FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
KANSAS (D.C. NO. 5:17-CV-03032-EFM)
Matthew L. Hoppock, The Hoppock Law Firm, LLC, Overland Park,
Kansas, for Petitioner-Appellant.
S. Maag, Assistant United States Attorney (Stephen R.
McAllister, United States Attorney, District of Kansas, and
James A. Brown, Assistant United States Attorney, Chief,
Appellant Division, with him on the briefs), Office of the
United States Attorney, Topeka, Kansas, for
TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.
TYMKOVICH, CHIEF JUDGE.
Thoung illegally entered the United States in 2002. After the
government learned of her illegal status, she jointly
stipulated to a removal order after pleading guilty in
district court to document fraud. But deportation proceedings
never occurred. Five years later, she filed a writ of habeas
corpus with the district court alleging the court had lacked
subject-matter jurisdiction to enter its order of removal.
The district court reaffirmed its jurisdiction to order
removal and rejected Thoung's habeas petition.
that, because of the REAL ID Act's limitations on
judicial review, the district court lacked jurisdiction to
entertain Thoung's habeas petition challenging the prior
emigrated from Cambodia to the United States in 2002 using a
fraudulently obtained visa in the name and birthdate of
another person. In 2007, she obtained U.S. citizenship and
affirmed she had never provided false information to any
government official while applying for any immigration
fraud was discovered in 2012. She subsequently pleaded guilty
to misusing a visa, permit, and other documents to obtain
citizenship, in violation of 18 U.S.C. § 1546(a). As
part of her plea agreement, she jointly stipulated to
denaturalization under 8 U.S.C. § 1451(e) and removal
from the United States. Relying on 8 U.S.C. §
1228(c)(5), the district court entered an order of removal.
Immigration authorities, unable to deport Thoung back to
Cambodia, eventually released her subject to an Order of
Supervision. Under this order, Thoung could be arrested and
deported at any time.
2017, Thoung filed a writ of habeas corpus-apparently under
28 U.S.C. § 2241-alleging the district court had lacked
subject-matter jurisdiction to enter the judicial removal
order requested under the plea agreement. Neither the
government nor the district court considered the potential
applicability of the REAL ID Act, 8 U.S.C. § 1252, and
the substantial limitations it imposes on judicial review. On
the merits, the district court reaffirmed its jurisdiction to
enter Thoung's removal order. Thoung appealed the
district court's assertion of subject-matter jurisdiction
to enter the 2013 removal order.
first consider whether the district court had subject-matter
jurisdiction to hear Thoung's habeas petition, a question
of statutory interpretation. Gonzales-Alarcon v.
Macias, 884 F.3d 1266, 1273 (10th Cir. 2018). We
conclude the REAL ID Act prevents the district court from
exercising habeas jurisdiction to hear Thoung's petition.
The REAL ID Act's Limitations on Judicial Review
"[w]rits of habeas corpus may be granted by . . . the
district courts and any circuit judge within their respective
jurisdictions." 28 U.S.C. § 2241(a). A person must
be "in custody" to seek the habeas writ,
id. § 2241(c)(1), and a person subject to
removal is "in custody" for habeas purposes.
See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291
(10th Cir. 2001).
the REAL ID Act imposes substantial limitations on judicial
review, including habeas review, of final orders of removal.
Removal orders may be challenged only by way of a petition
for review filed in the court of appeals. According to §
1252(a)(5), "petitions for review" filed with the
courts of appeal are the "sole and exclusive means for
judicial review from an order of removal." And the
statute specifically excludes "habeas corpus review
pursuant to sections 1241 . . . or any other habeas corpus
provision." Id. That "sole and exclusive
means for judicial review from an order of removal" is
outlined in § 1252(b), which requires that a petition
for review must be filed within thirty days of a final order
of removal. Id. § 1252(b)(1). "That
deadline is mandatory and jurisdictional; it is not subject
to equitable tolling." Gonzales-Alarcon, 884
F.3d at 1271. Thus, although the REAL ID Act permits
"review of constitutional claims or questions of law
raised upon a petition for review," 8 U.S.C. §
1252(a)(2)(D), an individual petitioning for review cannot
challenge a removal order once judicial review is
time-barred, see Gonzales-Alarcon, 884 F.3d at 1271.
By the time Thoung filed her habeas petition with the
district court, the deadline for properly filing a petition
for review in accordance with the REAL ID Act had long
Gonzales-Alarcon, we emphasized that "Congress
clearly intended to funnel all challenges to removal through
the petition for review process." Id. at 1278.
We held that "[u]nder the plain language of [§
1252(a)(5)], a habeas challenge to an order of removal is
barred regardless of whether the petitioner is an alien or
claims citizenship." Id. at 1274.
circuit is consistent with others in recognizing the REAL ID
Act's limitations on habeas review. See Andrade v.
Gonzales, 459 F.3d 538, 542 (5th Cir. 2006) ("The
REAL ID Act divests the district courts of jurisdiction over
the habeas petitions of aliens; instead, REAL ID Act §
106 states that 'a petition for review shall be the sole
and exclusive means for judicial review of an order of
removal entered or issued under any provision of [the
Immigration and Nationality Act].'");
Marquez-Almanzar v. INS, 418 F.3d 210, 215 (2d Cir.
2005) (REAL ID Act "unequivocally eliminates habeas
corpus review of orders of removal.").
Thoung's habeas petition ultimately seeks to invalidate
the district court's removal order, we conclude she is
seeking "judicial review of an order of removal" in
a manner prohibited by § 1252(a)(5).
The REAL ID Act Eliminates Jurisdiction to Entertain
Thoung's Habeas Petition
Thoung raises three arguments to support her claim that the
district court had proper jurisdiction to entertain her
three ultimately fail.
Orders Arising from Criminal Proceedings
Thoung contends Congress did not intend to bar habeas review
of judicial removal orders because she claims the Act omits
orders arising from criminal proceedings that result in
removability. The criminal offenses which are grounds for
removability are set forth in 8 U.S.C. § 1227(a)(2). She
relies on INS v. St. Cyr, 533 U.S. 289 (2001), which
held that AEDPA's limitations on habeas review did
"not bar jurisdiction over removal orders not
subject to judicial review under § 1252(a)(1)-including
orders against aliens who are removable by reason of having
committed one or more criminal offenses." Id.
Thoung's interpretation misreads the REAL ID Act, which
was adopted in 2005 to render the removal-challenge process
consistent with St. Cyr. See 2 Randy Hertz
& James S. Liebman, Federal Habeas Corpus Practice
and Procedure § 41.1, at 2208-15 (6th ed. 2011).
The REAL ID Act expressly divests district courts of
jurisdiction over habeas challenges to removal orders,
including those arising from criminal offenses, and funnels
all such challenges to the "appropriate court of
appeals" as the "sole and exclusive means for
judicial review of an order of ...