PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 19-1481

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UNITED STATES OF AMERICA

v.

EUPHREM KIOS DOHOU,

Appellant

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On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 3:16-cr-00065-001)

District Judge: Honorable Robert D. Mariani

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Argued: November 13, 2019

Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges

(Filed: January 28, 2020)

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Quin M. Sorenson [ARGUED]

Office of Federal Public Defender

100 Chestnut Street, Suite 306 

Harrisburg, PA 17101

Counsel for Appellant

Michelle L. Olshefski [ARGUED]

Office of United States Attorney

235 North Washington Avenue, Suite 311

P.O. Box 309

Scranton, PA 18503

David J. Freed

Joanne M. Sanderson

Office of United States Attorney

228 Walnut Street, PO Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

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OPINION OF THE COURT

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BIBAS, Circuit Judge. 

Immigration judges’ decisions are presumptively subject to 

review by Article III courts. Euphrem Kios Dohou never petitioned for review of his final removal order. But now that he is 

being criminally prosecuted for hindering removal based on 
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that order, he seeks to attack it collaterally. The Government 

responds that the District Court lacked jurisdiction to decide 

that collateral challenge. And the District Court agreed.

We disagree. We hold that a removal order that was never 

in fact reviewed by an Article III judge remains subject to collateral attack in a hindering-removal prosecution based on that 

order. The Immigration and Nationality Act authorizes such 

collateral attacks so long as the original removal order was not 

“judicially decided.” 8 U.S.C. §1252(b)(7)(A). It is not enough 

that Dohou could have petitioned for judicial review of that order; he did not. So the order of removal was not “judicially 

decided.” And §1252(a)(2)(C), a provision that sometimes 

strips jurisdiction over direct review of removal orders, does 

not apply to collateral attacks. So we will vacate the District 

Court’s finding that it lacked jurisdiction.

On the merits, Dohou’s ineffective-assistance claim requires factfinding. The District Court must also decide whether 

a statutory- or prudential-exhaustion doctrine bars relief. So we 

will also remand.

I. BACKGROUND

In 1992, Dohou came from Benin to the United States on a 

visitor’s visa. He became a lawful permanent resident a few 

years later. More than a decade after that, he was convicted of 

conspiring to traffic marijuana. That crime is an aggravated felony, which made him removable. 

When Dohou was released from prison in 2015, the Department of Homeland Security began removal proceedings. To 

start the process, it served him with a notice to appear before 
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an immigration judge at a date and time to be set later. He then 

hired an immigration lawyer. After a hearing, the immigration 

judge ordered Dohou removed to Benin. He never appealed to 

the Board of Immigration Appeals, or filed a petition for review in the appropriate court of appeals.

Federal agents repeatedly tried to take Dohou to the airport 

to remove him. Each time, they say, he resisted them. So federal prosecutors got involved, and a grand jury indicted him for 

the crime of hindering his removal. See 8 U.S.C. 

§1253(a)(1)(A)–(C).

Dohou moved to dismiss that indictment, asserting that it 

rested on an invalid removal order for two reasons: First, he 

argued that the absence of a date and time for his removal hearing on the notice to appear deprived the immigration judge of 

the authority to order him removed. And second, he argued that 

his counsel before the immigration judge had given ineffective 

assistance, making his removal proceedings fundamentally unfair.

The District Court denied Dohou’s motion. It reasoned that 

because he had been convicted of an aggravated felony, 8 

U.S.C. §1252(a)(2)(C) stripped it of jurisdiction over his collateral attack on the final removal order.

Dohou now appeals. We review the District Court’s jurisdictional holding de novo. United States v. Charleswell, 456 

F.3d 347, 351 (3d Cir. 2006). On the merits, we review questions of law de novo and findings of fact for clear error. Id.
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II. THE DISTRICT COURT HAD JURISDICTION OVER 

DOHOU’S COLLATERAL ATTACK

To decide jurisdiction, we must reconcile two provisions of 

the Immigration and Nationality Act (the Act). Under 8 U.S.C. 

§1252(b)(7)(A), district courts may review “the validity” of removal orders that “ha[ve] not been judicially decided.” But 

§1252(a)(2)(C) deprives courts of “jurisdiction to review” final removal orders of aliens convicted of aggravated felonies 

or drug crimes.

Dohou was convicted of a drug crime (which is an aggravated felony, to boot). So this appeal presents two questions: 

Does §1252(b)(7) give the District Court jurisdiction over 

Dohou’s collateral attack on his removal order? And if so, does 

§1252(a)(2)(C) take away that grant of jurisdiction?

We hold for Dohou on both issues. Section 1252(b)(7)(A) 

lets him collaterally attack his removal order because the immigration judge’s order has not been “judicially decided.” And 

§1252(a)(2)(C) does not strip that jurisdiction because it bars 

only direct review of removal orders, not collateral attacks on 

them.

A. Section 1252(b)(7) grants the District Court 

jurisdiction to review the validity of Dohou’s 

removal order 

Under §1252(b)(7)(A), Dohou can move to invalidate his 

removal order because he was charged with hindering that order. If he prevails, the District Court must “dismiss th[at] indictment.” 8 U.S.C. §1252(b)(7)(C). But he can bring this challenge only if “the validity of [his] order of removal has not been 

judicially decided.” Id. §1257(b)(7)(A).
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Dohou argues that his removal order has not been “judicially decided” because no Article III judge has reviewed it. 

The Government counters that Dohou’s failure to seek direct 

judicial review made his order “judicially decided.” We agree 

with Dohou: the statute’s text, structure, and context require 

actual review by an Article III judge—not just an immigration 

judge, and not just the possibility of judicial review.

We start with the text. While “decided” can refer to decisions by either judges or executive officials, the adverb “judicially” means that the subject, the decider, must be a judge. See 

Decision, Black’s Law Dictionary (11th ed. 2019) (“[a] judicial 

or agency determination”); Judicial, Black’s Law Dictionary, 

supra (“[o]f, relating to, or by the court or a judge”). In the 

federal system, that normally means an Article III judge. By 

contrast, decisions by administrative officials in the Executive 

Branch, like immigration judges or the Board of Immigration 

Appeals, are more aptly described as “nonjudicial” or “quasijudicial.” See Decision, Black’s Law Dictionary, supra (defining “nonjudicial decision” as “[a] legal determination rendered 

by a special tribunal or a quasi-judicial body”); Quasi-Judicial, 

Black’s Law Dictionary, supra (“[o]f, relating to, or involving 

an executive or administrative official’s adjudicative acts”).

This dichotomy between administrative and judicial decisions runs throughout the structure of §1252 too. “Judicial,” or 

some variant of it, appears twenty-one times in that section. 

Every time, it explicitly or implicitly refers to an Article III 

court. See, e.g., 8 U.S.C. §1252(a)(2)(D) (linking “judicial review” to a court of appeals’s review of constitutional claims 

and questions of law); id. §1252(d) (treating “judicial 
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proceeding[s]” as separate from and coming after “the alien has 

exhausted all administrative remedies”).

Interpreting “judicially” to refer only to Article III courts 

also makes sense in light of the broader statutory scheme. The 

government may prosecute an alien for hindering removal only 

where a “final” removal order is outstanding against him. 

8 U.S.C. §1253(a)(1). A removal order becomes final when the 

Board affirms it or when the period for appeal to the Board 

expires. Id. §1101(a)(47)(B). So if that “judicially decided” requirement included immigration judges’ decisions, essentially 

every alien prosecuted for violating §1253(a) would face a “judicially decided” order. That would make §1252(b)(7) a practical nullity. We hesitate to read §1252(b)(7) that way, particularly where the “competing interpretation gives effect to 

every clause and word” of the Act. Marx v. Gen. Revenue 

Corp., 568 U.S. 371, 385 (2013) (internal quotation marks

omitted).

The Government does not deny this premise. Rather, it argues that Dohou could have sought judicial review (by appealing first to the Board and then to a court of appeals) but failed 

to do so. But the text requires more than that. Elsewhere, the 

Act focuses on whether the alien had “the opportunity for judicial review.” 8 U.S.C. §1326(d)(2). But in §1252(b)(7)(A), the 

alien’s challenge must not only have been judicially decidable, 

but judicially decided. And it is not just the order that must 

have been decided, but its validity. That term evokes not just 

finality, but also correctness. See Valid, Black’s Law Dictionary, supra (“[l]egally sufficient,” “binding,” “[m]eritorious”).
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The availability of review is not enough. Section 

1252(b)(7) focuses instead on whether there was an actual judicial decision. Here, there was not. So this provision grants

jurisdiction over Dohou’s collateral attack. 

B. Section 1252(a)(2)(C) did not strip the District 

Court of its §1252(b)(7) jurisdiction

The District Court denied Dohou’s motion to dismiss on a 

different ground. It reasoned that §1252(a)(2)(C) stripped it of 

jurisdiction to review Dohou’s removal order. That provision 

states: “Notwithstanding any other provision of law ..., no 

court shall have jurisdiction to review any final order of removal against an alien who is removable” for committing an 

aggravated felony or listed drug crime. 8 U.S.C. 

§1252(a)(2)(C). It lists Dohou’s drug offense, so it applies to 

him. What is less clear is whether that jurisdictional bar is limited to direct review of removal orders under §1252(a)(1) and 

(d) or if it extends to collateral attacks under §1252(b)(7) as 

well.

We hold that §1252(a)(2)(C) bars only direct review. It

does not use language designed to reach collateral attacks, and 

we construe jurisdiction-stripping provisions narrowly. So the 

District Court had jurisdiction to decide the merits of Dohou’s 

collateral attack.

1. Unlike other immigration provisions, §1252(a)(2)(C) 

does not say it reaches collateral attacks. Many immigration 

provisions strip Article III courts of jurisdiction over orders to 

remove certain aliens. See, e.g., 8 U.S.C. §1231(a)(5) (noncitizens reentering illegally); id. §1252(a)(2)(A)(i) (aliens subject 
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to expedited removal); id. §1105a(a)(10) (enacted Apr. 24, 

1996, repealed effective Sept. 30, 1996) (codifying Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 

§440(a)) (aliens convicted of listed offenses).

Congress worded these provisions differently, and not all 

use language designed to reach collateral attacks. Some bar 

only “review” of removal orders. See 8 U.S.C. §1231(a)(5) (a 

reinstated removal order “is not subject to being reopened or 

reviewed”); id. §1105a(a)(10) (enacted Apr. 24, 1996, repealed effective Sept. 30, 1996) (the removal order “shall not 

be subject to review by any court”). Others go further, stripping 

“jurisdiction to review” or “to entertain any other cause or 

claim arising from or relating to the implementation or operation of [certain] order[s] of removal.” 8 U.S.C. 

§1252(a)(2)(A); see also id. § 1105a(e)(1) (enacted Apr. 24, 

1996, repealed effective Sept. 30, 1996) (AEDPA §423(a)(2))

(similar, for expedited orders of removal).

This “relating to” language is “typically construed as having a broad, expansive meaning”—one much broader than the 

text of §1252(a)(2)(C). Osorio-Martinez v. Att’y Gen. U.S., 

893 F.3d 153, 160, 165 (3d Cir. 2018). It reaches claims indirectly connected to an underlying removal order, like habeas 

petitions. Id. at 160, 165.

But when a jurisdiction-stripping provision in the Act omits 

capacious phrases like “relating to,” it bars only direct review. 

See Charleswell, 456 F.3d at 352 n.4. In Charleswell, we reasoned that §1231(a)(5) may strip us of jurisdiction to review 

reinstated removal orders. Id. But we “c[ould] find no support 

for the contention that” a provision “withdrawing jurisdiction 
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over the original deportation order reaches collateral challenges” in a follow-on criminal proceeding. Id. The Ninth Circuit has held likewise. See United States v. Arce-Hernandez, 

163 F.3d 559, 562–63 (9th Cir. 1998) (holding that the sincerepealed §1105a(a)(10)’s bar on reviewing orders to remove 

certain criminal aliens does not reach collateral attacks because 

it lacks broad “relating to” language). That is so even when the 

criminal proceeding, like a prosecution for unlawful reentry, 

depends on a removal order. See id. at 563. 

When Congress includes broad jurisdiction-stripping language in one section of the Act “but omits it in another section 

of the same Act, it is generally presumed that Congress acts 

intentionally and purposely in the disparate inclusion or exclusion.” Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (quoting 

Bates v. United States, 522 U.S. 23, 29–30 (1997)). In other 

words, Congress’s failure to include the broad “relating to” 

language in §1252(a)(2)(C) is telling. Because §1252(a)(2)(C) 

lacks that language, it strips jurisdiction only over direct review of removal orders. It does not bar review of Dohou’s collateral attack. 

2. The presumption of Article III review favors construing 

jurisdiction-stripping provisions narrowly. Even if the Government’s broader reading of §1252(a)(2)(C) were plausible, 

we would still favor the narrower reading because that provision strips jurisdiction. See Alli v. Decker, 650 F.3d 1007, 1013 

n.9 (3d Cir. 2011).

We presume that the Executive Branch’s actions are subject 

to judicial review. This presumption is “well-settled” and 

traces its lineage back to the foundations of our Republic. 
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Kucana v. Holder, 558 U.S. 233, 251–52 (2010) (quoting Reno 

v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63 (1993)); see 

Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670

(1986) (quoting Chief Justice Marshall in United States v. 

Nourse, 34 U.S. (9 Pet.) 8, 28–29 (1835)). That presumption 

applies not only to statutes that foreclose judicial review, but 

also to those (like the provision here) that may limit avenues of 

relief. See Abbott Labs. v. Gardner, 387 U.S. 136, 140–41 

(1967) (applying the presumption to allow pre-enforcement review of administrative action).

To displace our presumption in favor of judicial review, 

Congress must speak clearly. Before reading a statute so 

broadly as to strip us of the power to review an executive determination, we require “clear and convincing evidence.” 

Bowen, 476 U.S. at 671 (quoting Abbott Labs., 387 U.S. at 

141). The Government offers no such evidence here; it simply 

asserts that the text supports its broader reading. Once again, 

Dohou’s narrower reading prevails. 

The parties spill much ink debating whether we should read 

§1252(a)(2)(C) in Dohou’s favor because a contrary reading 

would raise “[s]erious constitutional concerns,” Charleswell, 

456 F.3d at 352 n.4 (citing United States v. Mendoza-Lopez, 

481 U.S. 828, 837–38 (1987)). Because we resolve this appeal 

based on §1252(a)(2)(C)’s text and context as well as the presumption favoring judicial review, we need not address the 

constitutional issue.

In short, §1252(a)(2)(C)’s text and the presumption in favor of judicial review support reading the statute to preserve 

jurisdiction. So we read this provision to bar only direct 
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review, not a collateral attack. We will thus vacate the District 

Court’s finding that it lacked jurisdiction.

III. ON THE MERITS, WE REMAND FOR FACTFINDING 

BUT REQUIRE EXHAUSTION

Dohou moved to dismiss his criminal indictment as resting 

on an invalid removal order. He alleged that his notice to appear was defective and that ineffective assistance of counsel 

made his immigration proceedings fundamentally unfair.

Dohou’s procedural claim is already foreclosed by our 

precedent, so we will resolve it here. But his ineffective-assistance claim is fact-intensive, so we will remand it to the District Court. Although we doubt that §1252(b)(7) carries the 

same prerequisites for collateral attacks that Congress spelled 

out elsewhere in the Act, we need not decide that here. See 8 

U.S.C. §1326(d). Instead, the District Court should decide on 

remand whether to require exhaustion. 

A. Our precedent forecloses Dohou’s procedural claim 

Dohou tries to expand the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Citing Pereira, he

argues that the charging document that began his removal process (the notice to appear) was invalid because it omitted the 

date and time when he had to appear. See id. at 2109–11, 2114–

16. Because invalid charging documents cannot start removal 

proceedings, he argues, the immigration judge lacked jurisdiction to find him removable.

But we have already rejected this claim. In Nkomo, we held 

that Pereira applies only when an alien seeks discretionary 
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cancellation of removal under §1229b(b)(1), which involves 

the “stop-time rule.” Nkomo v. Att’y Gen. U.S., 930 F.3d 129, 

132–34 (3d Cir. 2019). Here, as in Nkomo, Dohou’s claim involves neither cancellation of removal nor its attendant stoptime rule. So Pereira’s holding does not apply.

B. We remand Dohou’s ineffective-assistance-ofcounsel claim for factfinding

Before the District Court, Dohou argued that his immigration counsel had provided ineffective assistance. Counsel allegedly failed to present evidence of how bad conditions are in 

Benin, Dohou’s home country. Dohou argues that but for counsel’s failure, he would have been eligible for deferral of removal under the Convention Against Torture.

Under the Fifth Amendment’s Due Process Clause, Dohou 

had a right to effective assistance of counsel in his immigration 

proceedings. Fadiga v. Att’y Gen. U.S., 488 F.3d 142, 155 (3d 

Cir. 2007). To show that this right was violated, Dohou must 

prove both that his counsel’s performance “prevented [him] 

from reasonably presenting his case” and that, as a result, he 

suffered “substantial prejudice.” Id. (quoting Khan v. Att’y 

Gen. U.S., 448 F.3d 226, 236 (3d Cir. 2006)). But these showings are fact-intensive, and district judges are “best suited to 

developing the facts necessary” and weighing them in the first 

instance. Massaro v. United States, 538 U.S. 500, 505–06

(2003). So we will remand Dohou’s ineffective-assistance 

claim to the District Court.
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C. On remand, the District Court should consider

exhaustion

Before remanding, we confront an unsettled question of 

law. Under 8 U.S.C. §1326(d), an alien must clear three hurdles before collaterally attacking a removal order when prosecuted for illegal reentry. He must (1) “exhaust[] any administrative remedies that may have been available to seek relief 

against the order”; (2) show that his removal proceedings “improperly deprived [him] of the opportunity for judicial review”; and (3) show that “the entry of the [removal] order was 

fundamentally unfair.” Id. Do these same three hurdles apply 

to §1252(b)(7) as well, even though that provision does not 

specify them? 

Section 1326(d) is a different provision in the same Act, 

governing collateral attacks in prosecutions for illegal reentry. 

Dohou brings a §1252(b)(7) challenge to his indictment for 

hindering his removal order. But if he had made the same attack (ineffective assistance) on a different type of indictment 

(illegal reentry), §1326(d) would have barred relief unless he 

could clear its three hurdles.

Some district courts have applied §1326(d)’s three prerequisites to §1252(b)(7) claims, reasoning that the two types of 

claims mirror each other and share a common statutory history. 

See United States v. Yan Naing, 820 F.3d 1006, 1009–10 (8th 

Cir. 2016) (collecting cases taking this approach, though not 

resolving the issue). We doubt that approach because it overshoots the text. As noted, when Congress includes language in 

one part of the Act but omits the same language from a 
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different part, we presume that it omitted it intentionally. 

Cloer, 569 U.S. at 378.

But we need not decide it here. Even if the statute does not 

require exhaustion, courts may, prudentially, require exhaustion. “It is a basic tenet of administrative law that a plaintiff 

must exhaust all required administrative remedies before 

bringing a claim for judicial relief.” Robinson v. Dalton, 107 

F.3d 1018, 1020 (3d Cir. 1997). Here, if Congress has not mandated exhaustion by statute, “sound judicial discretion [would] 

govern[]” its application. McCarthy v. Madigan, 503 U.S. 140, 

144 (1992). 

Prudential exhaustion would require us to balance the alien’s interest in prompt access to the federal courts with the 

government’s institutional interest in exhaustion. Id. at 146. 

But even when courts might otherwise require exhaustion, they 

may excuse it when, for instance, “waiver, estoppel, tolling or 

futility” applies. Wilson v. MVM, Inc., 475 F.3d 166, 174 (3d 

Cir. 2007). We also excuse prudential exhaustion “when the 

challenged agency action presents a clear and unambiguous violation of statutory or constitutional rights.” Susquehanna Valley All. v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 

245 (3d Cir. 1980).

Dohou claims that his lawyer’s ineffective assistance violated his constitutional right to due process. So even if he did 

not exhaust, the clear-violation exception could apply. Perhaps 

other exceptions could too. But we leave it to the District Court 

to decide in the first instance these statutory and prudential issues and whether Dohou in fact exhausted his claims.
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* * * * *

No Article III court has yet reviewed the validity of 

Dohou’s removal order, so it has never been “judicially decided.” Under 8 U.S.C. §1252(b)(7), he can thus collaterally 

attack it in his hindering-removal prosecution. Also,

§1252(a)(2)(C) poses no bar to his collateral attack: it lacks the 

broad language of other jurisdiction-stripping provisions, and 

the presumption of judicial review also favors reading it narrowly. So we will vacate the District Court’s finding that it 

lacked jurisdiction and remand Dohou’s ineffective-assistance 

claim.

On remand, the District Court must find facts and decide 

whether Dohou’s immigration lawyer provided ineffective assistance, making his removal order (and thus his criminal prosecution based on it) fundamentally unfair. It must also consider 

whether the statute requires exhaustion, whether prudentially 

to require exhaustion, and if so whether that violation was clear 

enough to excuse prudential exhaustion.