewise 13 invalidates the “manifest injustice” exception to the 14 jurisdictional bar created by 8 U.S.C. § 1252(d)’s 15 exhaustion requirement. Bowles broadly disclaims the 16 “authority” of the federal courts “to create equitable 17 exceptions to jurisdictional requirements.” Id. 18
19
**CONCLUSION** 2023 We have considered the parties’ remaining arguments and 1 find each of them to be without merit. For the foregoing 2 reasons, Valenzuela’s petition is dismissed for lack of 3 jurisdiction. 4