Immigration law - enforcing administrative exhaustion requirements for pattern-and-practice claims concerning due process violations during immigration raids - Aguilar v. United States Immigration and Customs Enforcement.

• Author: Riordan, Katherine F.

Immigration statutes have traditionally contained provisions that limit federal district court jurisdiction over administrative appeals and require individuals to exhaust administrative remedies before seeking judicial review of immigration claims. (1) As in other areas of administrative law, courts have considered such provisions and determined the circumstances in which the court should waive exhaustion requirements and extend judicial review. (2) The REAL ID Act of 2005, one of the most recent immigration statutes, requires administrative exhaustion and significantly limits judicial review of claims "arising" from immigration removal proceedings. (3) In Aguilar v. United States Immigration and Customs Enforcement, (4) the United States Court of Appeals for the First Circuit addressed class-wide claims that Immigration and Customs Enforcement (ICE) has a pattern and practice of violating aliens' due process right to counsel during large scale immigration raids. (5) The First Circuit considered whether such pattern-and-practice claims "arise" from removal proceedings, thus triggering the REAL ID Act's provisions, and whether enforcing the provisions would foreclose the opportunity for meaningful judicial review. (6) The court held that although framed as a pattern-and-practice action, the underlying right-to-counsel claims "arose" from removal, and that the court could enforce the REAL ID Act without foreclosing meaningful judicial review of those claims. (7)

On March 6, 2007, ICE officials executed an immigration enforcement raid at a leather factory in New Bedford, Massachusetts where they detained several hundred undocumented aliens and held them at Ft. Devens immigration holding facility in Ayer, Massachusetts. (8) The petitioners claimed that following the raid, ICE denied access to several volunteer attorneys who arrived at the holding facility to offer legal services. (9) They also claimed that two days later, ICE transferred several aliens to detention facilities in Texas, where they had no opportunity for legal advice. (10) According to the petitioners, ICE's actions during the raid were part of a systematic tactic to interfere with exiting attorney-client relationships and to hinder their ability to retain lawyers. (11) The petitioners alleged that ICE's tactics violated their due process right to counsel. (12)

The petitioners initially filed a habeas corpus petition in the United States District Court for the District of Massachusetts. (13) Shortly thereafter, they withdrew their habeas petition and filed an amended complaint, structured as a class-wide claim, alleging that ICE had a pattern and practice of violating due process during large-scale immigration raids. (14) In response, ICE argued that the claims arose from removal and that pursuant to the REAL ID Act, the district court lacked jurisdiction over the claims and the petitioners must exhaust administrative remedies before seeking review by the circuit court. (15) The petitioners, however, maintained that the REAL ID Act did not apply to their claims because rather than challenging an individual removal order, their complaint concerned ICE's systematic tactics during immigration raids. (16) Rejecting the petitioners' argument, the district court held that although fashioned as a class-wide complaint, the claims did arise from removal and were subject to the REAL ID Act's exhaustion requirements. (17) The First Circuit agreed that the claims arose from removal and held that enforcing exhaustion would not foreclose the petitioners' opportunity for meaningful judicial review. (18)

Immigration statutes typically limit judicial review of claims associated with removal, including appeals from the decisions of both immigration judges (IJs) and the Board of Immigration Appeals (BIA). (19) Many of these statutes also require administrative exhaustion; however, as in other administrative law contexts, courts have waived exhaustion requirements in certain situations. (20) Courts have held that "collateral claims"--claims that are beyond the adjudicating agency's authority or expertise--should not be subject to administrative exhaustion because exhaustion would foreclose meaningful judicial review of those claims. (21) For example, because agencies generally lack authority to review constitutional claims, courts often hold that such claims are collateral and should not be subject to administrative exhaustion. (22) Mindful of this loophole, petitioners often seek to avoid exhaustion by raising constitutional due process claims in district court; however, courts are wary of this tactic and their rulings hinge on whether the particular due process claim is cognizable within the administrative process. (23)

Courts have also considered whether class-wide claims that the government systematically violated due process are collateral to administrative proceedings such that enforcing exhaustion would foreclose meaningful judicial review. (24) After determining whether an exhaustion provision applies, courts must consider whether enforcing the exhaustion requirement forecloses meaningful judicial review. (25) Some courts hold that class-wide claims should not be subject to exhaustion because a single administrative record cannot effectively encapsulate the scope of a broad-based unlawful practice. (26) Other courts, while recognizing such procedural difficulties, simply consider whether the underlying nature of the pattern and practice claim is cognizable within the administrative process. (27) These courts are often wary of attempts to bypass exhaustion by artfully framing pleadings as class-wide complaints. (28)

Courts have recently revisited this issue with respect to the REAL ID Act's jurisdiction-limiting provisions and administrative exhaustion requirements for claims arising from removal. (29) While previous immigration laws similarly restricted judicial review, the REAL ID Act is unique in that it expansively covers "all questions of law and fact including interpretation and application of constitutional and statutory provisions." (30) Mindful of the REAL ID Act's sweeping language, courts struggle to construe the precise meaning of the phrase "arising from" and, as in other administrative contexts, generally hold that the phrase means something more than a weak or tenuous connection to the event at issue. (31) For example, in construing the REAL ID Act's "arising from" language, courts have held that detention-condition complaints and challenges to termination of asylum status do not arise from removal. (32) In contrast, courts have held that challenges to mandatory detention pending expedited removal, complaints regarding ineffective assistance of counsel during removal hearings, and claims concerning IJs' discretionary findings that impact removal do arise from removal and therefore require exhaustion. (33) Most recently, courts have considered whether claims that the government systematically violated due process rights during immigration raids arise from removal thus triggering the REAL ID Act's restrictive provisions. (34)

In Aguilar v. United States Immigration and Customs Enforcement, one of the first cases to examine ICE's tactics during workplace raids, the First Circuit held that the petitioners' right-to-counsel claims arose from removal and that despite the class-wide format, it could enforce the REAL ID Act's exhaustion requirements while preserving meaningful judicial review. (35) Noting that right-to-counsel claims are common in removal proceedings, the First Circuit reasoned that the petitioners' claims were not tenuous, but were "inextricably intertwined" with and therefore arose from removal. (36) After determining that the REAL ID Act applied, the court held that enforcing administrative exhaustion would not foreclose meaningful judicial review of the right-to-counsel claims because the administrative process could effectively address and remedy those claims. (37) The court reasoned that because IJs administer oaths, receive evidence, issue subpoenas, call witnesses, and allow for cross-examination, supplemental district court fact-finding was unnecessary and the administrative record could provide a sufficient basis for further administrative and judicial review. (38)

The First Circuit then addressed the claims' pattern and practice aspect and held that despite the class-wide format, the underlying right-to-counsel claims arise from removal and that enforcing exhaustion of class-wide claims does not foreclose meaningful judicial review. (39) Considering substance over form, the court reasoned that whether structured as an individual or pattern-and-practice case, right-to-counsel claims are cognizable within the administrative review process. (40) Accordingly, the record developed during an individual administrative adjudication would sufficiently allow a reviewing circuit court to determine whether ICE's pre- and post-raid practices violate due process. (41) The court also remarked that in their complaint, the petitioners did not truly address ICE's systematic patterns and practices; rather, they simply conglomerated their...