PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 19-1481 _______________ UNITED STATES OF AMERICA v. EUPHREM KIOS DOHOU, Appellant _______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:16-cr-00065-001) District Judge: Honorable Robert D. Mariani _______________ Argued: November 13, 2019 Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges (Filed: January 28, 2020) _______________ Quin M. Sorenson [ARGUED] Office of Federal Public Defender 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Counsel for Appellant Michelle L. Olshefski [ARGUED] Office of United States Attorney 235 North Washington Avenue, Suite 311 P.O. Box 309 Scranton, PA 18503 David J. Freed Joanne M. Sanderson Office of United States Attorney 228 Walnut Street, PO Box 11754 220 Federal Building and Courthouse Harrisburg, PA 17108 Counsel for Appellee _________________ OPINION OF THE COURT _________________ BIBAS, Circuit Judge. Immigration judges’ decisions are presumptively subject to review by Article III courts. Euphrem Kios Dohou never peti- tioned for review of his final removal order. But now that he is being criminally prosecuted for hindering removal based on 2 that order, he seeks to attack it collaterally. The Government responds that the District Court lacked jurisdiction to decide that collateral challenge. And the District Court agreed. We disagree. We hold that a removal order that was never in fact reviewed by an Article III judge remains subject to col- lateral 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 or- der; 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 re- quires factfinding. The District Court must also decide whether a statutory- or prudential-exhaustion doctrine bars relief. So we will also remand. I. BACKGROUND In 1992, Dohou came from Benin to the United States on a visitor’s visa. He became a lawful permanent resident a few years later. More than a decade after that, he was convicted of conspiring to traffic marijuana. That crime is an aggravated fel- ony, which made him removable. When Dohou was released from prison in 2015, the Depart- ment of Homeland Security began removal proceedings. To start the process, it served him with a notice to appear before 3 an immigration judge at a date and time to be set later. He then hired an immigration lawyer. After a hearing, the immigration judge ordered Dohou removed to Benin. He never appealed to the Board of Immigration Appeals, or filed a petition for re- view in the appropriate court of appeals. Federal agents repeatedly tried to take Dohou to the airport to remove him. ...
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