Lina Thoung v. United States of America

UNITED STATES COURT OF APPEALS TENTH CIRCUIT
On appeal from The United States District Court for the District of Kansas

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Description:

Denver, CO - Criminal defense lawyer represented Petitioner - Appellant with misusing a visa, permit, and other documents to obtain citizenship charge.

Thoung emigrated from Cambodia to the United States in 2002 using a

fraudulently obtained visa in the name and birthdate of another person. In 2007,

she obtained U.S. citizenship and affirmed she had never provided false

information to any government official while applying for any immigration

benefit.

Her fraud was discovered in 2012. She subsequently pleaded guilty to

misusing a visa, permit, and other documents to obtain citizenship, in violation of

18 U.S.C. § 1546(a). As part of her plea agreement, she jointly stipulated to

denaturalization under 8 U.S.C. § 1451(e) and removal from the United States.

Relying on 8 U.S.C. § 1228(c)(5), the district court entered an order of removal.

Immigration authorities, unable to deport Thoung back to Cambodia, eventually

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released her subject to an Order of Supervision. Under this order, Thoung could

be arrested and deported at any time.

In 2017, Thoung filed a writ of habeas corpus—apparently under 28 U.S.C.

§ 2241—alleging the district court had lacked subject-matter jurisdiction to enter

the judicial removal order requested under the plea agreement. Neither the

government nor the district court considered the potential applicability of the

REAL ID Act, 8 U.S.C. § 1252, and the substantial limitations it imposes on

judicial review. On the merits, the district court reaffirmed its jurisdiction to

enter Thoung's removal order. Thoung appealed the district court's assertion of

subject-matter jurisdiction to enter the 2013 removal order.

II. Analysis

We first consider whether the district court had subject-matter jurisdiction

to hear Thoung's habeas petition, a question of statutory interpretation.

Gonzales-Alarcon v. Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We conclude

the REAL ID Act prevents the district court from exercising habeas jurisdiction to

hear Thoung's petition.

A. The REAL ID Act's Limitations on Judicial Review

Generally, "[w]rits of habeas corpus may be granted by . . . the district

courts and any circuit judge within their respective jurisdictions.” 28 U.S.C.

§ 2241(a). A person must be "in custody” to seek the habeas writ, id.

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§ 2241(c)(1), and a person subject to removal is "in custody” for habeas purposes.

See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001).

Nevertheless, the REAL ID Act imposes substantial limitations on judicial

review, including habeas review, of final orders of removal. Removal orders may

be challenged only by way of a petition for review filed in the court of appeals.

According to § 1252(a)(5), "petitions for review” filed with the courts of appeal

are the "sole and exclusive means for judicial review from an order of removal.”

And the statute specifically excludes "habeas corpus review pursuant to sections

1241 . . . or any other habeas corpus provision.” Id.1

That "sole and exclusive

means for judicial review from an order of removal” is outlined in § 1252(b),

which requires that a petition for review must be filed within thirty days of a final

order of removal. Id. § 1252(b)(1). "That deadline is mandatory and

jurisdictional; it is not subject to equitable tolling.” Gonzales-Alarcon, 884 F.3d

1

In full, section 1252(a)(5) provides:

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, a petition for review filed with an

appropriate court of appeals in accordance with this section shall be the

sole and exclusive means for judicial review from an order of removal

entered or issued under any provision of this chapter, except as provided in

subsection (e). For purposes of this chapter, in every provision that limits

or eliminates judicial review or jurisdiction to review, the terms "judicial

review” and "jurisdiction to review” include habeas corpus review pursuant

to section 2241 of Title 28, or any other habeas corpus provision, sections

1361 and 1651 of such title, and review pursuant to any other provision of

law (statutory or nonstatutory).

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at 1271. Thus, although the REAL ID Act permits "review of constitutional

claims or questions of law raised upon a petition for review,” 8 U.S.C.

§ 1252(a)(2)(D), an individual petitioning for review cannot challenge a removal

order once judicial review is time-barred, see Gonzales-Alarcon, 884 F.3d at

1271. By the time Thoung filed her habeas petition with the district court, the

deadline for properly filing a petition for review in accordance with the REAL ID

Act had long expired.

In Gonzales-Alarcon, we emphasized that "Congress clearly intended to

funnel all challenges to removal through the petition for review process.” Id. at

1278. We held that "[u]nder the plain language of [§ 1252(a)(5)], a habeas

challenge to an order of removal is barred regardless of whether the petitioner is

an alien or claims citizenship.” Id. at 1274.

Our circuit is consistent with others in recognizing the REAL ID Act's

limitations on habeas review. See Andrade v. Gonzales, 459 F.3d 538, 542 (5th

Cir. 2006) ("The REAL ID Act divests the district courts of jurisdiction over the

habeas petitions of aliens; instead, REAL ID Act § 106 states that 'a petition for

review shall be the sole and exclusive means for judicial review of an order of

removal entered or issued under any provision of [the Immigration and

Nationality Act].'”); Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir. 2005)

(REAL ID Act "unequivocally eliminates habeas corpus review of orders of

removal.”).

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Because Thoung's habeas petition ultimately seeks to invalidate the district

court's removal order, we conclude she is seeking "judicial review of an order of

removal” in a manner prohibited by § 1252(a)(5).

B. The REAL ID Act Eliminates Jurisdiction to Entertain Thoung's

Habeas Petition

Nevertheless, Thoung raises three arguments to support her claim that the

district court had proper jurisdiction to entertain her habeas petition.

All three ultimately fail.

1. Orders Arising from Criminal Proceedings

First, Thoung contends Congress did not intend to bar habeas review of

judicial removal orders because she claims the Act omits orders arising from

criminal proceedings that result in removability. The criminal offenses which are

grounds for removability are set forth in 8 U.S.C. § 1227(a)(2). She relies on INS

v. St. Cyr, 533 U.S. 289 (2001), which held that AEDPA's limitations on habeas

review did "not bar jurisdiction over removal orders not subject to judicial review

under § 1252(a)(1)—including orders against aliens who are removable by reason

of having committed one or more criminal offenses.” Id. at 313.

But Thoung's interpretation misreads the REAL ID Act, which was adopted

in 2005 to render the removal-challenge process consistent with St. Cyr. See 2

Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

Procedure § 41.1, at 2208–15 (6th ed. 2011). The REAL ID Act expressly divests

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district courts of jurisdiction over habeas challenges to removal orders, including

those arising from criminal offenses, and funnels all such challenges to the

"appropriate court of appeals” as the "sole and exclusive means for judicial

review of an order of removal entered or issued under any provision of this

chapter [including § 1228(c)(5)].” See 8 U.S.C. § 1252(a)(5).2



If every judicial order of removal were subject to appeal for lack of

subject-matter jurisdiction, the statutory framework Congress established in

§ 1252(b) could be entirely thwarted and a multiplicity of claims (including

habeas claims) would thrive outside the petition-for-review process and long after

its timeliness requirements have expired.

Because the district court's judicial order of removal was entered under

§ 1228(c)(5), the judicial process established by the REAL ID Act is Thoung's

sole means of challenging her judicial removal order—a means that is now timebarred. To comply with § 1252(a)(5), Thoung would have had to petition the

court of appeals within thirty days of the district court's entry of the final removal

order in 2013. Despite having the opportunity to do so, she did not.

2. Suspension Clause

2

Even if, arguendo, a judicial order of removal must, as a procedural

prerequisite, first be based on a criminal ground of removability described in

8 U.S.C. § 1227(a)(2), the REAL ID Act explicitly bars habeas review of such

orders in § 1252(a)(2)(C).

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Second, Thoung argues that even if Congress did intend to bar habeas

review of judicial orders of removal, it has left no meaningful alternative form of

review and therefore has unconstitutionally suspended the writ of habeas corpus.

The Suspension Clause states, "The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebellion or Invasion the public Safety

may require it.” U.S. Const. art. I, § 9, cl. 2. Thoung relies on St. Cyr's warning

that "a serious Suspension Clause issue would be presented if [a statute has]

withdrawn that power from federal judges and provided no adequate substitute for

its exercise.” 533 U.S. at 304–05.

But St. Cyr goes on to observe "that Congress could, without raising any

constitutional questions, provide an adequate substitute through the court of

appeals.” Id. at 314 n.38. "'The substitution of a collateral remedy which is

neither inadequate nor ineffective to test the legality of a person's detention' does

not violate the Suspension Clause.” Id. (quoting Swain v. Pressley, 430 U.S. 372,

381 (1977) (alteration omitted)). This is, of course, precisely the sort of process

that the REAL ID Act established in 8 U.S.C. § 1252(a)(5) and § 1252(b).3

3

Although the text of the Act is clear, the House-Senate Conference

Report on the REAL ID Act further explained:

Significantly, this section [§ 1252] does not eliminate judicial review, but

simply restores such review to its former settled forum prior to 1996.

Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review

of criminal aliens' removal orders, [this section] would give every alien one

(continued...)

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Thoung bears the burden of demonstrating the inadequacy of the REAL ID

Act's substitute for statutory habeas jurisdiction. See Miller v. Marr, 141 F.3d

976, 977 (10th Cir. 1998). Thoung has not met her burden of demonstrating, in

the context of judicial orders of removal, that the REAL ID Act's petition for

review process is an inadequate or ineffective substitute. It is not clear that, had

Thoung followed the § 1252(b) review process, she would have been prevented

from doing so for jurisdictional reasons.4

Thus, in the absence of persuasive argument to the contrary, we assume the

REAL ID Act's petition for review process does not offend the Suspension Clause

with respect to Thoung's judicial removal order. See Gonzales-Alarcon, 884 F.3d

3

(...continued)

day in the court of appeals, satisfying constitutional concerns.

151 Cong. Rec. 8526 (2005) (Joint-House-Senate Conference Report) (citing St.

Cyr, 533 U.S. at 314 n.38).

4

Thoung points to our unpublished disposition in Musau v. Carlson, 499

F. App'x 837 (10th Cir. 2012), for support, but that decision does not undermine

our conclusion that Gonzalez-Alarcon controls. In Musau, a panel of this court

simply determined that the district court's dismissal of Musau's habeas petition

was "premature” and remanded the question for further consideration. Id. at 841.

The dissent in the instant case suggests this court would have lacked

jurisdiction to reach the merits of Thoung's appeal had she followed the REAL ID

Act's petition-for-review process. But it does not necessarily follow that such a

result would implicate the Suspension Clause. The authority on which the dissent

relies suggests this court still could have vacated an ultra vires removal order and

remanded for further proceedings. See Mejia Galindo v. Sessions, 897 F.3d 894,

898–99 (7th Cir. 2018); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81–82 (2d Cir.

2007). Thus, a presumably adequate forum would have existed to test the legality

of Thoung's detention.

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at 1268 (assuming "the petition for review process is an adequate substitute for

habeas such that the REAL ID Act's jurisdiction-stripping provisions do not

offend the Suspension Clause”).

3. Conflict with Federal Rules

Finally, Thoung asserts that our interpretation of the REAL ID Act results

in unintended consequences. Because the Act's review process requires a petition

to be filed with the court of appeals within thirty days of an order of removal,

Thoung argues that it conflicts with the federal rules of procedure concerning

criminal appeals. Compare Fed. R. App. P. 4(b)(1) (requiring a defendant's

notice of appeal from a criminal case to be filed in the district court within

fourteen days) with 8 U.S.C. § 1252(a)(5) (requiring the petition to be filed in the

court of appeals) and id. § 1252(b)(1) (stipulating the petition must be filed

within thirty days after a final order of removal). Assuming that Rule 4(b)(1) of

the Federal Rules of Appellate Procedure is the correct one to apply in Thoung's

situation, the incongruity should not be surprising. REAL ID's petition for

review process is a substitute for the statutory writ of habeas corpus, which is

also subject to timeliness limitations that sometimes depart from and supersede

the otherwise-applicable federal rules. See, e.g., 28 U.S.C. § 2255(f). Moreover,

unlike Rule 4(b)(1), which does "not have statutory grounding” and is nonjurisdictional, United States v. Garduno, 506 F.3d 1287, 1290 (10th Cir. 2007),

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the REAL ID Act's timeliness requirement is both "mandatory and jurisdictional,”

Gonzales-Alarcon, 884 F.3d at 1271.

Thoung also asserts that barring habeas review would strip district courts of

the power to reconsider their own orders, while immigration judges possess that

authority. See 8 C.F.R. § 1003.23 (2018) (immigration judge authority to reopen

and reconsider); id. § 1003.2 (Board of Immigration Appeals authority to reopen

and reconsider); id. § 1005 (DHS authority to reopen and reconsider). But the

only case Thoung cites for the proposition that district courts possess inherent

authority to reconsider their own removal orders refers to the power to reconsider

interlocutory orders and not final orders. See Been v. O.K. Indus., Inc., 495 F.3d

1217, 1225 (10th Cir. 2007). Even if the district court possessed inherent

authority to reopen and reconsider its final order of removal under the

circumstances presented here, it certainly could not do so "by habeas corpus

under section 2241 of Title 28, or any other habeas corpus provision,” 8 U.S.C.

§ 1252(a)(5). This is precisely what the REAL ID Act prohibits. Thoung's

suggestion that we read "judicial review” under § 1252(a) as referring only to

appellate review, see St. Cyr, 522 U.S. 311 (noting the "historically distinct”

meanings of "judicial review” and "habeas corpus”), is foreclosed by the text of

the Act itself. See 8 U.S.C. § 1252(a)(5) ("For purposes of this chapter, in every

provision that limits or eliminates judicial review or jurisdiction to review, the

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terms 'judicial review' or 'jurisdiction to review' include habeas corpus

review.”).5

Because none of Thoung's arguments ultimately persuade us that our

interpretation of the REAL ID Act is incorrect, we hold that the statute's

jurisdictional limitation on judicial review of removal orders prevents Thoung

from petitioning the district court for the writ of habeas corpus.

III. Conclusion

Because the district court lacked subject-matter jurisdiction and thus lacked

power to enter its October 2017 Memorandum and Order, that judgment must be

vacated. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d

1096, 1128 (10th Cir. 2010).

Outcome:

We therefore REMAND to the district court with directions to VACATE its

October 2017 order and to dismiss Thoung’s petition without prejudice for lack of

jurisdiction. We express no view as to the merits and leave the district court’s

2013 removal order undisturbed.

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About This Case

What was the outcome of Lina Thoung v. United States of America?

The outcome was: We therefore REMAND to the district court with directions to VACATE its October 2017 order and to dismiss Thoung’s petition without prejudice for lack of jurisdiction. We express no view as to the merits and leave the district court’s 2013 removal order undisturbed.

Which court heard Lina Thoung v. United States of America?

This case was heard in <center><h4><b> UNITED STATES COURT OF APPEALS TENTH CIRCUIT </b> <br> <font color="green"><i>On appeal from The United States District Court for the District of Kansas </i></font></center></h4>, CO. The presiding judge was Timothy Tymkovich.

Who were the attorneys in Lina Thoung v. United States of America?

Plaintiff's attorney: Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, District of Kansas, and James A. Brown, Assistant United States Attorney, Chief, Appellant Division, with him on the briefs), Office of the United States Attorney, Topeka, Kansas. Defendant's attorney: Denver, CO - Best Criminal Defense Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800.

When was Lina Thoung v. United States of America decided?

This case was decided on December 19, 2021.