Valenzuela Grullon v. Mukasey, No. 05-4622 (2d Cir. 2008)

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05-4622-ag Valenzuela Grullon v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: August 30, 2007 Decided: November 27, 2007 Amended: January 7, 2008) Docket No. 05-4622-ag - - - - - - - - - - - - - - - - - - - -x JULIO CESAR VALENZUELA GRULLON, Petitioner, - v.MICHAEL B. MUKASEY, ATTORNEY GENERAL,* MICHAEL J. GARCIA, EDWARD J. MCELROY, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondents. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, B.D. PARKER and HALL, Circuit Judges. Petition for review of a final order of Immigration Judge John Opaciuch denying cancellation of removal. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General John Ashcroft as respondent in this case. 1 Petitioner failed to appeal the IJ s order to the BIA, 2 petitioning instead for a writ of habeas corpus. 3 corpus petition was docketed as a petition for review by 4 operation of law under the REAL ID Act of 2005. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Habeas DISMISSED. BOZENA ZIEDALSKI, New York, NY, for Petitioner. M. JOCELYN LOPEZ WRIGHT, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department of Justice (Peter D. Keisler, Assistant Attorney General and Carol Federighi, Senior Litigation Counsel, on the brief), Washington, D.C., for Respondents. DENNIS JACOBS, Chief Judge: Julio Cesar Valenzuela Grullon ( Valenzuela ) petitions 22 for review of an order of Immigration Judge ( IJ ) John 23 Opaciuch denying his application for cancellation of 24 removal. 25 removal to the Board of Immigration Appeals ( BIA ), 26 concedes that his administrative remedies are therefore 27 unexhausted, but asks that the failure to exhaust be excused 28 (and that we reach the merits of his petition). 29 that the exhaustion requirement applicable to Valenzuela s Valenzuela, who failed to appeal the order of 2 We hold 1 petition, 8 U.S.C. § 1252(d)(1), is statutory and 2 jurisdictional. 3 jurisdictional defect cannot be excused on a ground of 4 manifest injustice. 5 374 F.3d 46, 53 (2d Cir. 2004). Further, we conclude that the Contra Marrero Pichardo v. Ashcroft, 6 I 7 8 9 On December 5, 1994, Valenzuela was admitted as a lawful permanent resident from his native Dominican 10 Republic. 11 a series of drug offenses, and pled to a single count in 12 February 2002. 13 life in prison. 14 In December 2001, he was indicted in New York on He was sentenced to a term of three years to One month before his October 2002 release on parole, 15 the INS charged Valenzuela with violating a law related to a 16 controlled substance. 17 Upon his parole, Valenzuela was detained by the INS. 18 December 2002, he filed a petition for habeas corpus in the 19 Southern District of New York, arguing that detention 20 without bond prior to his removal proceedings was See 8 U.S.C. § 1227(a)(2)(B)(i).1 1 In The government also alleged initially that Valenzuela had committed an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), but later withdrew that basis for removal. 3 1 unconstitutional. 2 the petition on December 20, 2002, and Valenzuela was 3 released. 4 moot when Valenzuela s removal proceedings were completed; 5 we therefore vacated the district court s order.2 6 The district court (Griesa, J.) granted The government s appeal of that ruling became Throughout his removal proceedings, conducted in the 7 spring of 2003, Valenzuela conceded removability but sought 8 cancellation of removal. 9 continuously resided in the U.S. for seven years--a In order to establish that he has 10 prerequisite to cancellation of removal, see 8 U.S.C. § 11 1229b(a)(2)--Valenzuela would have had to overcome the 12 stop-time rule, which provides that any period of 13 continuous residence . . . shall be deemed to end . . . when 14 the alien has committed an offense . . . that renders the 15 alien inadmissible to the United States. 16 1229b(d)(1)(B). 17 does not terminate a period of continuous residence until 18 the alien is convicted of the removable offense--a 19 consequential distinction for Valenzuela because he pled 20 guilty a few months after the December 2001 expiration of 8 U.S.C. § Valenzuela argued that the stop-time rule 2 Both parties note that the rationale for the district court s habeas ruling was in any event subsequently rejected by the Supreme Court in Demore v. Hyung Joon Kim, 538 U.S. 510 (2003). 4 1 the seven-year period, whereas the indictment alleged that 2 the offense was committed on or about August 29, 2001.3 3 The BIA had already rejected Valenzuela s proposed 4 reading at the time of his hearing before the IJ, see In re 5 Perez, 22 I. & N. Dec. 689 (BIA 1999) (11-4 decision in 6 banc), but Valenzuela urged the IJ to follow the reasoning 7 of the Perez dissent. 8 9 The IJ denied relief in August 2003.4 Rather than appeal to the BIA, Valenzuela filed a second habeas petition 10 in October 2003 to challenge the order of removal. This 11 habeas petition was pending in the Southern District of New 12 York when the REAL ID Act of 2005, Pub. L. No. 109-13, 119 13 Stat. 231, 311 (2005), took effect on May 11, 2005. 14 Pursuant to Section 106(c) of that Act, the district court 15 ordered the habeas corpus petition transferred to this 16 Court, where it was docketed as a petition for review. 3 Valenzuela s brief professes uncertainty as to the precise date he committed the offense to which he pled guilty. He concedes, however, that the date of his arrest-November 29, 2001--fell within the seven-year period following his admission to the United States. 4 We do not know the actual grounds for the order of removal because the oral decision is not included in the record on this appeal (a consequence of Valenzuela s failure to appeal to the BIA, discussed below); in all likelihood, however, one ground was Perez. 5 1 Valenzuela concedes his failure to exhaust 2 administrative remedies before petitioning this Court for 3 review, but he contends that any failure to exhaust should 4 be excused because (1) appeal to the BIA would have been 5 futile, (2) his appeal raises constitutional claims, and (3) 6 dismissing his petition would cause a manifest injustice. 7 On the merits, Valenzuela argues that the stop-time rule is 8 ambiguous as to whether continuous residence is terminated 9 by commission of an offense or by conviction, and that the 10 Perez dissent correctly concluded that the trigger is 11 conviction. 12 The government urges us to dismiss the petition for 13 review on exhaustion grounds because Valenzuela never 14 appealed to the BIA. 15 the BIA s interpretation of the stop-time rule in Perez as 16 consistent with the plain language of the statute and argues 17 that Valenzuela is therefore barred from applying for 18 cancellation of removal. On the merits, the government defends 19 20 21 22 II When the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 311 (2005), became effective, Valenzuela s second 6 1 habeas petition (challenging his order of removal), then 2 pending in the Southern District of New York, was 3 transferred to this Court and converted into a petition for 4 review: If an alien s case, brought under section 2241 of title 28, United States Code, and challenging a final administrative order of removal . . . is pending in a district court on the date of the enactment of this division, then the district court shall transfer the case . . . to the court of appeals for the circuit in which a petition for review could have been properly filed . . . . 5 6 7 8 9 10 11 12 13 14 15 16 § 106(c), 119 Stat. at 311; see also Marquez-Almanzar v. 17 INS, 418 F.3d 210, 215 (2d Cir. 2005). 18 speaks generally to the manner in which converted petitions 19 are to be treated upon transfer here: The REAL ID Act The court of appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under such section 242, except that subsection (b)(1) of such section shall not apply. 20 21 22 23 24 25 26 § 106(c), 119 Stat. at 311. 27 petitions are to be treated as ordinary petitions for review 28 in all respects except as to the filing deadline (8 U.S.C. § 29 1252(b)(1)). 30 31 In other words, converted The question, then, is whether Valenzuela s converted petition is governed by 8 U.S.C. § 1252(d)(1) ( A court may 7 1 review a final order of removal only if . . . the alien has 2 exhausted all administrative remedies available to the alien 3 as of right ), or whether the sole exhaustion rule 4 Valenzuela violated is a judicial (common-law) [rule], 5 [which is] discretionary and includes a number of 6 exceptions[,] Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 7 2003). 8 We have not had occasion to decide whether § 1252(d) 9 requires that aliens appeal to the BIA before petitioning 10 this Court for review. But our jurisprudence makes that 11 supposition. 12 case that had never been before the BIA, holding that the 13 limitations imposed by § 1252(d) on a court s ability to 14 review final orders of deportation extend[ed] to habeas 15 corpus review. 16 (2d Cir. 2004); see also Lin Zhong v. U.S. Dep t of Justice, 17 480 F.3d 104, 118 (2d Cir. 2006) ( [W]e have jurisdiction to 18 review the final order of removal entered against Lin, so 19 long as a decision has been rendered on his application by 20 an IJ and appealed to the BIA--the two administrative 21 remedies available to him as of right. ); cf. Marrero 22 Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004) ( We For example, we dismissed a habeas appeal in a Theodoropoulos v. INS, 358 F.3d 162, 170 8 1 therefore hold that, notwithstanding a habeas petitioner s 2 failure to exhaust his claims before the BIA, as required by 3 section 1252(d), we nonetheless have jurisdiction to 4 consider the petitioner s claim if it is necessary to avoid 5 manifest injustice. (emphasis added)). 6 Squarely presented with the issue for the first time in 7 this appeal, we hold that the exhaustion provision of § 8 1252(d)(1) requires aliens, inter alia, to appeal to the BIA 9 before petitioning for review in this Court. 10 III 11 12 The next question is whether the statutory exhaustion 13 requirement of § 1252(d)(1)--that a court may review a final 14 order of removal only if the alien has exhausted all 15 administrative remedies available to him as of right--is 16 jurisdictional or merely mandatory. 5 17 F.3d at 119. 18 subject to waiver, id., and are therefore less absolute than 19 jurisdictional requirements. See Lin Zhong, 480 Mandatory requirements (we have said) are 5 We need not deal here with the third category of exhaustion requirements--those that are judge-made, prudential rules of administrative law--because we hold that the exhaustion requirement that governs Valenzuela s petition is statutory. See Part II, supra. 9 1 In Lin Zhong, 480 F.3d at 119-20, we distinguished 2 between jurisdictional and mandatory rules, partly by resort 3 to the Supreme Court s caveat that [c]larity would be facilitated . . . if courts and litigants used the label jurisdictional not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court s adjudicatory authority. 4 5 6 7 8 9 10 11 12 13 Eberhart v. United States, 546 U.S. 12, 16 (2005) (internal 14 quotation marks and citation omitted). 15 Zhong, the Supreme Court sharpened the analysis. 16 v. Russell, 127 S. Ct. 2360 (2007), the Court held that a 17 limit on extensions of time to appeal, see 28 U.S.C. § 18 2107(c), was jurisdictional largely because of the fact 19 that [the] time limitation is set forth in a statute. 20 Bowles, 127 S. Ct. at 2364. 21 22 23 24 25 26 27 28 29 30 31 32 33 Subsequent to Lin The Court explained: Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them. Put another way, the notion of subject-matter jurisdiction obviously extends to classes of cases . . . falling within a court s adjudicatory authority, but it is no less jurisdictional when Congress forbids federal courts from adjudicating an otherwise legitimate class of cases after a certain period has elapsed from 10 In Bowles final judgment. 1 2 3 Id. at 2365-66 (citations omitted). 4 repeatedly that its reasoning was based on the statutory 5 origin of the limitation, and thus made clear that limits 6 expressed in statutes--as to time or classes of cases -- 7 limit subject-matter jurisdiction. 8 ( As we have long held, when an appeal has not been 9 prosecuted in the manner directed, within the time limited 10 by the acts of Congress, it must be dismissed for want of 11 jurisdiction. (internal quotation marks omitted) (emphasis 12 added)); id. at 2365 (observing that the Supreme Court s 13 treatment of its certiorari jurisdiction also demonstrates 14 the jurisdictional distinction between court-promulgated 15 rules and limits enacted by Congress ). Bowles emphasized See, e.g., id. at 2366 16 Congress cast § 1252(d)(1) in terms of the courts 17 authority to review a class of cases (petitions for review 18 of a final order of removal) and permitted review only if 19 the alien has exhausted all administrative remedies 20 available as of right. 21 available to aliens as of right is an appeal to the BIA. 22 this way, Congress has instructed the courts that they may 23 not review a final order of removal unless the alien has One of the administrative remedies 11 In 1 appealed to the BIA. When an exhaustion requirement is 2 statutory and evinces an intent to constrict the ability of 3 courts to adjudicate a class of cases, the limitation is 4 jurisdictional, rather than mandatory only. 5 might be described as a claim-processing rule ; but because 6 it is a statutory limit on the Court s power, it is 7 jurisdictional, not merely mandatory. 8 Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (citing Bowles 9 and holding that the 30-day time period for filing a The requirement Accord Magtanong v. 10 petition for review is mandatory and jurisdictional because 11 it is imposed by statute (internal citation omitted)). 12 We therefore hold that, as regards the requirement that 13 petitioners appeal to the BIA, § 1252(d)(1) is 14 jurisdictional. 15 Zhong, 480 F.3d at 107 (referring to the clearly 16 jurisdictional requirement of 8 U.S.C. § 1252(d)(1) that 17 cases of this sort be brought to the Executive Office for 18 Immigration Review (i.e., an IJ and the BIA) before they can 19 be considered by courts of appeal ); accord Lin Zhong v. 20 U.S. Dep t of Justice, 489 F.3d 126, 130 (2d Cir. 2007) 21 (Calabresi, J., concurring in the denial of in banc review) 22 (observing that § 1252(d)(1) uses language [that] typically We have said as much in dicta. 12 See Lin 1 means that courts do not have jurisdiction to hear a 2 petitioner who has not first brought his case before the 3 available administrative agency ). Given that we are directed by statute to treat 4 5 converted petitions, such as Valenzuela s, as ordinary 6 petitions for review, it follows that such converted 7 petitions are likewise subject to § 1252(d) s jurisdictional 8 bar. 9 IV 10 11 We are left to decide what exceptions, if any, would 12 allow us to hurdle the jurisdictional bar that prevents us 13 from reviewing the merits of Valenzuela s petition. 14 15 A. Futility 16 Valenzuela argues that appealing to the BIA would have 17 been futile in light of the agency s precedential decision, 18 In re Perez, 22 I. & N. Dec. 689 (BIA 1999). 19 Court explained in Booth v. Churner, we will not read 20 futility or other exceptions into statutory exhaustion 21 requirements where Congress has provided otherwise. 22 U.S. 731, 741 n.6 (2001). At the same time, 13 As the Supreme 532 Booth does allow that exhaustion may not be required where the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint, because [w]ithout the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust. This may technically be less an exception to a statutory exhaustion requirement than it is a statement regarding the parameters of that requirement. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003) 20 (internal citations omitted). 21 immigration context.6 Booth applies in the 6 Valenzuela cites dicta in Gill v. INS, 420 F.3d 82 (2d Cir. 2005), for the proposition that Booth s rule against futility exceptions does not operate in the immigration context because Booth was based on the legislative history of the [Prison Litigation Reform Act], and in particular Congress s decision to eliminate previously-available statutory exceptions for futility. Gill, 420 F.3d at 87 n.9. Of course, Gill s dicta runs counter to the reading of Booth set out in Beharry. Moreover, our own reading of Booth suggests that it is not limited to those circumstances in which the statutory history indicates that Congress took away a previously existing futility exception. See Booth, 532 U.S. at 739 (referring to statutory history as one of two considerations leading to the Court s holding). Such statutory history may counsel strict adherence to the congressional command, but we are bound to implement congressional limits on our jurisdiction without reference to particular features of statutory history. 14 1 Valenzuela s futility argument fails because he cannot 2 demonstrate that the BIA was unable to provide the relief 3 that he sought. 4 holding in banc, or it could have certified the question to 5 the Attorney General. 6 Theodoropoulos v. INS, 358 F.3d 162, 173 (2d Cir. 2004) 7 (observing that even though the Attorney General had issued 8 a precedential opinion on the question, the BIA could have 9 sent it back up to him). The BIA could have reconsidered the Perez See 8 C.F.R. § 1003.1(g); see also Valenzuela confuses the likelihood 10 of adherence to precedent with the factual impossibility of 11 relief: 12 have authority to act on the subject of the [petition], 13 leaving [Valenzuela] with nothing to exhaust. 14 329 F.3d at 59 (citing Booth, 532 U.S. at 736 n.4); accord 15 Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir. 2003) (even 16 though the BIA had already definitively decided the 17 question in a precedential decision, § 1252(d)(1)[] 18 requires exhaustion as a matter of jurisdiction ). 19 [Valenzuela] s argument would likely have failed is not 20 tantamount to stating that it would have been futile to 21 raise it. 22 it cannot be said that the IJ and the BIA do not Beharry, Beharry, 329 F.3d at 62. Taking a different tack, Valenzuela argues that 15 That 1 regulations requiring any BIA member assigned his case to 2 streamline the appeal would have prevented that Board 3 member from referring the appeal to a three-member panel or 4 to an in banc panel of the BIA. 5 in the margin7), specifically provided that a single board 6 member could have affirmed without opinion only if he or she 7 determine[d] that the result reached in the decision under 8 review was correct. 9 as Valenzuela concedes, the regulations specify that one But the regulation (set out 8 C.F.R. § 1003.1(e)(4)(i). Moreover, 10 circumstance in which appeals may be assigned to a panel is 11 when there is a need to reverse the decision of an 12 immigration judge or the Service. 13 1003.1(e)(6)(vi). 14 8 C.F.R. § Last, Valenzuela observes that § 1252(d)(1) requires 7 Affirmance without opinion. (i) The Board member to whom a case is assigned shall affirm the decision of the Service or the immigration judge, without opinion, if the Board member determines that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial; and that (A) The issues on appeal are squarely controlled by existing Board or federal court precedent and do not involve the application of precedent to a novel factual situation; or (B) The factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case. 8 CFR § 1003.1(e)(4). 16 1 only the exhaustion of administrative remedies available as 2 of right, whereas the exhaustion statute in Booth spoke 3 only of such administrative remedies as are available. 4 The Ninth Circuit has parsed these phrases to mean that a 5 remedy is available as of right within the meaning of § 6 1252(d)(1) only if the remedy is not constrained by past 7 adverse administrative decisions. 8 F.3d 932, 941-42 (9th Cir. 2004). 9 Circuit s interpretation. Sun v. Ashcroft, 370 We reject the Ninth The term as of right in § 10 1252(d)(1) excuses pursuit only of such remedies as are 11 wholly discretionary. 12 610, 614 (2d Cir. 1994) ( [T]he failure to move to reopen 13 does not preclude jurisdiction because . . . [it] is a 14 discretionary remedy. ). 15 explained, a statutory requirement for exhausting remedies 16 necessarily entails exhausting processes. 17 U.S. at 739 ( [O]ne exhausts processes, not forms of 18 relief . . . . ). 19 See Arango-Aradondo v. INS, 13 F.3d As the Supreme Court has See Booth, 532 Valenzuela had a right to appeal the IJ s order of 20 removal to the BIA. And he was statutorily required to 21 exercise that right before appealing to this Court, 22 notwithstanding his small chance of success. 17 See Lin Zhong 1 v. U.S. Dep t of Justice, 480 F.3d 104, 118 (2d Cir. 2006) 2 ( [I]n the context of [the alien s] . . . claims, we have 3 jurisdiction . . . so long as a decision has been rendered 4 on his application by an IJ and appealed to the BIA--the two 5 administrative remedies available to him as of right. 6 (emphasis added)). 7 8 B. Constitutional Claim 9 Valenzuela argues that his petition is not subject to 10 statutory exhaustion requirements because it presents 11 constitutional claims. 12 is that the IJ violated Valenzuela s Due Process rights by 13 misconstruing the stop-time rule to end his period of 14 continuous residence when he committed the crime, as opposed 15 to when he was convicted. 16 The supposed constitutional argument Even if the IJ s interpretation of the stop-time rule 17 were incorrect, such an error would not be a constitutional 18 violation. 19 Valenzuela is simply arguing that the IJ erroneously 20 interpreted a statute in such a way that made him legally 21 ineligible for discretionary cancellation of removal. 22 therefore do not reach the issue of whether there exists a Accordingly, this is not a constitutional claim. 18 We 1 constitutional claim exception to § 1252(d). 2 3 C. Manifest Injustice 4 Last, Valenzuela argues that we should excuse his 5 failure to exhaust under the manifest injustice exception 6 to the exhaustion requirement. 7 Ashcroft, 374 F.3d 46 (2d Cir. 2004). 8 made this exception available even when exhaustion is a 9 jurisdictional matter. 10 See Marrero Pichardo v. Our circuit law has Lin Zhong, 480 F.3d at 107 n.1. In Marrero Pichardo, it was deemed manifest injustice 11 to remove a petitioner because: (1) he had resided in the 12 U.S. for 26 years, (2) he had a wife and daughter in the 13 U.S., (3) he claimed to have no ties to his native Dominican 14 Republic, (4) he had appeared pro se before the IJ, and (5) 15 the law had recently changed in the petitioner s favor (such 16 that none of his eleven drunk driving convictions would be 17 considered crimes of violence). 18 can cite comparable equities. 19 for 13 years with his sister and mother, from whom he would 20 be separated if deported; he was engaged to an American 21 citizen who was carrying his child, at least as of 2003; he 22 came here as a teenager and says he has adopted the United 374 F.3d at 54. Valenzuela He has resided in the U.S. 19 1 States as his home country; and his behavior--after his 2 parole--was exemplary. 3 before the IJ, he claims that his counsel failed to inform 4 him of the immigration consequences of pleading guilty.8 5 Although Valenzuela had counsel We noted that the intervening change in law in Marrero 6 Pichardo s favor was not collateral, but rather went to 7 the very basis of his deportation. 8 Valenzuela, there was no intervening change in law 9 pertaining to his removability: Valenzuela challenges the 10 correctness of the BIA s decision in Perez, which goes to 11 the very basis of his deportation, but Perez has not been 12 overruled by the BIA or by this Court. 13 cites an intervening change in the law affecting the 14 government s ability to detain him pending removal.9 Id. at 54. As to Valenzuela instead 8 Valenzuela unsuccessfully petitioned a New York state court in 2003 to vacate his conviction on this ground. 9 Specifically, before the IJ ordered Valenzuela removed in August 2003, the Supreme Court upheld as constitutional pre-removal detention of criminal aliens. See Demore v. Hyung Joon Kim, 538 U.S. 510, 531 (2003). Valenzuela notes that ICE then issued a memorandum stating that all persons within Demore s scope would be called in for interviews, and presumably for detention. His argument is thus that an appeal to the BIA would have somehow increased the likelihood that he would be re-detained. Even assuming (as we do not) that such an anxiety could excuse a failure to appeal, it is unclear why Valenzuela did not fear re-detention when he appeared before the IJ at his master calendar hearings in May and August of 2003--both of which 20 1 Valenzuela s argument based on a change of law thus does not 2 neatly mirror the facts of Marrero Pichardo, although 3 Valenzuela can claim the higher ground of having committed 4 one offense instead of eleven. 5 willing to accept even an opinion from another circuit as a 6 sufficient intervening change in law to assert manifest 7 injustice, see Gill v. INS, 420 F.3d 82, 88 (2d Cir. 2005), 8 Valenzuela would have a plausible claim to dispensation for 9 manifest injustice if we were to uphold that exception to 10 11 But, given that we have been § 1252(d) s exhaustion requirement. In light of the Supreme Court s recent opinion in 12 Bowles v. Russell, 127 S. Ct. 2360 (2007), we hold that 13 there is no manifest injustice exception to § 1252(d) s 14 exhaustion requirement.10 15 have held to the contrary, those opinions are overruled.11 Insofar as our earlier opinions took place after the Supreme Court issued its Demore opinion in April of that year--or when he filed his second habeas petition. 10 At the direction of the Court, the parties submitted additional briefing on whether Bowles, which was filed after the parties submitted briefs, had any impact on this case. 11 In House v. Bell, 126 S. Ct. 2064, 2068 (2006), the Supreme Court recently reaffirmed that [i]n certain exceptional cases involving a compelling claim of actual innocence, the state procedural default rule is not a bar to a federal habeas corpus petition. The actual innocence exception is unaffected by Bowles because actual 21 1 In Bowles, the Supreme Court considered the 2 applicability of the unique circumstances exception to the 3 jurisdictional deadline for filing a notice of appeal. 4 Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 5 U.S. 215 (1962); Thompson v. INS, 375 U.S. 384 (1964). 6 Bowles Court laid the exception to rest: Because this Court 7 has no authority to create equitable exceptions to 8 jurisdictional requirements, use of the unique 9 circumstances doctrine is illegitimate. 10 11 See The 127 S. Ct. at 2366. Just as this analysis invalidates the unique 12 circumstances exception to the jurisdictional bar created 13 by the filing deadline at issue in Bowles, it likewise 14 invalidates the manifest injustice exception to the 15 jurisdictional bar created by 8 U.S.C. § 1252(d) s 16 exhaustion requirement. 17 authority of the federal courts to create equitable 18 exceptions to jurisdictional requirements. Bowles broadly disclaims the Id. 19 20 CONCLUSION innocence is an exception to a judge-made rule, while Bowles overrules exceptions to any jurisdictional rule made by Congress, such as is at issue here. 22 1 We have considered the parties remaining arguments and 2 find each of them to be without merit. 3 reasons, Valenzuela s petition is dismissed for lack of 4 jurisdiction. 23 For the foregoing

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