Jasdeep S. Grewal v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3152
JASDEEP S. GREWAL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A72-490-223
Immigration Judge: Annie S. Garcy
Submitted Under Third Circuit LAR 34.1(a)
September 25, 2007
Before: McKEE, BARRY, and FISHER, Circuit Judges
(Opinion Filed: October 18, 2007)
OPINION
BARRY, Circuit Judge
Jasdeep Grewal petitioned for a writ of habeas corpus seeking relief from the
summary reinstatement of an order of removal issued in 1995. The District Court

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1 The BIA concluded that it had separated Grewal’s supporting documentation from
his appeal and, based on that documentation, Grewal might prevail in his asylum
application.
2
transferred the petition to us pursuant to § 106(c) of the Real ID Act of 2005, Pub. L. 109-
13, § 106(c), 119 Stat. 231, 311. We will deny the petition for review.
Grewal unlawfully entered the United States in 1992. His application for asylum
was denied by an Immigration Judge (“IJ”) in 1995. In January 1997, the Board of
Immigration Appeals (“BIA”) dismissed his appeal because he purportedly failed to
attach the necessary documentation in support of his claim. The BIA, however, permitted
him voluntary departure. Grewal filed a motion to reopen with the BIA, but did not
request either a stay of removal or an extension of the time within which to depart. He
voluntarily departed for India on May 3, 1998.
Grewal returned to the United States via Canada in October 2000. In October
2001, apparently unaware of his departure and return, the BIA granted his 1997 motion to
reopen1 and remanded the matter to the IJ. During the proceedings on remand, the IJ
initially indicated that she was inclined to grant relief to Grewal. (A.R. 85-87 (“[W]e
ought to . . . grant him relief and call it a day.”).) Grewal then testified that he left the
United States on May 3, 1998, i.e. while his motion to reopen was pending. The
proceedings were adjourned until May 2002 to allow the parties time to address this “new
complication” (A.R. 91). When the proceedings recommenced, Grewal testified that he
left the United States in May 1998 because he was told he was about to be deported. On
May 22, 2002, the IJ terminated the proceedings because, under 8 C.F.R. § 1003.2(d),

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2 This regulation states that “[a]ny departure from the United States . . . of a person
who is the subject of exclusion, deportation, or removal proceedings, occurring after the
filing of a motion to reopen . . . shall constitute a withdrawal of such motion.” We note
that, over a strong dissent, the Fourth Circuit recently held, following a Chevron analysis,
that this regulation lacks authority and is invalid. William v. Gonzales, F.3d , No.
06-1284, 2007 WL 2494763 (4th Cir. Sept. 6, 2007). Other courts, however, have
assumed the validity of the regulation. See, e.g., Singh v. Gonzales, 468 F.3d 135 (2d
Cir. 2006) and Navarro-Miranda v. Ashcroft, 330 F.3d 672 (5th Cir. 2003). We express
no view on this issue as it has not been raised before us.
3 A prior removal order may be, and was here, summarily reinstated under 8 U.S.C. §
1231(a)(5).
3
Grewal effectively withdrew his motion to reopen when he self-deported. 2 In an October
2003 order, the BIA dismissed the appeal and vacated its 2001 grant of Grewal’s motion
to reopen, finding that his departure from the United States in May of 1998 divested it of
jurisdiction to decide the motion to reopen. Grewal did not seek relief by way of a
petition for relief in this Court.
In November 2003, Grewal married a United States citizen who thereafter filed a
“Relative Immigrant Visa Petition.” The petition was approved, but Grewal was detained
upon reporting to the interview with respect to his application for adjustment of status as
a lawful permanent resident. The 1995 removal order was reinstated in February 2005. 3
On February 23, 2005, Grewal filed a petition for a writ of habeas corpus in the District
Court.
On June 16, 2005, the habeas petition was transferred to this Court pursuant to §
106(c) of the Real ID Act of 2005. Respondent contends that we lack jurisdiction to
review the BIA’s October 2003 order dismissing his appeal because he did not file a

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4 Grewal argues that the BIA’s admittedly erroneous decision in 1997, combined with
the INS’s lack of notice to his counsel of his imminent deportation, resulted in his
deportation in 1998. He claims that if the INS had notified his counsel, he would have
filed for a stay of removal, preserving his motion for reopening. The motion to reopen
would have eventually been granted, as it was in 2001.
4
petition for review within the 30-day limitations period of 8 U.S.C. § 1252(b)(1).
Grewal’s habeas petition, however, was pending on May 11, 2005, the effective date of
the Real ID Act. Section 106(c) of the Act, mandating the transfer of habeas petitions to
the courts of appeals, states that courts of appeals “shall treat the transferred case as if it
had been filed pursuant to a petition for review under [§ 1252], except that subsection
(b)(1) of such section shall not apply.” As such, we must treat Grewal’s habeas petition
as a timely filed petition for review. See Cabrera-Perez v. Gonzales, 456 F.3d 109, 114-
15 (3d Cir. 2006) (holding 30-day time period does not apply to cases transferred
pursuant to the Real ID Act); Medellin-Reyes v. Gonzales, 435 F.3d 721, 723 (7th Cir.
2006) (“[A]ll collateral proceedings . . ., [transferred under the Real ID Act], must be
treated as timely petitions for review . . . .”). We have jurisdiction to consider
constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(D). We therefore
will consider Grewal’s claims in their entirety. Our review is plenary.
Grewal raises three arguments in his petition. First, he claims that the
reinstatement in 2004 of the 1995 removal order was unlawful in light of the 2001 BIA
grant of the motion to reopen. He claims as well that the BIA’s October 2003 order
affirming the IJ’s 2002 termination of proceedings and vacating of the grant of the motion
to reopen was a gross miscarriage of justice.4 Finally, he argues that the summary

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5
procedures set forth in 8 C.F.R. § 241.8 used to reinstate his prior order of removal
violated his due process rights.
With reference to his first argument, Grewal, unfortunately for him, left the United
States in 1998, effectively withdrawing his motion to reopen. 8 C.F.R. § 1003.2(d). As a
result, the BIA did not have jurisdiction in 2001 to grant the motion to reopen, and
Grewal may not rely upon an order which the BIA had no power to issue to challenge the
validity of the 1995 order. See O’Leary v. Liberty Mut. Ins. Co., 923 F.2d 1062, 1066
(3d Cir. 1991). Therefore, the 1995 order of removal was valid and could be reinstated
under 8 U.S.C. § 1231(a)(5).
We also reject Grewal’s claim that the BIA’s affirmance of the IJ’s 2002
termination of the proceedings for lack of jurisdiction was a gross miscarriage of justice.
There were, indeed, errors of the BIA and the INS in this case. Nonetheless, Grewal
could, and should, have moved for a stay of removal while his 1997 motion to reopen was
pending. He also could have sought reconsideration of the BIA’s 2003 decision
dismissing the appeal of the IJ’s order terminating the proceedings on the ground of
“gross miscarriage of justice,” but did not do so. In any event, we see no gross
miscarriage of justice here.
Finally, we reject Grewal’s contention that the summary procedures of 8 C.F.R. §
241.8 (to implement 8 U.S.C. § 1231(a)(5)) violated his due process rights because a
hearing before an IJ would have allowed him to show that he did not unlawfully reenter
the United States. The regulations at 8 C.F.R. § 241.8 allow an immigration officer to

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6
reinstate a prior order of removal upon making three findings: (1) the alien is subject to a
prior order of removal, (2) the identity of the alien, and (3) the alien unlawfully reentered
the United States.
We, along with other courts of appeals, have noted some discomfort with the
summary nature of these procedures. See, e.g., United States v. Charleswell, 456 F.3d
347, 358 (3d Cir. 2006) (“[T]here are other, more troubling, questions concerning the
adequacy of the reinstatement procedures . . . .”); Lattab v. Ashcroft, 384 F.3d 8, 21 n. 6
(1st Cir. 2004) (“The summary reinstatement process offers virtually no procedural
protections.”) But see Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007)
(en banc) (“We note at the outset that the regulation provides significant procedural
safeguards against erroneous reinstatements.”). To date, most courts considering a due
process claim have not reached the issue because the petitioners had not shown the
requisite prejudice. See, e.g., Lattab, 384 F.3d at 21 (noting lack of prejudice where
petitioner admitted all elements required by § 1231(a)(5)).
Grewal admitted to “sneak[ing] into the United States without any kind of visa[.]”
(A.R. at 120.) This admission is sufficient to satisfy the unlawful reentry requirement for
reinstatement. See 8 C.F.R. § 241.8. Despite his claim that Matter of G—, 3 I&N Dec.
136 (BIA 1948), applies to make his entry lawful, Grewal points to no facts in the record
to show that he presented himself for inspection when he last entered or otherwise falls
within the ambit of Matter of G—. Therefore, Grewal did not show that the result would
have been different if he had been provided a hearing. Because he failed to demonstrate

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5 Grewal argues that he was, in fact, “inspected and admitted” when he last entered
the United States and that the manner of his entry is “crucial” to his pending application
for adjustment of status. Reply Br. at 2. Our disposition of the constitutional claim is
based on what is a matter of record before us and is without prejudice to any finding
based on additional evidence that DHS might make.
7
prejudice attributable to the summary procedures, his due process claim fails. See Lattab,
384 F.3d at 20-21. 5
The petition for review will be denied.

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