Bhupendra Bhatt v. Board of Immigration Appeals , U.s. Immigration & Naturalization Service

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1803
B HUPENDRA B HATT ,
Petitioner-Appellant,
v.
B OARD OF I MMIGRATION A PPEALS ,
U.S. I MMIGRATION & N ATURALIZATION
S ERVICE , and U.S. D EPARTMENT OF J USTICE ,
Respondents-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 2929—Joan Humphrey Lefkow, Judge.
____________
A RGUED O CTOBER 30, 2002—D ECIDED M AY 12, 2003
____________
Before F LAUM , Chief Judge, and B AUER and D IANE P.
W OOD , Circuit Judges.
B AUER , Circuit Judge. After the Board of Immigra-
tion Appeals (“BIA”) dismissed as untimely Petitioner-
Appellant Bhupendra Bhatt’s motion to reconsider its
order affirming his deportation, Bhatt petitioned the dis-
trict court for an order in the nature of mandamus com-
pelling the BIA to hear his motion to reconsider. Re-
spondents-Appellees, the BIA, the United States Immigra-
tion and Naturalization Service (“INS”), and the United
States Department of Justice (“DOJ”) (collectively, “Respon-
dents”) moved for dismissal of the mandamus application

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2 No. 02-1803
1 We note that, with the passage on November 25, 2002, of
the Homeland Security Act, the BIA and other enforcement
and investigative components of the now defunct INS were
incorporated into the newly created Bureau of Citizenship and
Immigration Services under the authority of the Department
of Homeland Security; however, the transition is of little prac-
tical import to our disposition of the matter.
for want of jurisdiction. 1 The district court exercised
jurisdiction and dismissed the action on the merits. Be-
cause we conclude that the district court lacked juris-
diction, we remand the case to the district court with
instructions to dismiss for lack of subject matter juris-
diction.
BACKGROUND
Bhatt, a native citizen of India, received a hearing be-
fore the INS after he applied for political asylum in the
United States in February 1998. In January 1999, his
asylum application was denied and he was ordered de-
ported to India. Bhatt timely appealed. On January 22,
2001, the BIA affirmed the removal order and mailed
Bhatt a copy of its decision and, on February 23, 2001,
Bhatt mailed to the BIA a motion to reconsider. Because
Bhatt failed to file the motion to reconsider within
thirty days of the January 22, 2001, date of decision,
as required under Title VIII of the Code of Federal Reg-
ulations, the BIA declined to reconsider. 8 C.F.R.
§ 1003.2(b)(2).
Bhatt subsequently brought an action in the nature
of mandamus in the district court seeking to compel the
BIA to reconsider its decision. Bhatt argued that the
BIA should have accepted his motion as timely under a
more liberal construction of the provision requiring that
motions to reconsider be filed with the BIA within thirty
days. Respondents countered that the district court lacked

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No. 02-1803 3
2 Relevant provisions of § 1252 include the following:
§ 1252. Judicial review of orders of removal
(b) Requirements for review of orders of removal. With
respect to review of an order of removal under subsection
(a)(1), the following requirements apply . . . .
(2) Venue and forms. The petition for review shall
be filed with the court of appeals for the judicial
circuit in which the immigration judge completed the
proceedings . . . .
(9) Consolidation of questions for judicial review.
Judicial review of all questions of law and fact,
including interpretation and application of constitu-
tional and statutory provisions, arising from any
action taken or proceeding brought to remove an
alien from the United States under this title shall be
available only in judicial review of a final order
under this section . . . .
8 U.S.C. § 1252.
jurisdiction to review the BIA’s refusal to reconsider. The
district court exercised jurisdiction, found that the BIA
correctly interpreted the thirty day provision of 8 C.F.R.
§ 1003.2(b)(2), and that, consequently, Bhatt was not en-
titled to mandamus relief. This appeal ensued.
ANALYSIS
As a preliminary matter, we note that subject matter
jurisdiction must exist at every level of federal court
proceedings. See, e.g., Louisville & Nashville R.R. v. Mot-
tley, 211 U.S. 149, 152 (1908). This Court has jurisdiction to
review BIA actions pursuant to 8 U.S.C. § 1252, which re-
quires an alien to seek review of a final removal order in
the court of appeals. 2 That section further provides as
follows:

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4 No. 02-1803
Exclusive jurisdiction. Except as provided in this
section and notwithstanding any other provision of
law, no court shall have jurisdiction to hear any cause
or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to com-
mence proceedings, adjudicate cases, or execute re-
moval orders against any alien under this act.
8 U.S.C. 1252(g). Thus, to the limited extent that ju-
dicial review of BIA determinations is available, it must
be sought not in the district court, but rather in this
Court. Sharif v. Ashcroft, 280 F.3d 786 (7th Cir. 2002)
(holding that “a district court lacks jurisdiction to compel
the Attorney General,” or the BIA, for that matter, “to
initiate or resolve proceedings that would lead to relief
from removal”).
Bhatt cites 28 U.S.C. § 1361 as the basis for district court
jurisdiction, which provides that “district courts shall
have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to
the plaintiff.” For all practical purposes, however, Bhatt’s
mandamus action to compel the BIA to reconsider its de-
cision is no different from an appeal from the BIA’s decision
to adjudicate—or, in this case, not to adjudicate—his motion
to reconsider. See, e.g., Chapinski v. Ziglar, 278 F.3d 718
(7th Cir. 2002) (noting that where “judicial review of a
decision to commence proceedings is barred, it follows that
section 1252(g) also precludes judicial review of the Attor-
ney General’s decision not to commence removal proceed-
ings” (emphasis added)). As this Court recently noted in
Gomez-Chavez v. Perryman, 308 F.3d 796 (7th Cir. 2002),
Bhatt “may not avoid the § 1252(g) bar by the simple
expedient of recharacterizing a claim as one challenging
a refusal to act.” Nor may he avoid § 1252’s grant of

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No. 02-1803 5
3 Although the district court lacked jurisdiction to hear his
action in the nature of mandamus, Bhatt is not wholly without
a forum in which to seek relief. He might properly challenge
the BIA’s rejection of his motion to reconsider as untimely as
part of any appeal before this Court from the BIA’s affirmance
of his final removal order, as § 1252(b)(9)’s consolidation provi-
sion requires. 8 U.S.C. § 1252(b)(9).
USCA-02-C-0072—5-12-03
exclusive jurisdiction to this Court. 3
CONCLUSION
Because the district court lacked jurisdiction to hear
Bhatt’s petition for an action in the nature of mandamus,
the case is R EMANDED to the district court with instruc-
tions to dismiss for want of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

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