Syed Tazu v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 19-1715 _______________ SYED TAZU, Appellant v. ATTORNEY GENERAL UNITED STATES OF AMERICA; DIRECTOR NEW YORK FIELD OFFICE IMMIGRATION AND CUSTOMS ENFORCEMENT; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; WARDEN BERGEN COUNTY JAIL _______________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:19-cv-07872) District Judge: Honorable Esther Salas _______________ Argued: July 9, 2020 Before: McKEE, BIBAS, and FUENTES, Circuit Judges (Filed: September 14, 2020) _______________ Aasiya F.M. Glover [ARGUED] Jeremy Feigelson Debevoise & Plimpton 919 Third Avenue New York NY, 10022 Gregory P. Copeland Sarah T. Gillman Rapid Defense Network 11 Broadway, Suite 615 New York, NY 10004 Counsel for Appellant Anna Dichter Dhruman Y. Sampat [ARGUED] United States Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 Enes Hajdarpasic J. Andrew Ruymann Office of the United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102 Counsel for Appellees 2 _______________ OPINION OF THE COURT _______________ BIBAS, Circuit Judge. In law, as in life, the path often matters as much as the des- tination. For an alien challenging his removal, that path begins with a petition for review of his removal order, not a habeas petition. Syed Tazu challenged when and how the Attorney General sought to remove him. But he lost his way by doing so in the wrong proceeding in the wrong court. He filed a habeas peti- tion, asking the District Court to stop the Attorney General from executing his valid removal order while he tries to reopen his removal proceedings and to get a Provisional Unlawful Presence Waiver. But 8 U.S.C. § 1252(g) strips us of jurisdic- tion to review any “decision or action by the Attorney General to . . . execute removal orders against any alien.” And § 1252(b)(9) makes a petition for review—not a habeas peti- tion—the exclusive way to challenge “any action taken or pro- ceeding brought to remove an alien.” Those provisions funnel Tazu’s claims to the Second Circuit, not us. We will thus re- verse and remand for the District Court to dismiss for lack of subject-matter jurisdiction. Still, the wheels of justice turn elsewhere. Tazu has a peti- tion for review pending in the Second Circuit. His removal is stayed while that litigation is pending, so he can remain with his wife and children. And we have every confidence that our 3 sister circuit will consider Tazu’s claim that he endured inef- fective assistance of counsel throughout his immigration pro- ceedings. I. BACKGROUND A. Facts In 1993, Tazu left his native Bangladesh, traveled to Mex- ico, and crossed into the United States without inspection. He promptly applied for asylum based on political persecution. Eight years later, in his removal proceeding, an immigration judge denied that application. But rather than ordering his re- moval, the immigration judge granted his request to depart vol- untarily. Tazu appealed to the Board of Immigration Appeals, alleg- ing ...

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