Pursuant to Federal Rule of Appellate Procedure 43 c 2 , Attorney General Michael… v. Mukasey UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 August Term,…

* Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Michael B. Mukasey is
automatically substituted for former Attorney General John
Ashcroft as respondent in this case.
05-4622-ag
Valenzuela Grullon v. Mukasey
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2007 5
6
(Argued: August 30, 2007 Decided: November 27, 2007 7
Amended: January 7, 2008) 8
9
Docket No. 05-4622-ag 10
11
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13
JULIO CESAR VALENZUELA GRULLON, 14
15
Petitioner, 16
17
- v.- 18
19
MICHAEL B. MUKASEY, ATTORNEY 20
GENERAL, * MICHAEL J. GARCIA, 21
EDWARD J. MCELROY, BUREAU OF 22
IMMIGRATION AND CUSTOMS 23
ENFORCEMENT, 24
25
Respondents. 26
27
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29
Before: JACOBS, Chief Judge, B.D. PARKER and 30
HALL, Circuit Judges. 31
32
Petition for review of a final order of Immigration 33
Judge John Opaciuch denying cancellation of removal. 34

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2
Petitioner failed to appeal the IJ’s order to the BIA, 1
petitioning instead for a writ of habeas corpus. Habeas 2
corpus petition was docketed as a petition for review by 3
operation of law under the REAL ID Act of 2005. 4
DISMISSED. 5
BOZENA ZIEDALSKI, New York, NY, 6
for Petitioner. 7
8
M. JOCELYN LOPEZ WRIGHT, 9
Assistant Director, Office of 10
Immigration Litigation, Civil 11
Division, United States 12
Department of Justice (Peter D. 13
Keisler, Assistant Attorney 14
General and Carol Federighi, 15
Senior Litigation Counsel, on 16
the brief), Washington, D.C., 17
for Respondents. 18
19
DENNIS JACOBS, Chief Judge: 20
Julio Cesar Valenzuela Grullon (“Valenzuela”) petitions 21
for review of an order of Immigration Judge (“IJ”) John 22
Opaciuch denying his application for cancellation of 23
removal. Valenzuela, who failed to appeal the order of 24
removal to the Board of Immigration Appeals (“BIA”), 25
concedes that his administrative remedies are therefore 26
unexhausted, but asks that the failure to exhaust be excused 27
(and that we reach the merits of his petition). We hold 28
that the exhaustion requirement applicable to Valenzuela’s 29

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1 The government also alleged initially that Valenzuela
had committed an aggravated felony, see 8 U.S.C. §
1227(a)(2)(A)(iii), but later withdrew that basis for
removal.
3
petition, 8 U.S.C. § 1252(d)(1), is statutory and 1
jurisdictional. Further, we conclude that the 2
jurisdictional defect cannot be excused on a ground of 3
manifest injustice. Contra Marrero Pichardo v. Ashcroft, 4
374 F.3d 46, 53 (2d Cir. 2004). 5
6
I 7
On December 5, 1994, Valenzuela was admitted as a 8
lawful permanent resident from his native Dominican 9
Republic. In December 2001, he was indicted in New York on 10
a series of drug offenses, and pled to a single count in 11
February 2002 . He was sentenced to a term of three years to 12
life in prison. 13
One month before his October 2002 release on parole, 14
the INS charged Valenzuela with violating a law related to a 15
controlled substance. See 8 U.S.C. § 1227(a)(2)(B)(i). 1
16
Upon his parole, Valenzuela was detained by the INS. In 17
December 2002, he filed a petition for habeas corpus in the 18
Southern District of New York, arguing that detention 19
without bond prior to his removal proceedings was 20

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2 Both parties note that the rationale for the district
court’s habeas ruling was in any event subsequently rejected
by the Supreme Court in Demore v. Hyung Joon Kim, 538 U.S.
510 (2003).
4
unconstitutional. The district court (Griesa, J.) granted 1
the petition on December 20, 2002, and Valenzuela was 2
released. The government’s appeal of that ruling became 3
moot when Valenzuela’s removal proceedings were completed; 4
we therefore vacated the district court’s order. 2
5
Throughout his removal proceedings, conducted in the 6
spring of 2003, Valenzuela conceded removability but sought 7
cancellation of removal. In order to establish that he has 8
continuously resided in the U.S. for seven years--a 9
prerequisite to cancellation of removal, see 8 U.S.C. § 10
1229b(a)(2)--Valenzuela would have had to overcome the 11
“stop-time” rule, which provides that “any period of 12
continuous residence . . . shall be deemed to end . . . when 13
the alien has committed an offense . . . that renders the 14
alien inadmissible to the United States.” 8 U.S.C. § 15
1229b(d)(1)(B). Valenzuela argued that the stop-time rule 16
does not terminate a period of continuous residence until 17
the alien is convicted of the removable offense--a 18
consequential distinction for Valenzuela because he pled 19
guilty a few months after the December 2001 expiration of 20

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3 Valenzuela’s brief professes uncertainty as to the
precise date he committed the offense to which he pled
guilty. He concedes, however, that the date of his arrest--
November 29, 2001--fell within the seven-year period
following his admission to the United States.
4 We do not know the actual grounds for the order of
removal because the oral decision is not included in the
record on this appeal (a consequence of Valenzuela’s failure
to appeal to the BIA, discussed below); in all likelihood,
however, one ground was Perez.
5
the seven-year period, whereas the indictment alleged that 1
the offense was committed on or about August 29, 2001. 3
2
The BIA had already rejected Valenzuela’s proposed 3
reading at the time of his hearing before the IJ, see In re 4
Perez, 22 I. & N. Dec. 689 (BIA 1999) (11-4 decision in 5
banc), but Valenzuela urged the IJ to follow the reasoning 6
of the Perez dissent. 7
The IJ denied relief in August 2003. 4 Rather than 8
appeal to the BIA, Valenzuela filed a second habeas petition 9
in October 2003 to challenge the order of removal. This 10
habeas petition was pending in the Southern District of New 11
York when the REAL ID Act of 2005, Pub. L. No. 109-13, 119 12
Stat. 231, 311 (2005) , took effect on May 11, 2005. 13
Pursuant to Section 106(c) of that Act, the district court 14
ordered the habeas corpus petition transferred to this 15
Court, where it was docketed as a petition for review. 16

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6
Valenzuela concedes his failure to exhaust 1
administrative remedies before petitioning this Court for 2
review, but he contends that any failure to exhaust should 3
be excused because (1) appeal to the BIA would have been 4
futile, (2) his appeal raises constitutional claims, and (3) 5
dismissing his petition would cause a “manifest injustice.” 6
On the merits, Valenzuela argues that the stop-time rule is 7
ambiguous as to whether continuous residence is terminated 8
by commission of an offense or by conviction, and that the 9
Perez dissent correctly concluded that the trigger is 10
conviction. 11
The government urges us to dismiss the petition for 12
review on exhaustion grounds because Valenzuela never 13
appealed to the BIA. On the merits, the government defends 14
the BIA’s interpretation of the stop-time rule in Perez as 15
consistent with the plain language of the statute and argues 16
that Valenzuela is therefore barred from applying for 17
cancellation of removal. 18
19
II 20
When the REAL ID Act of 2005, Pub. L. No. 109-13, 119 21
Stat. 231, 311 (2005), became effective, Valenzuela’s second 22

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7
habeas petition (challenging his order of removal), then 1
pending in the Southern District of New York, was 2
transferred to this Court and converted into a petition for 3
review: 4
If an alien’s case, brought under section 5
2241 of title 28, United States Code, and 6
challenging a final administrative order 7
of removal . . . is pending in a district 8
court on the date of the enactment of 9
this division, then the district court 10
shall transfer the case . . . to the 11
court of appeals for the circuit in which 12
a petition for review could have been 13
properly filed . . . . 14
15
§ 106(c), 119 Stat. at 311; see also Marquez-Almanzar v. 16
INS, 418 F.3d 210, 215 (2d Cir. 2005). The REAL ID Act 17
speaks generally to the manner in which converted petitions 18
are to be treated upon transfer here: 19
The court of appeals shall treat the 20
transferred case as if it had been filed 21
pursuant to a petition for review under 22
such section 242, except that subsection 23
(b)(1) of such section shall not apply. 24
25
§ 106(c), 119 Stat. at 311. In other words, converted 26
petitions are to be treated as ordinary petitions for review 27
in all respects except as to the filing deadline (8 U.S.C. § 28
1252(b)(1)). 29
The question, then, is whether Valenzuela’s converted 30
petition is governed by 8 U.S.C. § 1252(d)(1) (“A court may 31

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8
review a final order of removal only if . . . the alien has 1
exhausted all administrative remedies available to the alien 2
as of right”), or whether the sole exhaustion rule 3
Valenzuela violated is a “judicial (common-law) [rule], 4
[which is] discretionary and includes a number of 5
exceptions[,]” Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 6
2003). 7
We have not had occasion to decide whether § 1252(d) 8
requires that aliens appeal to the BIA before petitioning 9
this Court for review. But our jurisprudence makes that 10
supposition. For example, we dismissed a habeas appeal in a 11
case that had never been before the BIA, holding that the 12
“limitations imposed by § 1252(d) on a court’s ability to 13
‘review’ final orders of deportation extend[ed] to habeas 14
corpus review.” Theodoropoulos v. INS , 358 F.3d 162, 170 15
(2d Cir. 2004); see also Lin Zhong v. U.S. Dep’t of Justice, 16
480 F.3d 104, 118 (2d Cir. 2006) (“[W]e have jurisdiction to 17
review the ‘final order of removal’ entered against Lin, so 18
long as a decision has been rendered on his application by 19
an IJ and appealed to the BIA--the two administrative 20
remedies available to him as of right.”); cf. Marrero 21
Pichardo v. Ashcroft, 374 F.3d 46, 53 (2d Cir. 2004) (“We 22

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5 We need not deal here with the third category of
exhaustion requirements--those that are judge-made,
prudential rules of administrative law--because we hold that
the exhaustion requirement that governs Valenzuela’s
petition is statutory. See Part II, supra.
9
therefore hold that, notwithstanding a habeas petitioner’s 1
failure to exhaust his claims before the BIA, as required by 2
section 1252(d), we nonetheless have jurisdiction to 3
consider the petitioner’s claim if it is necessary to avoid 4
manifest injustice.” (emphasis added)). 5
Squarely presented with the issue for the first time in 6
this appeal, we hold that the exhaustion provision of § 7
1252(d)(1) requires aliens, inter alia, to appeal to the BIA 8
before petitioning for review in this Court. 9
10
III 11
The next question is whether the statutory exhaustion 12
requirement of § 1252(d)(1)--that a court may review a final 13
order of removal only if the alien has exhausted all 14
administrative remedies available to him as of right --is 15
jurisdictional or merely “mandatory.” 5 See Lin Zhong, 480 16
F.3d at 119. Mandatory requirements (we have said) are 17
subject to waiver, id., and are therefore less absolute than 18
jurisdictional requirements. 19

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10
In Lin Zhong, 480 F.3d at 119-20, we distinguished 1
between jurisdictional and mandatory rules, partly by resort 2
to the Supreme Court’s caveat that 3
[c]larity would be facilitated . . . if 4
courts and litigants used the label 5
“jurisdictional” not for claim-processing 6
rules, but only for prescriptions 7
delineating the classes of cases 8
(subject-matter jurisdiction) and the 9
persons (personal jurisdiction) falling 10
within a court’s adjudicatory authority. 11
12
Eberhart v. United States, 546 U.S. 12, 16 (2005) (internal 13
quotation marks and citation omitted). Subsequent to Lin 14
Zhong, the Supreme Court sharpened the analysis. In Bowles 15
v. Russell, 127 S. Ct. 2360 (2007), the Court held that a 16
limit on extensions of time to appeal, see 28 U.S.C. § 17
2107(c), was jurisdictional largely because “of the fact 18
that [the] time limitation is set forth in a statute.” 19
Bowles, 127 S. Ct. at 2364. The Court explained: 20
Because Congress decides whether federal 21
courts can hear cases at all, it can also 22
determine when, and under what 23
conditions, federal courts can hear them. 24
Put another way, the notion of 25
“subject-matter” jurisdiction obviously 26
extends to “classes of cases . . . 27
falling within a court’s adjudicatory 28
authority,” but it is no less 29
“jurisdictional” when Congress forbids 30
federal courts from adjudicating an 31
otherwise legitimate “class of cases” 32
after a certain period has elapsed from 33

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11
final judgment. 1
2
Id. at 2365-66 (citations omitted). Bowles emphasized 3
repeatedly that its reasoning was based on the statutory 4
origin of the limitation, and thus made clear that limits 5
expressed in statutes--as to time or “classes of cases”-- 6
limit subject-matter jurisdiction. See, e.g., id. at 2366 7
(“As we have long held, when an appeal has not been 8
prosecuted in the manner directed, within the time limited 9
by the acts of Congress, it must be dismissed for want of 10
jurisdiction.” (internal quotation marks omitted) (emphasis 11
added)); id. at 2365 (observing that the Supreme Court’s 12
treatment of its certiorari jurisdiction “also demonstrates 13
the jurisdictional distinction between court-promulgated 14
rules and limits enacted by Congress”). 15
Congress cast § 1252(d)(1) in terms of the courts’ 16
authority to review a “class of cases” (petitions for review 17
of a final order of removal) and permitted review “only if 18
the alien has exhausted all administrative remedies 19
available as of right.” One of the administrative remedies 20
available to aliens as of right is an appeal to the BIA. In 21
this way, Congress has instructed the courts that they may 22
not review a final order of removal unless the alien has 23

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12
appealed to the BIA. When an exhaustion requirement is 1
statutory and evinces an intent to constrict the ability of 2
courts to adjudicate a class of cases, the limitation is 3
jurisdictional, rather than mandatory only. The requirement 4
might be described as a “claim-processing rule”; but because 5
it is a statutory limit on the Court’s power, it is 6
jurisdictional, not merely mandatory. Accord Magtanong v. 7
Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007) (citing Bowles 8
and holding that the 30-day time period for filing a 9
petition for review is “mandatory and jurisdictional because 10
it is imposed by statute” (internal citation omitted)). 11
We therefore hold that, as regards the requirement that 12
petitioners appeal to the BIA, § 1252(d)(1) is 13
jurisdictional. We have said as much in dicta. See Lin 14
Zhong, 480 F.3d at 107 (referring to “the clearly 15
jurisdictional requirement of 8 U.S.C. § 1252(d)(1) that 16
cases of this sort be brought to the Executive Office for 17
Immigration Review (i.e., an IJ and the BIA) before they can 18
be considered by courts of appeal”); accord Lin Zhong v. 19
U.S. Dep’t of Justice, 489 F.3d 126, 130 (2d Cir. 2007) 20
(Calabresi, J., concurring in the denial of in banc review) 21
(observing that § 1252(d)(1) uses “language [that] typically 22

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13
means that courts do not have jurisdiction to hear a 1
petitioner who has not first brought his case before the 2
available administrative agency”). 3
Given that we are directed by statute to treat 4
converted petitions, such as Valenzuela’s, as ordinary 5
petitions for review, it follows that such converted 6
petitions are likewise subject to § 1252(d)’s jurisdictional 7
bar. 8
9
IV 10
We are left to decide what exceptions, if any, would 11
allow us to hurdle the jurisdictional bar that prevents us 12
from reviewing the merits of Valenzuela’s petition. 13
14
A. Futility 15
Valenzuela argues that appealing to the BIA would have 16
been futile in light of the agency’s precedential decision, 17
In re Perez, 22 I. & N. Dec. 689 (BIA 1999). As the Supreme 18
Court explained in Booth v. Churner, “we will not read 19
futility or other exceptions into statutory exhaustion 20
requirements where Congress has provided otherwise.” 532 21
U.S. 731, 741 n.6 (2001). At the same time, 22

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6 Valenzuela cites dicta in Gill v. INS, 420 F.3d 82
(2d Cir. 2005), for the proposition that Booth’s rule
against futility exceptions does not operate in the
immigration context because Booth was “based on the
legislative history of the [Prison Litigation Reform Act],
and in particular Congress’s decision to eliminate
previously-available statutory exceptions for futility.”
Gill, 420 F.3d at 87 n.9. Of course, Gill’s dicta runs
counter to the reading of Booth set out in Beharry.
Moreover, our own reading of Booth suggests that it is not
limited to those circumstances in which the statutory
history indicates that Congress took away a previously
existing futility exception. See Booth, 532 U.S. at 739
(referring to statutory history as one of two considerations
leading to the Court’s holding). Such statutory history may
counsel strict adherence to the congressional command, but
we are bound to implement congressional limits on our
jurisdiction without reference to particular features of
statutory history.
14
Booth does allow that exhaustion may 1
not be required “where the relevant 2
administrative procedure lacks 3
authority to provide any relief or 4
to take any action whatsoever in 5
response to a complaint,” because 6
“[w]ithout the possibility of some 7
relief, the administrative officers 8
would presumably have no authority 9
to act on the subject of the 10
complaint, leaving the inmate with 11
nothing to exhaust.” This may 12
technically be less an “exception” 13
to a statutory exhaustion 14
requirement than it is a statement 15
regarding the parameters of that 16
requirement. 17
18
Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003) 19
(internal citations omitted). Booth applies in the 20
immigration context. 6
21

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15
Valenzuela’s futility argument fails because he cannot 1
demonstrate that the BIA was unable to provide the relief 2
that he sought. The BIA could have reconsidered the Perez 3
holding in banc, or it could have certified the question to 4
the Attorney General. See 8 C.F.R. § 1003.1(g); see also 5
Theodoropoulos v. INS, 358 F.3d 162, 173 (2d Cir. 2004) 6
(observing that even though the Attorney General had issued 7
a precedential opinion on the question, the BIA could have 8
sent it back up to him). Valenzuela confuses the likelihood 9
of adherence to precedent with the factual impossibility of 10
relief: “it cannot be said that the IJ and the BIA do not 11
‘have authority to act on the subject of the [petition], 12
leaving [Valenzuela] with nothing to exhaust.’” Beharry, 13
329 F.3d at 59 (citing Booth, 532 U.S. at 736 n.4); accord 14
Duvall v. Elwood, 336 F.3d 228, 234 (3d Cir. 2003) (even 15
though the BIA had already “definitively decided” the 16
question in a precedential decision, Ҥ 1252(d)(1)[] 17
requires exhaustion as a matter of jurisdiction”). “That 18
[Valenzuela]’s argument would likely have failed is not 19
tantamount to stating that it would have been futile to 20
raise it.” Beharry, 329 F.3d at 62. 21
Taking a different tack, Valenzuela argues that 22

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7 “Affirmance without opinion. (i) The Board member to
whom a case is assigned shall affirm the decision of the
Service or the immigration judge, without opinion, if the
Board member determines that the result reached in the
decision under review was correct; that any errors in the
decision under review were harmless or nonmaterial; and that
(A) The issues on appeal are squarely controlled by
existing Board or federal court precedent and do not
involve the application of precedent to a novel factual
situation; or
(B) The factual and legal issues raised on appeal are
not so substantial that the case warrants the issuance
of a written opinion in the case.”
8 CFR § 1003.1(e)(4).
16
regulations requiring any BIA member assigned his case to 1
“streamline” the appeal would have prevented that Board 2
member from referring the appeal to a three-member panel or 3
to an in banc panel of the BIA. But the regulation (set out 4
in the margin 7), specifically provided that a single board 5
member could have affirmed without opinion only if he or she 6
“determine[d] that the result reached in the decision under 7
review was correct.” 8 C.F.R. § 1003.1(e)(4)(i). Moreover, 8
as Valenzuela concedes, the regulations specify that one 9
circumstance in which appeals may be assigned to a panel is 10
when there is a “need to reverse the decision of an 11
immigration judge or the Service.” 8 C.F.R. § 12
1003.1(e)(6)(vi). 13
Last, Valenzuela observes that § 1252(d)(1) requires 14

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17
only the exhaustion of “administrative remedies available as 1
of right,” whereas the exhaustion statute in Booth spoke 2
only of “such administrative remedies as are available.” 3
The Ninth Circuit has parsed these phrases to mean that a 4
remedy is available “as of right” within the meaning of § 5
1252(d)(1) only if the remedy is not “constrained by past 6
adverse administrative decisions.” Sun v. Ashcroft, 370 7
F.3d 932, 941-42 (9th Cir. 2004). We reject the Ninth 8
Circuit’s interpretation. The term “as of right” in § 9
1252(d)(1) excuses pursuit only of such remedies as are 10
wholly discretionary. See Arango-Aradondo v. INS, 13 F.3d 11
610, 614 (2d Cir. 1994) (“[T]he failure to move to reopen 12
does not preclude jurisdiction because . . . [it] is a 13
discretionary remedy.”). As the Supreme Court has 14
explained, a statutory requirement for exhausting “remedies” 15
necessarily entails exhausting “processes.” See Booth, 532 16
U.S. at 739 (“[O]ne ‘exhausts’ processes, not forms of 17
relief . . . .”). 18
Valenzuela had a right to appeal the IJ’s order of 19
removal to the BIA. And he was statutorily required to 20
exercise that right before appealing to this Court, 21
notwithstanding his small chance of success. See Lin Zhong 22

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18
v. U.S. Dep’t of Justice, 480 F.3d 104, 118 (2d Cir. 2006) 1
(“[I]n the context of [the alien’s] . . . claims, we have 2
jurisdiction . . . so long as a decision has been rendered 3
on his application by an IJ and appealed to the BIA--the two 4
administrative remedies available to him as of right.” 5
(emphasis added) ). 6
7
B. Constitutional Claim 8
Valenzuela argues that his petition is not subject to 9
statutory exhaustion requirements because it presents 10
constitutional claims. The supposed constitutional argument 11
is that the IJ violated Valenzuela’s Due Process rights by 12
misconstruing the stop-time rule to end his period of 13
continuous residence when he committed the crime, as opposed 14
to when he was convicted. 15
Even if the IJ’s interpretation of the stop-time rule 16
were incorrect, such an error would not be a constitutional 17
violation. Accordingly, this is not a constitutional claim. 18
Valenzuela is simply arguing that the IJ erroneously 19
interpreted a statute in such a way that made him legally 20
ineligible for discretionary cancellation of removal. We 21
therefore do not reach the issue of whether there exists a 22

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19
constitutional claim exception to § 1252(d). 1
2
C. “Manifest Injustice” 3
Last, Valenzuela argues that we should excuse his 4
failure to exhaust under the “manifest injustice” exception 5
to the exhaustion requirement. See Marrero Pichardo v. 6
Ashcroft, 374 F.3d 46 (2d Cir. 2004). Our circuit law has 7
made this exception available “even when exhaustion is a 8
jurisdictional matter.” Lin Zhong, 480 F.3d at 107 n.1. 9
In Marrero Pichardo, it was deemed manifest injustice 10
to remove a petitioner because: (1) he had resided in the 11
U.S. for 26 years, (2) he had a wife and daughter in the 12
U.S., (3) he claimed to have no ties to his native Dominican 13
Republic, (4) he had appeared pro se before the IJ, and (5) 14
the law had recently changed in the petitioner’s favor (such 15
that none of his eleven drunk driving convictions would be 16
considered crimes of violence) . 374 F.3d at 54. Valenzuela 17
can cite comparable equities. He has resided in the U.S. 18
for 13 years with his sister and mother, from whom he would 19
be separated if deported; he was engaged to an American 20
citizen who was carrying his child, at least as of 2003; he 21
came here as a teenager and says he has “adopted” the United 22

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8 Valenzuela unsuccessfully petitioned a New York state
court in 2003 to vacate his conviction on this ground.
9 Specifically, before the IJ ordered Valenzuela
removed in August 2003, the Supreme Court upheld as
constitutional pre-removal detention of criminal aliens.
See Demore v. Hyung Joon Kim, 538 U.S. 510, 531 (2003).
Valenzuela notes that ICE then issued a memorandum stating
that all persons within Demore’s scope would be called in
for interviews, and presumably for detention. His argument
is thus that an appeal to the BIA would have somehow
increased the likelihood that he would be re-detained. Even
assuming (as we do not) that such an anxiety could excuse a
failure to appeal, i t is unclear why Valenzuela did not fear
re-detention when he appeared before the IJ at his master
calendar hearings in May and August of 2003--both of which
20
States as his home country; and his behavior--after his 1
parole--was “exemplary.” Although Valenzuela had counsel 2
before the IJ, he claims that his counsel failed to inform 3
him of the immigration consequences of pleading guilty. 8
4
We noted that the intervening change in law in Marrero 5
Pichardo’s favor was not “collateral,” but rather went to 6
“the very basis of his deportation.” Id. at 54. As to 7
Valenzuela, t here was no intervening change in law 8
pertaining to his removability: Valenzuela challenges the 9
correctness of the BIA’s decision in Perez, which goes “to 10
the very basis of his deportation,” but Perez has not been 11
overruled by the BIA or by this Court. Valenzuela instead 12
cites an intervening change in the law affecting the 13
government’s ability to detain him pending removal. 9
14

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took place after the Supreme Court issued its Demore opinion
in April of that year--or when he filed his second habeas
petition.
10 At the direction of the Court, the parties submitted
additional briefing on whether Bowles, which was filed after
the parties submitted briefs, had any impact on this case.
11 In House v. Bell, 126 S. Ct. 2064, 2068 (2006), the
Supreme Court recently reaffirmed that “[i]n certain
exceptional cases involving a compelling claim of actual
innocence,” “the state procedural default rule is not a bar
to a federal habeas corpus petition.” The “actual
innocence” exception is unaffected by Bowles because “actual
21
Valenzuela’s argument based on a change of law thus does not 1
neatly mirror the facts of Marrero Pichardo, although 2
Valenzuela can claim the higher ground of having committed 3
one offense instead of eleven. But, given that we have been 4
willing to accept even an opinion from another circuit as a 5
sufficient intervening change in law to assert “manifest 6
injustice,” see Gill v. INS, 420 F.3d 82, 88 (2d Cir. 2005), 7
Valenzuela would have a plausible claim to dispensation for 8
“manifest injustice” if we were to uphold that exception to 9
§ 1252(d)’s exhaustion requirement. 10
In light of the Supreme Court’s recent opinion in 11
Bowles v. Russell, 127 S. Ct. 2360 (2007), we hold that 12
there is no “manifest injustice” exception to § 1252(d)’s 13
exhaustion requirement. 10 Insofar as our earlier opinions 14
have held to the contrary, those opinions are overruled. 11
15

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innocence” is an exception to a judge-made rule, while
Bowles overrules exceptions to any jurisdictional rule made
by Congress, such as is at issue here.
22
In Bowles, the Supreme Court considered the 1
applicability of the “unique circumstances” exception to the 2
jurisdictional deadline for filing a notice of appeal. See 3
Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 4
U.S. 215 (1962); Thompson v. INS, 375 U.S. 384 (1964). The 5
Bowles Court laid the exception to rest: “Because this Court 6
has no authority to create equitable exceptions to 7
jurisdictional requirements, use of the ‘unique 8
circumstances’ doctrine is illegitimate.” 127 S. Ct. at 9
2366. 10
Just as this analysis invalidates the “unique 11
circumstances” exception to the jurisdictional bar created 12
by the filing deadline at issue in Bowles, it likewise 13
invalidates the “manifest injustice” exception to the 14
jurisdictional bar created by 8 U.S.C. § 1252(d)’s 15
exhaustion requirement. Bowles broadly disclaims the 16
“authority” of the federal courts “to create equitable 17
exceptions to jurisdictional requirements.” Id. 18
19
CONCLUSION 20

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23
We have considered the parties’ remaining arguments and 1
find each of them to be without merit. For the foregoing 2
reasons, Valenzuela’s petition is dismissed for lack of 3
jurisdiction. 4

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