PRECEDENTIAL
     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 10-2995
                  _____________

               DAOUD CHEHAZEH,
                         Appellant,
                      v.

 ATTORNEY GENERAL OF THE UNITED STATES,
SECRETARY OF THE DEPARMENT OF HOMELAND
               SECURITY,

                 _______________

   On Appeal from the United States District Court
           for the District of New Jersey
             (D.C. No. 2-09-cv-05684)
      District Judge: Hon. Faith S. Hochberg
                 _______________

                      Argued
                   June 21, 2011
Before: CHAGARES, JORDAN, and GREENAWAY, JR.,
                Circuit Judges.

                 (Filed: January 11, 2012)
                    _______________

Lindsee P. Granfield
Jeffrey M. Rosenthal
Ashika Singh
Alida Lasker
Jane Pek
Nathaniel Jedrey
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006

Lavi S. Soloway
Tanisha L. Massie [ARGUED]
Masliah & Soloway, PC
225 Broadway - #1610
New York, NY 10036
      Counsel for Appellant




                             2
Tony West
David J. Kline
Theodore W. Atkinson
Leah A. Bynon
Erez Reuveni [ARGUED]
United States Department of Justice
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
      Counsel for Appellees
                     _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       Daoud Chehazeh appeals the May 24, 2010 order of
the United States District Court for the District of New Jersey
dismissing, for lack of jurisdiction, his “Petition for Writ of
Habeas Corpus and Stay of Removal Proceedings.”1
Chehazeh had asked the District Court to declare that the
decision of the Board of Immigration Appeals (the “BIA”) to
sua sponte reopen removal proceedings against him is
contrary to law, and he sought an order requiring the BIA to

       1
          Although Chehazeh titled his petition as one for
“habeas corpus” relief, it in fact requests other forms of relief
also, as outlined infra Part I(B)(3).




                               3
terminate the reopened proceedings. Because we conclude
that, under these unusual circumstances, the District Court
has jurisdiction to review the BIA‟s decision pursuant to 28
U.S.C. § 1331 and the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et seq., we will reverse the District
Court‟s order and remand for further proceedings.

I.     Background

       A.     Factual History2

        Chehazeh is a Syrian native and citizen who, prior to
1999, lived in Damascus and worked as a travel agent. As
part of his business, Chehazeh helped his customers to obtain
Saudi Arabian work visas through his contacts in the Saudi
Arabian embassy. In 1999, one of those contacts allegedly
defrauded Chehazeh of 7 million Syrian lire that Chehazeh
had paid to obtain visas. Chehazeh was left indebted to his
customers and so borrowed 3.5 million lire from several
moneylenders to help meet those debts. Soon afterwards, he
travelled to Saudi Arabia to confront the person he believed
had defrauded him. After failing in that attempt, he came to
the United States rather than returning to Syria. He was
admitted to this country on July 3, 2000, on a non-immigrant
visa that authorized him to stay here until January 2, 2001.

       2
          We present the facts as stated in Chehazeh‟s
testimony at his removal hearing and in his sworn affidavit.
Although the Immigration Judge found Chehazeh credible,
the BIA reopened Chehazeh‟s removal proceedings based, in
part, on questions about the Immigration Judge‟s impartiality.
We do not, therefore, rely on that credibility finding and draw
no conclusions about the veracity of Chehazeh‟s statements.




                              4
His family in Syria subsequently informed him that his
creditors were pursuing legal action against him and had put a
lien on his house. Chehazeh claims he was afraid that if he
returned to Syria, he would be put in jail, and so he stayed in
the United States after the expiration of his visa.

        Chehazeh settled in Northern Virginia and began
attending the Dar al Hijra mosque in Falls Church. Through
that affiliation, he became acquainted with two Saudi men
named Hanji Hanjour and Nawaf al-Hazmi, who told him that
they were in the United States studying to become pilots. On
at least one occasion, Hanjour and al-Hazmi visited Chehazeh
in his apartment. On September 25, 2001, while watching
news coverage of the September 11, 2001 attacks, Chehazeh
recognized pictures of Hanjour and al-Hazmi and heard that
they were two of the individuals suspected of perpetrating the
attacks. Chehazeh “felt compelled to tell the U.S. authorities
everything [he] knew about Hanjour and Hamzi [sic].” (App.
at 41.) As a result, he made several attempts to contact the
FBI, but his efforts were impeded by his inability to speak
English. Finally, on September 28, 2001, he was able to
communicate with someone at the FBI and, during an
interview that day, provided FBI agents with the information
he had regarding Hanjour and al-Hazmi. The FBI brought
him in for additional questioning on October 1, 2001, after
which – no doubt to his distress – he was detained and placed
in the custody of the Immigration and Naturalization Service
(“INS”).




                              5
      B.     Procedural History

             1.     The IJ Decision and the Dismissal of the
                    INS’s Appeal

       On October 19, 2001, the INS issued a Notice to
Appear charging Chehazeh with being a removable alien. He
did not dispute his removability but submitted an application
for asylum and sought withholding of removal and relief
under the Convention Against Torture (“CAT”). Prior to a
merits hearing on his application, Chehazeh was transferred
back to FBI custody on a material witness warrant. Although
the timing is unclear, it appears that Chehazeh bounced
between INS and FBI custody from November 2001 until the
date of the eventual hearing on his asylum application on
May 24, 2002.3

       During that hearing, the Immigration Judge (“IJ”)
granted Chehazeh‟s application for asylum pursuant to 8
U.S.C. § 1158, withholding of removal pursuant to 8 U.S.C.
§ 1231(b)(3)(A), and withholding of removal pursuant to the
CAT. In so doing, the IJ first found that, although
Chehazeh‟s application for asylum had not been filed within a
year of his entering the country as required by
§ 1158(a)(2)(B), his application was still timely because it
was motivated by “events that ha[d] happened to [him] since
the time that [he was] arrested,” namely, that he had


      3
        It is also not clear when Chehazeh was released from
custody. He states that he was released sometime after
August 2002, whereas the INS, in its June 18, 2002 Notice of
Appeal, reported that he was not detained as of that date.




                             6
“developed a new fear … after people realized that [he was]
giving information to the FBI.”4 (App. at 47-48.)

        Next, the IJ found Chehazeh to be credible and “an
exceptional, honest person,” explaining that he had been
“arrested only because [he] asked the FBI to please accept
information that [he] felt that [he] had that related to terrorists
who destroyed the World Trade Center.” (App. at 48.) The
IJ also noted that “the FBI ha[d] carefully examined [his] case
and [he was deemed] no longer to be of special interest … .
That mean[t] that what [he‟d] said all along [was] true and
that [he was] not a danger to the United States and that [he
was] not involved in any kind of terrorist activities.” (App. at
49.)

        The IJ then concluded that Chehazeh was a member of
a social group comprising hopeless debtors who, the IJ
determined, faced a denial of fundamental rights, including
the lack of a fair trial and severe prison conditions in Syria.
The IJ found that, due to Chehazeh‟s membership in that
group, there was a “clear likelihood of persecution in Syria
should [he] be returned there” and that “[t]he physical abuse
that would be lodged against [him] is specifically described
by the State Department as torture.” (App. at 60-61.) As a
result, the IJ granted his applications for asylum and for
withholding of removal.


       4
         Although the IJ does not cite it, she may have been
relying on § 1158(a)(2)(D), which allows an application to be
considered beyond the one-year period if there are
“extraordinary circumstances relating to the delay in filing an
application.”




                                7
        The INS appealed to the BIA, claiming that the IJ
erred by considering Chehazeh‟s asylum application to be
timely, by finding that he was a member of a social group
comprising hopeless debtors, and by finding that he would be
unable to obtain a fair trial in Syria. The INS also claimed
that the IJ “should have recused herself due to her inability to
be fair and impartial.” (App. at 311.) With respect to the IJ‟s
alleged bias, the INS stated:

        [The IJ‟s] behavior in this matter … included
        but is not limited to ordering the Service … to
        personally travel to Respondent‟s place of
        detention to assist him in preparing his I-589
        [application for asylum and withholding of
        removal]. When the Service declined, the
        [I]mmigration Judge advised that she would
        assume Respondent had a meritorious claim and
        grant him asylum. Ultimately, the Immigration
        Judge personally reviewed and completed
        Respondent‟s I-589.       At the time of the
        individual hearing prior to obtaining any
        testimony from Respondent, the Immigration
        Judge advised that she was ready to render a
        decision.

(Id.)

       Despite filing an appeal, the INS never submitted any
briefing and, consequently, the BIA dismissed the appeal on
August 20, 2004. The IJ‟s order thus became the final
outcome of the agency proceedings, or so it appeared.




                               8
             2.     The Reopening of Chehazeh’s Removal
                    Proceedings

       Nearly three years later, on August 9, 2007, the Bureau
of Immigration and Customs Enforcement (“ICE”), which
had succeeded to the responsibilities of the INS,5 moved to
reopen Chehazeh‟s removal proceedings and to terminate his
asylum. ICE said that the proceedings should be reopened for
two reasons. First, it alleged that “there [was] a showing of
fraud in [Chehazeh‟s] application.”            (App. at 115.)
Specifically, ICE stated that Chehazeh‟s claim to be wanted
by police in Syria was shown to be fraudulent by a later check
with Interpol revealing that he was not wanted by any
authority. Second, ICE asserted that “there [were] reasonable
grounds for regarding [Chehazeh] as a danger to the security
of the United States,” due to his interactions with Hanjour and
al-Hazmi and due to his having obtained a fraudulent driver‟s
license. (App. at 116-17.) ICE also reported that “the FBI is
unable to rule out the possibility that [Chehazeh] poses a
threat to the security of the United States.” (App. at 117.)
ICE thus argued that the proceedings should be reopened and
Chehazeh‟s asylum terminated.

      In response, Chehazeh argued that ICE‟s motion
should be denied both because it was not based on any new
evidence and because it was wrong on its merits. Regarding
the purported fraud, Chehazeh pointed out that the report
from Interpol was from 2003, prior to the dismissal of the

      5
         See Biskupski v. Att’y Gen., 

, 276 n.1
(3d Cir. 2007) (“On March 1, 2003, Congress transferred the
INS‟s functions to the Bureau of Immigration and Customs
Enforcement … .” (citing 6 U.S.C. §§ 251, 271 & 291)).




                              9
INS‟s earlier appeal, and, therefore, it was not new. He also
said that his statement that his family told him the Syrian
authorities were looking for him was not shown to be
fraudulent simply because an Interpol search showed no
warrants.6 Regarding his alleged threat to national security,
Chehazeh noted that ICE “merely restate[d] the very facts
known by law enforcement in 2001 and considered by the IJ,”
after which the IJ had concluded that Chehazeh was “not a
danger to the United States.” (App. at 108.) Chehazeh
argued that “[i]t is both unfair and unnecessary to reopen [his]
case, which was finally determined by this Board over three
years ago, based on facts that have been known and available
since 2001.” (Id.)

       On December 13, 2007, without explicitly ruling on
ICE‟s motion to reopen, the BIA “exercise[d] [its] sua sponte
authority to reopen proceedings,” pursuant to 8
C.F.R. § 1003.2(a). (App. at 112.) The BIA explained that,
because “the FBI has been unable to rule out the possibility
that [Chehazeh] poses a threat to the national security of the
United States. … reopening and remand of proceedings is
warranted under these circumstances.” (Id.) The BIA added
– though not, it seemed, as a reason for reopening but as an
instruction for further proceedings – that the remand should
be “for a new hearing before a different Immigration Judge,”
because of “instances in the record” that suggested “that the
Immigration Judge was not conducting the hearings in a


       6
         Chehazeh‟s brief addressed a number of other
purported “frauds” that were not discussed in the ICE motion
but that were mentioned in an affidavit attached to that
motion.




                              10
generally fair manner.”7 (App. at 113.) Chehazeh moved for
reconsideration of that decision, questioning why the BIA
“was invoking its sua sponte authority,” despite there being
no “new, material and previously undiscoverable evidence.”
(App. at 148.) In denying that motion, the BIA made its
concern about bias a reason for reopening, saying in a
footnote that, “in addition to the unique national security
issues,” it was exercising its sua sponte authority because it
“was concerned that the Immigration Judge failed to adhere to
the role of impartiality assigned to her as one acting in a
judicial or quasi-judicial capacity.” (App. at 152 n.1.)

             3.     Chehazeh’s Petition to the District Court

       On November 6, 2009, Chehazeh filed in the District
Court his “Petition for Writ of Habeas Corpus and Stay of
Removal Proceedings,” listing the Attorney General and the
Secretary of Homeland Security as respondents. Chehazeh
asked the Court to issue an immediate stay of the removal
proceedings, to declare that the BIA‟s decision to reopen the
proceedings was contrary to law, and to remand with orders
for the BIA to reinstate his grant of asylum and to terminate
the removal proceedings. He noted that the action arose
under the APA and asserted that the District Court could
exercise jurisdiction through a writ of habeas corpus pursuant
to 28 U.S.C. § 2241,8 a writ of mandamus pursuant to 28

      7
         Because the initial decision was sent to a wrong
address and Chehazeh did not receive notice of it, the BIA
reissued its decision on October 21, 2008.
      8
          Although Chehazeh was not actually in custody, he
asserted that the District Court could still exercise habeas
jurisdiction because he was “subject to removal proceedings




                             11
U.S.C. § 1361, a declaratory judgment pursuant to 28 U.S.C.
§ 2201, or general federal question jurisdiction pursuant to 28
U.S.C. § 1331.

        The government moved to dismiss under Federal Rule
of Civil Procedure 12(b)(1), for lack of subject-matter
jurisdiction. In particular, the government argued that the
Court lacked habeas jurisdiction because Chehazeh was not in
“custody” for purposes of habeas corpus, even though he was
subject to removal proceedings. The government also argued
that the case should be dismissed for several other reasons:
because the District Court was deprived of jurisdiction by the
REAL ID Act of 2005, Pub L. No. 109-13, 119 Stat. 231
(2005);9 because Chehazeh had not exhausted his
administrative remedies; because the BIA‟s sua sponte
decision to reopen was unreviewable; and because Chehazeh
had not shown the extraordinary circumstances necessary for
a writ of mandamus or that his case was ripe for a declaratory
judgment.

       On May 24, 2010, the District Court granted the
motion to dismiss, holding that Chehazeh was not in custody
and therefore there was no basis for habeas jurisdiction. The


against him, which constitute „significant restraints on
liberty … not shared by the public generally, along with some
type of continuing governmental supervision.‟” (App. at 13
(quoting Obado v. New Jersey, 

, 717 (3d Cir.
2003)) (omission in original).)
       9
        Specifically, the government argued that 8 U.S.C.
§§ 1252(b)(9) and 1252(g), as amended by the REAL ID Act,
precluded review of Chehazeh‟s claims.




                              12
District Court did not address any of the alternative bases for
jurisdiction identified in Chehazeh‟s petition. On July 2,
2010, Chehazeh filed a timely Notice of Appeal to our
Court.10

II.    Jurisdiction And Standard Of Review

       We have jurisdiction to review the District Court‟s
decision pursuant to 28 U.S.C. § 1291. Whether the District
Court had jurisdiction is the only issue on appeal and is
discussed below.

      We exercise plenary review over an order dismissing a
complaint for lack of subject-matter jurisdiction. Taliaferro
v. Darby Twp. Zoning Bd., 

, 188 (3d Cir. 2006).

III.   Discussion

       On appeal, Chehazeh argues that the District Court
erred by concluding that he was not in custody for purposes
of habeas review, and that, even if that were correct, the
Court could have exercised jurisdiction through a writ of
mandamus or a declaratory judgment and erred by failing to
address those alternative avenues for relief. Chehazeh also
argues that the District Court has jurisdiction pursuant to 28
U.S.C. § 1331 and the APA. The government responds that
Chehazeh was not in custody and that, even if some other
avenue for review (such as the APA) might otherwise be
available, review is precluded by the REAL ID Act. The

       10
         Chehazeh‟s removal proceedings are stayed pending
the outcome of this appeal, pursuant to an order we entered
on December 3, 2010.




                              13
government further contends that Chehazeh has not exhausted
his administrative remedies and that the BIA‟s exercise of its
sua sponte reopening authority is unreviewable.

        We are persuaded that the District Court has
jurisdiction under § 1331 and may, under the APA, review
Chehazeh‟s petition.11 We will therefore reverse and remand.

       11
           We and other courts of appeals have sometimes
spoken in terms of “jurisdiction” when addressing judicial
power to consider petitions for review of BIA decisions
pursuant to the APA. See, e.g., Calle-Vujiles v. Ashcroft, 

, 475 (3d. Cir. 2003) (dismissing a petition for
review for “lack of appellate jurisdiction” after determining
that the “BIA retains unfettered discretion to decline to sua
sponte reopen or reconsider a deportation proceeding”);
Hernandez v. Holder, 

, 904 (8th Cir. 2010)
(holding that the court “lack[ed] jurisdiction” over the BIA‟s
decision to deny administrative closure because there was no
meaningful standard against which to judge the BIA‟s
decision); Ekimian v. I.N.S., 

, 1154 (9th Cir.
2002) (holding that the court “lack[ed] jurisdiction to review
a BIA decision not to reopen the [removal] proceeding sua
sponte” because it could not “discover a sufficiently
meaningful standard against which to judge the BIA‟s
decision” (emphasis removed)); Luis v. INS, 

, 40
(1st Cir. 1999) (holding that the court had “no jurisdiction” to
review the decision of the BIA not to reopen removal
proceedings sua sponte because “the decision of the BIA
whether to invoke its sua sponte authority is committed to its
unfettered discretion.”). That may be viewed, however, as
too loose a use of that term. The Supreme Court has said that
“the APA does not afford an implied grant of subject-matter




                              14
jurisdiction permitting federal judicial review of agency
action.” Califano v. Sanders, 

(1977)). Rather,
the “federal question” statute, 28 U.S.C. § 1331, “confer[s]
jurisdiction on federal courts to review agency action.”

; see Chrysler Corp. v. Brown, 

, 317 n. 47 (1979) (“Jurisdiction to review agency
action under the APA is found in 28 U.S.C. § 1331.”). “The
judicial review provisions of the APA,” on the other hand,
“provide a limited cause of action for parties adversely
affected by agency action.” Oryszak v. Sullivan, 

, 525 (D.C. Cir. 2009) (internal quotation marks omitted).
Thus, if “agency action is committed to agency discretion by
law,” 5 U.S.C. § 701(a)(2), or the action is not “final agency
action,” 5 U.S.C. § 704, “a plaintiff who challenges such an
action cannot state a claim under the APA,” 

, and the action must be dismissed. See also
Trudeau v. FTC, 

, 184-85 (D.C. Cir. 2006)
(holding that the provision of the APA limiting judicial
review to “final agency action,” does not determine whether a
federal court has jurisdiction but whether a plaintiff has a
cause of action). Accordingly, the Seventh and Eighth
circuits have recently held that whether a court has the
authority to review a decision of the BIA under the APA is
not a jurisdictional question. Vahora v. Holder, 

, 917 (7th Cir. 2010) (holding that the “issue [of whether
the court could review the BIA‟s decision to grant
administrative closure] is not termed properly one of
jurisdiction … [it] is not a question of whether this court has
the authority to review, but rather whether the lack of any
„judicially manageable‟ standard, 

,
makes any review within [the court‟s] power, as a practical
matter, impossible.”); Ochoa v. Holder, 

, 549




                              15
       A.     The District Court’s Jurisdiction Pursuant to
              28 U.S.C. § 1331 and the Limitations of the
              APA

       The Supreme Court has held that 28 U.S.C. § 1331
“confer[s] jurisdiction on federal courts to review agency
action,” “subject only to preclusion-of-review statutes created
or retained by Congress.” Califano v. Sanders, 

,
105 (1977). The scope and limitations on that review are
defined by the APA, which permits judicial review for any
“person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action,” 5 U.S.C.
§ 702, so long as the “agency action is [not] committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2), no “statutes
preclude judicial review,” 5 U.S.C. § 701(a)(1), and the
action is a “final agency action,” 5 U.S.C. § 704. The form of
review must conform with any relevant “special statutory


(8th Cir. 2010) (“When a plaintiff complains about an action
that is committed to agency discretion by law, it does not
mean that a court lacks subject matter jurisdiction over the
claim. Instead, it means that there is no law to apply because
the court has no meaningful standard against which to judge
the agency‟s unfettered exercise of discretion.”).
       We agree with the Seventh and Eighth circuits that
even if Congress has committed discretion to the BIA by law
to take or not take certain actions, it has not deprived the
District Court or us of jurisdiction to consider a plaintiff‟s
claim that such action was erroneous pursuant to the APA.
The question is whether a plaintiff can state a claim for relief
from such action under the APA. See 

(the APA provides “a limited cause of action for parties
adversely affected by agency action”).




                              16
review” provision in the statutes governing the agency.
Smriko v. Ashcroft, 

, 290-91 (3d Cir. 2004)
(citing 5 U.S.C. § 703). “[I]n the absence or inadequacy” of
any “special statutory review” provision, review may take
“any applicable form of legal action.” 5 U.S.C. § 703.

       We have previously explained that the APA standards
for determining the reviewability of agency decisions are
applicable to decision-making in the immigration sphere. See

(“Decisions of the BIA are
agency actions within the meaning of the APA,” and,
therefore, “we have jurisdiction to review [a BIA decision] so
long as the INA does not preclude that judicial review and the
issues so presented are not committed to agency discretion.”);
M.B. v. Quarantillo, 

(3d Cir. 2002) (holding
that the APA enabled a district court to review the Attorney
General‟s decision regarding an application for special
immigration juvenile status because the INA did not preclude
review of that decision and the decision was not committed to
agency discretion). On general principles, then, the District
Court had jurisdiction over Chehazeh‟s claims under § 1331
and could have reviewed the BIA‟s decision to reopen
Chehazeh‟s removal proceedings pursuant to the APA if (1)
the BIA‟s action was not “committed to agency discretion by
law,” 5 U.S.C. § 701(a)(2); (2) no statute precluded review, 5
U.S.C. § 701(a)(1); (3) the BIA‟s action was a “final agency
action,” 5 U.S.C. § 704; and (4) no “special statutory review”
provision required that Chehazeh‟s action be brought in some
other form or forum, 5 U.S.C. § 703. We consider each of
those requirements below.




                             17
             1.     The BIA’s Decision to Sua Sponte
                    Reopen Removal Proceedings is Not
                    Committed to Agency Discretion By Law

       The government, relying on Calle-Vujiles v. Ashcroft,

, 475 (3d Cir. 2003), and related cases, argues
that the BIA has “unfettered discretion” (Letter Brief of
Appellee at 5 (July 15, 2011)) regarding whether to reopen
removal proceedings and, therefore, a BIA decision to sua
sponte reopen proceedings is committed to agency discretion
by law. Those precedents, however, were based on BIA
decisions declining to sua sponte reopen removal
proceedings. See 

(“[T]his
court is without jurisdiction to review a [BIA] decision
declining to exercise [sua sponte] discretion to reopen or
reconsider [a] case.” (emphasis added)); Alzaarir v. Att’y
Gen., 

, 89 n.2 (3d Cir. 2011) (“[T]he BIA‟s
decision not to reopen the proceedings sua sponte. … is a
discretionary decision beyond our jurisdiction.” (emphasis
added)). We have never decided whether a BIA decision to
reopen, as opposed to declining to reopen, is committed to
agency discretion.12 The government acknowledges that no

      12
          The government cites to a not precedential opinion
to support its position. Not precedential opinions are, by
definition, not binding on this Court, and our internal
operating procedures do not allow us to cite and rely upon
those opinions. See Internal Operating Procedures 5.7 (3d
Cir. 2010).
        The government also notes our statement from Pllumi
v. Attorney General that whether to sua sponte reopen is
“committed to the unfettered discretion of the BIA, [and] we
lack jurisdiction to review a decision on whether and how to




                            18
precedential opinion – in this Circuit or any other – has
decided whether decisions to reopen are unreviewable, but it
argues that there is “no principled basis” for distinguishing
“denials of reopening … from grants of reopening.” (Letter
Brief of Appellee at 2 (July 22, 2011).) We disagree. The
distinction between acting and not acting is not merely a
matter of semantics, and persuasive reasons for making such
a distinction can be found in precedent from the BIA, this
Court, and the Supreme Court.

        The BIA‟s authority to sua sponte reopen removal
proceedings comes from 8 C.F.R. § 1003.2(a), which states
that “[t]he Board may at any time reopen or reconsider on its
own motion any case in which it has rendered a decision.”
The regulation provides no guidance on how that authority
should be exercised, but the BIA has explained that it is not
boundless:

       [T]he Board retains limited discretionary
      powers under the regulations to reopen or
      reconsider cases on our own motion. That
      power, however, allows the Board to reopen
      proceedings sua sponte in exceptional situations
      not present here. The power to reopen on our

exercise that discretion.” 

, 159 (3d Cir. 2011).
Pllumi, however, involved a BIA decision refusing to sua
sponte reopen. 

Any suggestion that, for
reviewability purposes, grants of reopening are the same as
refusals, could not be more than dicta, uttered without the
benefit of the arguments that the parties have provided here,
which have illuminated the meaningful distinction between
the two.




                             19
       own motion is not meant to be used as a general
       cure for filing defects or to otherwise
       circumvent regulations, where enforcing them
       might result in hardship.

In re J-J-, 21 I. &. N. Dec. 976, 984 (BIA 1997) (emphasis
added) (internal citation omitted). It is apparent, therefore,
that the BIA views its authority to reopen as being limited and
only available in “exceptional situations,” 

being
“unfettered,” despite the government‟s current claim to the
contrary.     The BIA has consistently relied on that
“exceptional situations” limitation, applying it more than fifty
times in the year leading up to its decision to reopen
Chehazeh‟s case, see e.g., In re Juan Marquez, 

(BIA Nov. 1, 2007) (“Insofar as the motion requests
sua sponte reopening, we find that the motion does not
establish an exceptional situation warranting the exercise of
our discretionary authority.”); In re Ekins A. Hoyte, 

(BIA Aug. 2, 2007) (“[W]e find the pending motion
sufficiently compelling to provide an exceptional
circumstance warranting a reopening of [respondent‟s]
record.”); In re Guillermo Lenin Garcia Montenegro, 

(BIA Mar. 12, 2007) (“[W]e find that an
exceptional situation exists herein to warrant sua sponte
reopening of proceedings in the exercise of discretion.”), and
more than one-hundred times in the past year, see, e.g., In re
Werner Remberto Orozco-Lopez, 

(BIA
May 25, 2011) (“We further will not reopen these
proceedings sua sponte because the respondent has not
established an exceptional situation to do so.”); In re Elvi
Antonio Vicente Arias, 

(BIA Nov. 30,
2010) (“The respondent presents an exceptional situation
which warrants sua sponte reopening.”); In re Jose Santos




                              20
Diaz, 

(BIA Nov. 23, 2010) (“The
respondent does not present an exceptional situation which
warrants reopening on our own motion.”).13

       We have explained that “if an agency „announces and
follows – by rule or settled course of adjudication – a general
policy by which its exercise of discretion will be governed,‟”
the exercise of that discretion may be reviewed for abuse.

(quoting INS v. Yang, 

, 32 (1996)). Thus, because the BIA has announced
and followed a general policy that it will exercise its
discretion to reopen only in exceptional situations, we may
review a decision to reopen to determine whether it was based
upon an exceptional situation.

        That conclusion is supported by our reasoning in
Calle-Vujiles, the case in which we ruled that “decisions not
to sua sponte reopen or reconsider are 

. There, relying on the Supreme Court‟s
opinion in Heckler v. Chaney, we explained that courts may
not review matters “where the governing „statute is drawn so
that a court would have no meaningful standard of review
against which to judge the agency‟s exercise of discretion.‟”

(quoting Heckler v. Chaney, 

, 830
(1985)). Applying that principle, we explained that, while the
BIA is “allow[ed] … to reopen proceedings in exceptional
situations,” it is not “require[d] … to reopen proceedings in
exceptional situations.” 

Therefore, because the
BIA has “unfettered discretion to decline to sua sponte

      13
          In those decisions, the BIA uses the terms
“exceptional situations” and “exceptional circumstances”
interchangeably.




                              21
reopen,” even when there is an exceptional situation, the
“exceptional situations” requirement provides no meaningful
standard against which to judge a BIA‟s decision not to
reopen. 

is not true, though, when the BIA chooses to
exercise its authority to reopen. According to the BIA‟s own
“settled course of adjudication,” 

,
the authority to sua sponte reopen can be exercised only in
exceptional situations, and, therefore, the “exceptional
situations” requirement does provide a meaningful standard
by which to judge the agency‟s action. The legal difference
attached to the distinction between denials of reopening and
grants of reopening is supported – if not mandated – by
Heckler:

      [W]e note that when an agency refuses to act it
      generally does not exercise its coercive power
      over an individual‟s liberty or property rights,
      and thus does not infringe upon areas that courts
      often are called upon to protect. Similarly, when
      an agency does act to enforce, that action itself
      provides a focus for judicial review, inasmuch
      as the agency must have exercised its power in
      some manner. The action at least can be
      reviewed to determine whether the agency
      exceeded its statutory 

(emphasis in original). Heckler‟s guidance is
of particular import here. When the BIA refuses to reopen
proceedings, it puts an end to the administrative process
without the exercise of any additional “coercive power over
an individual‟s liberty or property rights.” 

                              22
when the BIA reopens proceedings, the administrative
process starts again, potentially placing in jeopardy an
adjudicated right to stay in this country.

        Moreover, if, as the government insists, the BIA has
unfettered power to reopen, nothing would prevent it from
reopening and remanding a case to a new immigration judge
over and over again until satisfied with the outcome. Neither
in its briefs nor at oral argument has the government offered
any suggestion of what would prevent such injustice, other
than its assurances that we can trust the BIA not to abuse its
power. Trust is a fine thing, and the public servants who
work to enforce our immigration laws – often with little of the
appreciation they are due – are, no doubt, generally well
worthy of trust. But our nation‟s Founders were wise enough
to know that “trust us” is a poor operating principle for
government. Hence they gave us the check of judicial
review, which is particularly appropriate here because, unlike
a refusal to reopen, a BIA decision granting reopening has
implications for substantive liberty rights and for due process
rights – both of which are “areas that courts often are called
upon to protect.” 

Heckler was the basis for our
holding in Calle-Vujiles that the BIA‟s refusal to reopen sua
sponte is unreviewable, Heckler also counsels against
extending that rule to situations where the BIA does exercise
its sua sponte authority. The import of Heckler is that
because a BIA decision to reopen proceedings “itself provides
a focus for judicial review, inasmuch as the agency must have
exercised its power in some manner,” that action “at least can
be reviewed to determine whether the agency exceeded its”
settled course of reopening only in exceptional situations. 

decision in Cruz v. Attorney General, 

(3d Cir. 2006), lends further support to our conclusion on
this point. In that case, we remanded a petition to the BIA
because we could not “tell from its opinion whether the BIA
concluded that Cruz made out a prima facie case for sua
sponte relief … but nevertheless exercised its unreviewable
discretion … to decline to reopen, or whether it believed that
Cruz had not shown an „exceptional situation,‟ and was
therefore ineligible … for sua sponte relief.” 

We
explained that if it was the latter, “we would have jurisdiction
to review the BIA‟s decision,” 

suggests
that courts have jurisdiction to review the threshold question
of whether there was an exceptional situation.

       We are thus persuaded that there are indeed principled
reasons for distinguishing between the reviewability of a BIA
decision denying reopening and the reviewability of a BIA
decision granting reopening. In sum, because the BIA has
limited its reopening authority only to exceptional situations,
when it exercises that authority, there is a basis for judicial
review to determine whether the agency decision was based
upon an exceptional situation.14

       14
          We recognize that it may not always be obvious
whether a situation is exceptional. That, however, is no
impediment to judicial review. The “exceptional situations”
requirement is, in that regard, similar to the requirement
discussed in Smriko that a decision be streamlined only where
the “issues raised upon appeal are not so substantial that the
case warrants the issuance of a written 

. As we explained there, “[t]he fact that [the requirement]
may require the exercise of some discretion on the part of the
[BIA] that may be deserving of some deference is, of course,




                              24
              2.     No Statute Precludes Review of the BIA’s
                     Decision

       The government argues that, to the extent the District
Court might otherwise have jurisdiction, amendments to the
immigration laws promulgated by the REAL ID Act preclude
judicial review. Specifically, the government cites 8 U.S.C.
§ 1252(b)(9) and 8 U.S.C. § 1252(g).

                     (a)    8 U.S.C. § 1252(b)(9)

       Section 1252(b)(9) states:

       Judicial review of all questions of law and fact,
       including interpretation and application of
       constitutional and statutory provisions, arising
       from any action taken or proceeding brought to
       remove an alien from the United States under
       this subchapter shall be available only in
       judicial review of a final order under this
       section. Except as otherwise provided in this


not relevant; the APA expressly authorizes review of the
exercise of discretion for abuse.” 

a
situation is exceptional is no more difficult than determining
whether factual and legal issues are substantial, and “it will be
the rare case, indeed, where the reviewing court, having
received the administrative record and the briefs of the
parties, will have any difficulty, without more, reaching a
decision as to whether the [BIA] was so wide of the mark in
applying [the „exceptional situations‟ requirement] that [its]
action can be characterized as arbitrary and capricious.” 

                               25
      section, no court shall have jurisdiction, by
      habeas corpus under section 2241 of Title 28 or
      any other habeas corpus provision, by section
      1361 or 1651 of such title, or by any other
      provision of law (statutory or nonstatutory), to
      review such an order or such questions of law
      or fact.

       Based on that provision, the government argues that
“judicial review of a final order” is the only avenue to review
any issue arising from a “proceeding brought to remove an
alien.” 8 U.S.C. § 1252(b)(9). There is obvious force to that
reasoning, given the quoted text, but the Supreme Court has
noted that § 1252(b)(9) is subject to the limitations of
§ 1252(b), and, therefore, “applies only „[w]ith respect to
review of an order of removal under subsection (a)(1).‟” INS
v. St. Cyr, 

, 313 (2001) (quoting 8 U.S.C.
§ 1252(b)).15 Section 1252(b)(9), “by its own terms,” does

      15
          Section 1252(b) states: “With respect to review of an
order of removal under subsection (a)(1) of this section, the
following requirements apply …”. Because § 1252(b) only
applies “[w]ith respect to review of an order of removal under
subsection (a)(1),” which, in turn, provides for “[j]udicial
review of a final order of removal,” the provisions in
§ 1252(b) only apply when, unlike this case, there is a final
order of removal issued.           Our dissenting colleague
nevertheless reads 8 U.S.C. § 1252(b)(6) to manifest a clear
congressional intention to require aliens to secure a final
order of removal before seeking any type of judicial review of
any type of order in any type of forum. (Dissenting Op. at 4;
see 

1252(b)(6) and arguing that we should not
“circumvent Congress‟s clear intention to allow aliens only




                              26
not bar review of an order “not subject to judicial review
under § 1252(a)(1),” St. 

, and
§ 1252(a)(1) describes only “review of a final order of
removal.” See 8 U.S.C. § 1252(a)(1) (“Judicial review of a
final order of removal … is governed only by chapter 158 of
title 28, except as provided in subjection (b) of this
section … .”). Section 1252(b)(9), therefore, requires only
that, when there is an order of removal under subsection
(a)(1), review of any issues related to that order must be
consolidated into a single petition for review and cannot be
brought piecemeal. One may not, for instance, follow a
petition for review with a habeas petition or a petition for a
writ of mandamus.16

one opportunity to seek review of a motion to reopen as part
of the review of the order of removal before a court of
appeals … .”).) Section 1252(b)(6) provides: “When a
petitioner seeks review of an order under this section, any
review sought of a motion to reopen or reconsider the order
shall be consolidated with the review of the order.” Read in
conjunction with subsection (a)(1), the only thing
§ 1252(b)(6) clearly does is require a motion to reopen or
reconsider to be consolidated before us on an appeal when
there is a final order of removal. There is no such order here.
       16
          Thus, in Bonhometre v. Gonzales, we stated that
§ 1252(b)(9), as amended by the REAL ID Act, “effectively
limit[s] all aliens to one bite of the apple with regard to
challenging an order of removal, in an effort to streamline
what Congress saw as uncertain and piecemeal review of
orders of removal, divided between the district courts (habeas
corpus) and the courts of appeals (petitions for review).” 

, 446 (3d Cir. 2005) (emphasis added). Bonhometre
reinforces the view that § 1252(b)(9) is aimed at




                              27
        Although St. Cyr issued prior to the REAL ID Act, the
REAL ID Act did not modify § 1252(b) or the instruction that
§ 1252(b)(9) “applies only „[w]ith respect to review of an
order of removal under subsection (a)(1).‟” St. 

(quoting 8 U.S.C. § 1252(b)). Since that time, both the
Ninth and Eleventh Circuits have held that, when a person is
not seeking review of “an order of removal under subsection
(a)(1),” the limitations of § 1252(b)(9) do not apply. See
Singh v. Gonzalez, 

, 978 (9th Cir. 2007) (“By
virtue of [its] explicit language … 1252(b)(9) appl[ies] only
to those claims seeking judicial review of orders of
removal.”); Madu v. Att’y Gen., 

, 1367 (11th
Cir. 2006) (explaining that “section 1252(b)(9) applies only
[w]ith respect to review of an order of removal” and that the
REAL ID Act “did not expand the scope of [§ 1252(b)(9)] by
making it applicable to cases other than those involving
„review of an order of removal‟” (internal quotation marks
omitted))); cf. House Conference Report on the REAL ID
Act, H.R. Rep. No. 109-72, at 175, 2005 U.S.C.C.A.N. 240,
299 (“[S]ection 106 would not preclude habeas review over
challenges to detention that are independent of challenges to
removal orders. Instead, the bill would eliminate habeas
review only over challenges to removal orders.”).

       While we have not written precedentially on the scope
of § 1252(b)(9) after the REAL ID Act, we have addressed
the effect of nearly identical language in § 1252(a)(5). In
Kumarasamy v. Attorney General, we considered whether a
habeas petition that was before us on appeal when the REAL


consolidating all challenges to an order of removal and not
aimed at consolidating claims arising from administrative
actions unrelated to an order of removal.




                             28
ID Act came into effect should be converted into a petition
for review pursuant to 8 U.S.C. § 1252(a)(5). 

,
172 (3d Cir. 2006). That subsection states that a “petition for
review filed with an appropriate court of appeals … shall be
the sole and exclusive means for judicial review of an order
of removal.” 8 U.S.C. § 1252(a)(5). The petitioner in
Kumarasamy had not been seeking review of an order of
removal but was seeking habeas relief, claiming that his
deportation was illegal “because there was no order of

(emphasis in original). We held
that § 1252(a)(5) did not apply, because that provision
pertained only to “judicial review of an order of removal.”

original). Our holding in Kumarasamy
supports the conclusion that, because § 1252(b) refers only to
“review of an order of removal under subsection (a)(1),” it,
and its subsections, are inapplicable when there is no such
order.17

      17
          The government argues that Kumarasamy actually
supports its position. Citing a footnote in Kumarasamy in
which we explained that § 1252(b)(9) had been amended by
the REAL ID Act to clarify that it “„preclude[s] any habeas
corpus review over certain removal-related claims,‟” the
government asserts that we held that any review of an
“„action taken or a proceeding brought to remove [an alien]‟”
is limited by § 1252(b)(9) to review of a final order, “even if
removal proceedings have not yet commenced or no final
order of removal is in place.” (Letter Brief of Appellee at 1-2
(July 15, 2011) (quoting 

n.5).)
But even if that portion of Kumarasamy is read in the manner
the government urges – which would place Kumarasamy‟s
interpretation of § 1252(b)(9) in stark contrast with its
interpretation of the nearly identical language in § 1252(a)(5)




                              29
       Not all courts agree with the conclusion reached by the
Ninth and Eleventh Circuits and suggested by us in
Kumarasamy.18 The First Circuit held in Aguilar v. United
States Immigration & Customs Enforcement that “the reach of
section 1252(b)(9) is not limited to challenges to singular
orders of removal.” 

, 9 (1st Cir. 2007).19 The


– Kumarasamy expressly restricts that statement to dicta,
explaining that we did not need to “reach the question of
whether §[] 1252(b)(9)” applied because “the District Court
lacked jurisdiction on [a] separate 

n.5.
       18
          In addition to the Ninth and Eleventh Circuits, the
Tenth Circuit, in dicta, has also stated that 1252(b)(9) applies
only to review of orders of removal. See Ochieng v.
Mukasey, 

, 1115 (10th Cir. 2008) (“It appears
that subsequently-enacted provisions of the REAL ID Act
limiting habeas relief, codified at 8 U.S.C. §§ 1252(a)(5) and
1252(b)(9), do not apply in these circumstances, as Mr.
Ochieng would not be seeking review of an order of removal,
but review of his detention.”) The Eighth Circuit appears to
acknowledge at least the possibility that § 1252(b)(9) might
not apply when there is no final order of removal. See Skurtu
v. Mukasey, 

, 657-58 (8th Cir. 2008)
(acknowledging the Ninth Circuit‟s conclusion that
§1252(b)(9) “by [its] plain language, appl[ies] to only those
claims seeking judicial review of orders of removal,” but
concluding that the Skurtu petitioner was, in fact, “seek[ing]
review of the IJ‟s removal order”).
       19
       Although Aguilar draws a different conclusion than
we do on the question of the scope of § 1252(b)(9), the




                              30
reasoning of Aguilar, however, appears to conflict with the
Supreme Court‟s explicit instruction in St. 

(“[Section 1252(b)(9)] applies only „[w]ith respect to
review of an order of removal under subsection (a)(1).”), and
with the language of § 1252(b) (“With respect to review of an
order of removal under subsection (a)(1) of this section, the
following requirements apply … .”). We therefore join with
the Ninth and Eleventh Circuits and hold that § 1252(b)(9)
applies only “[w]ith respect to review of an order of removal
under subsection (a)(1).” 8 U.S.C. § 1252(b). Because
Chehazeh is not seeking review of any order of removal – as
there has been no such order with respect to him –



reasoning of Aguilar may still allow review of Chehazeh‟s
claim.     There, the First Circuit explained that, while
§ 1252(b)(9) is not limited to review of orders of removal, it
would be “perverse” to read § 1252(b)(9) as encompassing
claims that, “by reason of the nature of the right asserted,
cannot be raised efficaciously within the administrative
proceedings delineated in the 

.
Congress, it said, “inten[ded] to channel, rather than bar,
judicial review through the mechanism of section 1252(b)(9)”
and to read § 1252(b)(9) as encompassing claims “that cannot
effectively be handled through the available administrative
process” would be inconsistent with the presumption “that
there be clear and convincing evidence of legislative intent
before restricting access to judicial review entirely.” 

at length infra Part III(A)(3)(b), Chehazeh‟s claim
could not be “raised efficaciously” if it could be brought only
after a final order of removal. Thus, even under the First
Circuit‟s reasoning in Aguilar, § 1252(b)(9) would, it seems,
not bar review of Chehazeh‟s claim.




                              31
§ 1252(b)(9)    does      not    preclude   judicial    review.

                    (b)     8 U.S.C. § 1252(g)

      Section 1252(g), titled “Exclusive jurisdiction,” states:

      Except as provided in this section and
      notwithstanding any other provision of law
      (statutory or nonstatutory), including section
      2241 of Title 28, or any other habeas corpus
      provision, and sections 1361 and 1651 of such
      title, no court shall have jurisdiction to hear any
      cause or claim by or on behalf of any alien
      arising from the decision or action by the
      Attorney General to commence proceedings,
      adjudicate cases, or execute removal orders
      against any alien under this chapter.

       The government argues that Chehazeh‟s claim arises
from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal
orders, and, therefore, review of that claim before there has
been a final order is precluded under § 1252(g). If the
government‟s position is accepted, then § 1252(g) would
preclude judicial review of any action related to removal
proceedings, other than a final removal order, as any such
claim could be said to “aris[e] from the decision or action by
the Attorney General to commence proceedings.” 

accept that position. If § 1252(g) precludes review of
any action related to removal proceedings with the sole
exception of a final order of removal, then, by insulating BIA
decisions to sua sponte reopen proceedings, § 1252(g)
effectively becomes a “do-over” provision, allowing the BIA




                                32
to repeatedly remand proceedings to a new IJ until the
government likes the outcome. As already 

Part III(A)(1), such a result would give rise to serious due
process concerns.

       Fortunately, the Supreme Court has explained that
§ 1252(g) has a more limited scope than the government
claims for it. In Reno v. American-Arab Anti-Discrimination
Committee, the Court said that § 1252(g) was designed to
address only three discrete actions by the Attorney General:
the “decision or action to commence proceedings, adjudicate
cases, or execute removal orders.” 

, 482 (1999)
(internal quotation marks omitted). It is not “a sort of
„zipper‟ clause that says „no judicial review in deportation
cases unless this section provides judicial review,‟” as “it is
implausible that the mention of three discrete events along the
road to deportation was a shorthand way of referring to all
claims arising from deportation proceedings.” 

1252(g) was “directed against a particular evil: attempts to
impose judicial constraints upon prosecutorial discretion.” 

n.9.

       We recognize that BIA decisions may be construed as
actions of the Attorney General, see, e.g., 8 C.F.R.
§ 1003.1(a)(1) (explaining that the members of the BIA are
“appointed by the Attorney General to act as the Attorney
General‟s delegates”), and, therefore, that BIA actions may in
some cases implicate § 1252(g). This is not one of those
cases, however, because the decision to sua sponte reopen
proceedings is not a prosecutorial decision to “commence
proceedings, adjudicate cases, or execute removal orders.”

. Rather, it is a quasi-judicial decision
to reconsider an already adjudicated case.




                              33
        An argument might be made that a decision to reopen
is similar enough in character to a decision to adjudicate a
case in the first instance that any reopening should be
encompassed within § 1252(g), but we think that position is
untenable for two reasons. First, and most importantly, in
listing the kinds of “decisions or actions that may be part of
the deportation process” but are not encompassed by
§ 1252(g), the Supreme Court included the decision “to refuse
reconsideration of [a removal order].” 

Supreme
Court distinguished between the initial adjudication of a case
and the reconsideration of that case, declaring that the latter
was not encompassed within § 1252(g).20 Second, as the
Supreme Court noted, § 1252(g) was “directed against a
particular evil: attempts to impose judicial constraints upon
prosecutorial discretion.” 

n.9. Using the template
of prosecutorial discretion, one can see that the decision to
adjudicate a case in the first instance – to indict a criminal
and bring him to trial – is considered an act of unreviewable
discretion, but the traditional ambit of that discretion does not

       20
          We recognize, of course, that refusing to reconsider
is not the same as reconsidering. We have already opined
that there is a material difference between an agency doing
something and refusing to do something. Here, however, that
difference only reinforces our point because, as explained in
Heckler, when an agency refuses to take action, it is generally
afforded a greater degree of deference than when it actually
takes 

. Thus, when, as in this instance,
even the refusal to reconsider a case is not encompassed
within § 1252(g)‟s protection of prosecutorial discretion, the
act of reconsidering a case – which is afforded less deference
– should not be either.




                               34
include a right for prosecutors to order the relitigation of any
case they lose. When the BIA decides to reopen a case, it is
acting in a quasi-judicial role, similar to a judge granting a
new trial. It is not in a prosecutorial role.

       According to the Supreme Court‟s analytical construct,
§ 1252(g) was designed to make unreviewable prosecutorial
decisions, not quasi-judicial ones. We therefore conclude
that, when the BIA reopens removal proceedings, its action
does not constitute a “decision or action by the Attorney
General to commence proceedings, adjudicate cases, or
execute removal orders,” and, thus, claims arising from that
action do not fall within the scope of § 1252(g). Because
§ 1252(g) and § 1252(b)(9) – the only potential statutory
barriers identified by the government – do not preclude
review, there is apparently no statute that precludes judicial
review of the BIA‟s decision to reopen Chehazeh‟s removal
proceedings.21

       21
          Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) apply here. In
Kucana v. Holder, the Supreme Court held that 8 U.S.C.
§ 1252(a)(2)(B)(ii) applies only to “statutory, but not to
regulatory” grants of discretion. --- U.S. ---, 

,
831 (2010). As the Court explained, the BIA‟s power to
reopen asylum proceedings is specified not in a statute but in
regulation: “Congress did not codify the regulation delegating
to the BIA discretion to grant or deny motions to reopen. See
8 CFR § 1003.2(a) (reopening may be entertained not only on
application; the Board „may at any time reopen ... on its own
motion any case in which it has rendered a decision‟).” 

Indeed, it was for that reason, the Court held that “[t]he
BIA has broad discretion, conferred by the Attorney General,
„to grant or deny a motion to reopen,‟ 8 CFR § 1003.2(a), but




                              35
              3.     The BIA’s Decision to Reopen
                     Chehazeh’s Removal Proceedings is a
                     Final Agency Action

                     (a)    The “Collateral Order Doctrine”
                            Applies     to     Review    of
                            Administrative Decisions

        The BIA‟s decision to reopen Chehazeh‟s case was not
a final disposition of the renewed administrative proceedings.
Therefore, we must first consider whether agency action that
does not conclude administrative proceedings may ever be
considered “final agency action” for purposes of Section 704.

       A provision analogous to Section 704‟s “final agency
action” requirement is found in 28 U.S.C. § 1291, which
permits appellate review only of “final decisions” of a district
court. In that context, it has long been understood that, while
“a „final decision‟ generally is one which ends the litigation
on the merits,” Catlin v. United States, 

, 233
(1945), other preliminary decisions may be “final” if they are
“conclusive,” “resolve important questions completely
separate from the merits,” and would be “effectively
unreviewable on appeal from final judgment in the underlying
action.” Digital Equip. Corp. v. Desktop Direct, Inc., 

, 867 (1994). That understanding, known as the
“collateral order doctrine,” is best seen “not as an exception
to the final decision rule … but as a practical construction of
it, which recognizes that [w]hile a final judgment always is a
final decision, there are instances in which a final decision is


courts retain jurisdiction to review, with due respect, the
Board‟s decision.” 

                              36
not a final judgment.” Harris v. Kellogg Brown & Root
Servs. Inc., 

, 400 (3d Cir. 2010) (internal
quotation marks and citations omitted).

       While we have never considered whether the collateral
order doctrine applies to judicial review of agency decisions,
the nine Courts of Appeals that have addressed the question
have all concluded that it does. See Hale v. Norton, 

, 698 (9th Cir. 2007) (holding that the collateral order
doctrine applies to review of administrative decisions); Rhode
Island v. EPA, 

, 24-25 (1st Cir. 2004) (holding the
same and citing cases in the Second, Fourth, Fifth, Sixth,
Tenth, Eleventh, and D.C. circuits also holding the same).
The Supreme Court has likewise strongly suggested that the
doctrine applies in the administrative context. See Bell v.
New Jersey, 

, 778 (1983) (“We conclude that, at
least in the absence of an appealable collateral order, the
federal courts may exercise jurisdiction only over a final
order of the Department [of Education].” (emphasis added)
(internal citations omitted)). We see no reason to depart from
the unanimous view on the issue and, therefore, join in
holding that the collateral order doctrine applies to judicial
review of agency decisions.

                     (b)    The BIA’s Decision           is   a
                            Collateral Order

        Because the BIA‟s decision did not conclude the
administrative proceedings on the merits, it is reviewable as a
collateral order only if it (1) is “conclusive,” (2) “resolve[s]
important questions completely separate from the merits,”
and (3) would be “effectively unreviewable on appeal from




                              37
final judgment in the underlying action.” Digital 

.

       Chehazeh has already availed himself of the only
administrative remedy available to him – asking the BIA to
reconsider its decision to reopen – and, therefore, absent
judicial review, Chehazeh will be forced to go through a
second round of removal proceedings. In light of that fact,
the government does not dispute that the BIA‟s decision is
“conclusive,” and indeed it is.

        The government does argue, however, that the other
two requirements for collateral review are not present here.
First, it contends that the BIA‟s decision does not “resolve
important questions completely separate from the merits,” 

BIA justified its decision to reopen by citing the
FBI‟s inability to rule out the possibility that Chehazeh is a
national security threat. That argument, though, misses the
point. While the question of whether Chehazeh is a national
security threat does go to the merits of whether he should
continue to enjoy asylum, the BIA‟s decision neither resolves
nor even addresses that question. Instead, the decision
addresses whether the FBI‟s inability to rule out that
possibility warranted reopening the proceedings.           The
question resolved by the BIA, therefore, was whether the
FBI‟s inability to determine whether a person is a security
threat gives rise to an exceptional situation justifying
reopening. That question is separate from the merits of
whether Chehazeh is, in fact, a security threat. Similarly, the
BIA‟s determination that allegations of IJ partiality justified
reopening pertains to a question separate from the merits of
Chehazeh‟s asylum claim. If the District Court should later
review the BIA‟s decision, it, likewise, will be tasked not




                              38
with determining whether Chehazeh is a national security
threat but with determining whether the FBI‟s inability to rule
out that possibility, coupled with allegations of IJ partiality,
constituted exceptional situations. Both of those questions
are distinct and separate from the merits of whether
Chehazeh‟s asylum application should be granted. We
therefore conclude that the BIA‟s decision “resolve[s]
important questions completely separate from the merits.” 

government contends that the BIA‟s
decision is not “effectively unreviewable on appeal from final
judgment in the underlying action.” 

of that
argument, the government cites Will v. Hallock, in which the
Supreme Court held that when a party seeks to avoid trial
through collateral order review of a pre-trial order, the order
is reviewable only if there are “compelling public ends.” 

, 351-52 (2006). The Supreme Court reasoned that
“almost every pretrial or trial order might be called
„effectively unreviewable‟” and allowing collateral order of
all of them “would leave the final order requirement of
§ 1291 in tatters.” 

That observation is sound but
inapposite here.

        Chehazeh is not seeking collateral review of a pre-trial
order so as to avoid litigation. He is seeking, instead,
collateral review of a post-adjudication order so as to enforce
the result of an adjudication that has already taken place.
That there is a legally significant difference between seeking
to avoid litigation in the first instance and seeking to avoid
relitigating an issue that has already been decided was
explicitly recognized in Will, and listed as a “compelling
public end” that supports collateral order review. The
Supreme Court explained that, in the context of a criminal




                              39
prosecution, while collateral order review was unavailable to
avoid trial in the first instance because an individual does not
have “a right to be free of all proceedings whatsoever,”
collateral order review was available to consider a claim of
double jeopardy because “the only way to alleviate the[]
consequences of the Government‟s superior position was by
collateral order appeal.” 

Of course, this is not a
criminal case, and the Double Jeopardy clause is not at issue.
Nonetheless, the reasons why collateral order review can be
invoked to avoid double jeopardy, as described in Abney v.
United States, are instructive here:

        [T]he underlying idea, one that is deeply
       ingrained in at least the Anglo-American system
       of jurisprudence, is that the State with all its
       resources and power should not be allowed to
       make repeated attempts to convict an individual
       for an alleged offense, thereby subjecting him to
       embarrassment, expense and ordeal and
       compelling him to live in a continuing state of
       anxiety and insecurity.

, 661-62 (1977) (internal quotation marks
omitted).

       Should the BIA be free to sua sponte reopen removal
proceedings, without the possibility of judicial review,
nothing would prevent it, “with all its resources and power”
from “mak[ing] repeated attempts to [deport Chehazeh],
thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of anxiety




                              40
and insecurity.”22 

that the government, in this
case, may not be constitutionally prohibited by the Double
Jeopardy Clause from using its “resources and power” in a
particular way does not mean that we should be unconcerned
by the possible abuse of that power – particularly when, as
here, that power is supposed to be used only in exceptional
situations.

       Indeed, in Duvall v. Attorney General we recognized
the magnitude of the concerns raised by repeated relitigation
when we noted that “[s]ubstantive due process may offer
some protection against repeated relitigation of the same issue
by an administrative agency.” 

, 387 n.5 (3d Cir.
2006). For reasons substantially similar to the concerns
explained above, in Duvall we interpreted the INA as
incorporating principles of collateral estoppel:          “The
adversarial system of dispute resolution established in the
INA is plainly adjudicatory in character and susceptible to
full application of common law principles of preclusion.” 

As we explained, if that were not true, “[f]ailure to
satisfy the burden of proof at one hearing before one

      22
           We have previously applied Sixth Amendment
jurisprudence by analogy in the immigration context. See
Fadiga v. Att’y Gen., 

, 157 & n.23 (3d Cir.
2007) (borrowing from Sixth Amendment jurisprudence in an
immigration case because, although “[a]s a matter of formal
constitutional doctrine, the Sixth Amendment … does not
apply in a civil context such as immigration proceedings[,] …
we cannot treat immigration proceedings like everyday civil
proceedings … because … the liberty of an individual is at
stake in deportation proceedings” (internal quotation marks
omitted)).




                              41
immigration judge would have no effect on the government‟s
ability to bring successive proceedings in front of successive
immigration judges,” and “[t]he same evidence could be
introduced and the same witnesses could be interrogated, over
and over, until the desired result is achieved.” 

That conclusion comports with a lengthy line of case law in
this circuit and in our sister circuits. See, e.g., Alvear-Velez v.
Mukasey, 

, 677 (7th Cir. 2008) (holding that, as
a general matter, res judicata applies to administrative
hearings and works to minimize “the expense and vexation
attending multiple lawsuits”); Babcock & Wilcox Co. v.
Marshall, 

, 1138 (3d Cir. 1979) (holding that
exhaustion of administrative remedies is not always required
when, for example, “the administrative procedure itself is
alleged to violate a constitutional right … by subjecting a
party to „vexatious and harassing‟ prosecutions by refusing to
apply collateral estoppel”); Cont’l Can Co., U.S.A. v.
Marshall, 

, 597 (7th Cir. 1979) (holding that in
the administrative adjudication context, it is “rather
fundamental” and is a “basic tenet of due process” that “the
Government cannot, without violating due process, needlessly
require a party to undergo the burdens of litigation” because
“[t]he Government is not a ringmaster for whom individuals
and corporations must jump through a hoop at their own
expense each time it commands” (internal quotation marks
omitted)); cf. Bartkus v. Illinois, 

, 127 (1959)
(holding that “the cruelty of harassment by multiple
prosecutions” can violate the Due Process clause of the Fifth
Amendment).

       This case is not about “mere avoidance of a trial, but
avoidance of a trial that would imperil a substantial public
interest” – namely the public‟s interest in “mitigating the




                                42
government‟s advantage over the individual” and preventing
the government from using its superior “resources and
power” to re-run removal proceedings except in exceptional
situations. 

. Those interests are
compelling because they “count when asking whether an
order is „effectively‟ unreviewable if review is to be left until
later,” 

because they raise concerns so substantial as
to implicate the due process clause. See 

n.5. Thus, we hold that the BIA‟s order sua sponte
reopening Chehazeh‟s removal proceedings would be
effectively unreviewable on appeal from a final judgment.
Because the BIA‟s order is also conclusive, and decides
important questions separate from the merits of Chehazeh‟s
asylum claims, it is, pursuant to the collateral order doctrine
and for purposes of judicial rewiew, the functional equivalent
of a final agency action.23

       23
          The government also makes the further claim that
the District Court lacks jurisdiction because Chehazeh has not
exhausted his administrative remedies. With respect to the
harm of being forced to relitigate his case, however,
Chehazeh has exhausted the only administrative remedy
available to him – asking the BIA to reconsider its order.
This is not a case like Duvall v. Elwood, where the alien was
“„attempting to prevent … deportation proceeding[s] from
taking place in the first instance,‟” and therefore, had not
exhausted the remedy of the “deportation … hearing itself.”

, 233 (3d Cir. 2003) (quoting Massieu v. Reno,

, 421 (3d Cir. 1996)) (alterations in original). As
already discussed, Chehazeh has been through “deportation
proceeding[s] … in the first instance,” 

seeking to
enforce the result of those proceedings. Even if we were to
conclude that Chehazeh had not exhausted his administrative




                               43
              4.     No     “Special   Statutory   Review”
                     Provision Requires that the Action be
                     Brought in Some Other Form or Forum

       “Where the governing statute provides for „special
statutory review‟ … that is the form that the required judicial
review will take.” 

(quoting 5 U.S.C.
§ 703). As previously noted, while a “special statutory
review” provision dictates the process pertaining to final
orders of removal, see 8 U.S.C. § 1252(b), (b)(9) (“With
respect to review of an order of removal … [,][j]udicial
review of all questions of law and fact … shall be available
only in judicial review of a final order under this section.”),
there is no such provision with respect to final or effectively
final BIA actions besides final orders of removal.
Consequently, the proceeding may take “any applicable form
of legal action … in a court of competent jurisdiction,” 5
U.S.C. § 703.24

remedies, however, there is an exception to the exhaustion
requirement when the claim for which review is sought is
wholly collateral to the merits of the administrative
proceedings. 

. As discussed
above, Chehazeh‟s claim that the BIA erred in reopening his
removal proceedings is collateral to the merits of those
proceedings.
       24
         As 

at note 15, our dissenting
colleague believes that Congress intended a final order of
removal to be a condition precedent to judicial review before
a federal appellate court. (Dissenting Op. at 4; see 

14 n.8 (“If the established procedures are allowed to go
forward as provided in the statute, … Chehazeh will be able
to obtain review of the decision reopening the case upon




                              44
       Thus, because no statute precludes review of the BIA‟s
decision, which is effectively final and not committed to
agency discretion by law, the District Court has jurisdiction to
review the decision. We will therefore reverse its order
dismissing for lack of jurisdiction.

       B.     Whether the BIA’s Decision is Justified by
              an “Exceptional Situation”

        Because the District Court believed that it did not have
jurisdiction over Chehazeh‟s petition, it never addressed
whether the BIA‟s decision to reopen proceedings was
warranted by an exceptional situation. We may decide a
question not addressed by the District Court when “the record
has been sufficiently developed for us to resolve [the] legal
issue.” In re Ben Franklin Hotel Assocs., 

, 306
(3d Cir. 1999). Here, the BIA offered two justifications for
its decision: that “the FBI has been unable to rule out the


conclusion of the proceedings.”).) Thus, he rejects our
conclusion that no special statutory review provision requires
that the action be brought in some other form or forum, and
he points to 8 U.S.C. § 1252(a)(2)(D) as support. That
statute, however, is not apposite. It provides that the
provisions limiting or eliminating judicial review in the Real
ID Act do not extend to constitutional or legal questions
which the court of appeals may properly consider
notwithstanding § 1252(a)(2)‟s list of “[m]atters not subject
to judicial review.” It does not speak at all to the question of
whether relief under the APA must be sought in a particular
forum, and it certainly does not establish a rigid protocol
whereby an alien must be ordered removed by the BIA before
pursuing any relief in any forum.




                              45
possibility that the respondent poses a threat to the national
security of the United States,” (App. at 112) and that the BIA
was “concerned that the Immigration Judge failed to adhere to
the role of impartiality assigned to her as one acting in a
judicial or quasi-judicial capacity.” (App. at 152.) We
conclude that the record is insufficient for us to determine
whether either of those alleged situations are exceptional,
and, therefore, we will remand to the District Court.

       With respect to the BIA‟s first proffered reason – the
FBI‟s inability to rule out the possibility that Chehazeh is a
national security threat – a “blink” response is that it may not
be exceptional. “[P]roving a negative is a challenge in any
context,” Vieth v. Jubelirer, 

, 311 (2004)
(Kennedy, J., concurring), and if the BIA were able to reopen
any proceeding in which the FBI was “unable to rule out the
possibility” that a person was a security threat, reopening may
perhaps become a regular occurrence and hardly exceptional.
Moreover, the facts known at the time of the initial removal
proceedings led the IJ to conclude that Chehazeh was “not a
danger to the United States and that [he was] not involved in
any kind of terrorist activities” – a conclusion based on “the
FBI ha[ving] carefully examined [his] case” and determining
that he was “no longer to be of special interest.” (App. at 49.)
The government never pursued its appeal of that decision.
Nor, in moving to reopen, has the government offered any
new facts suggesting that Chehazeh was, or has become, a
security threat. Allowing the BIA to reopen under these
circumstances would thus appear to circumvent the general
requirement that a motion to reopen “shall not be granted
unless it appears to the Board that evidence sought to be
offered is material and was not available … at the former
hearing.” 8 C.F.R. § 1003.2(c)(1).




                              46
        The BIA has plainly stated that its sua sponte authority
is not designed to “circumvent the regulations.” In re J-J-, 21
I. & N. Dec. at 984. That authority may, of course, have the
effect of circumventing the regulations when an exceptional
situation calls for it, but wherever the line between an
unexceptional situation and an exceptional situation lies, we
wonder whether – on this record – this case is near it.
Nevertheless, we cannot say whether the FBI might have
heretofore-undiscussed criteria by which it can, in ordinary
circumstances, effectively rule out aliens as security threats,
and we certainly cannot say with assurance that there was not
an exceptional reason for some change in the FBI‟s
assessment of Chehazeh. Thus, the record is insufficient for
us to decide the issue.

        With respect to the concern that “the Immigration
Judge failed to adhere to the role of impartiality assigned to
her as one acting in a judicial or quasi-judicial capacity,”
(App. at 152), the BIA has not given much detail regarding
the allegedly problematic conduct. Most of what we know is
from the INS appeal from the initial IJ decision, in which,
among other things, the INS asserted that the IJ had ordered it
“to assist [Chehazeh] in preparing his [application for asylum
and withholding of removal],” or else she would “assume [he]
had a meritorious claim and grant him asylum,” and that,
“[u]ltimately, the Immigration Judge personally reviewed and
completed [his application].” (App. at 311.)

      If, in fact, those allegations are true, they certainly
seem unusual and may warrant categorizing the
circumstances as exceptional. But, again, based on the record
before us, we cannot make that determination. We will




                              47
therefore remand to the District Court to allow the parties to
supplement the record so that that Court can “review the
whole record,” 5 U.S.C. § 706, to determine whether there
was an exceptional situation that warranted reopening
Chehazeh‟s removal proceedings.

IV.    Conclusion

        For the foregoing reasons, we will reverse the District
Court‟s order dismissing Chehazeh‟s petition for lack of
jurisdiction and will remand for the District Court to consider
whether the BIA‟s decision to reopen Chehazeh‟s removal
proceedings was warranted by an exceptional situation.




                              48
GREENAWAY, JR., Circuit Judge, dissenting,

       Since I conclude that Congress has established a
clearly defined system for the courts to review decisions of
the Board of Immigration Appeals (―BIA‖), which requires
that petitions for review be filed with the courts of appeals,
and not the district courts, I find that I must respectfully
dissent from the majority‘s opinion. Congress, by enacting
the REAL ID Act, vested courts of appeals with jurisdiction
to review orders reopening removal proceedings. 8 U.S.C. §
1252(b)(6).1 This specific statutory authority overrides the
application here of the provisions of the Administrative
Procedures Act (―APA‖), and undermines the majority‘s
reasoning.

       The majority sets forth the factual and procedural
history of this matter in thorough detail. I have nothing to
add. Similarly, the majority clearly recites the factors we
must review in determining whether the APA applies. As
they state, review under the APA is available

             if (1) the BIA‘s action was not
             ―committed to agency discretion
             by law,‖ 5 U.S.C. § 701(a)(2); (2)
             no statute precluded review, 5
             U.S.C. § 701(a)(1); (3) the BIA‘s
             action was a ―final agency
             action,‖ 5 U.S.C. § 704; and (4)

      1
         Section 1252(b)(6) provides that ―[w]hen a petitioner
seeks review of an order under this section, any review sought
of a motion to reopen or reconsider the order shall be
consolidated with the review of the order.‖




                              1
              no ―special statutory review‖
              provision     required     that
              Chehazeh‘s action be brought in
              some other form or forum, 5
              U.S.C. § 703.

Majority Dec. at 17.

       While I think the majority‘s reasoning on factors (1)2
and (3)3 is open to debate, my principal point of disagreement


       2
             While I agree with the majority‘s ultimate
conclusion that the BIA‘s decision in this case is not
discretionary, I would reach that decision by a different, and
somewhat shorter, path. The government‘s motion, filed
pursuant to 8 C.F.R. § 1208.24, sought to reopen the
proceedings in order to terminate Chehazeh‘s asylum and
withholding of removal. Section 1208.24(f) sets forth
specific criteria that the government must establish by a
preponderance of the evidence during the reopened
proceeding in order to terminate the alien‘s asylum or
withholding of removal. Arguably, the government, in its
motion to reopen, would have to demonstrate a likelihood of
success in proving at least one of these factors. As a result,
the BIA‘s decision to reopen would not be discretionary.
Rather, the BIA would be required to evaluate the specific
factors set forth in the regulations in reaching its decision on
reopening.
       3
          I disagree with the majority‘s conclusion that the
BIA‘s decision to reopen this case constitutes final agency
action. I explain my views more fully infra.




                               2
focuses on factor (4).4 Congress has developed a statutory
scheme that vests responsibility for judicial review of
immigration decisions in the courts of appeals, and explicitly
directs that review of BIA decisions on motions to reconsider
and reopen be consolidated with the review of orders of
removal. Given Congress‘s efforts to remove district courts
from the responsibility of reviewing immigration decisions,
why should we extend that authority here? I also believe that
Congress‘s explicit provision of a method of review for
motions to reconsider and reopen undermines the majority‘s
APA argument.

       As the majority notes, Smriko v. Ashcroft allows for
application of the APA only ―in the absence or inadequacy‖
of any ―special statutory review‖ provisions. 

,
290-91 (3d Cir. 2004). In the present case, there are two
statutes, given short shrift by the majority, that provide for
review of immigration decisions, including motions to
reopen. First, 8 U.S.C. § 1252(a)(2)(D) provides that

              Nothing in subparagraph (B) or
              (C), or in any other provision of
              this chapter (other than this
              section) which limits or eliminates
              judicial review, shall be construed
              as     precluding     review     of
              constitutional claims or questions
      4
           I agree with the majority‘s conclusion in section
III.A.2.a. that no statute precludes judicial review of the
BIA‘s decision. That discussion, however, focuses only on
the impact of the REAL ID Act on the review of habeas
corpus petitions vis- à-vis review of orders of removal. I find
that analysis inapposite to the question presently before us.




                              3
              of law raised upon a petition for
              review filed with an appropriate
              court of appeals in accordance
              with this section.

This provision removes the authority to review legal and
constitutional claims from district courts. The APA basis for
jurisdiction is only available if no ―special statutory review‖
provision requires that the action be brought in some other
forum. Here, Congress has provided a basis for review before
our Court, not the district court. The statute does not prohibit
judicial review, but it does limit that review to the courts of
appeals.

        Second, 8 U.S.C. § 1252(b)(6) provides that ―[w]hen a
petitioner seeks review of an order under this section, any
review sought of a motion to reopen or reconsider the order
shall be consolidated with the review of the order.‖ I do not
believe we can circumvent Congress‘s clear intention to allow
aliens only one opportunity to seek review of a motion to
reopen as part of the review of the order of removal before a
court of appeals by reading the APA to provide jurisdiction to
the district court.

       For decades, Congress has expressed its desire to
streamline immigration proceedings, endeavoring to ―create a
single, separate, statutory form of judicial review of
administrative orders for the deportation and exclusion of
aliens from the United States.‖ H.R. Rep. No. 72, 109th
Cong., 1st Sess., reprinted in 2005 U.S.C.C.A.N. 240, 297
(2005) (quoting H.R. Rep. No. 1086, 87th Cong. 1st Sess.,




                               4
reprinted in 1963 U.S.C.C.A.N. 2950, 2966 (1961)).5
―Congress‘s ‗fundamental purpose‘ was ‗to abbreviate the
process of judicial review of deportation orders‘ and to
‗eliminat[e] the previous initial step in obtaining judicial
review – a suit in a District Court.‘‖ 

v. INS,

, 224 (1963)).

       ―Congress continued these streamlining reforms when
it enacted the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. 104–208, 110
Stat. 3546 (Sept. 30, 1996).‖ 

The amendments in

       5
           ―Before [the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996], individuals who were
‗ineligible for admission into the United States and were
never admitted into the United States were referred to as
‗excludable,‘ while aliens who had gained admission, but
later became subject to expulsion from the United States,
were referred to as ‗deportable.‘‘ After IIRIRA, aliens who
were previously referred to as ‗excludable‘ are termed
‗inadmissible,‘ and the term ‗removal proceedings‘ covers
proceedings applicable to both inadmissible and deportable
aliens. Thus, a reference to an order of removal would
encompass an order of deportation.‖         Avila-Macias v.
Ashcroft, 

, 111 (3d Cir. 2003).

       ―The Homeland Security Act of 2002, Pub.L. No. 107-
296, 116 Stat. 2135 (2002), eliminated the Immigration and
Naturalization Service (―INS‖) and assigned INS‘s
enforcement functions to the [Department of Homeland
Security]‘s Bureau of Immigration and Customs Enforcement
(―ICE‖).‖ Khouzam v. Atty. Gen‘l, 

, 243 n.7
(3d Cir. 2008).




                               5
IIRIRA ―were intended to preclude all district court review of
any issue raised in a removal proceeding.‖ 

amendments were directed at correcting anomalies created by
the Supreme Court‘s decision in I.N.S. v. St. Cyr¸

(2001) with respect to judicial review of the removal
proceedings for criminal aliens.        One purpose of the
amendments was to ensure that ―all aliens will get review in
the same forum – the courts of appeals.‖ 2005 U.S.C.C.A.N.
at 299. The amendment ―would give every alien one day in
the court of appeals, satisfying constitutional concerns.‖ 

all review in the courts of appeals, [the
amendments] would provide an ‗adequate and effective‘
alternative to habeas corpus.‖ 

(quoting St. 

).

        Further, Congress‘s action in consolidating review of
motions to reopen with review of the order of removal is
consistent with the established practice in appellate review of
civil cases involving motions to reconsider, motions to
reopen, and decisions vacating default judgment.               For
example, ―[o]rders granting a motion to vacate [default
judgment] should be treated in the same way as orders
granting a new trial [both of which] set[] the stage for further
trial court proceedings [and are] not final. Appeal is properly
taken upon conclusion of the proceedings set in motion by the
order vacating the judgment.‖ 15B Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure § 3916 (2d ed.) (footnotes omitted). Indeed, ―[a]n
order granting a new trial . . . ordinarily is not final; review is
supposed to be available only after completion of the new
trial.‖ 

3915.5. ―Denial of immediate appeal from an
order granting a new trial means that the order merges in, and
is reviewable on appeal from, the final judgment entered after




                                6
the new trial or other event that concludes the litigation.‖ 

are likely to help a party who is anxious to
bend the final judgment rule to permit appeal from an order
granting a new trial.‖ 

expected to legislate against the backdrop
of well-established common law principles.‖ Duvall v. Att‘y
Gen., 

, 387 (3d Cir. 2006). That is exactly what
Congess did in enacting § 1252(b)(6) – Congress recognized
the principle that in granting a motion to reopen, the BIA sets
in motion a new proceeding, which should be allowed to
continue to its conclusion before review is sought of any
stage of that proceeding. By seeking review of the decision
reopening his removal proceedings in the District Court,
Chehazeh sought to bypass the procedures established by
Congress based on common law principles.

       Given the clear directive of § 1252(b)(6), I find the
majority‘s discussion of 8 U.S.C. § 1252(g) to be unnecessary
to the analysis of the question before us.6 Congress has
removed any ambiguity regarding when review of a decision
on a motion to reopen or reconsider is to be had. That review
is before the appropriate court of appeals, in conjunction with
the review of the order of removal. The majority expressed
great concern that ―§ 1252(g) effectively becomes a ‗do-over‘
provision.‖ Majority Dec. at 32. Rather than insulating
       6
         I find the majority‘s discussion of Kucana v. Holder,

(2010) unnecessary. Although the government
moved to reopen pursuant to a regulation, as 

,
I do not find that the decision to reopen under 8 C.F.R. §
1208.24 is discretionary. Therefore, the distinction between
statutory and regulatory discretion is not necessary to the
resolution of this case.




                               7
decisions to reopen and reconsider from review, Congress
provided an explicit mechanism for an alien to obtain review
of these decisions. I therefore cannot share the majority‘s
concern that aliens will be prevented from seeking review of
a decision to reopen. To be sure, that review will be delayed
until a final order of removal is entered, but I perceive no
harm to the alien in following that procedure since it reflects
Congress‘s legislative intent in adopting the REAL ID Act
and there is no constitutional violation resulting from such a
procedure.

       To the contrary, I fear that the majority‘s decision will
create a situation similar to that in Duvall where our Court
expressed concern that Duvall‘s refusal to testify as to her
citizenship during her removal proceeding ―would effectively
preclude the INS from ever relitigating the issue of alienage
or ever securing removal, despite the alien‘s ongoing criminal
conduct.‖ 

. Here, the government
presented evidence to the BIA that Chehazeh may have
committed fraud during his original asylum application
proceeding. The BIA reopened the matter and remanded to
an immigration judge so that the evidence could be presented
more fully and the allegations of fraud evaluated by the
appropriate factfinder. By allowing Chehazeh to seek review
of the decision to reopen before the District Court, absent a
full exploration of the facts by an immigration judge, the
majority creates a situation where an alien could lie during
their asylum proceeding, and then never be put to task
regarding that lie before the immigration authorities.

       In satisfying the third factor — finality of the agency‘s
decision — the majority applies the collateral order doctrine.
Analogizing to review of a post-judgment order in a criminal
proceeding where double jeopardy concerns exist, the




                               8
majority finds that the BIA‘s decision to reopen is effectively
unreviewable if left until a later time in the litigation.
Majority Dec. at 39-43. I disagree with this conclusion for
several reasons. Most importantly, in the statute Congress
has explicitly provided for review of the BIA‘s decision to
reopen. Second, both the Supreme Court and our Court have
consistently held that application of the collateral order
doctrine should be the exception, not the rule. Third, I am
disinclined to imbue immigration proceedings with the
constitutional protections associated with double jeopardy
review.

        Having already discussed the statutory directive set
forth in § 1252(b)(6), I turn to the general principles
underlying application of the collateral order doctrine. The
Supreme Court has emphasized its view that the collateral
order doctrine should be invoked rarely.7 Mohawk Indus.,
Inc. v. Carpenter, 

(2009). That is, ―[i]n
applying Cohen‘s collateral order doctrine, we have stressed
that it must ‗never be allowed to swallow the general rule that
a party is entitled to a single appeal, to be deferred until final
judgment has been entered.‘‖ 

(quoting Digital
Equip. Corp. v. Desktop Direct, Inc., 

, 868
(1994)).

       Given these strong statements on the narrow scope of
the collateral order doctrine, I do not think it is applicable
       7
           ―[W]e have not mentioned applying the collateral
order doctrine recently without emphasizing its modest
scope.‖ Will v. Hallock, 

, 350 (2006).
―[A]lthough the Court has been asked many times to expand
the ‗small class‘ of collaterally appealable order, we have
instead kept it narrow and selective in its membership.‖ 

The majority analogizes the present situation to that in
Abney v. United States, 

(1977), where the
collateral order doctrine was applied to prevent the
government from ―using its resources and power . . . to make
repeated attempts to convict an individual,‖ and to protect the
individual from the concomitant ―embarrassment, expense
and ordeal‖ associated with multiple prosecutions. 

62. Specifically, the Supreme Court concluded that an order
denying a defendant‘s motion to dismiss an indictment on
double jeopardy grounds was reviewable under the collateral
order doctrine. The Court noted that ―the very nature of a
double jeopardy claim is such that it is collateral to, and
separable from the principal issue at the accused‘s impending
criminal trial.‖ 

       The situation presented by this case differs from that in
Abney in important ways. The issues raised in the motion to
reopen are not collateral to or separable from the issues
underlying the asylum application. Rather, the new facts
introduced by the government directly address, among other
points, the question of whether or not Chehazeh committed
fraud during the original asylum proceeding.

        Additionally, as the Supreme Court has observed, ―[a]
deportation proceeding is a purely civil action to determine
eligibility to remain in this country, not to punish an unlawful
entry, though entering or remaining unlawfully in this country
is itself a crime. . . . Consistent with the civil nature of the
proceeding, various protections that apply in the context of a
criminal trial do not apply in a deportation hearing.‖ I.N.S. v.
Lopez-Mendoza, 

, 1038 (1984).

       Further, our court has noted that ―[w]hile an alien may
be eligible for a grant of asylum or an adjustment of status




                              10
under the immigration laws, he is not entitled to such benefits
as a constitutional matter. There is no constitutional right to
asylum per se. An alien seeking admission to the United
States through asylum ‗requests a privilege and has no
constitutional rights regarding his application, for the power
to admit or exclude aliens is a sovereign prerogative.‘‖
Mudric v. Att‘y Gen., 

, 98 (3d Cir. 2006) (quoting
Marincas v. Lewis, 

, 203 (3d Cir. 1996)) (internal
citations omitted).

       With those admonitions in mind, I turn to the third
prong of the collateral order test — whether the matter at
hand will be effectively unreviewable later. The Supreme
Court discussed this factor in Mohawk Indus. There, the
Court observed that

              ―the third Cohen question,
              whether a right is ‗adequately
              vindicable‘       or     ‗effectively
              reviewable,‘ simply cannot be
              answered without a judgment
              about the value of the interests
              that would be lost through
              rigorous application of a final
              judgment requirement.‖ That a
              ruling ―may burden litigants in
              ways that are only imperfectly
              reparable by appellate reversal of
              a final district court judgment . . .
              has never sufficed.‖ Instead, the
              decisive consideration is whether
              delaying review until the entry of
              final judgment ―would imperil a
              substantial public interest‖ or




                               11
              ―some particular value of a high
              order.‖

(quoting Swint v. Chambers County Comm‘n, 

, 42 (1995); Digital 

, 878-879;
and Will v. Hallock, 

, 352-353 (2006)).

        The majority expresses concern over the government‘s
ability to continue to challenge Chehazeh‘s grant of asylum,
forcing him to relitigate an issue that was already decided.
Majority Dec. at 39. I do not share that concern. The issue
that will be addressed in the reopened proceeding is the
question of whether or not Chehazeh committed fraud during
his original asylum application. Requiring Chehazeh to
defend himself in a second proceeding does not ―imperil a
substantial public interest.‖ To the contrary, I believe
thoroughly examining the possible fraud in his original
asylum application is a substantial public interest that should
be protected. Relitigating his asylum application may place
an additional burden on Chehazeh, but that burden is not
insurmountable, and is presumably an unusual circumstance.

        Further, 8 U.S.C. § 1252(b)(6) requires that review of
a motion to reopen be consolidated with the review of the
removal order. Congress has spoken clearly on this issue and
concluded that review should be had in a single appeal. As a
result, Chehazeh would be able to obtain review of the motion
to reopen in the future.

       Motions to reopen are filed often in immigration
proceedings, and some of those motions are granted. In most,
if not all, of those cases, the litigants seek review in the
appropriate court of appeals, as required by the statute. The
only aspect of this case that makes it, as the majority notes,




                              12
―highly unusual‖ is Chehazeh‘s decision to seek review in the
District Court, rather than before us. 8 In the REAL ID Act,




      8
           Had Chehazeh sought review before our court in the
first instance, I would have dismissed the appeal as untimely,
as is our normal practice. See, e.g., Dajuste v. Att‘y Gen.,
C.A. No. 11-2652 (3d Cir. Aug. 2, 2011) (order) (dismissing
the petition for review for lack of jurisdiction because the
motion to reopen was granted and the proceedings are
therefore ongoing before the immigration judge). The parties
would then have been able to develop the factual record
before an immigration judge, rather than before the District
Court, as the majority directs.

        The majority cites Kumarasamy v. Att‘y Gen., 

(3d Cir. 2006), for the proposition that review is
available in the courts of appeals only from a final order of
removal. In Kumarasamy, the alien, who had been removed
from this country, sought habeas review in the district court,
arguing that the removal was illegal since no order of removal
existed. The alien persisted in this argument, even after the
government submitted a copy of the order of removal. The
district court dismissed the habeas petition for lack of
jurisdiction.




                             13
Congress clearly vested responsibility for review of BIA
decisions with the courts of appeals. See, e.g., 8 U.S.C.
§ 1252(a)(2)(D). By filing his petition seeking review of the
BIA‘s decision to reopen his case with the District Court,
Chehazeh attempted to circumvent the method of review
established by Congress. I cannot condone his attempt to do
so. I would affirm the District Court‘s decision finding that it
lacks jurisdiction to hear this matter.9




       While the appeal was pending, Congress enacted the
REAL ID Act, which vested jurisdiction for review of orders
of removal with the courts of appeals. The REAL ID Act also
required that habeas petitions challenging orders of removal
before district courts or pending on appeal would be
converted to petitions for review of the removal order. We
concluded that Kumarasamy‘s habeas appeal should not be
converted to a petition for review since Kumarasamy argued
that no order of removal existed.

        Here, no order of removal exists because Chehazeh
sought, by filing for review before the District Court, to avoid
the procedures established by Congress. If the established
procedures are allowed to go forward as provided in the
statute, and as is the normal practice in civil cases, Chehazeh
will be able to obtain review of the decision reopening the
case upon conclusion of the proceedings.
       9
          I would also conclude that Chehazeh was not in
custody for purposes of habeas jurisdiction.




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