Filed: December 19, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 00-7681

(CA-00-196-3-V)

Ana Marie Kurfees,

Plaintiff - Appellant,

versus

U.S. Immigration & Naturalization Service,

Defendant - Appellee.

ORDER

The court amends its opinion filed October 24, 2001, as

follows:

On the cover sheet, section 1 -- The status is changed from

“UNPUBLISHED” to “PUBLISHED.”

On the cover sheet, section 6 -- The section is changed to

read “Affirmed by published opinion. Chief Judge Wilkinson wrote

the opinion, in which Judge Widener and Judge Williams joined.”

On page 2, section 2 -- the reference to use of unpublished

opinions as precedent is deleted.
-2-

On page 2, first line of opinion -- “PER CURIAM” is changed to

read “WILKINSON, Chief Judge.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANA MARIE KURFEES,

Plaintiff-Appellant,

v.

No. 00-7681

U. S. IMMIGRATION &

NATURALIZATION SERVICE,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Richard L. Voorhees, District Judge.

(CA-00-196-3-V)

Argued: September 28, 2001

Decided: October 24, 2001

Before WILKINSON, Chief Judge, and WIDENER and

WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson

wrote the opinion, in which Judge Widener and Judge

Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Michele Mary Rocawich, SUSMAN & ASSOCIATES, ARGUED:

Chicago, Illinois, for Appellant. Robbin Kinmonth Blaya, Office of

Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: ON BRIEF:

Barbara Ann Susman, Carol Lynn Pelton, Jonathan Peter Gundlach,

SUSMAN & ASSOCIATES, Chicago, Illinois, for Appellant. Stuart
E. Schiffer, Acting Assistant Attorney General, Linda S. Wendtland,

Assistant Director, Office of Immigration Litigation, Civil Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Plaintiff Ana Marie Kurfees filed a habeas corpus petition in federal district court challenging her deportation. The court dismissed her

petition for lack of jurisdiction. Because Kurfees failed to exhaust her

administrative remedies before proceeding to the district court, we

affirm.

I.

Plaintiff Ana Maria Kurfees is a native and citizen of Peru who

entered the United States illegally in 1985 and currently resides in

Charlotte, North Carolina. In June 1988, Kurfees married a United

States citizen. The following summer, Kurfees went to Peru to obtain

her visa as required by the existing regulations. When interviewed in

Peru in October 1989, Kurfees stated that her purpose in applying for

a visa was to reunite with her husband. Kurfees returned to the United

States in February 1990 and was granted the status of conditional resident for up to two years.

Shortly after her return, Kurfees discovered her husband had fallen

into debt and taken up with other women. Kurfees decided to move

in with her husband's grandparents and file for divorce. Two years

later, Kurfees requested permanent resident status. However, on October 5, 1992, Kurfees' request for permanent resident status was

denied and her conditional status was terminated. The INS also issued

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an Order to Show Cause ("OSC"), requiring Kurfees to appear at a

hearing and demonstrate why she should not be deported based on the

change in her residency status.

In October 1992, Kurfees moved from Salisbury, North Carolina to

Charlotte, North Carolina. Kurfees claimed she stayed with friends

for her first few months in Charlotte and did not have a forwarding

address to give to the INS. Kurfees' former roommate in Salisbury

was supposed to inform Kurfees if any mail came for her. The INS

mailed the OSC to the Salisbury address where it was signed for by

a person Kurfees claims not to know. Kurfees argues that she did not

receive the OSC at that time and did not know about the hearing.

On March 5, 1993, the Immigration Court ordered Kurfees

deported in absentia. Kurfees had until March 23, 1993 to appeal that

order to the Board of Immigration Appeals ("BIA "). Kurfees finally

received the OSC notice, but the time in which to file an appeal had

expired.

Kurfees sought counsel and filed a Motion to Reopen on September 26, 1996, claiming no notice of the deportation hearing. On January 21, 1997, that motion was denied because the Immigration Judge

("IJ") noted that it was Kurfees' duty to notify the court of her change

of address. On February 19, 1997, Kurfees contends she filed an

appeal with the BIA which she claims was dismissed. However, Kurfees was unable to produce a copy of the dismissal of the appeal and

the Government states that there is no record of the filing or rejection

of the appeal by the BIA.

On May 28, 1997, Kurfees was married again to a United States

citizen. On June 3, 1997, Kurfees' husband filed a Petition for Alien

Relative on his wife's behalf. The INS placed Kurfees under supervision on June 16, 1999.

In February 2000, Kurfees asked the INS to join in a Motion to

Reopen her case. The INS denied her request, but did acknowledge

that Kurfees' second marriage was bona fide. On April 14, 2000, Kurfees filed a Request to Stay Deportation Proceedings and Motion to

Reopen, asking the INS to stay her deportation, grant a hearing, and

vacate the IJ's deportation order. The INS declined.

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On May 1, 2000, Kurfees filed a petition for writ of habeas corpus

in the United States District Court for the Western District of North

Carolina. Kurfees argued that the IJ failed to establish that she was

deportable "by clear, unequivocal and convincing evidence," as

required by 8 U.S.C. § 1252b(c)(1). The INS responded that the district court lacked subject matter jurisdiction over the appeal.

The district court determined that it lacked jurisdiction to review

Kurfees' habeas petition because Kurfees had failed to exhaust her

administrative remedies. Kurfees appeals.

II.

A.

Judicial review of immigration proceedings is generally governed

by the Immigration and Naturalization Act ("INA "). In 1996, two

amendments to the INA were passed that significantly restricted judicial review of immigration decisions. To determine whether the district court had jurisdiction over Kurfees' habeas corpus petition, we

are first required to determine which statute or amendment governs

judicial review of this case.

Prior to the 1996 amendments to the INA, judicial review of most

administrative actions was governed by INA § 106 (8 U.S.C. § 1105a

(repealed 1996)), which directed that the exclusive procedure for judicial review of final orders of deportation was through the court of

appeals. See Reno v. American-Arab Anti-Discrimination Comm., 525

U.S. 471, 476 (1999). Aliens facing exclusion and those held in custody pursuant to an order of deportation were allowed to obtain judicial review through habeas corpus proceedings. See 8 U.S.C.

§ 1105a(a)(10) (repealed 1996). Aliens could also challenge INS

detention or deportation proceedings through a petition for habeas

corpus pursuant to 28 U.S.C. § 2241.

The judicial review framework changed somewhat when the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

was passed by Congress. See Mayers v. INS, 175 F.3d 1289, 1292

(11th Cir. 1999). AEDPA limited the ability of certain aliens con-

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victed of crimes to bring habeas corpus petitions. Id. Then, Congress

passed the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 ("IIRIRA") on September 30, 1996. This statute put in

place an entirely new review process. See 8 U.S.C.A. § 1252 (West

2001). The effective date of IIRIRA was April 1, 1997. IIRIRA established some transitional rules that applied to all cases that commenced

prior to the effective date of IIRIRA and in which a final order of

deportation was entered at least 30 days after IIRIRA was passed. See

Mayers, 175 F.3d at 1293 n.4. Essentially, under the transitional rules,

judicial review takes place without regard to IIRIRA amendments

except in the case of some criminally-deportable aliens. Id. at 1293.

Because Kurfees was ordered deported in absentia on March 5,

1993, her case was pending prior to the effective date of IIRIRA.

Therefore, she is not governed by the judicial review provisions of

IIRIRA. Rather, her case is governed by the pre-IIRIRA rules.1

B.

We now turn to the pre-IIRIRA rules to determine if they limit the

availability of judicial review in this case. Section 106(c) of the INA

states that "[a]n 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 . . . ." 8 U.S.C. § 1105a(c) (repealed 1996). Thus, the

statute imposes an exhaustion requirement on Kurfees.

By not appealing her 1993 deportation order and the 1997 denial

_________________________________________________________________

1 The district court determined that Kurfees was subject to the transi- 1 

tional rules enacted under IIRIRA because her proceeding commenced

prior to the effective date of IIRIRA, and a final order of deportation (the

denial of the motion to reopen by the IJ) was entered more than thirty

days after the enactment of IIRIRA. However, the INS argues that a final

order of deportation may only be entered by the BIA. We see no need

to decide whether the IJ's denial of the motion to reopen is a final order

of deportation because the result is the same in this case. Even under the

transitional rules, review is governed by the pre-IIRIRA rules. The only

difference between the pre-IIRIRA rules and the transitional rules concerns review for criminally-deportable aliens, which Kurfees is not.

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of the Motion to Reopen first to the BIA and subsequently to this

court, Kurfees failed to exhaust the administrative remedies available

to her. She cannot now attempt to bypass the administrative process

by bringing a habeas corpus action in the district court. It is well settled that parties must exhaust their administrative remedies before filing suit in federal court. See McCarthy v. Madigan, 503 U.S. 140,

144-45 (1992). Moreover, where Congress has explicitly mandated

exhaustion, as it has in INA § 106(c), the Supreme Court has held that

the requirement must be enforced. Id. at 144. And we have held that

district courts lack jurisdiction over the claims of aliens who failed to

exhaust their administrative remedies as required by § 1105a(c). See

Gallanosa v. United States, 785 F.2d 116, 119 (4th Cir. 1986).2

While upholding the exhaustion requirement may seem strict in an

individual case, exhaustion serves the twin purposes of protecting

administrative agency authority and promoting judicial efficiency.

The BIA was not given the opportunity to review the case because

Kurfees neglected to appeal. The exhaustion doctrine embodies a policy of respect for administrative agencies, which allows them to carry

out their responsibilities and "to discover and correct [their] own

errors." McKart v. United States, 395 U.S. 185, 195 (1969). A rule

that allowed parties to circumvent the administrative process under

the circumstances of this case would undermine agency functions and

clog the courts with unnecessary petitions. The rules are clear: before

proceeding to federal court, an alien must exhaust his or her administrative remedies. Kurfees failed to exhaust. Therefore, the district

court correctly determined that it lacked jurisdiction to review her

petition.

C.

Kurfees argues that judicial review of her claims remains available

_________________________________________________________________

2 Because we have determined that the district court lacked jurisdiction 2 

as a result of Kurfees' failure to exhaust, we need not determine whether

the district court correctly interpreted our decision in Bowrin v. INS, 194

F.3d 483 (4th Cir. 1999). The district court viewed this case as establishing that AEDPA's repeal of the habeas provision at INA §106(a)(10) did

not preclude judicial review of habeas petitions brought pursuant to 28

U.S.C. § 2241.

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despite the exhaustion requirement for two reasons. First, Kurfees

claims she did not fail to exhaust, but instead procedurally defaulted.

She asserts that habeas corpus review is available to aliens who have

procedurally defaulted. However, Kurfees fails to offer any support

for this assertion. Kurfees' reliance on Flores-Miramontes v. INS, 212

F.3d 1133 (9th Cir. 2000), is misplaced because that case dealt with

a procedural default by a criminally-deportable alien who faced categorical bars to judicial review not applicable to Kurfees. If we were

to allow Kurfees to bring her petition by terming it "procedural

default," we would be sanctioning the intentional circumvention of

the administrative process. This would in turn weaken the effectiveness of the INS by encouraging petitioners to ignore its procedures.

See, e.g., McCarthy, 503 U.S. at 146.

Second, Kurfees asserts that her failure to exhaust did not preclude

the district court from reviewing her petition because she is raising a

"substantial constitutional question." See Gallanosa, 785 F.2d at 120.

We have recognized an exception to the exhaustion requirement for

certain constitutional claims. See id.; Farrokhi v. INS, 900 F.2d 697,

700-01 (4th Cir. 1990). However, we agree with the district court that

Kurfees' constitutional challenges to her deportation order are procedural challenges that could have been addressed by the BIA. This

exception to the exhaustion requirement has never been extended to

these types of procedural claims. See Gallanosa, 785 F.2d at 120-21;

Farrokhi, 900 F.2d at 701.

III.

Kurfees had the opportunity to appeal the denial of her motion to

reopen to the BIA, but failed to do so. We cannot now allow Kurfees

to bypass the administrative process she rejected by bringing her

claims to the federal courts. The exhaustion doctrine is guided by the

idea "that agencies, not the courts, ought to have primary responsibility for the programs that Congress has charged them to administer."

McCarthy, 503 U.S. at 145. Congress has specifically required aliens

to exhaust their administrative remedies before going into federal

court. See 8 U.S.C. § 1105a(c). We are bound to follow that decision.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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