Lin Zhong v. United States Department of Justice, & Attorney General Gonzales

DENNIS JACOBS, Chief Judge, with whom JOSÉ A. CABRANES and REENA RAGGI, Circuit Judges,

concur, dissenting from the denial of rehearing in banc.

“A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right .... ” 8 U.S.C. § 1252(d)(1). Thus Congress foreclosed our review of challenges that an alien failed to present at the agency’s factfind-ing and appellate levels. The majority of a divided panel says that we can reaeh unex-hausted issues nevertheless — subject only to our discretion and to the spongy test of…