Photo: Diego M. Radzinschi/ALM

A federal appeals court has ruled that an African immigrant facing deportation over a drug trafficking conviction cannot be removed until his ineffective assistance of counsel claim has been addressed.

The U.S. Court of Appeals for the Third Circuit on Tuesday vacated a Middle District of Pennsylvania judge's ruling that it did not have jurisdiction to review petitioner Euphrem Dohou's removal order. In addition to his ineffective counsel claim, Dohou challenged claims that he resisted agents' attempts to deport him.

Third Circuit Judge Stephanos Bibas wrote in the court's precedential Tuesday opinion that the district court had jurisdiction over the issue, but noted that a finding of whether Dohou's administrative remedies were exhausted had to be made.

"Before remanding, we confront an unsettled question of law. Under 8 U.S.C. Section 1326(d), an alien must clear three hurdles before collaterally attacking a removal order when prosecuted for illegal reentry," Bibas said. "He must (1) 'exhaust[] any administrative remedies that may have been available to seek relief against the order'; (2) show that his removal proceedings 'improperly deprived [him] of the opportunity for judicial review'; and (3) show that 'the entry of the [removal] order was fundamentally unfair.' Do these same three hurdles apply to Section 1252(b)(7) as well, even though that provision does not specify them?"

Bibas said that was not for the Third Circuit to decide at the moment, since a federal court had not yet reviewed Dohou's claims.

"No Article III court has yet reviewed the validity of Dohou's removal order, so it has never been 'judicially decided.' Under 8 U.S.C. Section 1252(b)(7), he can thus collaterally attack it in his hindering-removal prosecution. Also, Section 1252(a)(2)(C) poses no bar to his collateral attack: it lacks the broad language of other jurisdiction-stripping provisions, and the presumption of judicial review also favors reading it narrowly," Bibas said.

"So we will vacate the district court's finding that it lacked jurisdiction and remand Dohou's ineffective-assistance claim," Bibas continued. "On remand, the district court must find facts and decide whether Dohou's immigration lawyer provided ineffective assistance, making his removal order (and thus his criminal prosecution based on it) fundamentally unfair. It must also consider whether the statute requires exhaustion, whether prudentially to require exhaustion, and if so whether that violation was clear enough to excuse prudential exhaustion."

The U.S. Attorney's Office for the Middle District of Pennsylvania did not respond for a request for comment.

Quin M. Sorenson of the Office of the Federal Public Defender in the Middle District of Pennsylvania represents Dohou and declined to comment.