Respondent Points Flashcards
5 points
3 bonus points
jazzy sentence
[#1] The statutory requirement for exhaustion applies to both remedies AND issues.
[#2] Mr. El did not even exhaust all of his remedies: he could have proven to the ICE officer that he was not “amenable” to expedited removal.
[#3] Mr. El was given opportunities to make his legal argument as of right.
[#4] The majority of the circuits determined that failure to
exhaust categorically bars circuit court jurisdiction.
[#5] As a matter of policy, jurisdictional rules should
be clear and congress’ clear intent should be applied.
//AS-NEEDED COUNTERS//
[+6] Judicial exhaustion isn’t appropriate here.
[+7] Any defects in the NTA were waived.
[+8] Even if it’s not jurisdictional, it’s a mandatory “claim-processing” rule.
[+9] Even if the constitutional claim is a collateral one, that only reaffirms its inappropriateness to this venue and this Court.
//*~JAZZ HANDS~*// This Court should simply preserve Congress’ clear, intentional jurisdictional bar. [REVERSE ON JURISDICTION]
[#1]
The statutory requirement for exhaustion applies to both remedies AND issues.
A) 11 circuits have interpreted the exhaustion requirement to require all issues be brought or consequently waived.
- These circuits uniformly hold that the statutory requirement for exhaustion applies both to remedies and issues.
B) If it didn’t work this way it would incentivize people to game the system and not raise issues below.
- The whole point of exhaustion is to allow the agency to answer the claims below first.
C) Exhaust means to fully deplete – and you can’t fully deplete your remedies if you don’t use all the issues.
D) Also, the Supreme Court has explained that judicial review means review, not first view.
[#2]
Mr. El did not even exhaust all of his remedies: he could have proven to the ICE officer that he was not “amenable” to expedited removal.
A) He could have proven to the ICE officer that he was not “amenable” to expedited removal.
B) Under CFR 238.1 the ICE officer can convert any hearing into a formal removal hearing if the alien is “not amenable.” Serious legal issues (like asylum, etc.) likely qualify.
C) Under a 240 formal removal hearing, if he had not exhausted this issue, he surely would be barred from making the claim in federal court. 8 CFR 1003.3(b), 1003.2(b)
[#3]
Mr. El was given opportunities to make his legal argument as of right.
A) Allowing him the avenue as of right of the hearing was already more than required.
- As an aggravated felon in expedited removal proceedings, the government wasn’t required to hear any asylum claims. But they did. R. at 4.
- The government was not required to give Mr. El a hearing But they did. R. at 4.
- The government afforded Mr. El more than what was required or even reasonable.
- Still he failed to make his only claim on appeal. R. at 5.
B) He certainly had physical opportunity and capability to make this argument.
- All he would have had to say is “my conviction was unconstitutional.”
- Then he could have preserved this issue.
- ICE officer specifically informs him he’s not making legal argument; he makes no attempt to. R. at 4, 9.
- What more do you want?
C) The facts clearly establish Mr. El clearly had adequate opportunity.
- In his response to the notice form, petitioner failed to specify any claim at all. R. at 8.
- In the ICE hearing, petitioner only discussed his continuous presence as an illegal alien and his fear of returning to Kryptonia. R. at 4, 9.
- ICE officer then told him that nothing he said was sufficient to raise a challenge to removal. R. at 9.
- ICE officer explicitly asked if he had additional arguments
- petitioner said he had no further arguments. R. at. 9.
D) Further, Mr. El could have persuaded Ms. Sullivan to convert this into a 240/formal hearing. His failure to do so does not mean there were not avenues as of right.
[#4]
The majority of the circuits determined that failure to
exhaust categorically bars circuit court jurisdiction.
A) The majority of circuits required an alien make any legal claims to allow circuit court jurisdiction.
- In Fonseca-Sanchez, the 7th Circuit held that the court did not have jurisdiction to hear the challenge when the petitioner did not respond to the notice of intent and therefore failed to exhaust her administrative remedies.
- In Escoto-Castillo, the 8th Circuit determined that it did not have jurisdiction to consider an issue that an immigrant raises for the first time on appeal instead of in his response to a notice of intent = petitioner waived his rights to contest removal.
- In Malu, the 11th Circuit held no jurisdiction when petitioner outright declined to contest notice of intent.
B) Only 2 circuits recognized an exception, and this case doesn’t compel expansion of those holdings.
- The 5th Circuit’s reasoning in Valdiviez does not apply to the case before the Court.
• DISTINCTION 1= Valdiviez challenged the legal conclusion that he was subject to expedited removal at all (because it only applied to aliens “admitted” to US).
• DISTINCTION 2= 5th Cir. determined the regulations did not provide Valdiviez with an avenue to challenge this legal conclusion.
• COUNTER 1= Mr. El doesn’t contest legal conclusion that he’s subject to expedited removal (in fact, he waives it R. at 5).
• COUNTER 2= The regulations did provide Mr. El with an avenue to make this claim.
• Under CFR 238.1 the ICE officer can convert any hearing into a formal removal hearing if the alien is “not amenable.” Serious legal issues (like asylum, etc.) likely qualify.
[#5]
As a matter of policy, jurisdictional rules should
be clear and congress’ clear intent should be applied.
A) If courts have to determine each time whether issues were “truly” exhausted, that is a lot of litigation and discussion.
B) This undermines efficiency of jurisdictional rules and Congress’ intent for removal to be expedited in these cases.
C) The real place to complain about an unconstitutional law under which you are convicted is during the criminal proceeding.
- Allowing convicted criminals to appeal immigration proceedings rather than the conviction itself is unworkable and detracts from administrative simplicity and undermines the purpose of Article III courts.
[+6 / AS-NEEDED COUNTER]
Judicial exhaustion isn’t appropriate here.
A) After Darby v. Cisneros, this is inappropriate.
- There, this Court said that when Congress provides a roadmap for exhaustion, that is what should be applied and not any additional, judicial requirements.
B) Here, Congress was clear, and they made it JURISDICTIONAL by attaching it in 1252.
[+7 / AS-NEEDED COUNTER]
Any defects in the NTA were waived.
Pereira didn’t involve an aggravated felony, expedited removal, or waiver of all procedural challenges to removal.
[+8 / AS-NEEDED COUNTER]
Even if it’s not jurisdictional, it’s a mandatory “claim-processing” rule.
A) No equitable exceptions apply here.
B) The Court is mandated to apply this rule and the policies underlying exhaustion support its application.
[+9 / AS-NEEDED COUNTER]
Even if the constitutional claim is a collateral one, that only reaffirms its inappropriateness to this venue and this Court.
A) The claim should have been brought in the collateral proceeding of direct appeal from the conviction itself.
- The fact that that appeal wasn’t made doesn’t mean it should be brought here and now.
- Petitioner cannot use immigration proceedings as a convenient loophole to raise an issue that should have been raised elsewhere.
B) Also, the claim is directly relevant to this issue of exhaustion.
- Petitioner cannot skirt the issue before the Court by simply re-characterizing it. You cannot get to the collateral without overcoming the failure to exhaust.
[~~~JAZZ HANDS~~~]
This Court should simply preserve Congress’ clear, intentional jurisdictional bar.
[REVERSE ON JURISDICTION]
