FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS March 19, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ ABRAHAM ALEJANDRO GONZALEZ- ALARCON, Petitioner - Appellant, v. No. 16-2263 ADRIAN P. MACIAS, El Paso Field Office Director, Immigration and Customs Enforcement; RONALD WARREN, Assistant Field Officer Director, Immigration and Customs Enforcement, Respondents - Appellees. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CV-00910-MV-LF) _________________________________ Olsi Vrapi, Noble & Vrapi, P.A., Albuquerque, New Mexico, for Petitioner-Appellant. Edward Han, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, and Marisa A. Ong, Assistant United States Attorney, Las Cruces, New Mexico, with him on the briefs), Office of the United States Attorney, Albuquerque, New Mexico, for Respondents-Appellees. _________________________________ Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges. _________________________________ LUCERO, Circuit Judge. _________________________________ Abraham Gonzalez-Alarcon filed a habeas petition under 28 U.S.C. § 2241 alleging specific facts which, if proven, would demonstrate that he is a United States citizen. He seeks release from custody from Immigration and Customs Enforcement (“ICE”) following ICE’s reinstatement of a prior order of removal on that basis. Dismissing Gonzalez-Alarcon’s petition, the district court concluded that he was required to exhaust administrative remedies, jurisdiction was barred by the REAL ID Act, and the petition for review process is an adequate substitute for habeas such that the REAL ID Act’s jurisdiction-stripping provisions do not offend the Suspension Clause. We conclude that the exhaustion provision at issue, 8 U.S.C. § 1252(d), does not govern facially valid citizenship claims. That subsection applies only to aliens. And because district courts have jurisdiction to determine their own jurisdiction, a court must first consider whether a petitioner is in fact an alien before requiring exhaustion. If a petitioner is a citizen, the provision does not apply. We further hold that the REAL ID Act’s jurisdiction-stripping provisions raise serious Suspension Clause concerns in one limited context. With respect to a United States citizen subject to a reinstated order of removal for whom the deadline to seek judicial review has passed, the REAL ID Act appears to bar federal court review. These restrictions would effectively strip citizenship from those who do not clear various procedural hurdles. Citizenship cannot be relinquished through mere neglect. Afroyim v. Rusk, 387 U.S. 253, 268 (1967). And “[t]he very nature of the writ demands that it be administered with the initiative and flexibility essential to insure 2 that miscarriages of justice within its reach are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969). Under the Suspension Clause, Gonzalez-Alarcon must be granted some path to advance his facially valid claim of citizenship in federal court. Before permitting Gonzalez-Alarcon to proceed under the Great Writ, however, we conclude he should first attempt to obtain review of his citizenship claim through the REAL ID Act. In a similar case, the Ninth Circuit held that a habeas petitioner should file a motion to reopen his ...
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