02-1803 Bhatt v. BIA

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“This Court has jurisdiction to review BIA actions pursuant to 8 U.S.C. § 1252, which requires an alien to seek review of a final removal order in the court of appeals. That section further provides as follows: ‘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 commence proceedings, adjudicate cases, or execute removal orders against any alien under this act.’ 8 U.S.C. 1252(g). Thus, to the limited extent that judicial 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 decision is no different from an appeal from the BIA’s decision to adjudicate-or, in this case, not to adjudicate-his motion to reconsider. … Nor may he avoid § 1252’s grant of exclusive jurisdiction to this Court.”

Remanded.

Appeal from the United States District Court for the Northern District of Illinois, Lefkow, J., Bauer, J.