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Immigration Law

CA3 on Jurisdiction, Collateral Attack, Ineffective Assistance: US v. Dohou

US v. Dohou

"We hold that a removal order that was never in fact reviewed by an Article III judge remains subject to collateral 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 order; 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 requires factfinding. The District Court must also decide whether a statutory- or prudential-exhaustion doctrine bars relief. So we will also remand."

[Hats off to Quin M. Sorenson, Office of Federal Public Defender,Harrisburg, PA!]