Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2008

Kailash v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2373




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"Kailash v. Secretary Homeland" (2008). 2008 Decisions. Paper 796.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/796


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                                                    NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                       No. 06-2373
                      ____________

                   KAILASH KAILASH,

                                       Appellant,
                              v.

  MICHAEL CHERTOFF, SECRETARY OF DEPARTMENT
    OF HOMELAND SECURITY; ASA HUTCHINSON,
   AS UNDERSECRETARY OF THE DEPARTMENT OF
  HOMELAND SECURITY, DIRECTORATE OF BORDER
AND TRANSPORTATION SECURITY; MICHAEL D. GARCIA,
     AS ASSISTANT SECRETARY FOR BUREAU OF
    IMMIGRATION AND CUSTOMS ENFORCEMENT;
 THOMAS DECKER, AS PHILADELPHIA DIRECTOR FOR
 DETENTION AND REMOVAL; ATTORNEY GENERAL OF
               THE UNITED STATES,

                                       Appellees.

                      ____________

        On Appeal from United States District Court
           for the Eastern District of Pennsylvania
                    D.C. No. 05-cv-05494
       District Judge: Honorable Ronald L. Buckwalter
                        ____________

                   Argued April 9, 2008
  Before: SMITH, HARDIMAN and COWEN, Circuit Judges.

                   (Filed: July 25, 2008)
Michael S. Henry (Argued)
2336 South Broad Street
Philadelphia, PA 19145-0000
      Attorney for Appellant

Richard M. Bernstein (Argued)
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106-0000
       Attorney for Appellees

                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

       Kailash Kailash appeals the District Court’s denial of his petition for a writ of

habeas corpus. We will affirm.

                                              I.

       Because we write exclusively for the parties, we recount only those facts essential

to our decision.

       A native and citizen of India, Kailash lawfully entered the United States on April

2, 2001. After overstaying his visa, Kailash filed an application for asylum which was

denied by an immigration judge (IJ). The Board of Immigration Appeals (BIA) affirmed

the IJ’s decision on October 29, 2002 and gave Kailash thirty days to voluntarily depart

the United States. Because Kailash did not leave the country within the allotted time

period, he was ordered removed on November 28, 2002.

                                              2
       On May 21, 2003, Kailash married Kelly Payne, an American citizen. Payne filed

an I-130 petition for alien relative on Kailash’s behalf, which the United States

Citizenship and Immigration Services (USCIS) approved on January 31, 2005. Based on

this approval, Kailash filed an I-246 application for stay of removal, an I-212 application

for leave to reapply for admission after removal, and an I-485 application to adjust status

to permanent residency.1

       Following an interview on October 6, 2005, the Director of USCIS’s Philadelphia

District Office (District Director) issued a notice of denial of Kailash’s I-485 application,

indicating that Kailash had not paid the requisite filing fee for his I-212 application.2

Moreover, the District Director found that “in the interest of justice, had an Application



       1
          Because Kailash was subject to an outstanding order of removal, he was
ineligible for an I-485 adjustment of status to permanent residency without first obtaining
leave to reapply for admission after removal via an I-212.
       2
           The notice of denial stated:

                Your attorney indicates that you filed an Application for Permission to
                Reapply for Admission Into the United States After Deportation or Removal
                (Form I-212). However there is no Form I-212, with a fee paid, found in
                the file. Your attorney was notified on October 6, 2005 that Service records
                show only a courtesy copy of an I-212. Furthermore this courtesy copy in
                the file did not have a letter of explanation attached. On the morning of
                October 6, 2005 the attorney gave the Service a copy of the
                reason/explanation requesting permission to re-enter the United States.
                Your attorney was asked to fax/submit a copy of the fee receipt or any
                evidence that the I-212 application was properly filed. No response has
                been submitted.

       (italics in original).

                                              3
for Permission to Reapply for Admission Into the United States After Deportation or

Removal (Form I-212) [been properly filed], it would have been denied” (italics and

emphasis in original). In reaching this conclusion, the District Director rejected Kailash’s

claim that his wife would suffer extreme hardship should he be removed from the United

States, stating that “[n]o evidence was submitted indicating that Mrs. Kailash could not

receive adequate care in India for her conditions,” 3 that “[t]here is no reason that Mr.

Kailash could not be employed in his home country and provide support for his wife,” and

that “[n]o reasons were provided that his wife would be unable to move to India [to] be

with Mr. Kailash.” 4 After the notice of denial was issued, Kailash was taken into custody

by Immigration and Customs Enforcement.

       Kailash timely appealed to the Administrative Appeals Unit (AAU), claiming that

the District Director erred in constructively denying his I-212 application. In particular,

Kailash argued that: (1) he had paid the I-212 filing fee; (2) even if there had been a

problem with the I-212 filing fee, he was entitled under 8 C.F.R. § 103.2(a)(7)(ii) to

notice of the problem and fourteen days within which to make payment; and (3) even if he

had submitted insufficient evidence to establish extreme hardship to his wife upon his



       3
          Kailash’s wife has polycystic ovarian syndrome, a medical condition which has
resulted in the removal of two ovarian cysts and will likely result in the removal of
additional cysts in the future. She also has hyperthyroidism, a medical condition which
results in an elevated heart rate and nervousness.
       4
           The notice of denial did not address Kailash’s I-246 application for a stay of
removal.

                                               4
removal, the District Director was required under 8 C.F.R. § 103.2(b)(8) to request

additional evidence before denying the I-212 application. Kailash’s appeal remains

pending before the AAU.

       In addition to his administrative appeal, Kailash filed a petition for writ of habeas

corpus in the District Court for the Eastern District of Pennsylvania. The petition

challenged Kailash’s custody pursuant to his outstanding order of removal on the grounds

that both the custody and the order persisted because of the District Director’s alleged

error in adjudicating Kailash’s I-212 application. The District Court dismissed the habeas

petition, concluding that it lacked jurisdiction under 8 U.S.C. § 1252(g) to hear Kailash’s

challenge to the District Director’s discretionary decisions on his applications. Kailash

has timely appealed the District Court’s order denying his petition for a writ of habeas

corpus.

                                             II.

       As an initial matter, we note that Kailash’s habeas petition does not involve the

merits of his I-212 application; that is, Kailash does not challenge the substance of the

District Director’s determination that his wife would suffer extreme hardship upon his

removal. It is clear that we would lack jurisdiction to consider such a challenge under 8

U.S.C. § 1252(a)(2)(B), which forecloses review of the discretionary denial of an I-212

application.




                                              5
       Rather, Kailash seeks review of alleged procedural errors in the adjudication of his

I-212 application. The District Court concluded that it lacked jurisdiction to hear this

claim pursuant to 8 U.S.C. § 1252(g), which provides that “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.” In doing so, the District

Court wrote that § 1252(g) prevents Kailash from challenging “respondent’s discretionary

decisions, or lack thereof, relating to the applications.”

       However, Kailash is not challenging a discretionary decision with regard to his I-

212 application. Rather, he is challenging the District Director’s alleged failure to adhere

to applicable procedural regulations, a matter that is not subject to discretion. In contrast

to the District Court’s approach, the operative question in determining whether § 1252(g)

deprives us of jurisdiction is whether a claim of procedural error “aris[es] from the

decision or action by the Attorney General to . . . adjudicate cases.” The parties cite no

caselaw — nor are we aware of any — that speaks to this precise question.5


       5
          Though the government contends that Gomez-Chavez v. Perryman, 

(7th Cir. 2002), is “directly on point,” we disagree. Gomez-Chavez involved an alien’s
attempt to obtain judicial review when the USCIS simply failed to adjudicate his I-212
application. The Seventh Circuit concluded that it lacked jurisdiction, writing that
§ 1252(g)’s “strict limitations apply not only to the Attorney General’s positive actions,
but also to his refusals to take action” and that “[a]n alien attempting to achieve judicial
review of such discretionary measures may not avoid the 1252(g) bar by the simple
expedient of recharacterizing a claim as one challenging a refusal to act.” 

As
Kailash notes, his case involves a procedurally improper adjudication rather than a

                                               6
       Assuming without deciding that we are not barred by § 1252(g) from reviewing

Kailash’s claim, it is nevertheless clear that a habeas petition is inappropriate in the

present context. Indeed, Kailash is not challenging the validity of his outstanding order of

removal.6 Instead, he contends that there is a connection between the alleged procedural

errors and the persistence of the order of removal (and hence his custody) such that

habeas relief is appropriate. Specifically, Kailash claims that had the District Director

adjudicated his I-212 application in accordance with the regulations, it would have been

approved, resulting in the termination of the order of removal and attendant custody.

       This reasoning is flawed, however. Even if we assume that the District Director

failed to adhere to the regulations in adjudicating the I-212 application, it does not

necessarily follow that Kailash would then be released from custody. Indeed, the District

Director could deem Kailash’s application properly filed, request and receive additional

evidence in accordance with 8 C.F.R. § 103.2(b)(8), and then deny the I-212 application

on the merits.7 Thus, Kailash is only challenging the procedure afforded him in an

adjudication that could terminate his custody should his I-212 eventually be approved on

the merits.


wholesale failure to adjudicate.
       6
          Kailash concedes that the order of removal was the legitimate result of his
failure to voluntarily depart the country following the BIA’s affirmance of the IJ’s denial
of his asylum application.
       7
         Moreover, as noted above, we would lack jurisdiction to review this
discretionary denial on the merits under 8 U.S.C. § 1252(a)(2)(B).

                                               7
       Given that Kailash does not challenge the substance of the removal order and

attendant custody, a habeas petition is plainly an inappropriate vehicle for the relief that

he seeks.8

       For the foregoing reasons, Appellee’s motion for summary affirmance will be

denied, we will vacate the District Court’s order staying removal, and the decision of the

District Court will be affirmed.




       8
         Accordingly, Kailash’s Suspension Clause challenge — whereby he claims that
he could have sought habeas review of the District Director’s procedural errors before the
passage of the REAL ID Act, but cannot do so after the passage of the REAL ID Act —
must fail. Because Kailash does not challenge the propriety of his custody, habeas relief
is inappropriate regardless whether the petition was brought before or after the passage of
the REAL ID Act. Furthermore, we note the existence of numerous cases rejecting
Suspension Clause challenges to the REAL ID Act because the petition for review
mechanism is an “adequate and effective” substitute for habeas review. See, e.g.,
Kolkevich v. Attorney General, 

, 332 (3d Cir. 2007) (citing Swain v.
Pressley, 

, 381 (1977)).

                                              8