Opinion
No. 05-3105.
Submitted Under Third Circuit LAR 34.1(a) January 16, 2007.
Filed: February 20, 2007.
Appeal from the On Petition for Review of an Order of The Board of Immigration Appeals, Immigration Judge: Honorable Donald Vincent Ferlise (No. A73-162-304/5).
James J. Orlow, Orlow Orlow, Philadelphia, PA, for Petitioners.
Gerald B. Sullivan, Office of United States Attorney, Philadelphia, PA, David V. Bernal, Jennifer Paisner, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before: McKEE, AMBRO, and STAPLETON, Circuit Judges.
OPINION
The petitioners here, Romanian citizens loan and Mariana Pribec, have once been before our Court challenging the denial by the Board of Immigration Appeals (BIA) of their application for adjustment of status, 8 U.S.C. § 1255a, and waiver of inadmissibility, 8 U.S.C. § 1182(i). In 2004 we considered the Pribecs' assignments of error as to that decision and denied their petition for review. Pribec v. Ashcroft, 100 Fed.Appx. 121 (3d Cir. 2004). The BIA ordered them removed from the United States.
Less than two months later, on August 2, 2004, the Pribecs filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania, which prompted the District Judge to stay the BIA's order of removal. In their habeas petition, the Pribecs asserted a violation of their constitutional right to due process, claiming that the Immigration Judge in their hearing was biased against immigrants and asylum claims in general.
On May 11, 2005, Congress passed and the President signed the REAL ID Act of 2005. Pub.L. 109-13, Div. B., 119 Stat. 231, 302. "Under the new judicial review regime imposed by the Real ID Act, a petition for review is now the sole and exclusive means of judicial review for all orders of removal. . . ." Bonhometre v. Gonzales, 414 F.3d 442, 445 (3d Cir. 2005) (citing 8 U.S.C. § 1252(a)(5)). Moreover, the courts of appeals were given exclusive jurisdiction over all constitutional and legal claims in those petitions. See 8 U.S.C. §§ 1252(a)(2)(d), 1252(a)(5); Bonhometre, 414 F.3d at 445-46. As a result, the REAL ID Act also provided that all habeas petitions "that were pending in the district courts on the date the Real ID Act became effective (May 11, 2005)[we]re to be converted to petitions for review and transferred to the appropriate courts of appeals." Id. at 446 (citing REAL ID Act, Pub.L. 109-13, Div. B, Title I, § 106(c)). The Pribecs' arguments that their petition be returned to the District Court, therefore, are unavailing.
As to the substance of the Pribecs' constitutional argument, we will review "an alien's claim only where the alien has raised and exhausted his or her remedies as to that claim." Khan v. Att'y Gen., 448 F.3d 226, 236 n. 8 (3d Cir. 2006) (brackets and internal quotation marks omitted). Although "'the BIA does not have jurisdiction to adjudicate constitutional issues,'" such as the one raised by the Pribecs, Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990) (quoting Vargas v. U.S. Dep't of Immigration Naturalization, 831 F.2d 906, 908 (9th Cir. 1987)), we nevertheless have applied an administrative exhaustion requirement to claims that are "correctable through the administrative process," id.; see also Khan, 448 F.3d at 236 n. 8 (3d Cir. 2006) (noting that an exhaustion requirement applied because "[Khan's] claim, stripped of its 'due process' label, is a claim of procedural error that could have been addressed by the BIA on appeal"); Bonhometre, 414 F.3d at 448 (noting that petitioner's claims, "though argued in the language of procedural due process, essentially claim that the IJ failed in its duty to completely develop this case," were subject to an administrative exhaustion requirement).
It is prudent, therefore, for us to require that constitutional claims that could be adequately addressed at the administrative level be presented to and exhausted at the BIA before we will review them. Montague-Griffith v. Holmes, 204 Fed.Appx. 77 (2d Cir. 2006). This is so that the BIA can have "the opportunity to apply its specialized knowledge and experience to the matter," Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th Cir. 2006), and "'to resolve a controversy or correct its own errors before judicial intervention,'" Bonhometre, 414 F.3d at 447 (quoting Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004)). We have held this requirement to be applicable to claims of bias on the part of an immigration judge. See Abdulrahman v. Ashcroft, 330 F.3d 587, 595 n. 5 (3d Cir. 2003) ("[A] claim of IJ bias remains subject to administrative exhaustion requirements mandating that the issue be raised before the [BIA]."). This is also consistent with other courts of appeals' treatment of similar claims. See Sanchez v. Gonzales, 195 Fed.Appx. 599 (9th Cir. 2006); Coku v. INS, 170 Fed.Appx. 203 (2d Cir. 2006); Ghumanshyan v. Gonzales, 163 Fed.Appx. 486 (9th Cir. 2006); Amaya-Artunduaga v. Att'y Gen., 463 F.3d 1247 (11th Cir. 2006); Camara v. INS, 163 Fed.Appx. 8, 10 (2d Cir. 2005).
Thus, because the Pribecs have not raised their claim of bias before the BIA, we do not yet have jurisdiction over it. We do not ignore that the Pribecs may not have been able to raise the issue during any of the proceedings to this point that have reviewed the Immigration Judge's decision on the merits. The Pribecs might not have been aware of the Immigration Judge's conduct that forms the basis of their claim. The proper course, however, is for the Pribecs to move to reopen then-case at the BIA. See 8 C.F.R. § 1003.2. That decision can then be reviewed in this Court. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). For the foregoing reasons, the petitioners' petition for review is dismissed.