United States of America v. Euphrem Kios Dohou

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 19-1481
_______________
UNITED STATES OF AMERICA
v.
EUPHREM KIOS DOHOU,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:16-cr-00065-001)
District Judge: Honorable Robert D. Mariani
_______________
Argued: November 13, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Filed: January 28, 2020)
_______________

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Quin M. Sorenson [ARGUED]
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Michelle L. Olshefski [ARGUED]
Office of United States Attorney
235 North Washington Avenue, Suite 311
P.O. Box 309
Scranton, PA 18503
David J. Freed
Joanne M. Sanderson
Office of United States Attorney
228 Walnut Street, PO Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
_________________
OPINION OF THE COURT
_________________
BIBAS, Circuit Judge.
Immigration judges’ decisions are presumptively subject to
review by Article III courts. Euphrem Kios Dohou never peti-
tioned for review of his final removal order. But now that he is
being criminally prosecuted for hindering removal based on

3
that order, he seeks to attack it collaterally. The Government
responds that the District Court lacked jurisdiction to decide
that collateral challenge. And the District Court agreed.
We disagree. We hold that a removal order that was never
in fact reviewed by an Article III judge remains subject to col-
lateral attack in a hindering-removal prosecution based on that
order. The Immigration and Nationality Act authorizes such
collateral attacks so long as the original removal order was not
“judicially decided.” 8 U.S.C. § 1252(b)(7)(A). It is not enough
that Dohou could have petitioned for judicial review of that or-
der; he did not. So the order of removal was not “judicially
decided.” And § 1252(a)(2)(C), a provision that sometimes
strips jurisdiction over direct review of removal orders, does
not apply to collateral attacks. So we will vacate the District
Court’s finding that it lacked jurisdiction.
On the merits, Dohou’s ineffective-assistance claim re-
quires factfinding. The District Court must also decide whether
a statutory- or prudential-exhaustion doctrine bars relief. So we
will also remand.
I. BACKGROUND
In 1992, Dohou came from Benin to the United States on a
visitor’s visa. He became a lawful permanent resident a few
years later. More than a decade after that, he was convicted of
conspiring to traffic marijuana. That crime is an aggravated fel-
ony, which made him removable.
When Dohou was released from prison in 2015, the Depart-
ment of Homeland Security began removal proceedings. To
start the process, it served him with a notice to appear before

4
an immigration judge at a date and time to be set later. He then
hired an immigration lawyer. After a hearing, the immigration
judge ordered Dohou removed to Benin. He never appealed to
the Board of Immigration Appeals, or filed a petition for re-
view in the appropriate court of appeals.
Federal agents repeatedly tried to take Dohou to the airport
to remove him. Each time, they say, he resisted them. So fed-
eral prosecutors got involved, and a grand jury indicted him for
the crime of hindering his removal. See 8 U.S.C.
§ 1253(a)(1)(A)–(C).
Dohou moved to dismiss that indictment, asserting that it
rested on an invalid removal order for two reasons: First, he
argued that the absence of a date and time for his removal hear-
ing on the notice to appear deprived the immigration judge of
the authority to order him removed. And second, he argued that
his counsel before the immigration judge had given ineffective
assistance, making his removal proceedings fundamentally un-
fair.
The District Court denied Dohou’s motion. It reasoned that
because he had been convicted of an aggravated felony, 8
U.S.C. § 1252(a)(2)(C) stripped it of jurisdiction over his col-
lateral attack on the final removal order.
Dohou now appeals. We review the District Court’s juris-
dictional holding de novo. United States v. Charleswell, 456
F.3d 347, 351 (3d Cir. 2006). On the merits, we review ques-
tions of law de novo and findings of fact for clear error. Id.

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II. THE DISTRICT COURT HAD JURISDICTION OVER
DOHOU’S COLLATERAL ATTACK
To decide jurisdiction, we must reconcile two provisions of
the Immigration and Nationality Act (the Act). Under 8 U.S.C.
§ 1252(b)(7)(A), district courts may review “the validity” of re-
moval orders that “ha[ve] not been judicially decided.” But
§ 1252(a)(2)(C) deprives courts of “jurisdiction to review” fi-
nal removal orders of aliens convicted of aggravated felonies
or drug crimes.
Dohou was convicted of a drug crime (which is an aggra-
vated felony, to boot). So this appeal presents two questions:
Does § 1252(b)(7) give the District Court jurisdiction over
Dohou’s collateral attack on his removal order? And if so, does
§ 1252(a)(2)(C) take away that grant of jurisdiction?
We hold for Dohou on both issues. Section 1252(b)(7)(A)
lets him collaterally attack his removal order because the im-
migration judge’s order has not been “judicially decided.” And
§ 1252(a)(2)(C) does not strip that jurisdiction because it bars
only direct review of removal orders, not collateral attacks on
them.
A. Section 1252(b)(7) grants the District Court
jurisdiction to review the validity of Dohou’s
removal order
Under § 1252(b)(7)(A), Dohou can move to invalidate his
removal order because he was charged with hindering that or-
der. If he prevails, the District Court must “dismiss th[at] in-
dictment.” 8 U.S.C. § 1252(b)(7)(C). But he can bring this chal-
lenge only if “the validity of [his] order of removal has not been
judicially decided.” Id. § 1257(b)(7)(A).

6
Dohou argues that his removal order has not been “judi-
cially decided” because no Article III judge has reviewed it.
The Government counters that Dohou’s failure to seek direct
judicial review made his order “judicially decided.” We agree
with Dohou: the statute’s text, structure, and context require
actual review by an Article III judge—not just an immigration
judge, and not just the possibility of judicial review.
We start with the text. While “decided” can refer to deci-
sions by either judges or executive officials, the adverb “judi-
cially” means that the subject, the decider, must be a judge. See
Decision, Black’s Law Dictionary (11th ed. 2019) (“[a] judicial
or agency determination”); Judicial, Black’s Law Dictionary,
supra (“[o]f, relating to, or by the court or a judge”). In the
federal system, that normally means an Article III judge. By
contrast, decisions by administrative officials in the Executive
Branch, like immigration judges or the Board of Immigration
Appeals, are more aptly described as “nonjudicial” or “quasi-
judicial.” See Decision, Black’s Law Dictionary, supra (defin-
ing “nonjudicial decision” as “[a] legal determination rendered
by a special tribunal or a quasi-judicial body”); Quasi-Judicial,
Black’s Law Dictionary, supra (“[o]f, relating to, or involving
an executive or administrative official’s adjudicative acts”).
This dichotomy between administrative and judicial deci-
sions runs throughout the structure of § 1252 too. “Judicial,” or
some variant of it, appears twenty-one times in that section.
Every time, it explicitly or implicitly refers to an Article III
court. See, e.g., 8 U.S.C. § 1252(a)(2)(D) (linking “judicial re-
view” to a court of appeals’s review of constitutional claims
and questions of law); id. § 1252(d) (treating “judicial

7
proceeding[s]” as separate from and coming after “the alien has
exhausted all administrative remedies”).
Interpreting “judicially” to refer only to Article III courts
also makes sense in light of the broader statutory scheme. The
government may prosecute an alien for hindering removal only
where a “final” removal order is outstanding against him.
8 U.S.C. § 1253(a)(1). A removal order becomes final when the
Board affirms it or when the period for appeal to the Board
expires. Id. § 1101(a)(47)(B). So if that “judicially decided” re-
quirement included immigration judges’ decisions, essentially
every alien prosecuted for violating § 1253(a) would face a “ju-
dicially decided” order. That would make § 1252(b)(7) a prac-
tical nullity. We hesitate to read § 1252(b)(7) that way, partic-
ularly where the “competing interpretation gives effect to
every clause and word” of the Act. Marx v. Gen. Revenue
Corp., 568 U.S. 371, 385 (2013) (internal quotation marks
omitted).
The Government does not deny this premise. Rather, it ar-
gues that Dohou could have sought judicial review (by appeal-
ing first to the Board and then to a court of appeals) but failed
to do so. But the text requires more than that. Elsewhere, the
Act focuses on whether the alien had “the opportunity for judi-
cial review.” 8 U.S.C. § 1326(d)(2). But in § 1252(b)(7)(A), the
alien’s challenge must not only have been judicially decidable,
but judicially decided. And it is not just the order that must
have been decided, but its validity. That term evokes not just
finality, but also correctness. See Valid, Black’s Law Diction-
ary, supra (“[l]egally sufficient,” “binding,” “[m]eritorious”).

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The availability of review is not enough. Section
1252(b)(7) focuses instead on whether there was an actual ju-
dicial decision. Here, there was not. So this provision grants
jurisdiction over Dohou’s collateral attack.
B. Section 1252(a)(2)(C) did not strip the District
Court of its § 1252(b)(7) jurisdiction
The District Court denied Dohou’s motion to dismiss on a
different ground. It reasoned that § 1252(a)(2)(C) stripped it of
jurisdiction to review Dohou’s removal order. That provision
states: “Notwithstanding any other provision of law . . . , no
court shall have jurisdiction to review any final order of re-
moval against an alien who is removable” for committing an
aggravated felony or listed drug crime. 8 U.S.C.
§ 1252(a)(2)(C). It lists Dohou’s drug offense, so it applies to
him. What is less clear is whether that jurisdictional bar is lim-
ited to direct review of removal orders under § 1252(a)(1) and
(d) or if it extends to collateral attacks under § 1252(b)(7) as
well.
We hold that § 1252(a)(2)(C) bars only direct review. It
does not use language designed to reach collateral attacks, and
we construe jurisdiction-stripping provisions narrowly. So the
District Court had jurisdiction to decide the merits of Dohou’s
collateral attack.
1. Unlike other immigration provisions, § 1252(a)(2)(C)
does not say it reaches collateral attacks. Many immigration
provisions strip Article III courts of jurisdiction over orders to
remove certain aliens. See, e.g., 8 U.S.C. § 1231(a)(5) (noncit-
izens reentering illegally); id. § 1252(a)(2)(A)(i) (aliens subject

9
to expedited removal); id. § 1105a(a)(10) (enacted Apr. 24,
1996, repealed effective Sept. 30, 1996) (codifying Antiterror-
ism and Effective Death Penalty Act of 1996 (AEDPA)
§ 440(a)) (aliens convicted of listed offenses).
Congress worded these provisions differently, and not all
use language designed to reach collateral attacks. Some bar
only “review” of removal orders. See 8 U.S.C. § 1231(a)(5) (a
reinstated removal order “is not subject to being reopened or
reviewed”); id. § 1105a(a)(10) (enacted Apr. 24, 1996, re-
pealed effective Sept. 30, 1996) (the removal order “shall not
be subject to review by any court”). Others go further, stripping
“jurisdiction to review” or “to entertain any other cause or
claim arising from or relating to the implementation or opera-
tion of [certain] order[s] of removal.” 8 U.S.C.
§ 1252(a)(2)(A); see also id. § 1105a(e)(1) (enacted Apr. 24,
1996, repealed effective Sept. 30, 1996) (AEDPA § 423(a)(2))
(similar, for expedited orders of removal).
This “relating to” language is “typically construed as hav-
ing a broad, expansive meaning”—one much broader than the
text of § 1252(a)(2)(C). Osorio-Martinez v. Att’y Gen. U.S.,
893 F.3d 153, 160, 165 (3d Cir. 2018). It reaches claims indi-
rectly connected to an underlying removal order, like habeas
petitions. Id. at 160, 165.
But when a jurisdiction-stripping provision in the Act omits
capacious phrases like “relating to,” it bars only direct review.
See Charleswell, 456 F.3d at 352 n.4. In Charleswell, we rea-
soned that § 1231(a)(5) may strip us of jurisdiction to review
reinstated removal orders. Id. But we “c[ould] find no support
for the contention that” a provision “withdrawing jurisdiction

10
over the original deportation order reaches collateral chal-
lenges” in a follow-on criminal proceeding. Id. The Ninth Cir-
cuit has held likewise. See United States v. Arce-Hernandez,
163 F.3d 559, 562–63 (9th Cir. 1998) (holding that the since-
repealed § 1105a(a)(10)’s bar on reviewing orders to remove
certain criminal aliens does not reach collateral attacks because
it lacks broad “relating to” language). That is so even when the
criminal proceeding, like a prosecution for unlawful reentry,
depends on a removal order. See id. at 563.
When Congress includes broad jurisdiction-stripping lan-
guage in one section of the Act “but omits it in another section
of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclu-
sion.” Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (quoting
Bates v. United States, 522 U.S. 23, 29–30 (1997)). In other
words, Congress’s failure to include the broad “relating to”
language in § 1252(a)(2)(C) is telling. Because § 1252(a)(2)(C)
lacks that language, it strips jurisdiction only over direct re-
view of removal orders. It does not bar review of Dohou’s col-
lateral attack.
2. The presumption of Article III review favors construing
jurisdiction-stripping provisions narrowly. Even if the Gov-
ernment’s broader reading of § 1252(a)(2)(C) were plausible,
we would still favor the narrower reading because that provi-
sion strips jurisdiction. See Alli v. Decker, 650 F.3d 1007, 1013
n.9 (3d Cir. 2011).
We presume that the Executive Branch’s actions are subject
to judicial review. This presumption is “well-settled” and
traces its lineage back to the foundations of our Republic.

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Kucana v. Holder, 558 U.S. 233, 251–52 (2010) (quoting Reno
v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63 (1993)); see
Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670
(1986) (quoting Chief Justice Marshall in United States v.
Nourse, 34 U.S. (9 Pet.) 8, 28–29 (1835)). That presumption
applies not only to statutes that foreclose judicial review, but
also to those (like the provision here) that may limit avenues of
relief. See Abbott Labs. v. Gardner, 387 U.S. 136, 140–41
(1967) (applying the presumption to allow pre-enforcement re-
view of administrative action).
To displace our presumption in favor of judicial review,
Congress must speak clearly. Before reading a statute so
broadly as to strip us of the power to review an executive de-
termination, we require “clear and convincing evidence.”
Bowen, 476 U.S. at 671 (quoting Abbott Labs., 387 U.S. at
141). The Government offers no such evidence here; it simply
asserts that the text supports its broader reading. Once again,
Dohou’s narrower reading prevails.
The parties spill much ink debating whether we should read
§ 1252(a)(2)(C) in Dohou’s favor because a contrary reading
would raise “[s]erious constitutional concerns,” Charleswell,
456 F.3d at 352 n.4 (citing United States v. Mendoza-Lopez,
481 U.S. 828, 837–38 (1987)). Because we resolve this appeal
based on § 1252(a)(2)(C)’s text and context as well as the pre-
sumption favoring judicial review, we need not address the
constitutional issue.
In short, § 1252(a)(2)(C)’s text and the presumption in fa-
vor of judicial review support reading the statute to preserve
jurisdiction. So we read this provision to bar only direct

12
review, not a collateral attack. We will thus vacate the District
Court’s finding that it lacked jurisdiction.
III. ON THE MERITS, WE REMAND FOR FACTFINDING
BUT REQUIRE EXHAUSTION
Dohou moved to dismiss his criminal indictment as resting
on an invalid removal order. He alleged that his notice to ap-
pear was defective and that ineffective assistance of counsel
made his immigration proceedings fundamentally unfair.
Dohou’s procedural claim is already foreclosed by our
precedent, so we will resolve it here. But his ineffective-assis-
tance claim is fact-intensive, so we will remand it to the Dis-
trict Court. Although we doubt that § 1252(b)(7) carries the
same prerequisites for collateral attacks that Congress spelled
out elsewhere in the Act, we need not decide that here. See 8
U.S.C. § 1326(d). Instead, the District Court should decide on
remand whether to require exhaustion.
A. Our precedent forecloses Dohou’s procedural claim
Dohou tries to expand the Supreme Court’s decision in Pe-
reira v. Sessions, 138 S. Ct. 2105 (2018). Citing Pereira, he
argues that the charging document that began his removal pro-
cess (the notice to appear) was invalid because it omitted the
date and time when he had to appear. See id. at 2109–11, 2114–
16. Because invalid charging documents cannot start removal
proceedings, he argues, the immigration judge lacked jurisdic-
tion to find him removable.
But we have already rejected this claim. In Nkomo, we held
that Pereira applies only when an alien seeks discretionary

13
cancellation of removal under § 1229b(b)(1), which involves
the “stop-time rule.” Nkomo v. Att’y Gen. U.S., 930 F.3d 129,
132–34 (3d Cir. 2019). Here, as in Nkomo, Dohou’s claim in-
volves neither cancellation of removal nor its attendant stop-
time rule. So Pereira’s holding does not apply.
B. We remand Dohou’s ineffective-assistance-of-
counsel claim for factfinding
Before the District Court, Dohou argued that his immigra-
tion counsel had provided ineffective assistance. Counsel al-
legedly failed to present evidence of how bad conditions are in
Benin, Dohou’s home country. Dohou argues that but for coun-
sel’s failure, he would have been eligible for deferral of re-
moval under the Convention Against Torture.
Under the Fifth Amendment’s Due Process Clause, Dohou
had a right to effective assistance of counsel in his immigration
proceedings. Fadiga v. Att’y Gen. U.S., 488 F.3d 142, 155 (3d
Cir. 2007). To show that this right was violated, Dohou must
prove both that his counsel’s performance “prevented [him]
from reasonably presenting his case” and that, as a result, he
suffered “substantial prejudice.” Id. (quoting Khan v. Att’y
Gen. U.S., 448 F.3d 226, 236 (3d Cir. 2006)). But these show-
ings are fact-intensive, and district judges are “best suited to
developing the facts necessary” and weighing them in the first
instance. Massaro v. United States, 538 U.S. 500, 505–06
(2003). So we will remand Dohou’s ineffective-assistance
claim to the District Court.

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C. On remand, the District Court should consider
exhaustion
Before remanding, we confront an unsettled question of
law. Under 8 U.S.C. § 1326(d), an alien must clear three hur-
dles before collaterally attacking a removal order when prose-
cuted for illegal reentry. He must (1) “exhaust[] any adminis-
trative remedies that may have been available to seek relief
against the order”; (2) show that his removal proceedings “im-
properly deprived [him] of the opportunity for judicial re-
view”; and (3) show that “the entry of the [removal] order was
fundamentally unfair.” Id. Do these same three hurdles apply
to § 1252(b)(7) as well, even though that provision does not
specify them?
Section 1326(d) is a different provision in the same Act,
governing collateral attacks in prosecutions for illegal reentry.
Dohou brings a § 1252(b)(7) challenge to his indictment for
hindering his removal order. But if he had made the same at-
tack (ineffective assistance) on a different type of indictment
(illegal reentry), § 1326(d) would have barred relief unless he
could clear its three hurdles.
Some district courts have applied § 1326(d)’s three prereq-
uisites to § 1252(b)(7) claims, reasoning that the two types of
claims mirror each other and share a common statutory history.
See United States v. Yan Naing, 820 F.3d 1006, 1009–10 (8th
Cir. 2016) (collecting cases taking this approach, though not
resolving the issue). We doubt that approach because it over-
shoots the text. As noted, when Congress includes language in
one part of the Act but omits the same language from a

15
different part, we presume that it omitted it intentionally.
Cloer, 569 U.S. at 378.
But we need not decide it here. Even if the statute does not
require exhaustion, courts may, prudentially, require exhaus-
tion. “It is a basic tenet of administrative law that a plaintiff
must exhaust all required administrative remedies before
bringing a claim for judicial relief.” Robinson v. Dalton, 107
F.3d 1018, 1020 (3d Cir. 1997). Here, if Congress has not man-
dated exhaustion by statute, “sound judicial discretion [would]
govern[]” its application. McCarthy v. Madigan, 503 U.S. 140,
144 (1992).
Prudential exhaustion would require us to balance the al-
ien’s interest in prompt access to the federal courts with the
government’s institutional interest in exhaustion. Id. at 146.
But even when courts might otherwise require exhaustion, they
may excuse it when, for instance, “waiver, estoppel, tolling or
futility” applies. Wilson v. MVM, Inc., 475 F.3d 166, 174 (3d
Cir. 2007). We also excuse prudential exhaustion “when the
challenged agency action presents a clear and unambiguous vi-
olation of statutory or constitutional rights.” Susquehanna Val-
ley All. v. Three Mile Island Nuclear Reactor, 619 F.2d 231,
245 (3d Cir. 1980).
Dohou claims that his lawyer’s ineffective assistance vio-
lated his constitutional right to due process. So even if he did
not exhaust, the clear-violation exception could apply. Perhaps
other exceptions could too. But we leave it to the District Court
to decide in the first instance these statutory and prudential is-
sues and whether Dohou in fact exhausted his claims.

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* * * * *
No Article III court has yet reviewed the validity of
Dohou’s removal order, so it has never been “judicially de-
cided.” Under 8 U.S.C. § 1252(b)(7), he can thus collaterally
attack it in his hindering-removal prosecution. Also,
§ 1252(a)(2)(C) poses no bar to his collateral attack: it lacks the
broad language of other jurisdiction-stripping provisions, and
the presumption of judicial review also favors reading it nar-
rowly. So we will vacate the District Court’s finding that it
lacked jurisdiction and remand Dohou’s ineffective-assistance
claim.
On remand, the District Court must find facts and decide
whether Dohou’s immigration lawyer provided ineffective as-
sistance, making his removal order (and thus his criminal pros-
ecution based on it) fundamentally unfair. It must also consider
whether the statute requires exhaustion, whether prudentially
to require exhaustion, and if so whether that violation was clear
enough to excuse prudential exhaustion.