E.O.H.C. v. Secretary United States Depart

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 19-2927 _______________ E.O.H.C.; M.S.H.S., a minor child, Appellants v. SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; COMMISSIONER UNITED STATES CUSTOMS & BORDER PROTECTION; DIRECTOR UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT; FIELD OFFICE DIRECTOR PHILADELPHIA UNITED STATES IMMIGRATION & CUSTOMS ENFORCEMENT _______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5:19-cv-03204) District Judge: Honorable Joshua D. Wolson _______________ Argued: November 12, 2019 Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges (Filed: February 13, 2020) _______________ Anthony Vale Michael S. DePrince [ARGUED] Pepper Hamilton 3000 Two Logan Square Philadelphia, PA 19103 Tobias Barrington Wolff [ARGUED] 3501 Sansom Street Philadelphia, PA 19104 Bridget Cambria Cambria & Kline 532 Walnut Street Reading, PA 19601 Amy Maldonado Law Office of Amy Maldonado 333 Albert Avenue, Suite 610 East Lansing, MI 48823 Counsel for Appellants Joseph H. Hunt William C. Peachey Erez Reuveni Archith Ramkumar [ARGUED] Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 William M. McSwain Veronica J. Finkelstein Anthony St. Joseph 2 Paul J. Koob Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Appellees _________________ OPINION OF THE COURT _________________ BIBAS, Circuit Judge. This case raises the age-old question: “If not now, when?” Mishnah, Pirkei Avot 1:14. For aliens who are challenging their removal from the United States, the answer is usually “later.” But not always. And not here. Federal district courts rarely have jurisdiction to hear dis- putes relating to removal. That is because the Immigration and Nationality Act (INA) strips them of jurisdiction over all claims “arising from any action taken or proceeding brought to remove” aliens. 8 U.S.C. § 1252(b)(9). Instead, an alien must typically litigate his removal-related claims before an immi- gration judge. Then, after an order of removal, he may appeal to the Board of Immigration Appeals. Only after that may he file a petition for review with a court of appeals. Usually, dis- trict courts are not part of this process. But some immigration-related claims cannot wait. When a detained alien seeks relief that a court of appeals cannot mean- 3 ingfully provide on petition for review of a final order of re- moval, § 1252(b)(9) does not bar consideration by a district court. Neither does § 1252(a)(4), a provision that generally re- quires Convention Against Torture claims to await a petition for review. For if these provisions did bar review of all claims before the agency issues a final order of removal, certain ad- ministrative actions would effectively be beyond judicial re- view. If “later” is not an option, review is available now. Appellants E.O.H.C. and M.S.H.S., his seven-year-old daughter, came from Guatemala through Mexico to the United States. The Government seeks to return them to Mexico while it decides whether to grant them asylum or instead remove them to Guatemala. They brought several claims in the District Court, ...

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